App. Div.] First Department, February, 1909. should be divided between the children and descendants of Enos in equal proportion per stirpes. It was no part of his general scheme to extend the trust beyond the death of Enos. So as to Enos' adult children, and the children of a deceased child, whether adult or infant, he provided that their share should be paid over at once. It was only as to infant children of Enos that he provided for a continuance of title and possession in the trustees, and this evidently was intended merely as a convenient way of bridging over the term of minority, for each child upon arriving at age was to take his share outright, and if any child should die during infancy leaving issue, such issue though necessarily under age, were to take. Throughout all the provisions as to this one-third of the residuary estate there appears a careful avoidance of the possibility of tying up the property beyond the permissible period, even to the extent in two separate contingencies of providing that shares might go directly to infants. It is most improbable that the testator intended to make an illegal disposition in case of a child of Enos dying in infancy without issue, and if by the inadvertent use of language he has so provided, there is ample authority for separating the illegal provisions from the legal and upholding so much of the will as is free from objection. (Kalish v. Kalish, 166 N. Y. 368, and cases therein cited.) We do not consider that the absence of those who may have an interest in the construction of the will renders it improper to require the purchaser to complete his purchase. There is no disputed question of fact in the case, and the question of law involved does not seem to us to be so doubtful as to render the title unmarketable. There must be judgment for the plaintiffs as prayed for in the submission, with costs. PATTERSON, P. J., MCLAUGHLIN, LAUGHLIN and HOUGHTON, JJ., concurred. Judgment ordered for plaintiffs, with costs. Settle order on notice. First Department, February, 1909. [Vol. 130. JAMES BUTLER, INCORPORATED, Respondent, v. EDWARD DEEGAN and MICHAEL DEEGAN, Appellants. First Department, February 19, 1909. - action for value of use and occupation — defenses - evidence. It is a good defense to an action for the reasonable worth of the use and occupation of a building to show that the plaintiff's assignor, who was originally tenant of the premises, on selling his business to the defendant and when the landlord refused to accept the defendant as tenant, agreed to pay the rent to the landlord and to be liable there for in consideration of an additional sum paid to him by the defendant. Although the defendant sued by said assignee after merely denying the material allegations of the complaint specifically denies that any sum was due the plaintiff without alleging payment of rent, he is nevertheless entitled to show that the full consideration for the assignor's agreement to be liable for the rent was paid prior the commencement of the action, and the exclusion of such evidence is error. APPEAL by the defendants, Edward Deegan and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of March, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 17th day of March, 1908, denying the defendants' motion for a new trial made upon the minutes. Magner & Carew, for the appellants. John H. Rogan, for the respondent. MCLAUGHLIN, J.: The complaint alleges that one James Butler had a lease from the 15th of March, 1906, to the 15th of March, 1907, of a portion of a building, a store, in which he was carrying on business; that the defendants occupied the premises by permission of Butler as his tenant from the 1st of April, 1906, to the 15th of March, 1907; that the use of said premises was reasonably worth $862.50, no part of which had been paid by the defendants, though payment had been demanded and refused; that on the 22d of June, 1907, and App. Div.] First Department, February, 1909. prior to the commencement of this action, Butler, for a valuable consideration, assigned his claim to the plaintiff, and judgment was demanded for said sum, with interest. The answer denied the material allegations of the complaint and specifically denied that there was due the plaintiff the sum of $862.50, or any sum whatever. At the trial it appeared from the testimony on the part of the plaintiff that on the 1st of April, 1906, Butler sold to the defendants his business, and the defendants thereafter continued in possession of the store during the time for which a recovery was sought; that the rental value of the premises during that time was $75 a month; that Butler's claim was assigned to the plaintiff, and defendants had not paid anything for the use and occupation. From the defendants' testimony it appeared that, immediately prior to the purchase of the business of Butler, the defendants had a conversation with the landlord, and he would not accept them as tenants in place of Butler; they so reported to Butler and he thereupon said if they would pay him $1,043, he would turn over the store and would be liable for and pay the rent himself. This evidence was in no respect contradicted by the plaintiff. It, therefore, stands admitted, so far as the record shows, that the real