vest in such issue, and if there was no issue it would go to his or her next of kin. 13 N. Y., 273; 16 id., 83. Judgment of General Term, affirming judgment sustaining the validity of the will, affirmed. Opinion by Andrews, Ch. J. All concur. Charles M. Earle, for applt. Held, That the verdict is not the subject of review here. 19 N. Y., 207; 20 id., 251. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Danforth, J. All 'concur. PRACTICE. N. Y. COURT OF APPEALS. Groth, respt., v. Washburn, applt. Decided May 30, 1882. Where the evidence is conflicting, but is all submitted to the jury under proper instructions, the verdict is not the subject of review in the Court of Appeals. This action was brought to recover damages for injuries received by plaintiff by being run over by a vehicle driven by defendant's agent. It appeared that plaintiff was lawfully crossing from one sidewalk to the other when the accident occurred. The trial judge instructed the jury that plaintiff could not recover unless she "was entirely free from negligence," or unless the accident was caused wholly by the negligence of the defendant's servant." The evi 66 dence tended strongly to show that the immediate cause of the injury was the careless or reckless conduct of the defendant's driver, or want of skill in the conduct of his horses. There was evidence tending in the other direction, but the whole was submitted to the jury. A verdict was rendered for plain tiff. NEGLIGENCE. DAMAGES. EVIDENCE. N. Y. COURT OF APPEALS. Schultz, by guardian, respt., v. The Third Ave. RR. Co., applt. Decided May 30, 1882. Where the different counts in a complaint have reference to the same accident and the same injury, and each contains an allegation of the damages incurred, the general prayer for damages must control and such allegations may be disregarded. Where each count contained an allegation of $10,000 damages, but the general prayer was for $20,000, and the court charged that plaintiff could only recover by proving the facts alleged in the first count, Held, That a verdict for $15,000. was not unauthorized. Evidence that a witness for plaintiff, who had been discharged from defendant's employ, had on another occasion tried to procure one of defendant's drivers to make a false statement as to the condition of his car, for the purpose of fixing liability on the company, is competent to prove that he was hostile in his feelings toward defendant and entertained malice towards it. Reversing S. C.. 10 W. Dig., 267. This action was brought to recover damages for injuries received by plaintiff by being knocked down and run over by one of defendant's cars. The complaint contained three counts, and alleged first, that on October 30, 1877, plaintiff got upon the rear platform of one of defendant's cars, as a passenger, for the purpose of riding down Third avenue to his home; that the conductor of the car came to him, and without asking for the fare or giving him an opportunity to pay it, violently pushed and threw him off the platform on to an adjoining track in front of the horses attached to a car coming up the avenue, and that he was knocked down, run over and severely injured, "to his damage $10,000." In the second count plaintiff alleged that on the same day he was accidentally upon the railway track, and that before he could escape he was knocked down by the horses attached to one of defendant's cars, and run over and injured, because there was a defective brake upon the car, in consequence of which it could not be stopped in time to save him from injury, and the count closes "to his damage $10,000." In the third count he alleges that on the same day he was run over and severely injured upon defendant's railway track, in consequence of the carelessness and unskillfulness of the driver of one of defendant's cars, "to his damage $10,000." The complaint concludes with a prayer for judgment for plaintiff's damages "in the premises to the amount of $20,000." The judge charged the jury that plaintiff could recover only by satisfying them that he was pushed or thrown from the car by the conductor and thus injured, as alleged in the first count of the complaint. A verdict of VOL. 15.-No. 4a. $15,000 was rendered. Defendant's counsel claimed that as the first count alleged damages for but $10,000, and the recovery was had under that count, a verdict for a larger amount was unauthorized. Samuel Hand, for applt. N. C. Moak, for respt. Held, Untenable; that the general prayer for damages at the conclusion of the complaint must control, the different counts having reference to the same accident and the same injury, the allegation of damages at the end of each count may be disregarded, the general prayer for judgment being sufficient to authorize and uphold the verdict. The variance between the complaint and the verdict is such as "the right and justice" of the matter require should be disregarded or amended. Code of Civil Procedure, § 722. It was also contended that the alleged act of the conductor in pushing and throwing plaintiff from the car was so wilful, reckless and malicious that defendant is not responsible for it. Held, Untenable. 