tary disposition of the bulk of his prop- the death of the wife, or of either of the

erty was invalid as in violation of the law against perpetuities.

Held, That plaintiffs, as heirs at law and next of kin, claiming in hostility to the will, have no interest in its interpretation, and no standing in court for that purpose; that they should assert their rights by proper action, at their peril, taking the chances of being subjected to costs in case of failure, as in other controversies. 10 Paige, 143.

A Court of Equity has only an incidental jurisdiction in respect to wills. It is only when it is moved in behalf of an executor, trustee or cestuis que trust, and to insure a correct administration of the power conferred by a will, that it has jurisdiction to give construction to a doubtful or disputed clause in a will. 56 N. Y., 407, 220; 24 How., Pr., 353; 47 Barb., 304; 34 id., 106.

Plaintiff's counsel claimed that if the clause in question was valid, a trust was created in which they had a remote and contingent interest, and that by reason thereof the court acquired jurisdiction, and as an incident thereto, could pronounce upon the validity of the clause creating the trust.

Held, That this position was not tenable; that plaintiffs could not allege a trust, bringing the case within the general powers of the court, and in the same breath deny the legal existence of the trust and claim rights inconsistent therewith; that if the trusts were invalid the court could not entertain jurisdiction; if valid, there was no need of judicial construction, as no question was made as to its true meaning, or the rights of the parties under it, and that plaintiffs, to entitle them to the action, must elect to take in subordination to the will,

and under the trust as created. 3 J. C. R., 553.

The clause in question gave the residue of the testator's estate, after the payment of specific legacies to his wife, and

children without issue, the property to vest in the survivors. In case of the decease of the four without issue, the property to vest in his children by his first wife, the plaintiffs. The executors were authorized to lease or sell the property in their discretion, and to apply so much as should be necessary to the support of his wife, and the support and education of her children. There was no allegation of fraud or abuse of trust on the part of defendants.

Held, That plaintiffs were not entitled to an accounting, as they do not occupy the position of cestuis que trust, and, as their interests depended upon a contingency so remote, it would require a very strong case to authorize the interference of the court to secure it against the beneficial user by those in esse.

Also, that the devise over to plaintiffs was void, as it could only take effect upon the termination of four lives then in being.

Judgment of General Term, affirming judgment of Special Term, dismissing plaintiff's complaint, affirmed. Opinion by Allen, J.

WRITS OF ERROR. SUPREME COURT OF THE UNITED STATES.

Long, et al. v. Converse, et al. Decided at Oct. Term, 1875. Assignees in bankruptcy have title to the property in the hands of receivers apA debtor to, or one against whom the repointed by a State court. cievers have a claim, cannot defeat their action by setting up the title of the assigneess.

The title of assignees cannot be affected

A writ of error will not lie from the Suby a decree except through their consent. preme Court of the United States to a State court in an action brought by the assignee against those who had paid the receivers.

In error to the Supreme Judicial Court

three infant children, jointly, in case of of the State of Massachusetts.

of Providence; that Long and Watson, at the time, had full knowledge of the rights of the railroad company, and that Farwell had no power or authority to make the transfer.

On the 20th of July, 1870, a bill was filed in the Supreme Judicial Court of Massachusetts for the foreclosure of a mortgage executed by the Boston, Hartford and Erie Railroad Company to secure the payment of certain bonds. The bill prayed a sale of the mortgaged property and the appointment of receivers. Henry N. Farwell was named as one of the defendants, he being one of the trustees under the mortgage, and also one of tion denying that Farwell, at the time the directors of the company. Process of the appointment of the receivers, held was served upon him July 21, 1870.

On the 2d of August, 1870, an order was made appointing receivers, with the usual authority to take possession of all the property of the railroad company.

The petitioners asked that Long and Watson might be ordered to deliver the coupons to them, and be restrained from collecting the money due thereon.

Long and Watson answered the peti

the coupons in trust for the railroad company, and averring that he held them as collateral security for a debt owing to him by the Hartford, Providence, and Fishkill Railroad Company. Having no On the 1st of March, 1871, the rail- knowledge whether the Boston, Hartroad company was adjudged a bankrupt ford and Erie Railroad Company had by the U. S. District Court of Massachu- authority to sell the coupons or put them setts, and an assignment of its property, in circulation, they left the petitioners according to the provisions of the bank- to make such proof of that fact as they rupt act, was made to Bradley and Bar- might deem material. They admitted nard, as assignees. The assignment was the transfer to them by Farwell, after made to include all the property of which the appointment of the receivers, but dethe company was possessed on the 21st nied any knowledge of the rights of the of October, 1870. railroad company, and averred that they purchased them from Farwell in good faith, believing that he had the right to make the transfer.

Subsequently, on the 27th of June, 1872, they filed an amendment to their answer, setting up the bankruptcy of the railroad company and the assignment to the assignees, and concluding as follows: "Wherefore these respondents submit that the said petitioners had not, at the date of the filing of said petition, if they ever had, any right to the possession of any of the property of the said Boston, Hartford and Erie Railroad Company, and particularly to the possession of the coupons in said petition alleged to be the property of the said company and in the possession of these respondents.'

