FIFTH DEPARTMENT, OCTOBER TERM, 1887.

before the accident happened, even if it was incumbent on the plaintiff to show that the commissioners had funds or the power to obtain them. But it has been held frequently that the lack of funds is matter of defense, and the burden of showing it is on the defendant. (Bidwell v. Town of Murray, 40 Hun, 190, and cases cited by BRADLEY, J., p. 196.)

The respondent's counsel contends that unless a joint liability was shown, the nonsuit was proper. Upon that question also, it is unnecessary to pass, and we do not decide it. For, as has been said, the facts admitted by the answer, in the view which we take of them, conclusively establish a joint liability.

Still another question, discussed by the trial judge in his opinion denying a new trial, we do not consider, and that is whether it was competent for the two towns to allot to one of them the care of the bridge so as to relieve the other from responsibility to the public in respect to its condition. (Day v. Day, supra.)

In the present state of the pleadings, as we regard them, that question and the others which we have mentioned only to say that we give them no consideration, do not arise. For the error above pointed out a new trial must be ordered. It may be that before another trial the defendants may amend their answer by leave of the court, so as to make the evidence admissible to which we have adverted. We cannot anticipate the questions of law which may then arise, and any further discussion of the case at the present time would be premature.

The judgment and order should be reversed and a new trial granted, costs to abide event.

HAIGHT and BRADLEY, JJ., concurred.

Judgment and order reversed and new trial granted, with costs to abide event.

FIFTH DEPARTMENT, OCTOBER TERM, 1887.

MARY B. BOUTON AND OTHERS, APPELLANTS, v. CARRIE THOMAS, EXECUTRIX, ETC., OF EMMETT LEGERN, DECEASED, AND FRANK WHITE, RESPONDENTS.

Discretionary power of sale. - when it does not vest the title in the executors-right of the remaindermen to maintain an action for waste against the life tenant. This action was brought by the plaintiffs, claiming as remaindermen under the will of one Legern, to recover for waste alleged to have been committed or directed by a tenant for life. The will, after directing the payment of debts and specifying certain bequests and devises, among which was an estate for life in certain real estate, gave the residue of his estate, real and personal, to his "heirs, to be equally divided between them, share and share alike, including my wife," and by a subsequent clause gave all his real and personal estate, of whatever nature or kind, to his executors in trust for the payment of the debts and legacies, with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms and in such manner, as to them should seem meet. Upon the trial a motion to dismiss the complaint was made by the defendants, upon the ground that the plaintiffs had not shown either title or possession of the premises and could not maintain the action. Held, that the court erred in granting the motion.

That the trust to pay debts and legacies vested no estate in the trustees, as they were not authorized to receive the rents and profits, nor entitled to the possession of the real estate, and that, until the execution of the power, the fee was in the heirs subject to the estate of the tenant for life.

It seems, that if this were a case in equity the judgment appealed from might have been sustained upon the doctrine of equitable conversion, as the gift of the use of the land to the tenant for life was accompanied by an imperative direction that upon his death such land should be sold by the executors, or the survivor of them, and be divided equally among the heirs.

APPEAL from a judgment of nonsuit, ordered at the Cayuga Circuit.

John L. Parker, for the appellants.

John E. Cropsey and H. Greenfield, for the respondents. SMITH, P. J.:

The plaintiffs, claiming as remaindermen or reversioners under the will of John C. Legern, deceased, seek to recover in this action for waste alleged to have been committed or directed by the life tenant. The will, after directing the payment of the testator's debts and specifying certain devises and bequests, gave the residue

FIFTH DEPARTMENT, OCTOBER TERM, 1887.

of the estate, real and personal, to "my heirs to be equally divided between them, share and share alike, including my wife." By a subsequent clause it gave "all my real and personal estate of what nature or kind soever to Emmett Legern, Sarah A. Legern and Giles M. Stoddard, the executors of this my last will and testament, hereinafter nominated and appointed, in trust for the payment of my debts and the legacies above specified, with power to sell and dispose of the same at public or private sale, at such time or times. and upon such terms and in such manner as to them shall seem meet." Among the specific devises was one of a life estate in the real estate in question to the said Emmett Legern, who was one of the original defendants in this action. He having died his executrix, Carrie Thomas, was substituted in his place. At the trial the plaintiffs put the will in evidence, and when they rested the defendants moved for a nonsuit upon the ground, as the case states, that the plaintiffs "have shown neither title nor possession to the premises in question, and for that reason they cannot maintain this action." The court granted the motion upon the ground, as the case also states, that the title was in the trustees and not in the heirs.

