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testator as a means to an end not other costs awarded on an applicaunlawful, and therefore not void. tion to open a default might be reJudgment reversed.

covered by defendant did not, in Opinion by Davis, P.J.; Brady, any manner, change the effect of J., concurs.

this adjustment.

Order reversed and motion de.

nied. EXTRA ALLOWANCE.

Opinion per curiam.
N. Y. SUPREME COURT. GENERAL
TERM. FIRST DEPT.

HUSBAND AND WIFE.
Wm. Gibson Jones, applt., v.

PLEADINGS. Ward H. Wakefield, respt.

N. Y. SUPREME COURT. GENERAL Decided March 27, 1885.

TERM. FIRST DEPT. A motion for an additional allowance can

Christian Muller, respt., V. not be granted after the adjustment of the costs of the action and the effect of such

Wilhelmina Muller, applt. adjustment is not changed in any manner

Decided March 27, 1885. by the fact that other costs awarded on an application to open a default are still A husband cannot allege, as a ground for to be adjusted.

annulling his marriage, that his wife

made false representations to him whereAppeal from order making an

by he was induced to marry her when he additional allowance.

otherwise would not have done so, when, The costs of the action had been during cohabitation, he discovered the adjusted previous to the making

falsity of such representation but yet con

tinued to cohabit with her for two years of the motion for an additional al

after such discovery. lowance, and it was claimed by ap- A plaintiff will not be allowed to amend his pellant that defendant was there- complaint by setting up facts of which fore precluded by rule 4 of the

he had knowledge at the time of the com

mencement of the action. general rules of practice from mak

The court will not, as a general thing, uning this motion. On the other dertake to determine upon an application hand it was claimed by respondent for leave to amend a pleading whether that the said rule did not apply,

the proposed amendment can be finally

substantiated by proof or not; but when inasmuch as the costs taxed were

it is made to appear without contradiction not final costs, certain costs awar- that the amendment cannot be sustained ded on an application to open the by evidence it should not be permitted default still remaining to be ad

to be made. justed.

Appeal from order allowing John E. McIntyre, for applt. plaintiff to serve an amended comWm. W. Badger, for respt. plaint.

Held, That the costs in the ac- This action was brought to obtion having been adjusted defend- tain a judgment declaring plainant was precluded by the express tiff's marriage with defendant null language of rule 44 from moving and void because of the fact that for or obtaining an additional al- she had another husband living at lowance, and that the fact that the time of such marriage. It was

afterwards discovered that the been made, and if he could have person with whom she was alleged relied upon it as a legal ground for to have contracted this preceding annulling his marriage with demarriage had a wife living at the fendant he should then have altime of the solemnization of that leged them in his complaint, and marriage with him and that such his failure to do that presented a marriage was void on account of legal answer to the application that circumstance. Plaintiff after made for leave to amend his comascertaining that fact, applied for plaint as that was provided for and leave to amend his complaint by allowed by the order. 30 Hun, alleging that defendant had fraud- 573. ulently represented to him prior to That it is true as a general propothe time of his intermarriage with sition that the court will not her that she was the widow of one undertake to determine whether M., and that she had not since his the amendment proposed to be decease remarried with any other made to a pleading can be finally person, when she had in fact re- substantiated by proof or not, but married after the death of M. with when the fact is made to appear the person named in the original without contradiction, as it was by complaint, and by that false repre- the affidavits read upon the motion sentation he was induced to marry in this case, that the amendment her when he otherwise would not cannot be sustained by evidence, have done so.

there it should not be permitted to It was shown without contra- be made. diction by the affidavits read on be- Order reversed. half of defendant upon the motion Opinion by Daniels, J.; Daris, for leave to amend that plaintiff P.J., concurs. was informed of this intermediate marriage while he and defendant were living together as husband SUPPLEMENTARY PROCEEDand wife, and that thereafter he

INGS. continued to live with her for two N. Y. COURT OF APPEALS. years.

