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in the top of said tunnels for ventilation thereof, and the city enclosed a certain space around the openings so made with a railing and planted shrubs and flowers therein. The relator claimed that the assessinent sought to be reviewed was erroneous because the pavement was required to be laid in concrete cement in order to protect the roof of the said tunnels and that a portion of the expense should, therefore, have been assessed upon the railway companies using the same. He also claimed that an assessment should have been imposed upon the mayor, etc., in respect of the parks in the centre of the avenue.

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The relator was heard by the assessors in opposition to the assessment, and proof was produced before them in answer to relator's objections showing, to their satisfaction, that the laying of the pavement in concrete was not necessary for the preservation of the roof of the tunnels, but was required for other reasons.

Truman H. Baldwin, for rela

tor.

Albert L. Cole, for respts.

Held, That it was not proved that the railroad companies were benefited by the improvement, and without being benefited they were not liable to be assessed for any portion of the expense, for that, by the law, was required to be borne by the property alone benefited by the pavement. 85 N. Y., 307.

That the so-called parks were not constructed in such a manner as to be useful and beneficial to the

public. That they were simply ornamented grounds enclosed with iron railings tending more to beautify the avenue itself than to promote any other object. That they did not appear to have been benefited in the least by the pavement, but they themselves were rather a benefit to the pavement by enhancing and increasing the attractions of the avenue. That in no legal sense were they such property as could be made, under the statute, to bear a part of the expense of this pavement.

In re Turfler, 44 Barb., 46, distinguished.

Proceedings of assessors af

firmed.

Opinion by Daniels, J.; Brady, J., concurs.

APPEAL.

JURISDICTION.

N. Y. COURT OF APPEALS. Wiedmer v. The N. Y. Elevated RR. Co.

Decided Oct. 12, 1886.

An order setting aside verdict and for a new trial was reversed by the General Term, and thereafter judgment was entered on the verdict. Held, That the Court of Appeals had jurisdiction of an appeal from such judgment and the order of reversal.

This was a motion to dismiss an appeal. The case was tried at Circuit and a verdict rendered for plaintiff. The trial judge at the same time granted a motion upon the minutes to set aside the verdict and for a new trial. Plaintiff appealed from this order to the General Term, where after argument it was reversed. Thereafter,

on July 21, 1886, a judgment in favor of plaintiff was entered on the verdict. Defendant then served a notice of appeal from this judgment and also from the order of reversal. This motion is made on the ground that this court has no jurisdiction.

David Levy, for motion. Howard Townsend, opposed. Held, Untenable; that this court has jurisdiction. 39 N. Y., 369; 11 How., 181.

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the report of the referee, plaintiff moved for judgment thereon, and defendant moved for a further allowance to pay her expenses and counsel fees incurred in the defense of the action, and all plaintiff's All proceedings were stayed until her motion was heard and determined. Plaintiff did not claim that she needed any allowance to oppose the motion for judgment, her sole claim being that she needed it to pay the expenses theretofore incurred, and for that purpose the Special Term granted her an allowance of $3,500; this, on appeal to the General Term, was reduced to $2,500. The allowance was not claimed at any time or granted on the ground that it was necessary to enable defendant to carry on her defense.

Beadleston, applt., v. Beadleston, respt.

Decided Oct. 29, 1886.

While the court has power to make allow-
ances to enable a wife to carry on her de-
fense to an action for divorce, she must
apply for it when she needs it; where
she has made her defense from her own
means or upon her own credit there is
no authority in the court to grant her an
allowance for such past expenses.
An allowance may be made to a wife dur-
ing the pendency of an action for divorce,
for some past expense, if it is shown that
the payment was necessary to enable her
to carry on the action or "her defense;
but such fact was not shown in this case.
Reversing S. C., 24 W. Dig., 221.

