testator as a means to an end not unlawful, and therefore not void. Judgment reversed. other costs awarded on an application to open a default might be recovered by defendant did not, in Opinion by Davis, P.J.; Brady, any manner, change the effect of J., concurs. EXTRA ALLOWANCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Wm. Gibson Jones, applt., v. Ward H. Wakefield, respt. Decided March 27, 1885. A motion for an additional allowance cannot be granted after the adjustment of the costs of the action and the effect of such adjustment is not changed in any manner by the fact that other costs awarded on an application to open a default are still to be adjusted. Appeal from order making an additional allowance. The costs of the action had been adjusted previous to the making of the motion for an additional allowance, and it was claimed by appellant that defendant was therefore precluded by rule 44 of the general rules of practice from making this motion. On the other hand it was claimed by respondent that the said rule did not apply, inasmuch as the costs taxed were not final costs, certain costs awarded on an application to open the default still remaining to be adjusted. John E. McIntyre, for applt. Wm. W. Badger, for respt. Held, That the costs in the action having been adjusted defendant was precluded by the express language of rule 44 from moving for or obtaining an additional allowance, and that the fact that this adjustment. Order reversed and motion de A husband cannot allege, as a ground for annulling his marriage, that his wife made false representations to him whereby he was induced to marry her when he otherwise would not have done so, when, during cohabitation, he discovered the falsity of such representation but yet continued to cohabit with her for two years after such discovery. A plaintiff will not be allowed to amend his complaint by setting up facts of which he had knowledge at the time of the commencement of the action. The court will not, as a general thing, undertake to determine upon an application for leave to amend a pleading whether the proposed amendment can be finally substantiated by proof or not; but when it is made to appear without contradiction that the amendment cannot be sustained by evidence it should not be permitted to be made. Appeal from order allowing plaintiff to serve an amended complaint. This action was brought to obtain a judgment declaring plaintiff's marriage with defendant null and void because of the fact that she had another husband living at the time of such marriage. It was afterwards discovered that the person with whom she was alleged to have contracted this preceding marriage had a wife living at the time of the solemnization of that marriage with him and that such marriage was void on account of that circumstance. Plaintiff after ascertaining that fact, applied for leave to amend his complaint by alleging that defendant had fraudulently represented to him prior to the time of his intermarriage with her that she was the widow of one M., and that she had not since his decease remarried with any other person, when she had in fact remarried after the death of M. with the person named in the original complaint, and by that false representation he was induced to marry her when he otherwise would not have done so. It was shown without contradiction by the affidavits read on behalf of defendant upon the motion for leave to amend that plaintiff was informed of this intermediate marriage while he and defendant were living together as husband and wife, and that thereafter he continued to live with her for two years. Simon Sultan, for applt. Held, That this subsequent cohabitation deprived him of the right to complain that he had been defrauded by the misrepresentations made by defendant and for that reason that his marriage with her should be annulled. That when this action was commenced by plaintiff he knew that this alleged misrepresentation had been made, and if he could have relied upon it as a legal ground for annulling his marriage with defendant he should then have alleged them in his complaint, and his failure to do that presented a legal answer to the application made for leave to amend his complaint as that was provided for and allowed by the order. 30 Hun, 573. That it is true as a general proposition that the court will not undertake to determine whether the amendment proposed to be made to a pleading can be finally substantiated by proof or not, but when the fact is made to appear without contradiction, as it was by the affidavits read upon the motion in this case, that the amendment cannot be sustained by evidence, there it should not be permitted to be made. Order reversed. Opinion by Daniels, J.; Davis, P.J., concurs. SUPPLEMENTARY PROCEED INGS. N. Y. COURT OF APPEALS. Buchanan, respt., v. Hunt, applt. Decided April 14, 1885. The court has no power to order the judgment debtor to pay over to the receiver money received and retained by him in another state or due to him there; the most that can be done is to require him to transfer his title to the money to the receiver. On Feb. 16, 1884, plaintiff procured and served an order for the examination of defendant in sub plementary proceedings. The examination disclosed that defendant was employed by the Erie R. Co. as agent at Hawley, Pennsylvania; that he was unmarried; that he drew his wages and retained them at Hawley; that about $30 of wages up to Feb. 16, 1884, was due him, and that a receiver of his property had not been appointed. Plaintiff moved for an order directing the judgment debtor to pay over the money in his possession to a sheriff to be designated, and also that his employer pay to such sheriff