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for costs, which could only be defeated upon the ground of waiver after the amended pleading was served, 90 App. Div. 32, 85 N. Y. Supp. 589. The plaintiff served upon the defendants an amended. summons and complaint, wherein the United States Mortgage & Trust Company was sued individually, instead of as substituted trustee under the will of Matthew Byrnes, deceased. To this amended summons and complaint the defendant United States Mortgage & Trust Company interposed its individual answer, which, as a separate defense, alleged that the cause of action did not accrue at any time within three years next before the commencement of the action against it. Upon the trial the defendant trust company insisted that the action as against it individually was commenced by the service upon it of the amended summons and complaint, and, as the cause of action therein alleged accrued more than three years prior to the service of the amended summons and complaint, it was barred by the statute of limitations.

By the original complaint, the action was brought against the trustee under the will of Matthew Byrnes, deceased. No judgment was asked for against the United States Mortgage & Trust Company. The com plaint alleged that the real property upon which the plaintiff was injured was owned by and in the possession of the trust company as trustee under the will of Matthew Byrnes, deceased; that the trustee had been negligent in relation to the property which it owned as trustee; and judgment was asked against the trust company as trustee, which clearly would only have bound the trust estate. No judgment in that action could have been enforced against the property of the trust company. By the amendment the plaintiff sought to enforce a cause of action against the trust company and to hold the person who had been originally sued as trustee individually liable for the damages that had been sustained by the plaintiff. The amendment in effect added to the action a new defendant, and, recognizing this, the court required that the amended summons and complaint be served personally upon the trust company, which was then for the first time brought into the action. This amendment was not to correct a mistake in the name of a defendant so as to continue the action against the individual originally intended, but was to bring in and make liable a different defendant from the one originally sought to be charged. As against the trust company individually, the effect of the service of the amended summons and complaint was to commence a new action against it. Then, for the first time, a cause of action was alleged against this defendant individually; and then, for the first time, was the corporation called upon to answer the plaintiff's demand against it. By the Code of Civil Procedure, an action can be commenced against a defendant only by the service of a summons and complaint upon it, and there was no action commenced against the trust company until the amended summons and complaint were served upon it. Then and not until then, was the trust company required to answer, and it was then entitled to set up any defense that it then had to the cause of action alleged in the complaint. It set up as a defense to that cause of action the statute of limitations, alleging that the action against it was not commenced within three years after the cause of action accrued.

The case of Shaw v. Cock, 78 N. Y. 194, is a direct authority in

support of this conclusion. That action was originally brought against one George E. Cock, and seven other individuals named, and the Overland Dispatch Company. George E. Cock was served with the summons and complaint, and he appeared in the action. Thereafter a motion was made at Special Term to strike out of the summons the names of all the individual defendants, and to change it in other respects so as to make the title of the action "Michael Shaw against George E. Cock, as Treasurer of Butterfield's Overland Dispatch." The attorney who had appeared for Cock interposed an answer of Cock, as treasurer, setting up, among other defenses, the statute of limitations; and it was held that:

"The commencement of an action against A. upon a cause of action against B. will not arrest the running of the statute against the latter. Where several persons are jointly liable upon contract or otherwise, and a suit is brought against a part only of the persons so liable, the court has power, under section 173 of the Code, to amend the process, pleadings, or proceedings by bringing in the omitted parties, but the suit is only commenced as to such parties when they are brought in by the amendment."

And it was held that the suit against Cock as treasurer of Butterfield's Overland Dispatch Company was not commenced until he was brought in under the amended summons, and that the defense of the statute was a good answer to the cause of action. This case was cited with approval and followed in Abbott v. N. Y., L. E. & W. R. Co., 120 N. Y. 652, 24 N. E. 810.

If we are right in this conclusion, then the action against the United States Mortgage & Trust Company was commenced by the service. upon it of the amended summons and complaint, and it follows that the cause of action was barred by the statute of limitations, and that the complaint should have been dismissed. And as this result could not be changed upon another trial, the judgment against the trust company should be reversed, and the complaint dismissed, with costs.

The plaintiff also joined as defendants William Z. Greene and Louis R. Taylor, composing the firm of Greene & Taylor, and the complaint charges them with negligence from which the injuries to the plaintiff resulted. At the end of plaintiff's case, on motion of counsel for Greene and Taylor, the complaint was dismissed as to them; and the plaintiff appeals from that dismissal.

