when he abandoned the work. Besides, no lien had been filed against the building by the plaintiff.

The fact that defendant gave plaintiff two dollars as a matter of charity cannot bind him to pay wages for which he had never contracted. As a matter of fact, Spauman ceased work when Minto abandoned the contract.

If defendant at any time promised that he would see that Minto or Spauman would pay his workmen, it was without consideration, and a mere promise to pay the debt of another, and not being in writing, was void.

We, therefore, think the judgment should be reversed, with costs to appellant, under Curley v. Tomlinson, 5 Daly, 283. ALLEN and BOOKSTAVER, JJ., concur.

PAULINE H. SCHNAUFFER, Resp't, v. LOUIS CATTERBURY et al., App'lts.

(New York Common Plas, General Term, Filed July 18, 1890.) DISTRICT COURTS-JUDGMENT-WILL NOT BE REVERSED FOR ERRORS AS TO

ATTACHMENT.

The judgment of a district court which does not include the marshal's fee on attachment will not be reversed because of errors of the justice in regard to the attachment. The jurisdiction of the district courts does not depend on the validity of the attachment proceedings, but on the regularity of the summons and its service.

(Rosenthal v. Grouse, 7 Civ. Pro., 135, followed.)

APPEAL from a judgment of the district court in the city of New York for the tenth judicial district.

J. C. De La Mare, for resp't; A. C. Butts, for appl'ts.

BOOKSTAVER, J.-The action was commenced by summons dated the 28th day of December, 1889, and returnable January 6, 1890. There is proof that this was personally served. On an affidavit, undertaking, etc., the justice of that court on the 28th of December issued a warrant of attachment against the property of the defendants, which was executed on the same day by one of the marshals of the city of New York. On the return day of the summons the defendants appeared, and on the return of the marshal to the attachment proceedings moved to set them aside on the ground that the affidavit was insufficient to warrant the issuing of the attachment, or to give the court jurisdiction, and also on the ground that the return was false as to the value of the property seized. This motion was denied by the justice, the cause was tried, and at the close of the testimony defendants moved to dismiss the complaint, on the evidence, and also on the grounds stated in moving to dismiss the attachment. This was also denied, and a judgment rendered for the plaintiff. From that judgment this appeal was taken, and the appellants contend that on such appeal they have the right to review the attachment proceedings, and that the judgment should be reversed if the justice committed any error in regard to them.

This precise question came up in Rosenthal v. Grouse, 7 Civ. Pro., 135, and after mature deliberation was decided adversely to

appellants' contention, this court holding that the warrant of attachment was a provisional remedy merely, not involving the merits of the action or the validity of the process by which the defendant was brought into court, and that it could not be said. that the judgment was erroneous, though the justice may have erred in upholding the attachment. In the course of that decision Lang v. Marks, 3 Civ. Pro., 287, was disapproved of, and it was distinctly shown that since the adoption of the Code of Civil Procedure the jurisdiction of the district courts no longer depends on the validity of attachment proceedings, replevin proceedings, etc., but upon the regularity of the summons, its service, etc.

The same conclusion has been arrived at by the general term of the supreme court, third department, in McNeary v. Chase, 30 Hun, 491, and by the county court of Erie county, in Irr v. Schroeder, 6 Civ. Pro., 253. It is true a contrary opinion was announced by the superior court of Buffalo in Fritze v. Pultz, 2 Civ. Pro., 142, but that case was reversed on other grounds, as well as on account of the irregularity in the issuing of the attachment, and the court there assumed that because the justice was in error in that respect there must be a remedy by appeal; while this court held in Rosenthal v. Grouse, supra, that in such a case there was no such remedy, but a casus omissus, just as there had been in § 3191 of the Code until amended, and we feel bound by that decision.

Had the marshal's fees on the attachment been taxed and included in the judgment, this case might possibly have been distinguished from Rosenthal v. Grouse, but as the judgment rendered, as far as appears from the return, was for the amount of the debt with interest and ordinary costs only, not including marshal's fees, and was in all other respects justified by the evidence, we think it should be affirmed, with costs.