transaction was as claimed by the defendants, and if so, then the plaintiff could not recover for the use and occupation. Various attempts were made to show that the full consideration of $1,043 had been paid prior to the commencement of the action. All of this evidence was excluded apparently upon the theory that the defendants had not pleaded payment of rent in their answer. The contention was that the relation of landlord and tenant never existed, and it did not if the defendants' testimony was true. The defendants ascertained before they purchased the business carried on by Butler on the premises that the landlord would not accept them as tenants, but that he should continue to hold Butler as a tenant and they so reported to the latter, and thereupon, according to their testimony, it was arranged that the defendants should include the rent as a part of the purchase money for the store which they agreed to pay to the landlord. If it be true that this was the real transaction then it is obvious they had a right to show they had APP. DIV.-VOL. CXXX. 35 First Department, February, 1909. [Vol. 130. fully paid the consideration agreed upon. The evidence showing this payment was improperly excluded, and the court erred in directing a verdict. The judgment appealed from, therefore, is reversed and a new trial ordered, with costs to appellants to abide event. INGRAHAM, LAUGHLIN, CLARKE and SCOTT, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellants to abide event. JEANNETTE DEMUTH, Respondent, v. GEORGE KEMP, Appellant. First Department, February 19, 1909. Execution against income from trust funds Procedure, not retroactive section 1391, Code of Civil constitutional law. A judgment creditor cannot under section 1391 of the Code of Civil Procedure levy an execution on an income derived from a trust estate created before said section was amended so as to permit such executions. Said section, not being in express terms retroactive, will not be so construed, and it seems, moreover, that if retroactive it would be unconstitutional. APPEAL by the defendant, George Kemp, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of January, 1909, denying the defendant's motion to vacate an order directing that an execution issue under section 1391 of the Code of Civil Procedure. R. M. Farries, for the appellant. L. Alexander, for the respondent. MCLAUGHLIN, J.: The defendant appeals from an order denying his application to vacate and set aside an order made ex parte directing an execution to issue pursuant to section 1391 of the Code of Civil Procedure against ten per cent of the income derived from a trust created for his benefit by the will of his father. The affidavit on which the order directing the issuance of the execution was granted alleges that the plaintiff recovered a judg App. Div.] First Department, February, 1909. ment on the 14th of May, 1902; that execution was issued thereon, which was returned unsatisfied; that the father of the judgment debtor died on the 23d of November, 1893, leaving a last will and testament and codicil thereto, which were duly probated on the 27th of December, 1893, and by the will and codicil the testator gave to his executors in trust $150,000 to collect and receive the income therefrom and after paying the expenses connected with the care and management of the trust estate, to apply the balance to the use of the appellant herein; that thereafter the New York Life Insurance and Trust Company became, and is now, the trustee of said trust fund; and that there is now due or hereafter will become due to the defendant from the trustee an amount exceeding the sum of $12 per week, viz., the sum of $125 per week. Upon this affidavit an order was made directing the issuance of an execution to the sheriff of the county of New York, commanding him to levy and collect the plaintiff's judgment out of ten per cent of the income derived from such trust estate in the hands of the insurance and trust company. A motion was thereafter made by the defendant to vacate such order, which was denied, and defendant appeals. A question similar to the one presented by the appeal has already been passed upon by this court in King v. Irving (103 App. Div. 420) and Sloane v. Tiffany (Id. 540), and it was held that section 1391 of the Code of Civil Procedure, as amended by chapter 461 of the Laws of 1903, is not retroactive. And the second department, following these decisions, held in Ringe v. Mortimer (116 App. Div. 722) that this section of the act, as amended by chapter 175 of the Laws of 1905, did not have a retroactive effect. Since these decisions, the section was further amended by chapter 148 of the Laws of 1908, which took effect September first of that year. This amendment, however, is immaterial and in no way impairs the decisions theretofore made under the section. The trust created by the will of the defendant's father took effect upon his death, which occurred on the 23d of November, 1893. It was a valid trust and he directed that the income from the trust fund should be paid to his son. Being a valid trust he had a right to direct to whom the income should be paid, and the Legislature had no power to change it or direct that payment should be made to any other person. A |