Sidebilder
PDF
ePub
[ocr errors]

in the top of said tunnels for ven- public. That they were simply tilation thereof, and the city en- ornamented grounds enclosed with closed a certain space around the iron railings tending more to beauopenings so made with a railing tify the avenue itself than to proand planted shrubs and flowers mote any other object. That they therein. The relator claimed that did not appear to have been benethe assessinent sought to be re- fited in the least by the pavement, viewed was erroneous because the but they themselves were rather a pavement was required to be laid benefit to the pavement by enin concrete cement in order to pro- | hancing and increasing the attractect the roof of the said tunnels tions of the avenue. That in no and that a portion of the expense legal sense were they such propshould, therefore, have been as- erty as could be made, under sessed upon the railway companies the statute, to bear a part of the using the same. He also claimed expense of this pavement. that an assessment should have In re Turfler, 44 Barb., 46, disbeen imposed upon the mayor, tinguished. etc., in respect of the parks in the Proceedings of assessors af. centre of the avenue.

firmed. The relator was heard by the Opinion by Daniels, J.; Brady, assessors in opposition to the as- J., concurs. sessment, and proof was produced before them in answer to relator's

APPEAL. JURISDICTION. objections showing, to their satisfaction, that the laying of the N. Y. COURT OF APPEALS. pavement in concrete was not

Wiedmer v. The N. Y. Elevated necessary for the preservation of RR. Co. the roof of the tunnels, but was

Decided Oct. 12, 1886. required for other reasons.

Truman H. Baldwin, for rela- An order setting aside verdict and for a tor.

new trial was reversed by the General

Term, and thereafter judgment was enAlbert L. Cole, for respts.

tered on the verdict. Held, That the Held, That it was not proved Court of Appeals had jurisdiction of an that the railroad companies were appeal from such judgment and the order benefited by the improvement,

of reversal. and without being benefited they This was a motion to dismiss an were not liable to be assessed for appeal. The case was tried at any portion of the expense, for Circuit and a verdict rendered for that, by the law, was required to plaintiff. The trial judge at the be borne by the property alone same time granted a motion upon benefited by the pavement. 85 N. the minutes to set aside the verY., 307.

dict and for a new trial. Plaintiff That the so-called parks were appealed from this order to the not constructed in such a manner General Term, where after arguas to be useful and beneficial to the ment it was reversed. Thereafter, on July 21, 1886, a judgment in charged and the recrimination

a favor of plaintiff was entered on charges untrue, and ordered a the verdict. Defendant then served judgment for plaintiff.

. Before a notice of appeal from this judg. the trial the court upon defendment and also from the order of ant's motion made her allowance reversal. This motion is made on besides alimony of $1,000 for counthe ground that this court has no sel fees and other expenses, which jurisdiction.

allowance plaintiff paid. After David Levy, for motion.

the report of the referee, plaintiff Howard Townsend, opposed. moved for judgment thereon, and

Held, Untenable; that this court defendant moved for a further alhas jurisdiction. 39 N. Y., 369; lowance to pay her expenses and 11 How., 181.

counsel fees incurred in the defense Motion denied.

of the action, and all plaintiff's Opinion by Danforth, J. All proceedings were stayed until her concur.

motion was heard and determined.

Plaintiff did not claim that she DIVORCE. ALIMONY.

needed any allowance to oppose N. Y. COURT OF APPEALS.

the motion for judgment, her sole

claim being that she needed it to Beadleston, applt., v. Beadleston, pay the expenses theretofore inrespt.

curred, and for that purpose the Decided Oct. 29, 1886.