ALLEN, J., concurs.

In the Matter of the Probate of the Will of JOSEPH GALL, Deceased.'

(Supreme Court, General Term, Second Department, Filed July 18, 1890.)

MARRIAGE.

WHEN WILL NOT BE PRESUMED TO HAVE TAKEN PLACE PRIOR TO MAKING WILL.

Testator made his will in 1883, and a codicil on April 28, 1884. In 1883 he commenced an illicit intercourse with A., and in January, 1884, placed her in a tenement-house, where a child was born, and afterwards bought a house, which he said was for his family, but did not live with A. prior to the making of the codicil. In it he gave her a legacy in her maiden name, and designated her as a former servant of his deceased wife. A few days before this he stated to his partner that his social standing and the girl's ignorance would not admit of his contracting marriage with her. About May 1, 1884, he went to Europe, and returned in July, after which he visited A., and occasionally stayed a day or so, and she was known as his wife. In 1886 he took up his abode with her, and after his death another child was born. Held, that under all the circumstances a marriage between them could not be presumed to have taken place until after his return in July, 1884, and that the will and codicil were revoked by the subsequent marriage and birth of issue.

'Affirming 31 N. Y. State Rep., 954.

APPEAL from decree of surrogate refusing probate to will. George B. Morris (Edwin More, of counsel), for app'lt; A. Simis, Jr., for resp't.

DYKMAN, J.-This is an appeal from a decree of the surrogate of Kings county refusing probate to the last will and testament of Joseph Gall, deceased, because he was married and had issue of such marriage subsequent to the making of his will.

There is not a disputed fact in the case, and the statute accomplishes the revocation and nullification of the will if the marriage and birth of a child were subsequent to its execution.

The time of birth of the child is undisputed, and therefore the only thing for our determination is the time of the marriage of the testator, and that question depends upon inferences to be drawn from undisputed facts, which are substantially as follows:

Joseph Gall, the testator, lived in Rutherford Park, in the city of New York, and his wife died there on the 16th day of Febru ary, 1883; at that time he had a domestic servant who lived in his family by the name of Amelia Steeb, and after that she be came his housekeeper. He commenced cohabitation with her soon after the death of his wife, and she became pregnant in May, 1883. When her condition was ascertained, he broke up his household in Rutherford Place, and hired rooms for Amelia in Tenth street, in New York city, and went himself to reside at the Westminster Hotel. That was in January, 1884, and he never lived in Tenth street.

Amelia's child was born on the 29th day of February, 1884, and Gall employed the physician to attend her and paid him for

his services.

In April, 1884, Gall bought a house and lot in Lafayette ave nue, Brooklyn, and Amelia with some members of her family and her child left Tenth street and went there to reside the last of April, 1884.

Gall sailed for Europe on the 1st day of May, 1884, and returned in July following, and went to the Westminster Hotel to reside, and remained there until March, 1886, when he went to Brooklyn and lived with Amelia as her husband until his death in the month of May following. About two months after his death, on the 8th day of July, 1886, Amelia gave birth to another child.

From July, 1884, to the time of his removal from the Westminster Hotel in March, 1886, Gall visited Amelia in Brooklyn several time a week and in the locality where she lived he treated her as his wife.

In his codicil, which was executed April 28, 1884, after the birth of the first child, he uses this language: "II. I give and bequeath to Amelia Steeb, a former servant of my late wife, the sum of one thousand dollars." III. "I give and bequeath to the child of said Amelia, Betsey A. Gall, now of the age of two months, the sum of five thousand dollars."

About a week before Gall sailed for Europe the 1st day of May, 1884, his partner, Charles Lembkie, importuned him to make some

provision for Amelia and her child, and he simply said he would do something. This is an extract from his testimony:

Q"Now, at the time when the codicil was spoken about, did he give you any reason why he wouldn't marry Amelia?

"A. Well, of course he related to her social standing and his social standing. This was on the 23rd or 24th of April, when I went down with him about the codicil. He mentioned the ignorance of the person; he said his social standing would not admit. of a marriage; that is, contracting a marriage at that time."

