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by successive taxation. The argument is not without force, though, of course, the tax is imposed, not upon the property of the testator, but upon the succession or right to receive (Matter of Gihon, 169 N. Y. 443, 62 N. E. 561), but it is an argument which goes to the policy of the statute, rather than to its legal effect. Still, were it not for the express provision of the statute, I would be clear that the order fixing the tax in the proceedings mentioned, and the payment thereunder, would constitute a final adjudication, and that the state could make no further claim.

{2] The situation here presented, however, is squarely within the statute; property is transferred subject to an estate determinable by death, an increase has accrued to certain persons upon the extinction of such estate, and that increase is expressly made taxable.

Application for retaxation granted.

(113 Misc. Rep. 129)

In re CONGER'S ESTATE.

In re FOWLES.

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(Surrogate's Court, Albany County. September 22, 1920.) 1. Religious societies 31 (2)—Incorporated boards authorized to enforce

payment of note.

Incorporated home and foreign mission boards of the Methodist Episcopal Church are authorized to enforce payment of a note given them by

decedent. 2. Gifts Eww11-Executory promise, without consideration to operate as gift

after death, unenforceable.

An executory promise, without consideration and intended to operate as

a gift after death, cannot be enforced. 3. Bills and notes C 45- Instrument agreeing to pay after death enforceable.

An instrument whereby the signer agrees to pay another a certain sum at a specified time after death, if supported by a sufficient consideration,

is a valid and enforceable obligation. 4. Subscriptions On 5—Agreement of decedent to pay church boards from

estate after death supported by consideration.

Where the instrument given by decedent to the home and foreign mission boards of a church, agreeing to pay them $1,000 from his estate after his death, was on the consideration that the boards secure other subscriptions, which they did, the instrument was supported by consideration, and sustained the obligation of decedent's estate to perform his agreement. In the matter of the judicial settlement of the accounts of Hugh Conger, as executor of the last will and testament of Manly W. Conger, deceased, wherein George M. Fowles claims against the estate as treasurer of the Joint Centenary Committee of the Board of Home Missions and Church Extension and Board of Foreign Missions of the Methodist Episcopal Church. Decree allowing claim directed.

Newton B. Van Derzee, of Albany, for executor Hugh Conger.
Geo. H. Witbeck, of Albany, for claimants.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(184 N.Y.S.) STALEY, S. The above claim, having been rejected by the executor, is brought on for determination in the proceeding for final settlement in this estate. The claim arises out of the following instrument, executed by the decedent in his lifetime:

Centenary Estate Pledge For the Board of Home Missions and Church Extension and for the Board of Foreign Missions of the Methodist Episcopal Church (Manly W. Conger)

March 20, 1919. In consideration of my interest in Christian Missions, and on condition that the above-named boards secure other subscriptions for this cause, and for value received, I hereby promise and agree to pay to the Board of Home Missions and Church Extension and the Board of Foreign Missions of the Methodist Episcopal Church, at No. 150 Fifth Ave., New York City, the sum of One thousand

dollars ($1000,00) which shall become due one day after my death, payable out of my estate, interest at the rate of - per annum from date. Dayton E. McClain

Name Manly W. Conger Witness William H. Edwards

Address Clarksville Witness

Alb Cy Conference Troy District Albany

Charge Clarksville Make all checks payable to George M. Fowles, Treasurer, 150 Fifth Ave., New York.

Mail subscriptions to F. T. Keeney, 207 Fayette Park Building, Syracuse, N. Y.

The claim is resisted by the executor upon the grounds that the note on which the claim is based, was signed and delivered by the decedent without consideration; that it was an executory promise without consideration, and intended to operate as a gift after the death of the decedent; and upon the ground that the payee of the note is not an incorporated body authorized to receive or enforce its payment.

From the evidence it appears that the Board of Home Missions and Church Extension and the Board of Foreign Missions of the Methodist Episcopal Church, through a committee known as the Joint Centenary Committee, undertook the task of raising $105,000,000 to carry on the work of the church. One-half of this amount, or the amount raised, is to be used in the United States and the other half in foreign fields. The committee proposed three forms of giving. One form was called the straight Centenary pledge of so much a year for five years another form, the annuity, in which the donors turned over to the church a sum of money, getting the interest on it as long as they lived and at their death it becomes the property of the board; and the third the form here in question, was known as the estate pledge form, ir which the donors pledge a definite amount, to be payable out of their estates after their death.

[1] The evidence establishes that the payees of the note are the twe boards, and that these boards are incorporated, and are therefore au thorized to enforce payment.

[2] It is well settled that an executory promise, without considera tion and intended to operate as a gift after death, cannot be enforced Holmes v. Roper, 141 N. Y. 64, 36 N. E. 180.

[3] An instrument by which the signer agrees to pay another a certain sum at a specified time after death, if supported by a sufficient consideration, is a valid and enforceable obligation. Worth v. Case, 42 N. Y. 362, at p. 366; Carnwright v. Gray, 127 N. Y. 92, 27 N. E. 835, 12 L. R. A. 845, 24 Am. St. Rep. 424; Keuka College v. Ray, 167 N. Y. 96, 60 N. E. 325. In the latter case Judge Gray, writing the opinion, said:

"The question of the enforceability of agreements of the nature of the one in question has been frequently the subject of judicial opinion, and we are cited to many cases in the briefs of counsel; but I think the discussion is reduced simply to this: Whether the agreement which is sought to be enforced, and which is a voluntary promise on the part of the defendant, expressly or impliedly either imposes upon the promisee some obligation, which is assumed, or requests of the promisee the performance of services, which are to be performed upon the strength of the promise. If those conditions are met, then, within the rule of law, there is a consideration which will suffice to uphold the agreement, or the promise.