On the 20th of September, 1871, the receivers of the railroad company filed in the Supreme Judicial Court their petition against George W. Long and John C. Watson, alleging, in substance, that when the order appointing them receivers was made, Farwell had in his possession, as one of the officers of the railroad company, certain coupons of bonds of the Hartford, Providence and Fishkill Railroad Company, and of bonds of the city of Providence, which were the property of the Boston, Hartford and Erie Railroad Company, and which, by the decree, he was ordered to deliver to them; that the railroad company had no right to sell or transfer the coupons or put them in circulation; that he had no right to the coupons or their possession; that The cause was referred to a special notwithstanding this he had, subsequent master. Upon the coming in of his reto their appointment as receivers, trans- port exceptions were filed, and at the ferred to Long and Watson five hundred April term, 1872, an entry was made on of the coupons of the bonds of the city the docket of the court, as follows;

"Plaintiffs' exceptions sustained. De- not to protect their own, but to defeat

cree for the receivers upon the evidence reported." The cause was then continued. On the 28th of August, 1872, the assignees in bankruptcy filed in the cause a paper addressed to the court, in which they represented that, "having read ** the proposed decree of this court against George W. Long and John C. Watson, ordering them to surrender and deliver up to the receivers the coupons of the bonds of the city of Providence described in the petition against them, we do assent to said decree and to the delivery of the coupons to the receivers, as therein ordered."

that of the receivers. They claimed adversely to both the receivers and assignees. They did not even allege that the assignees had ever attempted to assert title. The contest was originally for the possession of certain papers. The decree for money was given, because, pending the suit, the papers sought for had been exchanged for money, and the receivers were willing to accept the exchange. In the absence of the assignees from the case, the decree could have no effect upon their title to the coupons or money. If, when the demand was made upon Long and Watson by the receivers, they had surrendered the coupons, that surrender would have been a complete defence to a future action by the assignees, inasmuch as they had not before that time asserted their claim, either by demand or notice. The title of the assignees to the property would not have been defeated by the transfer. Whatever rights they had against Long and Wat

Afterwards, on the 5th of May, 1873, a decree in form was entered by the court, in which it was "found as a matter of fact, and further ordered, adjudged and decreed, that the respondents, George W. Long and John C. Watson, took the interest coupons sought in this petition to be recovered of them, to wit, etc., under circumstances which preclude said Long and Watson from claiming the son could be enforced by an appropriate right of holders for value in good faith, proceeding against the receivers. The and that, as against the petitioners in whole effect of the surrender, so far as said petition, said Long and Watson the assignees were concerned, was to acquired no better title to said coupons transfer the custody of the property from than Henry N. Farwell himself had, and Long and Watson to the receivers. In that said Farwell had no right or title to this case the transfer was not voluntary, the same, and that the right to the pos- but in pursuance of a decree rendered by session of, and the title to said coupons a court of competent jurisdiction, with are now in the petitioners, *the assent of the assignees. Under such notwithstanding the amended answer of circumstances it is not easy to see how said defendants and the alleged adjudi- the assignees can proceed futher against cation in bankruptcy and subsequent the parties who have only obeyed the assignment made therein." Thereupon, it was further decreed that the receivers recover of Long and Watson the money which it appeared they had collected during the pendency of the suit from the city of Providence, upon the coupons received by them from Farwell.

*

commands of the court. Clearly their remedy, if they have any, is against the property in the hands of the receivers.

Long and Watson claim no title, right, privilege or immunity under the bankrupt law. Their obligation to account for the coupons in their hands is not dis

To reverse this decree the present writ charged by the law. The title of the of error has been prosecuted.

Held. Long and Watson did not claim under the assignees in bankruptcy. They set up the title of the assignees,

assignees can not be affected by the decree except through their consent. Opinion by MR. CHIEF JUSTICE WAITE. Dismissed for want of jurisdiction.

VOL. 1.]

MONDAY, JANUARY 17, 1876.

[No. 23.

NEW YORK WEEKLY DIGEST.the present plaintiff was substituted. Upon the last trial, a recovery of $4,000 was had, and a motion for a new trial on the minutes denied. Defendant appealed and claimed that the action abated on the death of plaintiff's testator.

ACTION.

N. Y. COURT OF APPEALS.

Cox, extr. etc. respt. v. The New
York Cent. and Hudson R. R. R.
Co. applt.

Decided Dec. 15, 1875.

A stipulation given on an application to adjourn a cause, the opposing party being in feeble health, that the action shall not abate, should the party die before the adjourned date, binds through all the subsequent proceedings in the

case.

Held, That the giving of the stipulation must, under the circumstances, be regarded as a compliance by defendant's counsel with a condition imposed by the court upon granting the postponement; that it could not be presumed to have been given unless required, or that it was not an essential consideration with the court in granting the motion. That the force of the stipulation was not spent when the first verdict and judgment was rendered, and that defendant was precluded thereby from raising the question.

