Decided May 26, 1876.

The interest previously accrued will The interest on money deposited by the therefore follow the principal, and form

public administrator in bunk, subject the proper subject of distribution. to the joint order of himself and the The decree was right, and should be Comptroller, and which is piid by affirmed without costs. the bank, belongs to the lawful owners of the fund, not to the City.

Opinion by Daniels, J.; Davis, P.J., The law relieving the city from paying and Brady, J. concurring.

interest after the money is deposite in the City Treasury, after the public

EVIDENCE. EXPERTS. ail ministrator has settled his account, does not change the rule.


FOURTH DEPARTMENT. Appeal from the decree of the Surrogate of the County of New York, Swartwont, respt. v. The N. Y. C. made upon the final settlement of the & II. R. R: R. Co., applt. public administrator.

Decided April, 1876. The public administrator received Evidence of experts is only necessary $32,288. 48, belonging to an intestate, when the question at issue involves a which was deposited, as the law requires, peculiar science or skill. But where in a bank designated by the city, to the

the question is one involving merely joint credit of himself and the Comp

matters of common sense, evidence of

erperts is incompetent. troller of the city of New York, While it remained on deposit interest

This was an appeal from a judgment

in favor of defendant. was allowed on it to the amount of

This action was brought for an injury $2,774.23. The heirs of the intestate sought to recover the amount of inter, to plaintiflos cattle, and on the trial the

question arose as to the construction of est as a part of the funds. Algernon S. Sullivan, in person.

à cattle.guard, and whether the conChas. II. Tweed, for Henera and

struction was proper, and on the trial oihers.

the question was asked by defendant's F. R. Coudert, for infants.

comsel, under objection, of one of its

witnesses “ whether the cattle guard Held, That there is no statute author

over which plaintiff's horse passed was ity for the ground claimed by appellant,

it proper

one.viz: That this interest belongs to the

Beardsley, Cunningham & Burcity, to recompense it for the care and

dick, for applt. preservation of the property, but that

Spriggs & Mathews, for respt. the rule of the common law prevails, and that the increase belongs, with

Held, The question was incompetent. the principal, to the beneficiaries.

The question whether the cattle.guard The statute by express terms relieves was a proper one or not was not a questhe city from the payment of interest tion of skill merely. after the public aministrator has settled

Where the manner of its construchis account, and paid the money into tion was shown, the jury was as compethe City Treasury, to await its unknow: tent to speak as any expert. No such disposition had been

Whether a cattle-guard, so construcmade of the fund previous to its pay

ted as to allow the feet of cattle and ment.

horses to pass through, is properly con


structed, can very well be determined In a codicil to the will the said testaby the jury.

tor recites that he had given his said Judgment reversed.

wife the sum of $2,000 as above, and Opinion by Mullin, P.J.

that he had also bequeathed “the remainder of his real and personal estate

to others.” No fund was designated CONSTRUCTION OF WILL.

by the testator out of which said legaN. Y. SUPREME COURT. GENERAL TERM.

cies should be paid. FOURTH DEPARTMENT.

Geo. N. Smith, for applt. Ragan, applt., v. Allen et al., respts. C. D. Adams, for respt. Decided April, 1876.

Hell, That when a testator gives Where by a will several legacies are several express legacies, and then with

left, and then the testator leaves all the rest, residue and remainder of out creating any fund or trust for their the real and personal estate to other payment, makes a general residuary parties, without creuting any express disposition of the whole estate, blendfund for payment of legacies, the ing the real and personal estate togethreal estate is charged with the lega- er in one fund, the real estate is to be cies.

charged with the legacies, upon the Appeal from judgment at Special ground that in such case the rest, resiTerm.

due, and remainder can only mean A certain specific legacy was left what remains after satisfying the preby the testator to his wife to be in lien vious legacies. (IIill on Trustees, of dower. The personal estate after p. 360; Tiffany & Ballard, on Law of payment of the debts was not sufficient Trustees, p. 305, &c.) to pay such legacy.

Judgment reversed.
The will, after providing for the pay- and Noxon, J., concurring.

