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Appeal from Special Term, King County.
Action by the Hanson Place Methodist Episcopal Church against the City of New York and the Cranford Company. From an order denying a motion for a further bill of particulars, the last-named defend-. ant appeals. Affirmed, as modified.
Argued before. JENKS, P. J., and MILLS, RICH, PUTNAM and KELLY, JJ.
Edward M. Grout, of New York City (Charles B. La Voe, of New York City, on the brief), for appellant.
Raymond C. Haff, of Amityville (Harry W. McChesney, of Brooklyn, on the brief), for respondent.
KELLY, J. The plaintiff's church building is located on the northwest corner of Hanson Place and St. Felix street, in Brooklyn. The city, through the appellant Cranford Company as contractor, is constructing a subway through St. Felix street, and the plaintiff sues to recover damages alleged to have been sustained by reason of negligence and the creation of nuisance in the performance of the work. There are two causes of action in the complaint-one for damage to plaintiff's building; the other for loss of revenue through interference with the buildings. The defendants demanded a bill of particulars of the damage claimed, and specified 15 items of damage concerning which they desired additional information. The plaintiff with commendable fairness served a bill of particulars of each of the items demanded. But the defendant claims that the particulars furnished are not sufficient, and asks for further information as to the demands as they now appear from the complaint as amplified by the statement furnished. The plaintiff says that this new demand is for a bill of particulars of the bill of particulars already furnished, and that this might go on, so that the issue would be delayed indefinitely. But there is nothing to indicate any ulterior motive on the part of the defendant appellant. The particulars already furnished were necessary, and the plaintiff properly complied with the demand. The additional information, in some degree, is necessary, in view of the statement voluntarily furnished, and it is in the interest of all concerned, court, litigants, and counsel, that the parties should know in advance of the trial just what the questions to be litigated are. This will expedite the trial and final disposition of the case.
 The first demand for additional particulars is that plaintiff state in what respects it claims that the defendant failed to furnish proper material, labor, and workmanship necessary for the proper shoring, staving, spilling, and underpinning of the plaintiff's property, and in excavating for the construction of the subway. In answer to defendant's original demand (item 4) for particulars of the respects in which plaintiff claims defendant negligently failed to properly safeguard plaintiff's premises, the defendant alleged (Bill of Particulars, par. IV) that the negligence consisted in "failing to furnish proper material, necessary for the proper shoring, staving, spilling, and underpinning of the plaintiff's property, and in exca
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vating for the construction of the subway." The plaintiff, in response to defendant's demand 5, stated (Bill of Particulars, V) that the "shoring" was inadequate, because it was improper and insufficient in size, strength, and character to support the weight to which it was subjected under the conditions existing. If the "staving, spilling, and underpinning" referred to in plaintiff's bill of particulars is something not comprised in the term "shoring," it would seem that defendant is entitled to information as to the alleged defect or inadequacy of such "staving, spilling, and underpinning." If these things are part and parcel of the "shoring" already described, plaintiff should
Defendant asks for additional particulars of the extent and location of each and every injury which plaintiff claims was caused by the matters set forth in the complaint. It would appear that plaintiff has already furnished this information as far as practicable, and it is stated in the respondent's points that plaintiff has permitted the appellant to personally inspect the building.
 In its bill of particulars served, the plaintiff answered the defendant's demand 13 for particulars of the respects in which it is claimed the work damaged the rental or usable value of plaintiff's premises, by stating, inter alia, that the building was rendered dangerous, dirty, and unsanitary, by reason of the careless, negligent, unnecessary, and unreasonable manner of placing and operating a derrick and dirt bunker in front of plaintiff's property and over the street entrance to its building. The defendant asks that it be informed in what respects plaintiff claims the derrick and dirt bunker were carelessly, negligently, unnecessarily, and unreasonably placed and operated by the defendant. This is a legitimate inquiry, and the plaintiff should give this additional information.
In other respects we think the bill of particulars already served is sufficient.
Order modified, so as to grant the additional particulars specified in this opinion, and to otherwise deny the motion, and, as so modified, affirmed, without costs. All concur.
PUTNAM, J., not voting.
(192 App. Div. 72)
In re DWYER.
In re HUTCHINS' ESTATE.
(Supreme Court, Appellate Division, Fourth Department. May 5, 1920.)
1. Wills 116-Will which cannot be probated without testimony of legatee or devisee as subscribing witness void.
The common-law rule of England was that, where a legatee or devisee named in a will became a subscribing witness to it, and it could not be probated without his testimony, the will was void.
2. Wills 712-Devisee or legatee, who is a subscribing witness, if entitled to share as heir, must first resort to residuary estate.
In view of prior course of legislation, under Decedent Estate Law, § 27, where a will makes a legacy or devise to a subscribing witness, the devise or legacy is void; but, if witness would have been entitled to any share of estate if will was not established, such share shall be saved to him, not exceeding value of devise or legacy, and he must resort therefor first to the unbequeathed residuary estate, and then, if that proves insufficient, may recover from the other devisees and legatees.
3. Statutes 184-Construed in view of evil to be remedied.
Courts must determine the evil which a statute attempted to correct, ascertain the steps whereby preceding statutes attempted to cure the evil, and with such knowledge construe the statute, so as to work out as nearly as may be the legislative purpose.
4. Statutes 208-Every clause to be given effect.
A construction is favored which gives effect to every clause and every part of a statute, producing a consistent and harmonious whole.
5. Executors and administrators 289-Amount directed to be paid for masses not legacy, but expense.
An amount directed by testatrix to be paid for masses should not have been treated as a legacy, but as an expense, and deducted in determining the net estate.