It appeared that in the spring of 1898 the trustee of the estate of Matthew Byrnes, deceased, made a contract with one Reilly to construct an apartment house upon the premises on the corner of Fifth avenue and Forty-Fifth street, and the construction of that building was commenced in the spring of 1898; that in October, 1898, the trustee was removed, and the defendant trust company was substituted in his place as trustee; that the contractor continued the construction of the building, and it was turned over by him to the possession of the trust company, as trustee, in February, 1900. It also appeared that, after the trust company became the trustee, it had copies of plans of the apartment house prepared, upon which appeared the rental asked for the apartments. A copy of these plans was furnished to the defendants Greene and Taylor, who were real estate agents, and an arrangement was made with them that if they sent to the trust company de

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sirable tenants, who were acceptable to the trust company, upon the terms stated upon the plans, they were to be paid a commission for their services in securing the tenants. After this agreement was made, a sign was placed upon the building, stating that the United States Mortgage & Trust Company, as trustee of the estate of the late Matthew Byrnes, had erected the building, and that it would be ready. for occupancy on November 1, 1899, with a direction to apply for apartments to Greene & Taylor, 549 or 555 Fifth avenue. The plaintiff, who was then unmarried, living with her mother, noticing this sign, and thinking that she could secure a desirable apartment for herself and her mother, went to the office of Greene & Taylor on the afternoon of November 16, 1899, and asked an employé there about the apartments in this building. She was shown the plans, and was told that Mr. Greene was then at the building, showing it to some ladies who were looking for apartments. While she was there, Mr. Greene returned, and after some conversation she started with him to the apartment house to inspect the apartments. When she got there she found the sidewalk in front of the building still unfinished, and walked into the building upon some planks. It was then about 3 or half past 3 o'clock in the afternoon. She walked into a well-lighted hall, walking alongside of Mr. Greene. She saw a door into a lighted room, and turned to the right to go through it, when Mr. Greene said, "No, no; go straight ahead." Immediately in front of her was another doorway, into a place which seemed dark. She crossed the threshold of this door, and then stopped and said to Mr. Greene, "No; you had better go ahead." As Mr. Greene passed her to go into the room, she made a slight motion to allow him to pass, and, as she said, "Down I went." She did not know how far she fell, and did not know after the fall whether she was on the same level as that from which she had fallen. She did not know whether she had fallen down a staircase. She could not describe at all what sort of a hole or trap or shaft she had fallen into, and there was no evidence as to the condition of the house-whether or not there was a shaft or stairway or any opening in this dark room through which the plaintiff could have fallen. There were no assurances given by Greene & Taylor as to the condition of the building. An employé of Greene & Taylor's and the plaintiff entered an unfinished building. The employé directed the plaintiff to go into a dark room, and when in that room she fell. There is no evidence to show what caused her to fall. Whether there was a stairway or an elevator shaft, or a portion of the building which had not been covered with the floor, does not appear-nothing to show that the room into which the plaintiff stepped was unfinished or in an unsafe condition. Neither of the defendants was then in actual possession of the building, as the evidence is that it was turned over to the trust company by the contractor in February, 1900, some months after the accident; and neither of the defendants, therefore, was responsible for the condition of the building. The plaintiff was undoubtedly invited by Greene & Taylor to inspect the building, but it was to inspect an uncompleted building in the possession of contractors, and over which neither of the defendants exercised control. There was no representation, express or implied, that the building

was safe to inspect, or that a person who voluntarily entered it for the purpose of inspection would find it in a safe condition. It is true that this employé of Greene & Taylor invited the plaintiff to go through a doorway into a dark room, but there is no evidence to show that the room was not finished and in a safe condition. I cannot see that Greene & Taylor assumed any responsibility for the condition of this room, or that there was an implied representation that there was no stairway or other opening in the room through which a person could fall. There was no negligence on the part of Greene & Taylor in the performance of any duty which they owed to the plaintiff which could make them liable for the injury to her in consequence of this fall. It is a situation which has resulted from the plaintiff's walking into a dark room in an uncompleted building with which she was entirely unacquainted, and which was certainly not caused by the fault of the defendants Greene and Taylor. It follows that the learned trial judge was right in dismissing the complaint as to Greene and Taylor.

The judgment, so far as it dismisses the complaint as to the defendants Greene and Taylor, should be affirmed, with costs; and the judgment, so far as appealed from by the defendant United States Mortgage & Trust Company, should be reversed, and the complaint dismissed, with costs.

