First Department, May, 1920.

[Vol. 192.

By section 190 a non-negotiable or straight bill is defined as a bill in which it is stated that the goods are consigned or destined to a specified person." A negotiable or order bill is defined by section 191 as "A bill in which it is stated that the goods are consigned or destined to the order of any person named in such bill. Any provision in such a bill that it is non-negotiable shall not affect its negotiability within the meaning of this act.”

* * *

or

The bill of lading under consideration did not state that the goods were consigned to the order of any person, but it stated that the goods were consigned to a specified person, the "Ford Motor Agency." The addition of the words assigns" does not add anything which would change or qualify the effect of the specific designation of the consignee. Nonnegotiable bills may be assigned or transferred by delivery, and the transferee acquires against the transferor the title to the goods subject to the terms of any agreement between them. But as against the carrier, the transferee acquires the right to notify the carrier of the transfer of the bill and thereby secure to himself the rights that the transferor had immediately before such notification. (Pers. Prop. Law, § 219.) Until notification the transferee acquires no right against the carrier. This bill of lading was a non-negotiable or straight bill of lading. The carrier was justified in delivering the goods to the consignee named in the bill of lading (Id. § 198, subd. b) as it had not received a notification that such delivery should not be made until the advance made by plaintiff had been paid. (Id. § 199.) The statute requires a non-negotiable bill to be marked on its face by the carrier issuing it "non-negotiable " or " not negotiable." (Id. § 194.) The failure to so mark a non-negotiable bill does not change its character and render it negotiable but makes the person who with intent to defraud issues or aids in the issuing of such a bill guilty of a crime. (Id. § 236.)

The agreed statement of facts does not show that the plaintiffs were misled by the absence of these words upon the face of the bill of lading into believing that the bill was a negotiable bill of lading. A negotiable bill can only be effectively transferred by indorsement. (Pers. Prop. Law, §§ 214, 215, 220.) The plaintiffs have never required the

App. Div.]

First Department, May, 1920.

transferor to indorse the bill. This not being an intrastate shipment, but a shipment from this State to the Canal Zone and for some part of the shipment through a foreign country, the statutes of the United States, if there were any covering the subject, would supersede the State statute. Where Congress has not legislated, however, the State has power to regulate the operation and effect of a contract for an interstate shipment "growing out of the territorial jurisdiction of the State over such carriers and its duty and power to safeguard the general public against acts of misfeasance and nonfeasance committed within its limits, although interstate commerce may be indirectly affected." (Adams Express Co. v. Croninger, 226 U. S. 491, 500.) The Federal Bills of Lading Act (39 U. S. Stat. at Large, 538, chap. 415) did not take effect until January 1, 1917, and expressly provides that it shall not apply to bills made and delivered prior to the taking effect thereof. (See 39 U. S. Stat. at Large, 545, chap. 415, §§ 43, 45; U. S. Comp. Stat. 1916, §§ 8604v, 8604w.) While the Carmack Amendment, as amended by the Cummins Amendment, dealt with the limitation of liability and certain other matters with respect to bills of lading, there is nothing therein, or in the Second Cummins Amendment which was enacted after the delivery of the bill of lading herein, with reference to the negotiability of such bills. (See 34 U. S. Stat. at Large, 593, 595, § 7, amdg. 24 id. 386, § 20, as amd. by 38 id. 1196, 1197, chap. 176. Since amd. by 39 U. S. Stat. at Large, 441, chap. 301.) There is no statute of the United States governing this case; therefore, the State statute is controlling. As the bill of lading in the present case is a nonnegotiable bill, and as the plaintiffs failed to give notice to the carrier of the transfer of the bill of lading to them to secure their advance, the carrier on demand of the consignee could deliver the automobiles to it, and plaintiffs have no claim against the defendants.

Judgment for the defendants, with costs.

CLARKE, P. J., LAUGHLIN, SMITH and MERRELL, JJ., concur.

Judgment ordered for defendants, with costs. Settle order on notice.

First Department, May, 1920.

[Vol. 192.

In the Matter of the Application for a Compulsory Accounting in the Estate of THOMAS STANLEY NEDHAM, Deceased. HENRY BLAND NEDHAM, as Executor, etc., of THOMAS STANLEY NEDHAM, SR., Deceased, Appellant; EMILY CROMWELL NEDHAM, as Executrix, etc., of THOMAS STANLEY NEDHAM, JR., Deceased, Respondent.

First Department, May 28, 1920.

Wills -devise in trust for use of wife for life with remainder over to children-interest of child not divested by his death before death of his mother accounting right of foreign executrix

to compel accounting without taking out ancillary letters.

