gate gave the one half of this fund to the brother, and the other half to the sister. The grandchildren of the deceased brother appeal from the decree of the Surrogate, and claim that they are entitled to one-third of the fund. Lewis L. Delafield, for applts. Thompson & Weeks, for respt. Held, That the grandchildren are not entitled to share. Our statute of distribution provides that no representation shall be admitted among collaterals after brothers' and sisters' children. 90, subd. 11; 2 Kent Com. 425, citing 1 Salk., 250; 1 Bradf., 302; 5 Paige, 316. Decree affirmed. Opinion by Dykman, J.; Barnard, P. J., and Gilbert, J., concur. CONTEMPT. INTERROGATO RIES. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. The People ex rel. Childs, respt., v. Cartwright, Prest., &c., applt. Decided July 6, 1877. On an attachment for contempt, where the act or omission constituting the contempt is admitted, interrogatories need not be filed. A writ of mandamus was served upon defendant on the 12th day of January, 1877, commanding him to sign a certain draft, or show cause at Special Term on the 20th of that month. He did not sign the draft nor appear to show cause. On the return day an attachment was issued against defendant, returnable on the 27th. Defendant signed the draft on the 23d, and on being brought before the Court on the attachment, admitted that he had not complied with the requirements of the mandamus, but so far purged his contempt that the Court imposed no punishment, but required him to pay the costs of the proceeding. Defendant appeals from the order adjudging him guilty of contempt, on the ground that no interrogatories were filed as required by statute. I. T. Williams, for applt. Samuel Watson, for respt. Held, No error. The statute contemplates a case in which the act or omission, constituting the contempt, is either denied or not admitted. Surely it was not necessary, after defendant's admission, to enter into interrogatories which could only have for their object the eliciting of the same confession. It cannot be held that the Legislature has prescribed a certain formula to be observed in all cases, whether there is any necessity for it or not. ant for the purchase of the property for $35,000, the contract containing a provision that, unless carried out by T., by June 1, 1871, it should be void. T. did not complete the purchase, but subsequently paid rent under the lease. In October, 1871, T.'s wife assigned her claim to plaintiff, and T. gave his bond for $6,900 to plaintiff, secured by mortgage on the property and on the lease. The property was afterward sold, in May, 1872, to plaintiff on execution issued upon a judgment on foreclosure of mechanic's liens, and the sheriff's deed on such sale was delivered in November, 1872. Defendant, in March, 1872, obtained possession of the premises by summary proceedings and continued in possession until March, 1873, when he sold it. Plaintiff now brings this action to enforce her equitable lien upon the premises and for the amount advanced by her, or for a sale of the property and payment to her of the balance of proceeds after satisfying defend ant's lien. higher title was consistent with the design of the parties to hold the lease intact and untouched by the contract of sale. A deed would seem to be necessary to change the estate of T., who was in possession under a lease before the agreement was executed. 5 Hun, 578. Defendant did not, by any act of his, expose himself to any action by T., or any person deriving interest through him. There is present no element of fraud or wrong except such as may be inferred from the appropriation of the improvements, but these were not taken wrongfully; they were acquired by the exercise of legal rights. Defendant did not urge the expenditures, nor refuse, when asked to make the agreement, to perfect their value in the person who designed to secure them. Whatever disadvantage followed was not his fault but that of his tenant and contemplated grantee. T. has no equitable estate in the land. The equity of a vendee, in the nature of a trust, will not exist where the purchaser, by his own fault, aban Judgment was rendered for plain- dons the contract, or where the con tiff at Special Term. Charles Tracy, for applt. tract is for any cause illegal. Perry on Trusts, § 231. H. S. Burnett, for respt. Held, Error. The right of plaintiff to recover depends upon the right or estate of T. in the premises. The default rescinded the contract of sale, unless the defendant waived the advantage gained. 5 Cow., 270; Id., N. Y. SUPREME COURT. 271; Id., 272. Judgment reversed and new trial ordered. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. The lease was not merged in the contract. The legal title is the greater and the equitable the lesser; and it is the greater interest which absorbs. The right to acquire the CORPORATIONS. GENERAL TERM. FOURTH DEPT. Decided October, 1877. meeting of stockholders, and a resolution is adopted at said meeting declaring the corporation dissolved, such acts of the stock No fraud being shown, the acts were valid and binding on the plain holders are equivalent to a surrender of its tiff, who voted for both by proxy. corporate rights. Where no fraud is shown, the acts done at a meeting of stockholders are binding upon a stockholder who voted for them by proxy. This action was brought to compel the defendant, The Erie County Cooperative Milk Association, of which plaintiff was a member, to continue its corporate business, and to compel the other defendants, as directors, to call meetings, &c. It appeared that said co-operative association was a duly organized corporation; that it conducted the business for which it was created up to Oct. 21, 1874; that plaintiff was a stockholder; that on said Oct. 21, said association owned certain personal property. On that day, at a meeting of the stockholders, all of said property was sold by a unanimous vote of the stockholders present. The meeting also unanimously adopted a resolution declaring the association dissolved. The plaintiff voted for both propositions by proxy. The association owed no debts. The price for which the property was sold was fair. The association never held any more meetings, nor did any more business. The Court dismissed the complaint on the merits. Thomas Corlett, for applt. Day & Romer, for respts. Held, Right. The acts of the stockholders, disposing of its property and resolving to dissolve the association, had the effect of destroying the end and object for which the corporation was created, and were equivalent to a surrender of its corporate rights. N. Judgment affirmed. Opinion by Smith, J. All concur. TERM. FOURTH DEPT. Caroline M. Clark, respt., v. Nancy Bruce, ex'rx, &c., applt. Decided October, 1877. In an action against an