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TOWN-Action by a sub-contractor upon a town hall, who has done the work
at a loss which the town meeting has authorized the town to pay the failure to
allege that any part of the proceeds of bonds issued to raise money to pay for
the town hall remains in the hands of the town board renders the complaint,
in an action to recover the amount, demurrable — remedy, when by certiorari.]
The complaint in an action brought against a town alleged that the Legisla-
ture had authorized the town to issue bonds in an amount not exceeding
$8,000, for the purpose of purchasing a site and erecting a town hall
thereon; that the bonds were issued and sold at not less than par and that the
town board entered into a contract with a firm for the construction of the
town hall for the agreed sum of $6,820; that the firm sublet a part of the work
to the plaintiff, and that he performed such work at a loss of $134 besides
the value of his own services for 104 days; that thereafter a resolution was
adopted at a town meeting authorizing the town to pay the plaintiff $100
as additional compensation to reimburse him in part for his loss; that the
amount was due and payable and that no part of the same had ever been
paid.
Judgment was demanded for the sum of $100 and interest. The complaint
did not allege whether the town board had in its hands any of the $8,000
fund unexpended.
Held, that, even if the plaintiff's claim was a valid one, the complaint
was demurrable;
That, if the town board had in its hands sufficient of the $8,000 fund unex-
pended with which to pay the plaintiff's claim and had refused to apply it for
that purpose, it was possible that an action would lie against the town under
section 182 of the Town Law (Laws of 1890, chap. 569);
That, assuming that all of the $8,000 fund had been expended, the plaintiff's
sole remedy was to present the claim to the town board for audit, and, in the
event of the town board disallowing or reducing the amount thereof, to
review their determination by certiorari. BRAGG v. TOWN OF VICTOR.......
Town board of health-its duty to furnish care to persons afflicted
with smallpox-the expense of a physician's services is a town charge.
PEOPLE EX REL. LESTER v. ENO..
TRESPASS — Negligence — duty of a railroad company to prevent a culvert
from sinking and causing the water to flow on the land of an adjacent owner —
damage and injunction granted.
See CORWIN v. ERIE RAILROAD Co....
TRIAL When the finding of a trial court as to a reasonable time for the fur-
nishing of services under a contract will not be disturbed on appeal.
Default opened upon payment of costs-proceeding to a trial without
taking the objection that the costs have not been paid is a waiver thereof.
See DOUT. BROOKLYN HEIGHTS R. R. Co.....
Qualifications required of an expert — they are to be determined by the
trial judge, subject to review by the Appellate Division.
See ELLIS v. THOMAS.
Question as to the number of votes indicated by a voting machine, when
one for the jury.
See PEOPLE EX REL. MILLER v. DICK.
Charge that if a witness is believed the jury must find that the waiver is
See WOAKMS v. BECKER.....
Request to charge a proposition which has been already inferentially
When a verdict for a nurse's services will be set aside as excessive.
See CUNNINGHAM v. HEWITT....
When the question whether the goods accord with sample is for the jury.
See HARDT v. WESTERN ELECTRIC Co....
What constitutes a submission of questions of fact to the trial judge.
See CULLINAN v. FIDELITY & C. Co. (STEIN CERT.).....
Negligence when the complaint may be dismissed by the court.
See WALTERS v. SYRACUSE RAPID TRANSIT R. Co....
Under the Civil Service Law - it may be conducted by a deputy.
See PEOPLE EX REL. DE VRIES . HAMILTON..
Verdict in negligence cases.
TRUST-Examination before trial-action by a judgment creditor to secure
part of the income of a trust fund.] 1. In an action brought by a judgment
creditor of the beneficiary of a trust, created by will, who was entitled to so
much of the income of the trust fund as would suitably maintain and sup-
port him, to have a portion of the income of the trust fund applied toward
the payment of the judgment, the plaintiff is entitled to examine the defend-
ant trustees before trial in order to ascertain the extent and amount of the
income of the trust fund as well as the surplus, if any, which has accumu
lated during the period of their trusteeship and also to ascertain in whose
possession the books and papers relating to the trust estate are.
CORN EXCHANGE BANK v. LORILLARD
2. Right to examine all of the trustees as to the trust income.] This
right of examination extends to all the trustees, where it appears that they
have been appointed at different times and no suggestion is made that all the
facts which the plaintiff seeks to ascertain can be established by any one of
them. Id.
3. Income of a trust fund in excess of the amount required for the educa-
tion and support of the beneficiary—what creditor may sue for it.] Section 78
of the Real Property Law (Laws of 1896, chap. 547), providing that where a
trust is created in the rents and profits of real property and no valid direc-
tion for accumulation is given, the surplus of such rents and profits beyond
the sum necessary for the education and support of the beneficiary, shall be
liable to the claims of the beneficiary's creditors in the same manner as other
personal property which cannot be reached by execution, is only available
to judgment creditors of the beneficiary who have exhausted their remedies
at law. BUTLER v. BAUDOUINE...