Opinion by Smith, J.; Mullin, P. J., ment of the testator's debts, gives to the plaintiff (testator's wife), in lieu of

PROMISSORY NOTE. CONSIDdower, “the sum of $2,000, to be held

ERATION. “by her, and for her use, comfort, sup

N. Y. COURT OF APPEALS. “port, and maintenance, t) be invested * and controled during her natural lite,

Earl, respt., v. Peck, administrator, "as she may desire, and to spend so

&c., applt. “much of the principal and interest

Decided April 11, 1876. "thereof as may be needed for her

In an action on a note given by an SUP

intestate just before his death, mere "port, comfort, and maintenance, and

inudequacy of consideration, except 6. after her decease to be divided be

as a circumstance bearing upon the “tween her two daughters and others.” question of fraud or undue influeThe will then gives three other lega ence, is not a defense to the note. cies to different children. Then there The court is not in error in refusing

to leave to the jury, the question of was a clause as follows, viz:

the value of the services for which "I give and bequeath all the res', the note was given where the same “residue, and remainder of all my real were to be determined by the intes“and personal estate of every naine tate, as that would be, in effect, to "and kind soever, to my two daugh

deprive the intestate of his power of “ ters."


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This action was brought to recover position would, in effect, have deprived $1,000 and interest of a promissory the intestate of the power t) determine note given by defendant's intestate to the value of the services for himself, plaintiff, as alleged, for services render- which he had a right to do. d. The deceased was a physician and Judgment of General Term, affirmmade the note after he had taken by ing judgment in fa: or of plaintiff, afmistake a fatal dose of aconite. lle firmed. was conscious of his approac' ing deatlı, Opinion by Church, Ch. J. which occurred about two hows after the note was made. Plaintiff had been

EVIDENCE. OBJECTIONS. housekeeper for the deceased, who was X. Y. SUPREME Court. General Teru, a bachelor, for seven or eight years,

FOU'RTIL DEPARTMENT. and he was indebted to her for her ser

Lyng, applt. v. Boyd, respt.. vices, and the evidence intended to show that at some time during the ser

Decided April, 1876. vive it was agreed that the amount of For the reception of incompetent evi

dence which coulil not by any possicompensation should be left to the in

bility harm any one, this court will test:te.

not reverse a judgment. II. jl. Taylor, for applt.

Appeal from a judgment for defendMr. Losey, for respt.

ant in County Court. lleid, That mere inadequacy of con On the trial certain facts were proved sideration, except as a circumstance by hearsay evidence under objection, bearing upon the question of fraud or but subsequently in the trial the same indue influence, was not a defence to facts were pr. ved by competent evithe rote. That it is not necessary tiat dence. the consideration of a note shall be There was a judgment ini Justices equal in pecuruary value to the obliga Court for plaintift. tion incurred. If no part of the con The county judge reversed judgment sideration is wanting at the time and on the ground of the admission of this no part of it subsequently failed, al- evidence. though inadequate in amount, the note Scoville & Knapp, for applt. is a valid obligation, while a want or C. S. Mereness, for respt. tailure of consideration ; in whole or in

Held, That although the evidence part is a good defence to the whole

was incompetent, the same facts having note, or to the extent of such failure, (2 been proved by competent evidence Hill 606; 21 Wend. 558; +2 N. Y.862. during the trial, no one was injured by

Upon the trial the court charged, in the reception of the evidence. substance, that if the note was used as a mere subterfuge for a testamentary

This court is required to give judy. bequest plaintiff could not recover to ment according to the justice of the case the extent that it was sì intended. without regard to the technical errors Detendant's counsel then requested the and defects which do not affect the court to instruct the jury that they merits. might find what the real indebtedness ought to be and regard the balance as

Judgment of the County Court rea bequest. This request was refused. versed, and that of Justice affirmed.

Held, No error; that the latter pro. Opinion by Mullin, P. J.

Vol. 2.)

(No. 23.

NEW YORK WEEKLY DIGEST. As evidence in chief no foundation

was necessary, but as impeaching eviMONDAY JULY 17, 1876.

dence it was necessary to call the attenEVIDENCE. IMPEACHING

tion of the witness to the time when WITNESS.

and place where the conversation proposN. Y. SUPREME COURT. GEN'. TERM,

ed to be proved occurred. As evidence FOURT DEPARTMENT.


the merits it was fatal to the de

fendant, and, to justify the court in John Gorgen, respt., v. Jacob Balz.

holding that it was not so received, it houser et al., applts.

should be clearly shown that it was reEvidence, although allmitted, will not ceived for the purpose of impeachment

be allowed to impeach a witness, unless some foundation is first luid for

only. it, by calling the attention of the wit Judgment reversed. ness ihat is sought to be impeached to Opinion by Mullin, P. J. the time when and piace where the conversation occurred that is introduced as impeaching testimony.