The doctrine, however, may be regarded as well established that, if money is promised to be paid upon the condition that the promisee will do some act, or perform certain services, then the latter, upon performance of the condition, may compel payment. Nor need a request to the promisee to perform the services be expressed in the instrument; it may be implied.”

The contention in this case resolves itself into a question of fact as to whether there was sufficient consideration recognized by law to sustain the promise of the decedent. The instrument in question expressly recites that the promise and agreement to pay these boards the sum of $1,000 is made "in consideration and on condition that the above-named boards secure other subscriptions for this cause."

[4] The obligation on the part of Conger to pay was based upon the promise of the claimant to obtain other subscriptions. The facts are, as established by the testimony, that other subscriptions were obtained through the agents of these boards, subsequent to the subscription of Conger; that the work of soliciting funds for this movement was continuing at the time of the trial; and that the expense of this work was being paid for by these boards. The promise made has been fulfilled by these boards, and it is sufficient to establish a consideration, and to sustain the obligation on the part of Conger to carry out the agreement which he made.

The claim, for these reasons, is allowed in full, with $25 costs.
Decree may be entered accordingly.

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(184 N.Y.S.)

SILBERBERG v. ROUDEN MFG. CO. Inc. (City Court of New York, Special Term for Motions. July 8, 1920.) Courts em 189 (4) Jurisdiction of City Court as to service of summons limited to Manhattan and Bronx.

Under Code Civ. Proc. $ 338, providing that a summons of the City Court of the City of New York may be served within the city of New York, the territorial jurisdiction of the court with respect to service of suinmons is limited to the boroughs of Manhattan and Bronx ; "city" meaning the territory of the city as it existed prior to June 6, 1895.

(Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, City.] Action by Michael Silberberg, trading under the firm name and style of the Empire Manufacturing Company, against the Rouden Manufacturing Company, Incorporated. On motion to set aside service of summons and complaint on defendant in the borough of Brooklyn. Motion granted.

Schwinzer & Rifkind, of New York City (Albert J. Rifkind, of New York City, of counsel), for the motion.

Jacob Kaplan, opposed.

VALENTE, J. The summons and complaint herein were served in the borough of Brooklyn. Section 338 of the Code of Civil Procedure provides that a summons of this court may be served within the city of New York. The word "city" as used in that section, has been construed to mean and apply to the territory within the city of New York as it existed and was constituted prior to June 6, 1895. McCann v. Gerdin, 29 Misc. Rep. 283, 60 N. Y. Supp. 467; Mehrbach v. Partridge, 9 Misc. Rep. 209, 29 N. Y. Supp..681 ; De Lever v. Britt, 157 App. Div. 586, 142 N. Y. Supp. 752, reversed by the Court of Appeals 212 N. Y. 565, 106 N. E. 57, on the dissenting opinion of Mr. Justice Ingraham. See Greater New York Charter, s 1345 (chapter 378, Laws of 1897, as amended by chapter 466, Laws of 1901). The territorial jurisdiction of this court, with respect to the service of a summons, is limited to the boroughs of Manhattan and Bronx.

Motion to set aside the attempted service of the summons and complaint herein is granted, with $10 costs. Order signed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(113 Misc. Rep. 137)

HEIN v. STANDARD DIE & TOOL WORKS, Inc.

(City Court of New York, Special Term. September 22, 1920.) 1. Statutes em225—Laws in pari materia construed with reference to each

other.

Laws in pari materia must be construed with reference to each other. 2. Statutes w181 (1)-Construed to effectuate intention of lawmakers.

Such construction should be given the language of a statute as will carry the intention of the lawmakers into effect. 3. Courts Cw189 (15)—Plaintiff held entitled to enter judgment as on default

in six days.

Under Code Civ. Proc. $ 1778, made applicable to the City Court by section 3347, subject to the qualifications of section 3159, and in view of sections 3165, 3166, where defendant domestic corporation, sued on a promissory note, failed to serve with his answer order permitting the issues to be tried, plaintiff could enter judgment as in case of default in pleading, to wit, at the expiration of 6 days, despite the 20-day clause of

section 1778. 4. Courts Om 189 (7)—Defendant's failure to serve order with answer ren

ders pleading ineffective.

Failure of defendant domestic corporation, sued in City Court of the City of New York on a promissory note, to serve with his answer order permitting the issues to be tried, as required by Code Civ. Proc. § 1778, renders the pleading ineffective, and unless the failure is waived places defendant in the same position as though answer had never been served. Action by David Hein against the Standard Die & Tool Works, Incorporated, wherein, after defendant's failure to serve with his answer an order permitting the issues to be tried, plaintiff moves for judgment. Clerk directed to enter judgment for plaintiff.

Lesser & Lesser, of New York City, for plaintiff.

WENDEL, J. This action, is brought by plaintiff against the defendant, a domestic corporation, to recover the sum of $1,500 on a promissory note made, executed, and delivered by it to plaintiff. The summons was served on September 7, 1920. Thereafter, on September 9, the defendant appeared by attorney, and on September 11 served its answer; but the same was not accompanied with an order permitting the issues to be tried as required by section 1778 of the Code of Civil Procedure, whereupon plaintiff returned the answer to the attorneys for defendant, who have taken no further steps in the matter.

Although the defendant's time to answer expired on September 13, the clerk, upon presentation of the judgment roll to him, refused to enter judgment on the ground that under section 1778 the plaintiff was not entitled to enter judgment until at the expiration of 20 days after the service of a copy of the complaint, and that consequently plaintiff's right to enter judgment would not accrue until September 27. By section 1778 it is provided that

"Unless the defendant serves, with a copy of his answer of an order of a judge, directing that the issues presented by the pleadings be

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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