The attorney for the party moving the adjournment, can bind his client by such a stipulation. Any condition imposed by the court, on Defendant also claimed that the stipgranting an adjournment, in the ordi-ulation was not one which its counsel nary course of the litigation, may be had power to make. It was admitted, on accepted by the attorney of the moving the trial, that the counsel who signed it party. The court has power to impose this condition, and, to enforce it, to allow the case to proceed, on the death of the party, either in his name, or in the name of his executor.

This action was brought by plaintiff's testator to recover damages for his being ejected from defendant's cars. After issue joined, the cause was noticed for trial, and plaintiff was ready. Defendant's counsel moved to put the case over the Circuit, and as a condition for its going over, stipulated, that in case of the death of the plaintiff, who was then in feeble health, before final judgment, the cause of action should survive and not abate by his death, and that any verdict thereon should be regarded as if rendered in his life time, and that, in case of his death before the final determination of the action, his personal representatives might be substituted as plaintiffs upon filing the stipulation. The cause was subsequently tried, and plaintiff recovered. The judgment was reversed on appeal, and a new trial was granted.

had the same authority as the attorney of record, but it is denied that an attorney could, under his general retainer, bind his client by such a stipulation.

Held, That the application to put the cause over being within the general authority of the attorney, it must be assumed that it was made in defendant's interest; that when the court required the stipulation to be given, as a condition of granting the application, the counsel had the alternative of proceeding with the trial, or of complying with the condition, and as defendants could only be present by its agents, its counsel was necessarily called upon to decide which course he would adopt.

As a general rule, whatever conditions the court in the progress of an action may lawfully impose in granting an application made in the usual course of the litigation in behalf of one of the parties, the attorney by whom the application is made, may, to secure the advantage sought, consent to and bind his client thereby. 6 J. R. 295; 6 Cow. 385; 7 id. Before the new trial plaintiff died, and 739; 3 Hill, 552; 2 Camp. 9; 10 Wend, 575

624; 11 id. 186; 1 Cr. and Jer. 117; 2 B. ishes the Board of Assistant Aldermen, and Ad. 966.

Also Held, That the court had power to annex the condition imposed, and.to make it effectual by allowing the case to proceed after the death of the plaintiff, either in his name, or in the name of his executor.

Judgment of General Term, reversing judgment in favor of plaintiff, and order denying new trial, reversed. Opinion by Andrews, J.

ALDERMEN-BOARDS OF. NEW YORK CITY AND COUNTY.

N. Y. COURT OF APPEALS. Demarest et al., applts. v. Wickham, Mayor, etc., of New York, respt. Decided December 7, 1875. Persons unconstitutionally elected to office hold de facto not de jure, and the remedy against them is by an information in the nature of a quo warranto by the attorney-general, in the name of the people, to remove them.

Individuals or corporators cannot main-
tain a suit to restrain the exercise of
unauthorized powers by a Board of
Aldermen, or to enjoin a Mayor of a
city from recognizing the body, or ap-
proving its acts.

A court cannot direct an election, when
there is no statute authorizing one.
An action cannot be maintained to pro-
cure a judgment as to a right to office
when it does not appear that there is a
hostile claim thereto.

This action was brought to enjoin defendant, as Mayor of New York City, from signing any resolutions or ordinances, appropriations or contracts, or any acts of the Board of Aldermen, as the Common Council, and to require a special election to complete the Board of Assistant Aldermen. The plaintiffs claimed to have been elected to the office · of Assistant Aldermen at the election in

and that of Chapter 757 of the Laws of 1873 amendatory thereof, which provided for an election of a Board of Aldermen on the principle of minority representation, were unconstitutional, and that said Board, so elected, had no power to act. Defendant demurred on the ground that the complaint did not state facts suflicient to constitute a cause of action, and the demurrer was sustained.

Held, No error: that if said provisions were unconstitutional, the persons returned as elected at an election held thereunder had no legal right to the office; their assumption of the office constituting them officers de facto not de jure. In such a case the remedy is by information in the nature of a quo warranto by the attorney-general in the name of the people, to remove them as intruders. Plaintiffs could not as individuals, or as corporators, maintain a suit to restrain the exercise of unauthorized powers by the Board of Aldermen, or to enjoin defendant, as Mayor, for recognizing it as the Common Council or approving its acts of legislation.

The exercise by municipal corporations of powers not granted is primarily an offence against the State, and individuals. cannot challenge such acts or acts of public officers until personally affected.

Also held, That in the absence of a statute authorizing a new election the court could not direct one. This action could not be maintained to procure a judgment as of plaintiff's right to the office, as it does not appear that any persons claim in hostility to them.

Judgment of General Term, affirming judgment of Special Term for defendant, affirmed.

Opinion by Andrews, J.

Nov., 1874, having been the only candi- ASSESSMENT-NEW YORK CITY

dates for that office voted for at that elec

AND COUNTY.

tion. They alleged that the provision of N. Y. SUPREME COURT-GENL. TERM. Chapter 335, Laws of 1873, which abol

FIRST DEPT.