SALE. The action is replevin for a quantity of brooms levied on by the defendant, N. Y. SUPREME Courr. GENERAL TERM. Wright, a constable, on an execution

TuRD DEPARTMENT. against one Seely.

McDona.d, respć, v. Whitney, applt. The issues were tried before a ref. Decided May, 1876. eree, who found for plaintiff. The de- Where the mortgagor sells portions of fence was that the brooms were the the mortyaged premises, they will, property of one Seely, and taken on on foreclosure, be sola' in the or

der of their alienation. Grantees the execution against him in favor of

will be protected only to the amount the other defendant.

of purchase money paid by them. On the examination of a witness in In such a case the release of one lot the case, he was asked if he did not does not necessarily discharge the hear Seely say, at the time the replevin

others. papers were drawn, that "he (Seely) had Appeal from a judgment in foreclosno interest in the brooms

ure, directing the order in which premThe evidence was objected to on the ises should be sold. The mortgacor ground that it was improper a:id imina- divide i the mortgaged premi es into terial; that the declarations of Seely six lots and one half lot. He sold one cannot be given in evidence against de- to W. for $700, on which $145 had fendants when made to third parties. been paid. Subsequently he sold to Seely, on the part of the defendants, had H., the mortgagee releasing the proptestified that he, and not the plaintiff, erty with knowledge of the sale to W., owned the property in question. and applying part of the consideration

lleld, That the evidence of the con- on the mortgage. Afterwards lots were versation was clearly incompetent to sold to McD., and a part was still unaffect the rights of the parties to the sold. The judgment directed the sale action, but it was competent to im- first of the part not conveyed; second, peach Seely if any foundation had W.'s lut, out of the avails of which been laid for it.

only the amount unpaid was to be ap

plied, and then the lots of McD.. W. supporting, as far as was necessary, the also had the privilege of avoiding the adjoining buildings affected by the alsale by payment of the amount 'ue on teration, during the progress of the his lot. W. appeals.

work, and make good any damaye Held, That the provisions of the which might be sustained by any buil judgment were correct. The release of ings during the progress of, or in conthe lot sold to H. did not discharge W., sequence of, the alterations, and satisfy nor must the whole consideration be any claims for compensation arising credited on the mortgage. The princi- therefrom which miglit be substanple is equitable, not legal. enti- tiated. tled to be and is protected to the am The contractor thereupon proceeded ount which he has paid. Nor should with the work, pulled down the house the lot of McD, be sold before that of and excavated the soil to a lower depth W.. So far as W.'s purchase money re-than the foundation of plaintiff's house, mains unpaid, his lot should be sold and rebuilt defendant's house. But first. (2 Paige, 300; 8 Paige, 361; owing to defective underpinning or 2 N. Y. 89.)

other support to the soil and walls, the Judgment affirmed, with costs. plaintiff's house was damaged. Opinion by Learned, P. J.; Bockes

Verdict was rendered for plaintiff, and Boardman, JI., concurring. with leave to move to enter the verdict

for defendant, on the ground that dePRINCIPAL AND AGENT. fendant's contractor, and not defendENGLISH High COURT

OF JUSTICE, ant, was liable.

A rule having been obtained accord

ingly, Bower v. Peate.

lleld, That a man who orders a work Decided February 25, 1876.

to be executed, from which, in the natWhere one employs a contractor to re- ural course of things, injurious conse

build his house, under an agreement that the contractor shall make good quences to his neighbor must be expectany damage to a neighboring house, ed to arise unless means to prevent and the contractor uses insufficient them are adopted, is bound to see to the means to support said house, whereby doing of that which will prevent the it was damaged, the employer is mischief, and cannot relieve himself liable.

of his responsibility by employing some Action for damages to plaintiff's one else to do what is necessary to prehouse by the negligent excavation of vent the act he has ordered to be done ground adjacent thereto.

from becoming wrongful. There is an The plaintiff and defendant were obvious difference between committing owners and occupiers of two adjoining work to a contractor to be executed, houses. Defendant employed a con. from which, if properly done, no injutractor to pull down and rebuild his

rious consequences can arise, and handhouse, making his foundations lower ing over to him work to be done, from than those of plaintiff's house. which mischievous consequences wil

The contract provided that the con- arise unless preventives are adopted. tractor should take upon himself the While it may be just to hold the party risk and responsibility of shoring and authorizing the work in the former case

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