After the death of Gall, Amelia commenced an action for the recovery of dower in his estate, and obtained a judgment which was affirmed in the supreme court and court of appeals. Gall v.

Gall, 114 N. Y., 109; 29 N. Y. State Rep., 746. The jury in that action found that Gall and Amelia intermarried between the month of February, 1883, and the death of Gall, and found a general verdict in favor of the plaintiff, but the time of such. marriage was not fixed.

The facts already recited are sufficient to enable us to determine the character of the association of these parties at both ends of the line of their intercourse. At the first their relations were licentious, and at the last they were matrimonial, and we are required to find the time when the latter commenced, or rather to find whether they were married when the codicil was executed, for if we find their relations illicit at that time then the marriage was consummated later, and the codicil and the will fall together before the statute which executes itself and revokes them both.

There was no proof in the case either of a ceremonial marriage or an actual marriage contract between these parties, and such a contract can only be implied from the facts and circumstances disclosed by the evidence, and the presumption furnished by the licentious character of the intercourse between these parties in its commencement, supplemented by the natural and legitimate deduction from the evidence already recited, renders it impossible to infer a marriage contract between them earlier than July, 1884, after the return of Gall from Europe.

Prior to that time there was nothing in his conduct or conversation to indicate anything but the existence of concubinage between him and Amelia. His conversations with his physician, his designation of Amelia in this codicil as a former servant of his wife, his declaration to his partner at the same time that the difference between the social position of himself and Amelia was too wide to admit of a marriage between them, are all absolutely inconsistent with the existence of a matrimonial contract between them at the time of the execution of his codicil and his departure for Europe.

The testimony of the mother of Amelia has not been overlooked, but if Gall ever had such a conversation with her in 1883 as she details, it was the language of pacification and not of truth, and her evidence is so at war with all the conceded facts, that it is entitled to no weight in the case.

There is sufficient evidence to justify the inference of a marN. Y. STATE REP., VOL. XXXII.

88

riage contract between the parties after July, 1884, but not before that time, and our conclusion is that the marriage and birth of the last child were subsequent to the execution of the will and codicil and that both stand revoked by virtue of the statute.

The decree of the surrogate should therefore be affirmed, with costs to be paid from the estate.

BARNARD, P. J., and PRATT, J., concur.

MARCUS MENDEL, by guardian, App'lt, v. THE BROOKLYN CITY R. R. Co., Resp't.

(Supreme Court, General Term, Second Department, Filed July 18, 1890.)

1. APPEAL-VERDICT.

Where there is evidence to sustain a verdict rendered on conflicting evidence, it will not be disturbed on appeal.

2. TRIAL-REQUESTS TO CHARGE.

It is not error for the court to refuse to charge a series of abstract principles, where the principles applicable to the case have already been charged.

APPEAL from judgment in favor of defendant, entered upon verdict, and from order denying motion for a new trial and to set aside the verdict as against and contrary to law, the evidence and the weight of evidence and upon the exceptions.

Action to recover damages by reason of alleged negligence of defendant in running over plaintiff, who was six years old, causing injuries whereby he lost one of his legs. Defense, contributory negligence.

George W. Wilson (Jerry A. Wernberg, of counsel), for app'lt; Morris & Whitehouse, for resp't.

DYKMAN, J.-This action was commenced to recover the dam. age resulting to the plaintiff from an injury inflicted by the horses and car of the defendant.

The action is based upon the negligence of the defendant, and the testimony upon the trial was quite contradictory. The jury rendered a verdict for the defendant and the plaintiff has appealed from the judgment entered thereon.

The verdict is fully sustained by the evidence, and we cannot interfere upon the questions of fact involved after the verdict of the jury.

At the close of the charge of the trial judge several abstract principles were submitted to him with a request to charge them as ther were read. All the principles involved which were applicable to the case had been charged by the judge and he declined to make any further charge. No error can be predicated upon such refusal, and therefore the exceptions are unavailing.

The judgment and order denying a motion for a new trial should be affirmed, with costs.

BARNARD, P. J., and PRATT, J., concur.