An action to recover the surplus incone cannot be maintained by a
trustee in bankruptcy.] The beneficiary's trustee in bankruptcy, who, under
the 5th paragraph of subdivision a of section 70 of the Bankruptcy Act, is
vested with all the estate and property of the bankrupt, "which, prior to
the filing of the petition, he could by any means have transferred or which
might have been levied upon and sold under judicial process against him," is
not entitled to maintain an action under section 78 of the Real Property Law
to reach the surplus income of the trust estate. Id.
Section 78 of the Real Property Law applies to personal property.]
Semble, that the provisions of section 78 of the Real Property Law apply to
personal property as well as to real property. Id.
Surety upon the bond of a defaulting trustee-he can be cited
under section 2728 of the Code of Civil Procedure only on a voluntary
accounting under section 2605 the trustee may be cited to account although
letters testamentary to him have not been revoked-an order of removal is a
revocation of the letters the accounting binds the surety although he is
not a party thereto. MATTER OF STORM..
See PRINCIPAL AND SURETY.
To pay the income of a fund to three children and, upon the death of
two, to pay the corpus to the survivor-it cannot be terminated by a release
by the beneficiaries to themselves as remaindermen. THALL v. DREYFUS... 569
See WILL.
Real estate conveyed in trust to apply the profits to the use of the
grantor the beneficiary may mortgage her interest by a mortgage simply
describing the land by metes and bounds. RAYMOND v. HARRIS.
Power of sale given for the execution of a trust when the trustee is
incompetent to execute it.
- As to trusts created by will.
TRUSTEE- Of a corporation.
See CORPORATION.
ULTRA VIRES:
See CORPORATION.
UNDERTAKING - Other than on appeal.
See BOND.
UNITED STATES CONSTITUTION:
See CONSTITUTIONAL LAW.
UNITED STATES REVISED STATUTES:
[See table of United States Revised Statutes cited, ante, in this volume.]
UNITED STATES STATUTES AT LARGE:
[See table of United States Statutes at Large cited, ante, in this volume.]
USE AND OCCUPATION-Action for.
VENDOR AND PURCHASER-Specific performance-defects in a title
cured by an amendment of a petition for the appointment of a guardian ad
litem and of the venue of an affidavit used therefor, nunc pro tunc - parol
evidence is admissible to correct the defects-proper form of correction
nunc pro tunc- the mere filing of a lis pendens does not affect a title - an
affidavit taken by an attorney of record is not void - verification of a peti-
tion for the appointment of a guardian ad litem — in equity the vendee will
be required to take a title cured after the day fixed for performance - at law
he will not-judicial sales distinguished from private sales.
BAUMEISTER v. DEMUTH...
See SPECIFIC PERFORMANCE.
Contempt — a purchaser at a judicial sale who refuses to complete the
purchase is punishable as for a contempt-the fact that an execution might
issue is not a bar thereto -nor the fact that a resale is ordered-effect of
the modification on appeal of the order under which contempt proceedings
were instituted. ROWLEY v. FELDMAN...
the fee thereof passes under a conveyance by the State
of New York of land described as bounded on the street-it is otherwise in
case of a conveyance by the city in which the street is.
Patents executed by Dutch governors of the colony of New York
effect, on the title to streets then in existence, of confirmatory patents exe-
cuted by English governors. PAIGE v. SCHENECTADY RAILWAY Co........ 91
See DEED.
VOTING MACHINE — Question as to the number of votes indicated.
Default opened upon payment of costs-proceeding to a trial
without taking the objection that the costs have not been paid is a waiver thereof
— right of parties to waive statutory or constitutional provisions.
See DOUT. BROOKLYN HEIGHTS R. R. Co..
By an employee of the city of New York of any claim for compensation
for services rendered by him as a notary public to the city.
See HUGHES v. MAYOR OF NEW YORK..
Clear proof required to establish a waiver of the provisions of a written
contract when the waiver is a question for the jury.
Of the defense of another action pending for the same cause.
See HIRSH v. MANHATTAN RAILWAY CO...
On sales of personal property.
WATER COMPANY - Powers of.
See CORPORATION.
WATERCOURSE - Negligence-duty of a railroad company to prevent
a culvert from sinking and causing the water to flow on the land of an adja-
cent owner- damages and injunction granted.
CORWIN . ERIE RAILROAD CO.
See NEGLIGENCE.
Riparian owner-diversion of a very small percentage of water from
a stream, for municipal purposes, enjoined stay until the right thereto can
be condemned. PENRHYN SLATE Co. v. GRANVILLE EL. L. Co....
See RIPARIAN RIGHT.
WATER METER - In the city of New York-test of.
See MUNICIPAL CORPORATION.