Appeal from Surrogate's Court, Ontario County.
In the matter of the judicial settlement of the account of Frank Dwyer, as executor of the last will and testament of Catherine Hutchins, deceased. From a decree settling the accounts of the executor, and directing distribution of assets, an appeal was taken. Decree modified, and, as modified, affirmed.
Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.
Arthur J. Hammond and C. Willard Rice, both of Geneva, for appellants.
W. Smith O'Brien, of Geneva, for executor.
Lansing G. Hoskins, of Geneva, special guardian, for Frank Dwyer, Jr., and others.
HUBBS, J. The last will of Catherine Hutchins devised all of her real estate, of the value of $3,500, to a nephew, and bequeathed $23,500 to 14 different legatees. The residue of the estate was bequeathed to Margaret E. Dwyer, a sister. On the settlement of the executor's account, there remained for distribution $33,646.56. The legacies amounted to $23,500, leaving a residuary estate of $10,146.56, bequeathed to Margaret E. Dwyer. She was a witness to the will, and
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testified on the probate thereof, and it could not have been probated without her testimony. The bequest to her was therefore void, under section 27 of the Decedent Estate Law (Consol. Laws, c. 13). That left the residuary estate undisposed of by the will, and, if she were not one of the next of kin, it would be distributed to the next of kin under Decedent Estate Law, § 98. It is conceded that the share of Margaret E. Dwyer amounts to $9,416.64, or one-fourth of the net estate. That amount is less than she would have taken under the will, if she had not been a witness to it.
The surrogate has directed that all legacies be paid in full, and that said sum of $9,416.46 be paid to Margaret E. Dwyer, and that the balance of the estate, $734.92, be paid to the next of kin other than Margaret E. Dwyer. It is urged by the appellants that such a distribution of the estate is illegal, and contrary to the provisions of section 27 of the Decedent Estate Law. The position of appellants is that Margaret E. Dwyer should recover her one-fourth interest in the real estate from the devisee thereof, and her one-fourth interest in the personal property from the legatees thereof, that the residuary estate of $10,146.56 should be paid to the next of kin, and that the devise and legacies should be cut down about 40 per cent. to make up the share of Margaret E. Dwyer. Under the decree the devisee and legatees get the full amount provided in the will, and the next of kin get only $734.92.
Section 27 of the Decedent Estate Law reads:
"If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall be made to such witness, the said devise, lega
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cy, interest or appointment shall be void, so far only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made.
"But if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended, or have been distributed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them."
I have been unable to find any way by which the statute in question can be construed, so as to give full effect to all of the words contained therein, when it is applied to the different situations which may arise. If it should be construed as contended for by the appellants-that is, by making the share going to an heir or next of kin who is a witness, and disqualified from taking under the will, a charge only against the shares of the devisees and legatees-it would reduce the statute to an absurdity, and make it ridiculous under certain conditions which are entirely probable. This is well illustrated by a supposed case set out in the respondent's brief, where it is said:
"Suppose the will of the testatrix read as follows: 'I give to my sister, Elizabeth A. Ball, and to each of my nephews and nieces, one dollar, and the remainder of my estate to my sister Margaret E. Dwyer.'"
Under the construction contended for by the appellants, the witness would take the $13 willed to the other nephews and nieces and could not take more. In that event, the persons named in the will would not receive anything, and the witness would not receive what she would have received as next of kin "in case the will was not established." The entire will would be wiped out, and the residue of the estate might go to persons who were not named, and the wishes of the testator would be entirely frustrated. The provision of the statute, "shall be void so far only as concerns such witness," would be given no force or effect whatever, and the will for all practical purposes would be void, not only "so far only as concerns such witness," but for all purposes, and the intent of the Legislature that the will should be valid. as to all devisees and legatees except the subscribing witness would be overruled.
On the other hand, under the interpretation which the surrogate gave the will in question, the words of the statute, "he shall recover the same of the devisees and legatees," could not receive a literal construction. The statute must be construed as it is written, and in order to work out a reasonable and consistent construction it is necessary to ascertain the controlling purpose of the statute, and to construe it so that it will accomplish such purpose. In determining the intent of the Legislature, it is necessary, in the first instance, to ascertain the state of the law upon the subject before the statute was enacted, and then to ascertain the purpose for which the statute was enacted, and the result which it was intended it should accomplish.
 It was the common law of England that, where a legatee or devisee named in a will became a subscribing witness to it, and it could not be probated without his testimony, the will was void. Many wills were drawn by laymen unfamiliar with this principle, and cases frequently arose where great hardship was worked and the wishes of the deceased were entirely frustrated by the fact that a devisee or legatee named therein had acted as a subscribing witness to a will, and it could not be probated without his testimony. To remedy the evils and hardships growing out of that situation, a statute was enacted which deprived the witness of his interest as legatee or devisee under such a will, and thereby made him a competent witness. St. 25 George II, c. 6; 2 Blackstone's Commentaries, 377; 4 Kent's Commentaries, 508; Fowler's Decedent Estate Law, Annotated, 223. A statute to the same effect was enacted in this state, and was held to be peremptory, and made a devise to a witness to a will void. Jackson v. Denniston et al., 4 Johns. 311.
Those statutes had the effect of saving the will, but did not save to the witness anything from the estate. They saved to the other legatees and devisees the provisions made for them, but left the witness in a worse position than he occupied before the statutes were passed. The Legislature, for the purpose of overcoming this hardship, provided by statute:
"But if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended, or have been distributed to such witness, shall be saved