In that we think the learned justice was in error. The trust was to pay debts and legacies. Under the statute it was good as a power in trust to sell and apply the proceeds to that purpose (1 R. S., 728, § 55, sub. 1, 2), but the trustees were not authorized to receive the rents and profits, nor were they entitled to the possession, and, therefore, no estate vested in them. (1 R. S., 729, § 56.) Until the execution of the power the fee was in the heirs subject to the life estate of Emmett Legern. (Id., §§ 56, 59.) This view of the statutes cited is sustained by numerous adjudications, among which are Boynton v. Hoyt (1 Den., 53), Germond v. Jones (2 Hill, 569); De Peyster v. Clendining (8 Paige, 295); Manice v. Manice (43 N. Y., 303, 364); Chamberlain v. Taylor (105 id., 185). The Revised Statutes gave to a person seized of an estate in remainder or reversion the right to maintain an action of waste or trespass, for any injury done to the inheritance, notwithstanding any intervening estate for life or years. (1 R. S., 750, § 8.) That right, we understand, is continued by the Code of Civil Procedure. (§§ 1651, 1652, 1655). The waste in this case consisted in cutting down growing trees.

FIFTH DEPARTMENT, OCTOBER TERM, 1887.

If this were a case in equity the judgment appealed from might, perhaps, be sustained upon the doctrine of equitable conversion. The land was given to the executors in trust for the payment of debts and legacies, "with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms, and in such manner as to them shall seem meet." And by a previous clause, the gift of the use of the land in question to the son Emmett, for life, was accompanied by a provision that upon his death, such land be converted into money by the executors, or the survivor of them, and divided equally among the heirs. Although the executors were to exercise their discretion as to time, manner and terms, the direction to sell upon the death of the life tenant, we think, was imperative and not discretionary, so that, in equity, the heirs would be regarded as taking the property as money and not as land. (Stagg v. Jackson, 1 Comst., 206, opinion of JEWETT, Ch. J., p. 212, and authorities there cited by him; 1 Jarm. on Wills [3 Am. ed.], 481, m. p., 529; Moncrief v. Ross, 50 N. Y., 431.) But as the controversy in this action relates to the legal title only, the doctrine of equitable conversion has no application.

It is now contended by the respondents' counsel that there is no evidence that the plaintiffs are heirs of the testator. The point does not appear to have been suggested at the trial. On the contrary, the fact of the plaintiffs' heirship seems to have been assumed without dispute. We think that for the error above pointed out there should be a new trial, when the question of heirship, if there is any real dispute about it, can be distinctly litigated.

The judgment should be reversed, and new trial ordered, costs to abide event.

BARKER, HAIGHT and BRADLEY, JJ., concurred.

Judgment reversed, and new trial ordered, costs to abide event.

FIFTH DEPARTMENT, OCTOBER TERM, 1887.

DUANE EARL, RESPONDENT, v. GEORGE W. LEFLER, APPELLANT.

Evidence-an impression of the mouth of a horse to prove his age is admissiblewhen a judgment of a Justice's Court will not be reversed because of the admission of erroneous evidence.

Upon the trial of this action, brought for an alleged breach of warranty as to the age of a horse upon its sale to the plaintiff by the defendant, after several witnesses had [testified as to the extent to which the appearance of a horse's teeth indicate his age, a veterinary surgeon was called by the plaintiff, who testified that he had taken an impression of the mouth of the horse, which he produced in court at the trial.

Held, that the court did not err in overruling the defendant's objection to the admission of the impression in evidence.

That such an impression in plaster, wax or any other suitable substance, might be classed, as a species of evidence, with diagrams, drawings and photographs. The admission in a Justice's Court of incompetent testimony, to establish a fact clearly proved by other testimony of a competent character, is not such an error as requires the County Court to reverse the judgment rendered in the Justice's Court on an appeal taken therefrom.

This rule is applicable to appeals from judgments of the Municipal Court of the city of Rochester.

APPEAL from a judgment of the Monroe County Court, affirming a judgment of the Municipal Court of the city of Rochester.

L. L. Crosby and George Bowen, for the appellant.

George W. Hall, for the respondent.

SMITH, P. J.:

Action for an alleged breach of warranty in a horse trade. There was evidence tending to show that the defendant warranted the horse which he let the plaintiff have, to be kind and sound in every respect and eight years old, but that in fact he was unsound, vicious and at least sixteen years old. The plaintiff recovered $200 damages. The appellant contends that the trial court erred in rulings upon the admission and rejection of testimony.

One of the issues was as to the age of the horse at the time of the trade. Several witnesses testified as to the extent to which the appearance of a horse's teeth indicates his age. Cook, a veterinary surgeon, called by the plaintiff, testified that he had taken an HUN-VOL. XLVI

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