executor, evidence which may be objectionable under § 399 of the Code will be admitted uniess objections under that section are made. Where such objections are not made on the trial they are waived. A witness who is an attorney of long standing, and who has examined professionally old and new writings in relation to their genuineness, is not competent to give an opinion as an expert as to the age of a writing. The action was on a note made by defendant's testator. The plaintiff relied upon certain partial payments indorsed on the note to take it out of the statute of limitations. On the trial the plaintiff was asked, "What money, if any, did you receive on that day?" (The date of one of the indorsements.) Objected to as immaterial; objection overruled. Witness for defendant testified that he had been an attorney for twenty years, and had examined professionally old and new writings in relation to their genuineness; he was then asked, "In your opinion were the indorsements on the note written as long ago as they bear date?" Objected to on the ground that the witness was not shown to be competent to give an opinion; objection sustained. Abram Thorn, for applt. Torrance & Allen, for respt. Held, No error in either case, on the ground that the first question may have related to payments made by the maker or his agent, and so have been directly on the issue, and objections which might have been made under § 399 of the Code were waived, not having been made at the trial; and that in the second question the opinion only of the witness was asked for, and he had not been shown to be an expert on the subject. Genuineness of writing and age of writing are very different things. Opinion by Smith, J.; Talcott and Merwin, JJ., concur. Decided November, 1877. information and belief, a verification to the on information and belief, and as to those matters he believes it to be true." The defendant served an unverified answer. The plaintiff returned it because it was not verified, with due notice thereof, and then the plaintiff entered judgment without assessment by the clerk. The defendant now moves to set aside the judgment as irregular, and insists that the complaint was defectively verified, and therefore the defendant might serve an unverified answer. E. E. Sheldon, for motion. Delano A. Champion, opposed. HARDIN, J. Section 524 of the Code provides as to allegations in the pleadings, viz.: Unless they are therein stated to be made upon the information and belief of the party, they must be "regarded for all pur poses, including a criminal prosecuthe tion, as having been made upon knowledge of the person verifying the pleading." Applying the rule thus laid down, it is the duty of the Court, as well as of the parties, to regard the allegations in the complaint "as having been made upon the knowledge of the person verifying the same." Being so "regarded," it follows that the affidavit that they "are true of his own knowledge" applies to all the allegations, and as it applies to all of the allegations, it comes within the first mode of verification preThe plaintiff served a complaint in scribed in § 526. The affidavit is which none of the allegations are therefore to the effect that the plead"stated to be made upon the informa-ing is true to the knowledge of the tion and belief of the party." To the deponent." complaint was a verification and affidavit to the effect that the allegations "are true of his own knowledge, except as to the matters therein stated criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. Being wholly true, as stated in the affidavit under the rule laid down in § 524, the other words of the affidavit are surplusage and do not impair the force of a verification of the whole allegations as being true "to the knowledge of the deponent." If any of the matters in the complaint had been stated to be alleged upon information and belief, then rule second, given in § 526, would have been applicable, and the party who verified might state that such allegations as were in the complaint alleged to be stated upon information and belief, were believed to be true. But no such case is presented by the complaint in question and it was entirely sufficient for the party making the affidavit to state that the allegations were true if any were true; the only remedy the defendant has is (1) to deny them in her answer, and (2) to pursue the party making an affidavit that they are true for having committed perjury. The affidavit in this case, as well as the complaint, presumably are made with a full knowledge of the rule as to how they shall be "regarded" laid down in § 524. See Mr. Throops notes to the section. It follows from the reasons stated that the motion to set aside the judgment must be denied, with $10 costs. LANDLORD AND TENANT. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. continues in possession of any portion of the leased premises. June 16, 1867, plaintiff rented by verbal lease a house and brick-yard to defendant for one year, with privilege of four years. Defendant went into possession and occupied for two years. Before the two years expired he requested plaintiff to lease the premises to other parties, which plaintiff refused to do. Defendant then substantially declared his intention to leave the premises by the end of the second year, but no written or formal notice was given. At end of the second year defendant abandoned the house, but did not remove all his brick from the brick-yard, and some of them remained there as late as September, 1870. There was no express acceptance by plaintiff of that portion of the premises abandoned, but a tenant of plaintiff's used them to a limited extent with the knowledge and assent of plaintiff. defendant paid two years rent. This action was brought to recover rent for the two following years. The referee who tried the case decided that the plaintiff could not recover. Levi H. Brown, for applt. The Held, Error; the parol lease was not of itself good for more than a year, but as defendant entered and George H. Dorr, applt., v. Martin held under it for more than a year it Barney, respt. Decided October, 1877. While a parol lease is not of itself good for more than a year, yet if the tenant continue possession under it for more than a year it becomes a tenancy from year to year. A verbal notice that the tenant will leave the premises by the end of the year is not suffi cient to terminate such tenancy, nor is a formal notice sufficient where the tenant became a tenancy from year to year, and defendant was liable as long as he occupied the premises. So long as he occupied any part of them his tenancy continued, unless by agreement of the parties. No express acceptance by plaintiff was proved, and the partial use by his tenant with his knowledge and approval was not |