This action was brought by plaintiff to procure an absolute divorce from defendant. She recriminated in her answer and denied the charges made against her. The cause was referred and the referee after hearing the evidence made a report wherein he found defendant guilty of the adultery

Samuel Untermeyer, for applt. Eugene D. Hawkins, for respt. Held, That the allowance was unauthorized; that the section of the Code (§ 1769) providing for an allowance during the pendency of an action for divorce, is designed to furnish the wife means to carry on her action or to defend the same during the pendency thereof. The allowance looks to the future, and there can be no necessity for such an allowance to make a defense which has already 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.

WILLS. ANNUITIES.

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 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 beVol. 25-No. 1a.

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.

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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 $12,000, *** 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 charged 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.

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The testator's sons, F. S. B. and J. K. B., individually and as trustees, and the testator's widow, entered into an agreement with defendant to sell to him certain real property formerly belonging to the testator, and, in pursuance of said

agreement, tendered to him a deed of said property signed by the testator's widow for the purpose of relinquishing her right of dower, and by the said F. S. B. and J. K. B. individually and as trustees under the will of the testator. Defendant refused to receive this deed upon the ground that the payment of the specified annual sum to the testator's wife was made a charge upon the real estate and therefore she had an interest in said real estate which she was prevented by statute from disposing of or assigning.

Bangs & Stetson, for plffs.
Theodore Fitch, for deft.

Held, That whether or not a legacy is a charge upon real estate is to be determined by the intention of the testator as derived from the terms of the will itself as evidenced by the whole will in the absence of a particular direction in words making such charge. 85 N. Y., 142.

That the will directed the trustees to hold the property "in trust to invest and keep the same invested in such securities as ordinarily prudent men invest their own funds in for the purpose of securing steady income and receive the income and interest thereof for and during the natural life of my wife." That these are words that one would naturally expect to follow a clause in the will permitting or directing the executors or trustees to sell real estate and hold the proceeds thereof in lieu of the real estate for certain purposes. That those words do not mean the rents and profits of real estate, but

are solely technical words and phrases which are commonly used in speaking of the earnings of personal property.

That furthermore the will says "and subject to said trusts the principal of said fund is given, devised and bequeathed to the sons last named." That here there is the same recognition of the property as personal property. The testator does not say "subject to said trusts, the rents and income of said land is given," but he calls it the principal of said fund.

That the fact that, in regard to the two other portions of his estate, the testator directed that the annuities charged thereon should not be a charge upon the real estate, and omitted such a direction in regard to the portions devoted to securing the income of his wife, did not prove that, in the latter case, he intended the provision for his wife to be a charge upon the real property, for the testator did not, in terms, charge the part so held in trust for his wife with the payment of any sum of money for her benefit, while in the case of the two other portions he in words says: 66 'But the shares in my estate hereby given to my said sons F. S. B. and J. K. B. I charge with annuities from the date of my decease as follows-." That if that stood alone without the special declaration that it should not be a charge upon the real estate those annuities would be a burden upon such real estate.

That the trust created in favor of testator's wife was not therefore a charge upon the real estate

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

Ralph L. Anderton, Jr., respt., v. Alfred Wolf et al., applts.

Decided Oct. 15, 1886.

A demurrer to a complaint upon the ground that there is a defect of parties defendant on account of the non-joinder as defendants of certain specified persons will be overruled unless all of such specified persons should have been joined as defendants. Such a demurrer cannot be sustained in part and overruled in part. In order to sustain a demurrer for a defect of parties, it must appear that the party demurring has an interest in having the omitted parties joined, or that he is prejudiced by the non-joinder.

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A demurrer alleging that causes of action have been improperly united 'because the causes of action set forth, except one, do not severally affect the demurring defendant; because it appears upon the face of the complaint that said causes of action do not belong to any one of the subdivisions of § 484, Code Civ. Pro., but belong to different subdivisions thereof; because causes of action upon claims not arising out of the same transaction or transactions connected with the same subject of action are included in the complaint; and because legal and equitable actions not referring to the same persons or subject matter are united in said complaint," does not comply with the provisions of the Code Civ. Pro.

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