DILLENBECK v. DILLENBECK et al. (Supreme Court, Appellate Division, Third Department. November 10, 1909.) 1. PERPETUITIES (§ 6*)—SUSPENDING POWER OF ALIENATION. A will directing the executors, or their survivors or successors, to convey testatrix's realty for the best obtainable price within three years after April 1st following her death, did not suspend the power of alienation for any period, as the executors could make the sale immediately upon testator's death. [Ed. Note. For other cases, see Perpetuities, Cent. Dig. § 51; Dec. Dig. § 6.*] 2. WILLS (§ 446*)-CONSTRUCTION IN FAVOR OF INSTRUMENT. In case of ambiguity or doubt as to the construction of a will, it should be construed, if possible, to sustain rather than destroy it. [Ed. Note. For other cases, see Wills, Cent. Dig. § 962; Dec. Dig. § 446.*] Appeal from Special Term, Fulton County. Action by Stewart Dillenbeck against William B. Dillenbeck and others. From an interlocutory judgment for plaintiff, defendants appeal. Reversed, and new trial granted. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. Clarence W. Smith, for appellants. COCHRANE, J. This action involves the validity of the following provision in the last will and testament of Catherine S. Dillenbeck, deceased, viz.: "I order and direct my said executors or the survivor of them or the one who shall act or his or their legal successors in office to sell and convey my said farm and real property for the best price they can obtain therefor, within three years from and after the April first following my decease." The said clause in the will has been declared invalid, because it suspends the power of alienation of the real estate until the April following the death of the testatrix, and partition of such real estate has been adjudged herein among the heirs of, the deceased as if she had died intestate. The argument is that the will contemplates an interval of time between the death of the testatrix and the following April, not measured by lives, during which the property cannot be sold. I do not think the will should receive that construction. The intent of the testatrix was to fix a limitation of time within which the property should be sold. It was made the duty of her executors to sell the same at any time either before or after the April following her decease, but not later than three years after such April. It may be possible to give to the clause in question the meaning which plaintiff claims it should have; but it certainly does not necessarily have that meaning, and the rule applies that, in case of doubt or ambiguity, such a construction should be employed, if possible, as will sustain rather than destroy the instrument. There is nothing in the case disclosing any reason why the testatrix should desire to postpone the sale for any period of time, and hence we should conclude that there was no suspension of the power of alienation, but that the executors were at liberty to make immediate sale of the property. The interlocutory judgment must be reversed, and a new trial granted, with costs to the appellants to abide the event. All concur. REYNOLDS v. CALLAN et al. (Supreme Court, Appellate Division, Third Department. November 10, 1909.) DISCOVERY ( 55*)—EXAMINATION OF ADVERSE PARTY BEFORE TRIAL-AFFIDAVIT-SUFFICIENCY. Under Code Civ. Proc. § 872, providing that the affidavit for the examination of the adverse party before trial must aver that the testimony of such party is material and necessary, and General Rule of Practice 82, requiring the affidavit to specify the facts showing materiality and necessity, an affidavit of plaintiff, suing for services rendered and materials furnished, for an order for the examination of one of the defendants, which avers that plaintiff has no knowledge of the relations existing between the defendants, or whether one of them was the agent for the other, etc., is insufficient, for failing to show the materiality of and necessity for the examination. [Ed. Note. For other cases, see Discovery, Cent. Dig. §§ 69, 70; Dec. Dig. § 55.*] Appeal from Albany County Court. Action by Marcus T. Reynolds against Peter J. Callan and another. From an order denying a motion to vacate an order to take the deposition of defendant Irwin E. Wallerstein before trial, defendant Peter J. Callan appeals. Reversed. The action was brought to recover the value of services rendered and material furnished by the plaintiff as an architect. The complaint alleges that "the plaintiff rendered services to and for the defendants at the defendants' request, and on their promise to pay for the same, as an architect, and on like request and promise to pay therefor furnished materials necessary and proper to and about said work, labor, and services." The defendants answered separately, each denying the allegations of the complaint. In the affidavit upon which the order for the examination was granted it is stated "that