Under a will devising property in trust for the benefit of the wife of the testator for life and directing that after her death the property be divided equally among the testator's children, a child takes a vested interest in the property on the death of his father which is not divested by the child's death prior to that of the testator's wife.

The executrix of a will duly proven in New Jersey may maintain proceedings in this State under section 1836-a of the Code of Civil Procedure to compel an accounting by the executor of a will in which her testator was a devisee, though ancillary letters have not been issued in this State.

APPEAL by Henry Bland Nedham, as executor, from an order of the Surrogate's Court of the county of New York, entered in the office of the clerk of said Surrogate's Court on the 1st day of March, 1920, requiring the appellant to render an accounting.

Lilian Herbert Andrews, for the appellant.

William C. Arnold of counsel [Russell E. Burke with him on the brief], for the respondent.

SMITH, J.:

Thomas Stanley Nedham died on the 23d day of March, 1908, leaving a will which was probated May 6, 1908. In that will, after certain specific legacies, Nedham devised the use of his entire estate to his wife, and after giving certain specific legacies, provided as follows:

"All the rest, residue and remainder of my estate, both

App. Div.]

First Department, May, 1920.

real and personal of every name and nature, of which I may die possessed, or entitled to, or to which I may hereafter become entitled, I give, devise and bequeath to my said Executors or their successors in trust to collect and receive the rents, issues and income thereof, pay out such sums as are necessary or proper for taxes, interest, assessments, repairs or other necessary or proper disbursements, to invest any moneys they may receive in such securities as they may deem advisable, to change and alter investments in their discretion, and to pay over the net income of my said estate to my wife, Angelina Nedham, during her lifetime. Upon the death of my said wife, I direct my said Executors or Trustees or their successors, to divide my entire estate into four (4) equal portions or shares, and to pay over one of said portions or shares to my son Thomas Stanley Nedham; another of said portions or shares to my daughter Mary Angelina Nedham; a third portion or share to my daughter Emily Louisa Nedham, and the fourth portion or share to my son Henry Bland Nedham."

*

After the death of Thomas Stanley Nedham, his son Thomas Stanley Nedham died leaving a will by which he gave all his property, real and personal, to his wife, Emily Cromwell Nedham, and she was named as executrix under his will. The will was proven in the State of New Jersey. Thereafter she duly qualified as executrix in that State, and she has brought this proceeding in New York State to compel the executor under the will of her husband's father to account.

Before the surrogate the only objection urged was that by reason of the death of Thomas Stanley Nedham, Jr., before the death of the widow of the testator, if any estate could be deemed to have vested in the said Thomas Stanley Nedham, Jr., that interest has been divested, so that the petitioner has no interest whatever in the estate. We are of the opinion that the surrogate properly decided that the will gave to the petitioner's testator a vested interest which survived the life estate of the widow.

Upon this appeal, however, the appellant urges that the Surrogate's Court has no jurisdiction to order this accounting, because the petitioner was a foreign executrix, no ancillary letters having been taken out in this State.

First Department, June, 1920.

[Vol. 192. This objection would seem to be answered by section 1836-a of the Code of Civil Procedure, added by chapter 631 of the Laws of 1911, which gave to a foreign executor or administrator the right to bring any action in any court of this State. This would clearly include the right to bring this proceeding, so that the objection is not well taken. (See Helme v. Buckelew, 191 App. Div. 59.)

The order should be affirmed, with ten dollars costs and disbursements.

CLARKE, P. J., DOWLING, MERRELL and GREENBAUM, JJ.,

concur.

Order affirmed, with ten dollars costs and disbursements.

NELLIE G. MIDDLETON, as Administratrix, etc., of LEWIS MIDDLETON, Deceased, Appellant, v. FREDERICK W. WHITRIDGE, as Receiver of the THIRD AVENUE RAILROAD COMPANY, Respondent.

First Department, June 4, 1920.

Street railways — negligence - failure of street car conductor to cause removal of passenger who became ill duty of conductor in such case erroneous charge verdict.

Statutory action brought to recover for the death of plaintiff's intestate alleged to have been caused by the negligence of the defendant, a street railroad company, in continuing to carry the intestate as a passenger long after it was apparent or would have been apparent by the exercise of reasonable care on the part of those in charge of the defendant's car that the intestate was seriously ill and in need of medical treatment, which if properly rendered might have saved his life. On a prior appeal it was held by the Court of Appeals that a dismissal of the complaint was error, there being issues for the jury. On the new trial it appeared, as upon the former trial, that the intestate, who showed no signs of illness or intoxication when he boarded the car, had been carried back and forth on said car for approximately five hours, when a policeman was summoned and he was removed in a totally unconscious condition. It also appeared that the rules of the defendant required conductors, in case a passenger became sick or helpless, to call a policeman or inspector and have such passenger taken from the car.