WILL- Gift to a widow of the income "and as much of the principal as she
thinks proper" for her support and the care of an incompetent son—the widow's
rights defined accounting by the widow as executrix-right of a residuary
legatee to require a supplemental account.] 1. Thomas Hunt, who was sur-
vived by his widow, Ruth Hunt, and by his son Chauncey, who, during
his entire life, had been of unsound mind, left a will, providing, "I give
and bequeath to my wife, Ruth Hunt, the income of all my estate, both
real and personal, wheresoever it may be situated or located and as much
of the principal as she thinks proper for her support and for the care which
she shall give to our son Chauncey, with the privilege to dispose of the
real estate if my wife thinks best to do so." Upon the decease of his said
wife he gave such rest, residue and remainder to Ira Gifford and Allen
Rathbun in trust for the care of the son, and upon his widow's death
and the death of his son he gave the balance of the estate then remaining
to the said Ira Gifford and Allen Rathbun. The widow was appointed
executrix.
Subsequent to the testator's death, the widow, who at the time the will
was made was about seventy-two years of age, instituted a proceeding for a
judicial settlement of her accounts as executrix, making the residuary legatee,
Allen Rathbun, a party to the proceeding. In her account she charged her-
self with money received from the estate amounting to $47,473.93, and
credited herself with various items aggregating $31,009.61, showing a
balance in her hands of only $16,226.32.
Upon an appeal by the executrix from an order made at Rathbun's
instance, directing her to file a supplemental account showing in detail her
transactions with the principal of the estate, an itemized statement of all
the income received and a statement in detail of all the payments made for
the benefit of her son and for her own support, it was
Held, that the will did not confer on the testator's widow the absolute
title, if she chose to accept it, to all the testator's estate;
That the income, and so much of the principal as she thought proper,
were both given to her for the specific purposes mentioned in the will, to
wit, for her own support and that of her son;
That as long as her expenditures of principal and income were fairly
included within those purposes, they could not be questioned, but that
she had no power to divert the income of the estate from the specific pur-
poses mentioned in the will, and thereby make it necessary to resort to the
principal for the accomplishment of those purposes;
That, under the circumstances, it was proper for the surrogate to make the
order appealed from, in order that it might be ascertained whether any part
of the estate had been diverted from the purposes specified in the will;
That Rathbun's contingent interest as a residuary legatee under the
will was sufficient to entitle him to ask for a supplemental accounting
by the executrix. MATTER OF HUNT...
2. Trust to pay the income of a fund to three children and, upon the
death of two, to pay the corpus to the survivor - it cannot be terminated by a
release by the beneficiaries to themselves as remaindermen.] A testatrix devised
her residuary estate to trustees, "in trust nevertheless for the benefit of my
children, William J. Thall, Jennie Thall and Mamie S. Andresen, the income
of said estate to be paid to them during their life; should either one of
them die before the other then his or her share of the income of my estate
is to go to those surviving and u on the death of two of them then the said
trust shall cease and the whole of my said estate is to go to the survivor for
his or her own sole use and benefit forever. The income, however, is to
be paid to my said children share and share alike."
The testatrix was survived by the three children designated, and they,
together with a granddaughter, were the only persons who, at the time of the
testatrix's death, answered the description of heirs at law.
After the testatrix's death, the three children of the testatrix conveyed the
residuary estate derived by them under the will to one Paynter, and the lat-
ter, on the same day, reconveyed such estate to them.
Thereafter the children of the testatrix and the trustees named in the will
assumed to convey to the beneficiaries all the residuary estate, for the pur-
pose, as stated in the conveyance, of merging the trust estate in the
remainder. The attempt to merge the trust estate in the remainder was
made pursuant to section 83 of the Real Property Law (Laws of 1896, chap.
547) and section 3 of the Personal Property Law (Laws of 1897, chap. 417)
which provide in substance that whenever a person beneficially interested in
the income of a trust created for the receipt of the rents and profits of lands
or the income of personal property, shall or may be or become entitled in
his own right to the remainder in the principal fund so held in trust, it shall
be lawful for such person to make and execute a conveyance or release
whereby such person shall convey or release to himself all his right, title
and interest in and to the income of such trust estate, and thereupon the
estate of the trustee as to the principal fund so held in trust shall cease and
determine, and the trust estate shall be and become forthwith merged in
such remainder.
Held, that the court would not compel a party, who had entered into a
contract with the testatrix's three children to purchase a portion of the
residuary real estate, to specifically perform his contract;
That the statutes authorizing the merger of trust estates only apply to an
expectant estate to which the remainderman is so far "entitled" that his
interest is beyond the possibility of being lessened or defeated in the
future;
That the interest of the testatrix's three children in the remainder was
not of such a nature, as, if all of them or the two last survivors should die
simultaneously, a contingency remote but not impossible, the provision for
survivorship would be defeated and the remainder would pass by inher-
itance. THALL V. DREYFUS..
3. Where the beneficiary and a third person are appointed trustees and the
latter refuses to qualify the former is incompetent to execute the trust or a power
of sale given for the purposes thereof.] The will of a testator provided as
follows: 4. The remainder of all my property, real and personal, and
wheresoever situated, I give, devise and bequeath to my executors herein-
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