this deponent has no knowledge of the relations existing between the two defendants aforesaid, or whether or not either of such defendants was the agent for the other during the happening of the events set forth in the complaint, the allegations of which complaint are true, and which allegations are hereby incorporated into and made a part of the affidavit with the same force and effect as though set forth in hæc verba herein, and that it will be unsafe for the plaintiff to proceed to the trial of this action without a disclosure on the part of the defendant Irwin E. Wallerstein of the relation which did exist between the said defendants at the time herein before stated, and also as to what took place in the matter of the employment of this defendant, and the interests of the defendants therein and in the subject-matter thereof." Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. Neile F. Towner, for appellant. Thomas Hun, for respondent. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes SEWELL, J. Before a party can be permitted to examine his adversary before trial he must present an affidavit setting forth, among other things: "That the testimony of such person is material and necessary for the party making such application." Code of Civil Procedure, § 872. This provision of the Code is supplemented by rule 82 of the general rules of practice, which requires that the affidavit shall specify the facts and circumstances which show that the examination of the person is material and necessary. It is clear that the affidavit upon which the order for examination in this case was made does not comply with these requirements. No fact or circumstance to show that the deposition of the defendant is material and necessary is specified. On the contrary, it is quite apparent that the testimony sought to be elicited would be neither material nor necessary to establish the cause of action alleged in the complaint. Many of the technical rules which formerly restricted the right of a party to examine his adversary before trial have been relaxed; but the fundamental rule that the testimony sought must be essential to the moving party's case has not been abrogated. Oakes v. Star Co., 119 App. Div. 358, 104 N. Y. Supp. 244; Caldwell v. Glazier, 128 App. Div. 315, 112 N. Y. Supp. 655. The order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate the order for examination granted, with $10 costs. All concur. (134 App. Div. 381.) JELALIAN v. NEW YORK, N. H. & H. R. CO. (Supreme Court, Appellate Division, First Department. November 5, 1909.) 1. EVIDENCE (§ 113*)-LOSS OF FREIGHT-DAMAGES-COST. Where, in an action against a carrier for loss of clothing, an oriental rug, etc., all of which had been somewhat used, no expert, who was acquainted with the value thereof and could testify thereto, had seen the property prior to its loss, evidence of the cost thereof was admissible as the best evidence of value plaintiff could produce, and the weight of the evidence was for the jury. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 271-273; Dec. Dig. § 113.*] 2. DAMAGES (§ 12*)-Loss OF GOODS-NOMINAL DAMAGES. Where a carrier was responsible for the value of personal property lost in transportation, plaintiff was entitled to a verdict for nominal damages, though unable to prove the value of the property. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 31; Dec. Dig. § 12.*] Patterson, P. J., dissenting. Appeal from Trial Term, New York County. Action by Sarkis Jelalian against the New York, New Haven & Hartford Railroad Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered. Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, LAUGHLIN, and SCOTT, JJ. James E. Duross, for appellant. INGRAHAM, J. This action was brought to recover the value of certain personal property delivered by the plaintiff to the defendant to be shipped from Providence, R. I., to the city of New York. The complaint alleges that this merchandise was delivered to the defendant, and that the defendant has refused and neglected to deliver the same; the plaintiff claiming the value of the said articles to be $1,837. The answer denies the material allegations of the complaint. Upon the trial the plaintiff testified to delivering this property to the defendant's agents at Providence and the failure of the defendant to deliver the merchandise in the city of New York; that the property not delivered consisted of a Persian rug, several suits of clothes, several blankets, and some dishes and household goods; that the plaintiff had the rug for about six years, it having come from Turkey in Asia; that this rug was sent to the plaintiff by his father, and he gave a description of it; that the rug was not worn, but was quite new and clean, and in the same condition as when the plaintiff first obtained it; that there were two suits of his wife's clothes, that had been purchased in Providence, that