building, which was in packing, paper, or excelsior, which practically filled that floor, and that Siegfried Glass and his workmen were seen "there" on the day of the fire, smoking cigars or cigarettes; that none of the contractors' workmen were in the building on the day of the fire, save their watchman; and that he did not smoke on that day. On the other hand, there was no suggestion that there was any intentional firing of the building by any one, or that any one would have been benefited by its burning up. A lighted cigar or cigarette in the same building on the same floor would not necessarily cause a conflagration, as if it had been brought in contact with escaping gas or inflammable fumes. We know, of course, that lighted cigars and cigarettes are constantly brought into rooms or buildings and smoked therein, when the room or building contains things inflammable from the slightest contact with fire. We know that cigars and cigarettes do not necessarily cast off sparks or floating flecks of fire. There was no proof that Glass or his workmen while smoking were moving the furniture on that floor shortly before the fire. There was no proof that any one of these people were in contact with the furniture or the packing or in close proximity to them. There is no proof when Glass or his workmen smoked. There is no proof when they were on the first floor, or even in the building, save that Lukoff, the Koeppels' watchman, testifies that Glass' working people walked up and down on the third floor when he was eating his dinner. The watchman, Lukoff, had but to look in to the ground floor where he first saw the fire, but he does not testify to the presence of Glass or his workmen on that floor at any particular time. Proof that none of the Koeppels' workmen was there on the day of the fire is not proof that none of the subcontractors' workmen (and the record shows that there were at least two subcontractors) was present and working.

If we consider the testimony adduced by Glass, we find considerable evidence of positive character that there were other workmen there on this day; that there were carpenters and plumbers in the building; and that plumbers were seen on the first floor on the morning of that day, who "had some fire." Lukoff, the important witness of the Koeppels, testifies that there were some people there, "but further up; they were plumbers." Of course, the court was at liberty to disregard the testimony adduced by Glass, but the testimony as to the presence of plumbers in the building is from both sides, and practically is not disputed. The use of fire was entirely natural to their calling in constructive work. To my mind the possibility was not, by evidence of concentration or of exclusion, made proof by those who bore the burden. Certainly there was other and further evidence available to them. The plumbers or other persons must be known. It seems that the plumbers testified before the fire marshal, and the carpenters were in court. Thus it seems that it was practicable to adduce evidence which bore on the question of the exclusion of the other persons who were present from any causal relation to the fire.

Starkie on Evidence, p. 865, says:

"What circumstances will amount to proof can never be a matter of general definition. The legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury."

and 138 New York State Reporter

In Lopez v. Campbell, 163 N. Y. 340, 347, 57 N. E. 501, 503, the court say:

"While a material fact may be established by circumstantial evidence, still to do so the circumstances must be such as to fairly and reasonably lead to the conclusion sought to be established, and to fairly and reasonably exclude any other hypothesis."

In Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90, 94, 47 N. E. 971, 972, the court say:

"In order to prove a fact by circumstances, there should be positive proof of the facts from which the inference or conclusion is to be drawn. The circumstances themselves must be shown, and not left to rest in conjecture, and when shown it must appear that the inference sought is the only one which can fairly and reasonably be drawn from these facts. People v. Harris, 136 N. Y. 429, 33 N. E. 65."

I think that there should be a new trial granted.

Judgment reversed, and new trial granted; costs to abide the final award of costs. All concur, except HIRSCHBERG, P. J., who dissents.

CAMINEZ et al. v. GOODMAN.

(Supreme Court, Appellate Division, Second Department. May 3, 1907.) HIGHWAYS-DUTCH ROADS-ABANDONMENT-FEE.

Evidence held to show a road extending through Brooklyn to have been an old Dutch road, so that, according to the law of the continent of Europe, on part of the road being abandoned in 1871, the city's conveyance to plaintiff's predecessor of a part of it carried good title.

Submitted controversy by Jacob Caminez and another against Maurice Goodman. Judgment for plaintiff.

The plaintiff asks for the specific performance by the defendant of his contract of purchase of a lot of land. Part of it lies in the line of what was the ancient road from Brooklyn to Newtown. The line of this road was straightened and changed in 1871, by a commission appointed under chapter 674, p. 1504, of the Laws of 1868, and the new road was and is called Flushing avenue. The city of Brooklyn thereupon conveyed to the plaintiff's predecessor in title, who owned the abutting lot, the strip of land the title of which is in dispute, it being part of the old road which was left out of the new.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.