47 N. Y., 275; 64 id., 137; 12 Hun, 435, affirmed, 76 N. Y., 593; 87 N. Y., 25. Upon the trial plaintiff and R. and M., two car drivers who had been discharged by defendant, testified that the conductor threw plaintiff off directly in front of the horses attached to a car going up the avenue, and that he was injured in that way. The conductor and another witness testified that plaintiff was not pushed or thrown off, but that he jumped off the car and ran in front of the horses and was thus injured without any fault or misconduct of the conductor. R., on cross-examination, was asked if he recollected a conversation with P., one of defendant's drivers, in which he endeavored to get such driver to say his brakes were out of order, in order to fix the company with liability. R. testified that he had never had such a conversation with P. P. was called by defendant and testified that he recollected R. approached him and had a conversation with him in reference to the brakes of his car. P..was then asked what that conversation was. This was objected to by plaintiff's counsel. Defendant's counsel then offered to prove that on another occasion, not distant from the present accident, R. tried to procure P. to make a false statement in regard to the condition of a car on defendant's road, for the proposed purpose of fixing the liability on the company, he having been discharg ed from its employ, to show malice and ill feeling on the part of R. This was objected to as immaterial, irrelevant and collateral. The objection was sustained. Held, Error; that it was competent to prove that R. was hostile in his feelings toward defendant and entertained malice towards it. 5 Denio, 106; 6 N. Y., 345; 5 Hun, 91; 24 id., 178; 9 Cush., 365; 8 Gray, 441; 26 N. H., 363; 35 Vt., 340; 7 Conn., 71; 76 N. Y., 1 Greenl. Ev. (Redf. Ed.), $ 450. Judgment of General Term, affirming judgment on verdict for N. Y. COURT OF APPEALS. Riggs et al., respts., v. Purssell, impl'd, applt. Decided May 5, 1882. Plaintiffs loaned moneys to P. to aid him in erecting a theatre to be leased to S. To secure said loan a mortgage was made to one B., who assigned it to plaintiffs and guaranteed its payment and also gave a declaration that he had no defense, &c., thereto. At the same time P. assigned to plaintiffs all the rents reserved in the lease to S. to apply on the mortgage until it was paid. A tripartite agreement between B., P. and S. was also executed, by which it was agreed that S. should pay the rents to plaintiffs and also that if S. failed to pay P. should assign his claim therefor to B. who should endorse the amount thereof on the mortgage. In an action to foreclose the mortgage it was claimed that certain unpaid rents should have been endorsed. Held, That plaintiffs did not occupy the position of assignees in such a sense that they took subject to any equities or defenses P. had at the time of the assignment; that as plaintiffs had no knowledge of the tripartite agreement it furnished no defense to the action. In 1873 the defendant P. desired to build a theatre upon land owned by him, which, when completed, was to be leased to S. B. agreed to loan P. $20,000, to aid him in building the theatre. It was afterwards arranged that plaintiffs should make the loan and a meeting was had at an attorney's office at which P. executed and delivered to S. a lease of the theatre to be erected, for a term of years, at a stipulated rent. As plaintiffs de served in the lease P. should then Thomas G. Ritch, for applt. sired the personal security of B., | case S. failed to pay the rents refor the loan, it was arranged that a bond and mortgage should be executed to B. for $20,000, and then assigned by him to plaintiffs. This was done and the assignment contained a guaranty of payment by B. At the same time he executed and delivered to plaintiffs a declaration that he had no legal or equitable defenses, off sets or counterclaims against said bond and mortgage or against the payment of the sum secured thereby. This declaration recited that it was executed for the purpose of inducing plaintiffs to accept the assignment of the bond and mortgage, and to pay the consideration money for such assignment. At the same time P. assigned to plaintiffs, as collateral security for the payment of the bond and mortgage, all the rents reserved in the lease to S., and authorized them to collect and receive the rents and apply them upon the bond and mortgage until it was fully paid and satisfied. There was also executed at the