had been worn but once or twice, and were in as good a condition as when the plaintiff purchased them. The plaintiff was then asked when he paid for these suits of clothes, which was objected to by the defendant, the objection sustained, and plaintiff excepted. The plaintiff then testified that he bought the blankets in Rhode Island; that these blankets were in the same condition as when purchased. When asked what the blankets cost, the defendant objected, the objection was sustained, and plaintiff excepted. The plaintiff then called an importer of oriental rugs, who had been in business for upwards of nine years and was familiar with the price of oriental rugs in New York, who testified that the price of oriental rugs had increased during the last eight or nine years. The plaintiff then called as a witness his cousin, who testified that he came from Turkey eight years ago; that he knew the plaintiff's father in Turkey, and was present when plaintiff's father purchased the rug in Turkey, and saw the plaintiff's father pay for it; that since he had been in this country he had seen the rug in the plaintiff's parlor, and identified it as the rug that he had seen the plaintiff's father purchase. He was then asked what the plaintiff's father paid for the rug, which was objected to by the defendant, the objection sustained, and the plaintiff excepted. The court, having excluded all testimony offered by the plaintiff from which the jury could find the value of these articles, dismissed the complaint, and the only question presented on this appeal is whether this testimony was properly excluded. We think this evidence was competent. While it is true that the cost of an article of personal property is not satisfactory evidence as to its value, if it has been in use, it seems to be the best evidence that was available to the plaintiff. No expert, who was acquainted with the value of this property and could testify as to its value, had seen it, and in consequence of the defendant's failure to deliver the property to the plaintiff it had been lost. As a general proposition, the cost of articles of personal property, when purchased at a bona fide sale, is some evidence of value, subject, of course, to a proper deduction for the depreciation caused by the use thereof. It is quite clear that, where articles of the kind specified here have been lost or destroyed, the owner, seeking to recover their value from the person responsible for their loss, is necessarily restricted to evidence of this character, where it is impossible to obtain expert testimony as to its value. To exclude such testimony would necessarily prevent a wrongdoer from being held responsible. See Gill v. McNamee, 42 N. Y. 44; Matter of Johnston, 144 N. Y. 563, 39 N. E. 643; Parmenter v. Fitzpatrick, 135 N. Y. 190, 31 N. E. 1032; Hawyer v. Bell, 141 N. Y. 140, 36 N. E. 6. The weight of this testimony, and whether, if admitted, it would furnish a sufficient basis for a finding as to the value of the property, was a question for the jury. The defendant was responsible for the value of these goods, and under any circumstances the plaintiff was entitled to a verdict for nominal damages. After all the evidence that was available was before the jury, it was for them to say whether they could find, from such evidence, the value of the goods in question. It follows that the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur, except PATTERSON, P. J., who dissents. RAIBLE V. HYGIENIC ICE & REFRIGERATING CO. (Supreme Court, Appellate Division, Third Department. November 10, 1909.) 1. ANIMALS (§ 70*)-INJURIES BY ANIMALS-SCIENTER. It is not ordinarily negligence to permit a youth 15 years old to lead a horse, unless the horse has vicious or dangerous tendencies, of which the person charged with the negligence should have been aware. [Ed. Note. For other cases, see Animals, Cent. Dig. §§ 228-237; Dec. Dig. § 70.*] 2. ANIMALS (§ 74*)-INJURIES BY ANIMALS-VICIOUS PROPENSITIES-INSTRUC TIONS. In an action for injuries from being kicked by a horse, where the evidence presented a question of fact whether the horse had previously shown a propensity for kicking, it was error not to instruct the jury that defendant's knowledge of the dangerous character of the horse was a prerequisite to plaintiff's right to recover. [Ed. Note. For other cases, see Animals, Cent. Dig. § 272; Dec. Dig. § 74.*] 3. MASTER AND SERVANT (§ 302*)-INJURY TO THIRD PERSONS-NEGLIGENCE OF SERVANTS-SCOPE OF EMPLOYMENT. Plaintiff was called across the street by defendant's servant, and told to take a horse to drink, and the horse was given him in charge to that end. While so doing plaintiff was kicked and injured. The servant had no authority to employ assistance, nor was there any emergency making it necessary to call on a bystander to perform his personal duties. Held, that the servant's act was a delegation of his personal duty, beyond the |