Buchanan, respt.,

Hunt, Simon Sultan, for applt.

applt. Henry C. Botty, for respt. Held, That this subsequent co

Decided April 17, 1855. habitation deprived him of the right The court has no power to order the judgto complain that he had been de

ment debtor to pay over to the receiver

money received and retained by him in frauded by the misrepresentations

another state or due to him there ; the made by defendant and for that most that can be done is to require him reason that his marriage with her to transfer his title to the money to the should be annulled.

receiver. That when this action was com- On Feb. 16, 188+, plaintiff promenced by plaintiff he knew that cured and served an order for the this alleged misrepresentation had examination of defendant in sui

V.

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plementary proceedings. The ex- jury that they were to presume defendant amination disclosed that defendant

knew of the defect if sufficient time had

elapsed for it to gain that knowledge. was employed by the Erie R. Co.

Held, Error. as agent at Hawley, Pennsylvania; Whether admission of evidence of number that he was unmarried ; that he and ages of plaintiff's children should be drew his wages and retained them

treated as error which inight prejudice

defendant and require the granting of a at Hawley; that about $30 of wages

new trial, quiere. up to Feb. 16, 1851, was due him, and that a receiver of his property

Appeal from judgment on verhad not been appointed. Plaintiff dict at County Court. moved for an order directing the

Action for personal injuries to judgment debtor to pay over the plaintiff while walking on a defecmoney in his possession to a sheriff tive sidewalk which it was defendto be designated, and also that his ant's duty to keep in repair. The employer pay to such sheriff the

walk was constructed by a conmoney due said judgment debtor tractor some weeks before the infrom it up to Feb. 16, 1884. This jury. Evidence was given as to motion was granted.

its condition, and as to whether Lewis E. Carr, for applt.

the defect was such as would be John W. Lyon, for respt.

discovered by a casual observer Held, Error; that the court had passing over it, or whether by orno power to compel defendant dinary inspection the defect would to go out of this State to obtain be ascertained. The court charged and bring here the money directed the jury that they were to presume by the order to be delivered to the that defendant had knowledge of sheriff. The most that could be the defect if a sufficient time had done was to require defendant elapsed for it to gain the knowlto transfer his title to the money edge, for it was their duty to obto a receiver, in order that he might tain such knowledge. pursue it in Pennsylvania.

Charles W. Goodyear, for applt. Order of General Term, affirming

Giles E. Stilwell, for respt. order of County Judge granting Held, Error. If the defect were motion, reversed.

such that by the exercise of reasonOpinion by Rapallo, J. All able diligence it would have been

disclosed, the jury might find de

fendant chargeable with notice. NEGLIGENCE. EVIDENCE. 36 Barb., 226; +5 N. Y., 136 ; 61

But the
N. Y. SUPREME COURT. GENERAL id., 506; 91 id., 137.
TERM. FIFTH DEPT.

question of notice to charge de

fendant was one of fact for the John Steffan, respt., v: The City jury, dependent on all the cirof Buffalo, applt.

cumstances. When a defect has Decided April, 1885.

become notorious and remains so In an action for injuries resulting from a

for such length of time as may be defective sidewalk, the court charged the deemed reasonable for the authorVol. 21-No. 13.

concur.

ities to observe and repair it there An action for the construction of a will

cannot be supported unless it appear that may be an imputation of notice

there is an actual disagreement between and negligence which the law

the plaintiff and the executors as to the might recognize ; but when there

provisions of the will, the true meaning of is a question whether it has become which is necessary to the present direc

tion and action of the executor or trustee. such, that of notice arising from

The court will not anticipate difficulties lapse of time embraces other con

nor decide upon the construction of residerations which call upon the mainders, etc., which may never take jury to find the fact of notice and effect, especially not where the will is negligence. 61 N. Y., 510 affirm

clear as to the present duty of the trustee

or executor, ing 61 Barb., 580. The charge unduly retrenched the inquiry of the This action was brought by the jury and embraced in a legal propo- general guardian of an infant and sition what should have been left by the infant by her guardian ad to them to presume or find as mat- litem against the executor of a will ter of fact. The jury were possibly and another for the construction misled.