same time a tripartite agreement between B., of the first part, P., of the second part, and S., of the third part, in which it was agreed that S. should pay the rents of the theatre as they accrued, during the term of the lease, to plaintiffs as agents and trustees of B., until the rent paid amounted to the sum due upon the bond and mortgage and that B. should then discharge and satisfy the mortgage. P. agreed that the rents might be so paid, and should be regarded as if paid to him and on his account, and it was further agreed that in Held, That plaintiffs did not occupy the position of assignees of the mortgage in such a sense that they took subject to any equities or defenses P. had at the time of the assignment against B. The effect of the whole transaction is not otherwise than what it would have been if the mortgage was executed directly to plaintiffs and B. had then guaranteed the payment thereof or executed his bond as collateral thereto. Aside from the estoppel furnished by the written declaration P. could not interpose as a defense to the mortgage any defense legal or equitable which he could have interposed if the mortgage had had an inception in the hands of B. on account of money loaned by him. The court found and there was evidence to sustain the finding that plaintiffs had no knowledge whatever of the tripartite agreement. Held, That this agreement furnishes, therefore, no defense to this action. Judgment of General Term, affirming judgment in favor of plaintiffs, affirmed. Opinion by Earl, J. All concur. N. Y. COURT OF APPEALS. Marx, applt., v. McGlynn, ex'r, et al., respts. Decided March 21, 1882. Testatrix, a woman of 50, was introduced to one B., a young man and an alien, and became greatly attached to him, and upon his becoming a Roman Catholic was received into that church by the same priest. She went to Europe with B., paying his expenses, and he appeared to be attentive and grateful to her. She was of sound mind, and after her return applied to the priest who had received her into the church to procure a lawyer to draw her will, which he did. Testatrix gave directions as to her will and afterward suggested alterations which were made and the will was executed with the usual formalities. By said will she gave to her sister, who was her only surviving relative, $1,000 a year and her half of the house with reversion to B., $1,000 to the priest, who was made executor, and the income of the balance of her estate to B., at whose death the whole estate was to go to the R. C. Little Sisters of the Poor. Held, That the evidence showed that the will was not the result of undue influence; that the fact that B. was an alien did not incapacitate him from receiving the income of the estate; that he took no interest in the real estate, and that the residuary devise to the Sisters of the Poor was void as testatrix died within two months after making the will. This was an appeal from a judgment of General Term, affirming the decree of a surrogate admitting the will of M. to probate. It appeared that the will was executed with the formalities required by law. The witnesses were both men of sufficient age and intelligence, and although neither had any previous acquaintance with the testatrix they were able to tell how she conducted herself at the time the will was executed. The testatrix appeared from her letters and diaries, which were introduced. in evidence, to be of at least ordinary intelligence and education. She was treated by her sister and acquaintances as competent to take care of herself and her property. She had been brought up in the Episcopal church and attended St. Albans church, where the services were of a highly ritualistic character. She had always been a religious enthusiast, very much. attached to her church and her minister. In 1869, one B., a young man, came to this country from England. He had graduated from Oxford University, and in 1868 was ordained as a priest in the Church of England. He assisted in the services at St. Albans. The testatrix was introduced to him, she being at that time about She invited him fifty years old. to her house and they became very intimate. B. paid her great attentions and in Sept., 1870, opened an oratory, where the services were of a very eccentric character. The testatrix spent several months there and in July, 1871, went there to live. The oratory proved a failure and B. next opened a mission and the testatrix went there and remained as housekeeper until December, 1871, when she was taken sick and her sister went to her and took her home. In January, 1872, B. was received into the Roman Catholic Church, and two weeks after the testatrix was received into that church by the same priest, B. standing as her godfather. About June, 1872, she went to Europe with B., leaving her property in charge of her sis |