Bernard Bloch, for plaintiffs.
Louis A. Sable, for defendant.

GAYNOR, J. If the old road was a Dutch road the fee of it was in the city, after the law of the continent of Europe, and its conveyance to the plaintiff's predecessor was good. Dunham v. Williams, 37 N. Y. 251. The capitulation of Long Island by the Dutch to the English was in 1664. If the road existed at that time, the plaintiff's case is made out. It is mentioned in Riker's Annals of Newtown, pp. 83, 84, as having been repaired in 1670, showing it to have been of some age. then; and in Ostrander's History of Brooklyn, vol. 1, pp. 101, 102, it is mentioned as existing in 1662 when the village of Bedford was

laid out. It is there called the "Cripplebush Road running to Newtown." As Bedford was between Brooklyn and Newtown, and Cripplebush between Bedford and Newtown, and there was only one highway from Brooklyn to Newtown, the identity of the road seems not to be open to dispute.

Judgment for the plaintiff.

Judgment for plaintiff, with costs, in accordance with the terms of the submitted controversy. All concur.

In re BOSTWICK.

(Supreme Court, Appellate Division, Second Department. May 8, 1907.) WILLS-LEGACIES-INTEREST.

An antenuptial contract provided that the wife should receive in lleu of dower rights the sum of $4,000 on the death of the husband, with interest from his death. On his death he left a will increasing the amount to $10,000, "as provided in said agreement." In another clause of the will testator bequeathed a sum of money to a niece with interest from his death. Held, that the wife was entitled to receive interest on the entire $10,000 from testator's death.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, §§ 18471872.]

Appeal from Surrogate's Court, Dutchess County.

Judicial proceedings on the final settlement of the accounts of William M. Bostwick, as executor of the will of Henry Bostwick, deceased. Emma F. Bostwick appeals from the decree. Modified and affirmed.

Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, GAYNOR, and MILLER, JJ.

Allison Butts, for appellant.

C. W. H. Arnold, for respondents.

HIRSCHBERG, P. J. The only question presented on this appeal is whether the appellant, the widow of the testator, is entitled to interest on the sum of $10,000 from the date of her husband's death. The learned surrogate has held that she is only entitled to interest on $1,000 of that sum from the date of the death of the deceased, and that the balance-that is, the sum of $6,000-is to be regarded as a general legacy, drawing interest only from a date one year subsequent to the issuance of the letters testamentary.

The deceased and the appellant, then unmarried, entered into an antenuptial agreement in the year 1899; the deceased being named as party of the first part and the appellant as party of the second part. The agreement recites that the parties are about to be married, and that the party of the first part "is desirous of making a pecuniary provision for the use and benefit of the said Emma F. Davis, his intended wife, to be in lieu of dower, and also in lieu of all interest in his estate." The agreement then provides as follows:

"Now, therefore, the said party of the first part doth hereby agree to and with the said party of the second part that if the said marriage shall be had

and 133 New York State Reporter

and solemnized as aforesaid, that the said Emma F. Davis shall have paid to her, within six months after the death of the said party of the first part, by his executors, the sum of four thousand dollars, with interest from the date of the death of the said party of the first part, in case the said party of the second part survives the said party of the first part. And the party of the second part hereby assents to such pecuniary provision so made for her, and for that purpose joins in the execution of this agreement, and hereby covenants and agrees that she will accept the payment of such sum aforesaid in full satisfaction of her dower in the lands of the said Henry Bostwick, and hereby further covenants, promises, and agrees to execute and deliver any release or releases of such dower rights to the heirs, devisees, or executors of the party of the first part, on demand, and does hereby further covenant, promise, and agree, in consideration of such sum to be paid as aforesaid, to make no claim of any nature against the estate of said party of the first part in case she survives him."

as

The parties were married soon after the execution of the antenuptial agreement. The husband died in the year 1904, leaving a will executed a month before his death, in which he made the following provision for his wife:

"First. Whereas, I made an antenuptial agreement with my wife Emma F. Bostwick, by which I agreed to give her, and she agreed to accept, the sum of four thousand (4.000) dollars in full satisfaction of any claim she might have against my estate and in lieu of dower; and whereas, I have decided to increase the amount to be given her to ten thousand (10,000) dollars:

"Now, therefore, I direct my executor hereinafter named, to pay the said sum of four thousand dollars to my wife as provided in said agreement, and in addition thereto the further sum of six thousand (6,000) dollars. which sums aggregating ten thousand (10,000) dollars are to be accepted by my said wife in full satisfaction and in lieu of dower in my real estate, as agreed upon between us in said antenuptial agreement."