VAN BRUNT, P. J., concurs.

(43 Misc. Rep. 188.)

SOLLEY et al. v. WESTCOTT et al.

(Supreme Court, Trial Term, Otsego County. March, 1904.)

1. WILLS-CREATION OF TRUST-ESTATE OF BENEFICIARY.

Where a will creates a trust, accompanied by a discretionary power to the life beneficiary of the income to use such part of the principal as she may demand or need for her own use or that of her children, she has an absolute ownership of the principal, if she so elects, and the trust is voidable.

Action by Mary Houston Solley and Fred Palmer Solley, as executors of, and trustees under, the will of Robert F. Westcott, deceased, and others, against Robert E. Westcott and others, to establish the validity of the probate of the will.

Winthrop & Stimson, for plaintiffs.

E. H. Benn (E. Luther Hamilton, of counsel), for defendants.

FORBES, J. This is an action brought under section 2653a, Code Civ. Proc., to establish the validity of the probate of the last will and testament, and codicils thereof, of Robert F. Westcott, deceased. The original will is dated December 28, 1892. The codicils are dated, respectively, December 18, 1896, and October 29, 1897.

Robert F. Westcott died on the 19th day of July, 1901, leaving real estate and personal property of the value of about $250,000. Mary Houston Solley and Fred Palmer Solley were duly appointed and quali

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fied as trustees, etc., under said will. Robert F. Westcott left, him surviving, Margaret J. Westcott, his widow; Mary Houston Solley and Corinne Westcott Conquest, daughters; and Robert E. Westcott, a son. All of the legatees and beneficiaries interested in said estate are made parties to this action.

The contest arises over the fourth provision of the will, dated December 28, 1892, and under the second provision of the first codicil, dated December 18, 1896. The will and codicils were duly admitted to probate by and before the surrogate of Otsego county, and letters testamentary were duly issued to Fred P. Solley and Mary Houston Solley on the 22d day of October, 1901. The second codicil is dated the 29th day of October, 1897. The first clause of this codicil revokes a portion of the last provision of the first codicil, nominating Oberlin M. Carter as an executor of said will. The second clause of this codicil in all respects ratifies and confirms the last will and testament, and the prior codicil thereto.

Under the original will, certain specific legacies are given to the widow of the testator. The third and fourth provisions thereof read as follows:

"Third. All the rest, residue and remainder of all property belonging to me at my death I give and devise to my wife Margaret J. Westcott, my daughter Mary Houston Westcott and Frederick Palmer Solley, the survivors and survivor of them, as trustees, upon the following trust, namely, to manage the same, to collect the rents, issues and profits thereof and to pay over said rents, issues and profits to my wife quarterly during her life, and to pay her such portion of the principal of said rest, residue and remainder as she in her discretion may demand or may deem needful either for her own use or for the use of any of my children or her child.

"Fourth. Upon the death of my wife I give said rest, residue and remainder or so much as shall remain of the same, to such of my three children, Robert Estling Westcott, Mary Houston Westcott, and Mrs. Charles Conquest, as shall survive my wife, equally, share and share alike, but if either of said three children die before my wife leaving a child or children surviving my wife, the share of the one so dying I give to such grandchild or children."

It will be seen that the then wife, now widow, Margaret J. Westcott, was named as an executrix and trustee with the other plaintiffs in this action. See Exhibit A, which is made a part of the complaint. Mary Houston Westcott subsequently married Fred P. Solley.

The second clause of the first codicil reads as follows:

"Second. In consideration of the fact that I have heretofore during my lifetime given to my son Robert Estling Westcott, the business of the Westcott Express Company, and other interests of much value, together with various sums of money, from all of which he has amassed a fortune, and as I am of the opinion that he has received a just proportion of my estate, I hereby will and declare that he shall receive no portion of my estate either real or personal, save the sum of One Hundred Dollars, which I hereby give, devise and bequeath to him, and I hereby wholly revoke paragraph 'Fourth' of my said will and I hereby direct that the following shall be substituted in the stead and place thereof, and made a part of said will viz.”

Then follows the fourth clause in said codicil, providing for a division of the residue and remainder of said estate, after the death of the widow-one-half thereof to Mary Houston Solley, should she survive the widow, and in case of Mary's death the same is to go to her descendants equally. The other one-half of the residue and remainder