Special Term granted her an allow

ance of $3,500; this, on appeal to While the court has power to make allowances to enable a wife to carry on her de

the General Term, was reduced to fense to an action for divorce, she must $2,500. The allowance was not apply for it when she needs it ; where claimed at any time or granted on she has made her defense from her own

the ground that it was necessary means or upon her own credit there is no authority in the court to grant her an

to enable defendant to carry on allowance for such past expenses.

her defense. An allowance may be made to a wife dur- Samuel Untermeyer, for applt. ing the pendency of an action for divorce,

Eugene D. Hawkins, for respt. for some past expense, if it is shown that the payment was necessary to enable her

Held, That the allowance was to carry on the action or "her defense; unauthorized ; that the section of

but such fact was not shown in this case. the Code (1769) providing for an Reversing S. C., 24 W. Dig., 221.

allowance during the pendency of This action was brought by an action for divorce, is designed plaintiff to procure an absolute to furnish the wife means to divorce from defendant. She re- carry on her action or to defend criminated in her answer and de- the same during the pendency nied the charges made against her. thereof. The allowance looks to The cause was referred and the the future, and there can be no nereferee after hearing the evidence cessity for such an allowance to made a report wherein he found make a defense which has already defendant guilty of the adultery | been made or solely to pay ex

penses already incurred. There is ample power in the court to make allowances from time to time to enable a wife to carry on her defense, and when she needs money for that purpose she must apply for it, but if she has succeeded in making her defense from her own means or upon her own credit she cannot before judgment while the action is pending have an order compelling her husband to pay such expenses, and there is no statutory authority in the court to make such an order and thus to compel him to pay her debts.

An allowance might be made to a wife, during the pendency of an action for divorce, for some past expense, if it were shown that the payment was necessary to enable her to carry on the action or her defense thereto.

Order of General Term, affirming order of Special Term granting motion, reversed, and motion denied.

Opinion by Earl, J. All concur, except Ruger, Ch. J., and Danforth, J., dissenting.

*

*

queath one of such portions to my two sons, F. S. B. and J. K. B. in trust to invest and keep the same invested in such securities as prudent men invest their own funds in for the purpose of securing steady income, and to receive the income and interest thereof for and during the natural life of my wife M A. B. At the expiration of every twelve months they are to pay to my said wife, out of said income, such a sum as may be necessary to make her total income during said twelve months, after taking into account the income derived from her own separate estate and from her dower in my real estate, equal to twelve thousand dollars, * * * and subject to the said trusts the principal of said fund is given, devised and bequeathed to my said sons F. S. B. and J. K. B. As to the other two of the three equal parts into which my estate is hereby directed to be divided, I give, devise and bequeath one of such two parts to my son F. S. B. and the other to my son J. K. B.

but the shares of my estate hereby given to my said sons are charged with annuities from the date of my decease as follows:

These annuities are not a charge upon real estate, nor are they to restrict or encumber the transfer or alienation of real estate, but they are a personal obligation upon my said two legatees equally." Held, That the amount directed to be paid to the testator's widow to bring her annual income up to $12,000 was not a charge upon the testator's real estate, and that a deed signed by the testator's two sons F. S. B. and J. K. B. individually, and release of dower by the testator's widow, was sufficient to convey the fee of said real property.

Case agreed upon and submitted without controversy.

The will of F. N. B., after bequeathing certain legacies, contained the following provisions : "All the rest, residue, and remainder of my estate, real and personal, shall be divided into three equal portions. * * I give, devise and bequeath one of such portions to my two sons F. S. B. and J. K.

*

*

a

[blocks in formation]

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT. Francis S. Bangs, individually and as trustee, et al., plffs., v. Robert Hill, deft.

Decided Oct. 15, 1886. The will of testator, after bequeathing cer

tain legacies, contained the following provisions : “ All the rest, residue, and remainder of my estate, real and personal, shall be divided into three equal

portions. * I give, devise and beVol. 25–No. 1a.

*

B. in trust to invest and keep the agreement, tendered to him a deed same invested in such securities as of said property signed by the tesprudent men invest their own tator's widow for the purpose of funds in for the purpose of relinquishing her right of dower, securing steady income, and to re- and by the said F. S. B. and ceive the income and interest J. K. B. individually and as thereof for and during the natural trustees under the will of the life of my wife M. A. B. At the testator. Defendant refused to expiration of every twelve months receive this deed upon the ground they are to pay to my said wife, that the payment of the specified out of said income, such a sum as

annual sum to the testator's wife may be necessary to make her was made a charge upon the real total income during said twelve estate and therefore she had an months, after taking into account interest in said real estate which the income derived from her own she was prevented by statute from separate estate and from her disposing of or assigning. dower in my real estate, equal to Bangs & Stetson, for plffs. $12,000, * * * and subject to the Theodore Fitch, for deft. said trusts, the privcipal of said Held, That whether or not a fund is given, devised and be legacy is a charge upon real estate queathed to my said sons F. S. B. is to be determined by the intenand J. K. B. As to the other two tion of the testator as derived from of the three equal parts into which the terms of the will itself as evimy estate is hereby directed to be denced by the whole will in the abdivided, I give, devise and be- sence of a particular direction in queath one of such two parts to words making such charge. 85 my son F. S. B. and the other to N. Y., 142. my son J. K. B.,