To me it seems quite clear that the intention of the testator was to give to his wife the interest on the whole sum of $10,000 from the date of his death. That the intention of the testator is the controlling canon of interpretation has been often decided. The effect of the provision in the will was, as stated by the deceased, to increase the amount provided for in the antenuptial agreement from the sum of $4,000 to the sum of $10,000. By the agreement it had been expressly provided that the money paid or to be paid under it should draw interest from the date of the death of the husband, and by the express terms of the provision of the will the additional amount is to be paid and accepted "as agreed upon between us in said antenuptial agreement."

The learned counsel for the respondents in his brief calls attention to the eighth clause of the will as indicative of the fact that the deceased knew how to create a legacy which would draw interest from his death. It is of some significance that in the eighth clause of the will he bequeaths the sum of $5,000 to a niece of his wife, the sum to be paid to her two years from his death, "with interest thereon from my death at the rate of 5 per cent." It seems to me that this is significant of the fact that he knew that a general legacy would not draw interest the first year after his death, and that, if he desired that his wife should not receive interest on the $6,000 during that period, all he had to do was to bequeath her that sum of money as a general legacy, saying nothing about the antenuptial agreement, but leaving that to be

enforced as it was. While the question is not entirely free from doubt, it seems to me that the better and more consistent view to take is that the purpose of the testator by the testamentary provision was merely to increase the amount to be paid under the antenuptial contract, leaving all the other provisions of the contract to apply to the $10,000 the same as they would have applied to the $4,000, had that amount not been increased.

It follows that the supplemental decree should be modified, by providing for the payment to the appellant of interest on the $10,000 from the death of the deceased to the time of payment, and, as modified, affirmed, with costs to all parties payable out of the estate. All concur.

In re FOSTER AVE. IN CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. May 3, 1907.) EMINENT DOMAIN-APPEAL-TIME FOR FILING PAPERS-EXTENSION.

New York City Charter, Laws 1901, p. 417, c. 466, § 988, allows an appeal to the Supreme Court from an order confirming the report of commissioners of estimate and assessment, but provides that such appeal shall not stay the proceedings, except as to the particular parcel of real estate with which the appeal is concerned, and the order confirming the said report shall be deemed final upon all parties who have not appealed. Held, that where one of the parties in proceedings to acquire land for the opening of a street did not appeal from the order of confirmation, nor did the city, such party thereafter had no standing to move to vacate an order extending the time of another party who did appeal to print and file her papers on her appeal.

Appeal from Special Term, Kings County.

Application by the city of New York for the acquisition of title for opening a portion of Foster avenue. The Germania Real Estate Company appeals from orders for motions denying a motion to vacate a judge's order, and a motion to vacate a court order extending the time for the printing and filing of the papers on the appeal of Annie W. Stevens from the order of the Kings Special Term for motions confirming the report of the commissioners of estimate and assessment herein. Affirmed.

Appeal by the Germania Real Estate Company from orders of the Kings Special Term for motions denying a motion to vacate a judge's order, and a motion to vacate a court order, extending the time for the printing and filing of the papers on the appeal herein to this court from the order of the Kings Special Term for motions confirming the report of the commissioners of estimate and assessment herein.

This was a proceeding by the city of New York to acquire the land in Foster avenue for a street.

The report of awards and assessments by the commissioners of estimate and assessment was confirmed by the court on June 26, 1906. Annie W. Stevens, respondent, one of the landowners to whom an award was made, filed her notice of appeal therefrom to this court on July 16, 1906. On January 10, 1907, the respondent got an order ex parte from a judge of the Supreme Court extending to February 1st her time to print and file her papers on such appeal. This appellant made a motion on notice before the court at Special Term to vacate the said order as irregular and void, for not being a court order, which was denied on February 1st, and thereupon, on the same day, the court granted an order ex parte extending such time to