of said will. The testatrix, Mrs. The evidence admitted as to the Horton, after a bequest of $5,000 to number and ages of plaintiff's her husband (who died soon after children was immaterial for any her), devised by the third clause purpose, but whether it can be the residue of her estate, real and said to have influenced the verdict personal, to her executors in trust so that it should be treated as error for Carrie, an infant, her only child, which might prejudice defendant for life. The will then, by the and require the granting of a new fourth clause, provided that if the trial we do not at this time deter- daughter died leaving issue all the mine. A like question has been real and personal property should given importance in Penn. RR. go to such issue, share and share Co., v. Books, 57 Penn. St. Rep., alike, if all her “children shall then 339; Baldwin v. West. RR. Co., 4 be living, or if none of them shall Gray, 333.

have died at the time of my death, Judgment reversed, and new but that if any had died leaving trial granted, costs to abide event. issue such issue should take the

Opinion by Bradley, J.; Barker share the parent would have taken and Haight, JJ., concur.

“if living at the time of my death." The will then provided, by the fifth

clause, that if the daughter died WILLS.

without issue the executors should N. Y. SUPREME COURT. GENERAL

turn the estate into money, hold it TERM. THIRD DEPT.

as trustees, pay the income of $.5,

000 “for the relief of poor and desLeslie C. Wead, general guar

titute persons residing in Malone dian, et al., applts., v. William P.

village;" and, by the sixth clause, Cantwell, ex’r, et al., respts.

expend the residue for the benefit Decided May, 1885.

of the First Congregational Society

1

of the town of Malone in such ing at her death, no question will
manner as they deem best. A arise over the words “my death."
power of sale was given the ex- The bequest to the poor of Ma-
ecutors by the seventh clause. The lone may be void, but the condi-
defendant executor is now sole ex- tion upon which it is given may
ecutor. The Congregational church never arise. So it is claimed that,
is also defendant. On demurrer as to one-half of the bequest to the
the complaint was dismissed. First church, it is void under Ch.
Leslie W. Russell, for applts. 369, Laws of 1860. Still at this
Joseph R. Flanders, for respts. time it cannot be determined
Held, That plaintiffs had not whether the one-half of the re-
made out a case. The complaint mainder in the estate after the
avers that the will is doubtful and trust for the infant's life will prove
uncertain; that various clauses are at her death to be undisposed of or
in derogation of the statutes; that not. If she shall leave children
the bequest to the poor of Malone living at her death, clauses five
is invalid, and that more than and six do not take effect. No
three-fourths of the estae tis given action in the matter is at present
the First church. But the com- called for upon the part of the ex-
plaint does not aver that there ecutor.
is any doubt or disagreement be- The guardian of the infant
tween the infant and the executor should not have been a party
as to the trust for her life. It is plaintiff. He has nothing to do
said that there is no direction as with the matter. The guardian
to the disposition of the excess of ad litem only should bring the ac-
income which will accrue during tion. Costs below were given out
the infant's minority. The trust is of the income and profits of the
for life, and is in the ordinary form real and personal property held by
as to infant's minority, 72 N. Y., the executor in trust for the in-
376, and if there are accumulations fant.

fant. This was wrong, we think, of income during her minority she and see 2 R. S. m. p., 730, S 63. will take them at majority. 92 Costs should be paid by plainN. Y., 508; 95 id., 13. .

tiffs; with this modification, judgIn the fourth clause the words ment affirmed, with costs. living at the time of “my death,” Opinion by Learned, P.J.; Bockes probably should be “her death." and Landon, JJ., concur. But whatever the meaning, the infant has no interest in their construction. That clause only dis

ESTOPPEL. poses of a remainder after the in

N. Y. SUPREME COURT. GENERAL fant's death. Furthermore, the

TERM. THIRD DEPT. persons who will take that remain

Wallace H. Webster et al., respts., der are not now in existence. Difficulties should not be anticipated.

v. Michael T. Scanlon, applt. If the infant leaves children liv. Decided May, 1885.

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