* but the That the will directed the trusshares of my estate hereby given to tees to hold the property “in trust my said sons are charged with an- to invest and keep the same innuities from the date of my de- vested in such securities as ordicease as follows: * * * These narily prudent men invest their annuities are not charged upon own funds in for the purpose of real estate, nor are they to restrict securing steady income and receive or encumber the transfer or alien- the income and interest thereof for ation of real estate, but they and during the natural life of my are a personal obligation upon my

That these are words said two legatees equally.

that one would naturally expect to The testator's sons, F. S. B. and follow a clause in the will permitJ. K. B., individually and as trus ting or directing the executors or tees, and the testator's widow, en- trustees to sell real estate and hold tered into an agreement with de- the proceeds thereof in lieu of the fendant to sell to him certain real real estate for certain purposes. property formerly belonging to the That those words do not mean the testator, and, in pursuance of said rents and profits of real estate, but

,

*

wife.

are solely technical words and of the testator and that a deed of phrases which are commonly used such real estate by his sons F. S. in speaking of the earnings of per- B. and J. K. B. individually with sonal property.

a proper release of dower by his That furthermore the will says wife M. A. B. would convey a “and subject to said trusts the valid and good title in fee simple principal of said fund is given, to the real estate. devised and bequeathed to the Judgment for plaintiff. sons last named.” That here there

Opinion by Macomber, J.; is the same recognition of the Brady and Daniels, JJ., concur.

. property as personal property. The testator does not say “subject to said trusts, the rents and in

DEMURRER. CORPORA come of said land is given,” but he

TIONS. calls it the principal of said fund. N. Y. SUPREME COURT. GENERAL That the fact that, in regard to

TERM. FIRST DEPT. the two other portions of his

Ralph L. Anderton, Jr., respt., estate, the testator directed that

v. Alfred Wolf et al., applts. the annuities charged thereon should not be a charge upon the

Decided Oct. 15, 1886. real estate, and omitted such a di

a

A demurrer to a complaint upon the ground rection in regard to the portions

that there is a defect of parties defendant

on account of the non-joinder as defenddevoted to securing the income of

ants of certain specified persons will be his wife, did not prove that, in the overruled unless all of such specified perlatter case, he intended the provi- sons should have been joined as defendsion for his wife to be a charge upon

ants. Such a demurrer cannot be sus.

tained in part and overruled in part. the real property, for the testator

In order to sustain a demurrer for a defect did not, in terms, charge the part

of parties, it must appear that the party so held in trust for his wife demurring has an interest in having the with the payment of any sum of

omitted parties joined, or that he is preju

diced by the non-joinder. money for her benefit, while in the

A demurrer alleging that causes of action case of the two other portions he have been improperly united “because in words says : “But the shares the causes of action set forth, except one, in my estate hereby given to my

do not severally affect the demurring de

fendant; because it appears upon the said sons F. S. B. and J. K. B. I

face of the complaint that said causes of charge with annuities from the

action do not belong to any one of the date of my decease as follows-," subdivisions of $ 484, Code Civ. Pro., but That if that stood alone without

belong to different subdivisions thereof;

because causes of action upon claims the special declaration that it

not arising out of the same transaction should not be a charge upon the or transactions connected with the same real estate those annuities would subject of action are included in the be a burden upon such real estate. complaint; and because legal and equitThat the trust created in favor

able actions not referring to the same

persons or subject matter are united in of testator's wife was not there

said complaint," does not comply with fore a charge upon the real estate

the provisions of the Code Civ. Pro.

« ForrigeFortsett »