the money due said judgment debtor from it up to Feb. 16, 1884. This motion was granted. Lewis E. Carr, for applt. John W. Lyon, for respt. Held, Error; that the court had no power to compel defendant to go out of this State to obtain and bring here the money directed by the order to be delivered to the sheriff. The most that could be done was to require defendant to transfer his title to the money to a receiver, in order that he might pursue it in Pennsylvania. Order of General Term, affirming order of County Judge granting motion, reversed. Opinion by Rapallo, J. concur. jury that they were to presume defendant knew of the defect if sufficient time had elapsed for it to gain that knowledge. Held, Error. Whether admission of evidence of number and ages of plaintiff's children should be treated as error which might prejudice defendant and require the granting of a new trial, quære. Appeal from judgment on verdict at County Court. Action for personal injuries to plaintiff while walking on a defective sidewalk which it was defendant's duty to keep in repair. The walk was constructed by a contractor some weeks before the injury. Evidence was given as to its condition, and as to whether the defect was such as would be discovered by a casual observer passing over it, or whether by ordinary inspection the defect would be ascertained. The court charged the jury that they were to presume that defendant had knowledge of the defect if a sufficient time had elapsed for it to gain the knowl edge, for it was their duty to obtain such knowledge. Charles W. Goodyear, for applt. Held, Error. If the defect were NEGLIGENCE. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. John Steffan, respt., v. The City jury, dependent on all the cir of Buffalo, applt. Decided April, 1885. In an action for injuries resulting from a defective sidewalk, the court charged the Vol. 21-No. 13. cumstances. When a defect has become notorious and remains so for such length of time as may be deemed reasonable for the author ities to observe and repair it there may be an imputation of notice and negligence which the law might recognize; but when there is a question whether it has become such, that of notice arising from lapse of time embraces other considerations which call upon the jury to find the fact of notice and negligence. 61 N. Y., 510 affirming 61 Barb., 580. The charge unduly retrenched the inquiry of the jury and embraced in a legal proposition what should have been left to them to presume or find as matter of fact. The jury were possibly misled. The evidence admitted as to the number and ages of plaintiff's children was immaterial for any purpose, but whether it can be said to have influenced the verdict so that it should be treated as error which might prejudice defendant and require the granting of a new trial we do not at this time determine. A like question has been given importance in Penn. RR. Co., v. Books, 57 Penn. St. Rep., 339; Baldwin v. West. RR. Co., 4 Gray, 333. Judgment reversed, and new trial granted, costs to abide event. Opinion by Bradley, J.; Barker and Haight, JJ., concur. An action for the construction of a will cannot be supported unless it appear that there is an actual disagreement between the plaintiff and the executors as to the provisions of the will, the true meaning of which is necessary to the present direction and action of the executor or trustee. The court will not anticipate difficulties nor decide upon the construction of remainders, etc., which may never take effect, especially not where the will is clear as to the present duty of the trustee or executor. This action was brought by the general guardian of an infant and by the infant by her guardian ad litem against the executor of a will and another for the construction of said will. The testatrix, Mrs. Horton, after a bequest of $5,000 to her husband (who died soon after her), devised by the third clause the residue of her estate, real and personal, to her executors in trust for Carrie, an infant, her only child, for life. The will then, by the fourth clause, provided that if the daughter died leaving issue all the real and personal property should go to such issue, share and share alike, if all her "children shall then be living, or if none of them shall have died at the time of my death," but that if any had died leaving issue such issue should take the share the parent would have taken "if living at the time of my death." The will then provided, by the fifth clause, that if the daughter died without issue the executors should turn the estate into money, hold it as trustees, pay the income of $5,000 "for the relief of poor and destitute persons residing in Malone village;" and, by the sixth clause, expend the residue for the benefit of the First Congregational Society of the town of Malone in such manner as they deem best. A power of sale was given the executors by the seventh clause. The defendant executor is now sole executor. The Congregational church is also defendant. On demurrer the complaint was dismissed. Leslie W. Russell, for applts. Joseph R. Flanders, for respts. Held, That plaintiffs had not made out a case. The complaint avers that the will is doubtful and uncertain; that various clauses are in derogation of the statutes; that the bequest to the poor of Malone is invalid, and that more than three-fourths of the estae tis given the First church. But the complaint does not aver that there is any doubt or disagreement between the infant and the executor as to the trust for her life. It is said that there is no direction as to the disposition of the excess of income which will accrue during the infant's minority. The trust is for life, and is in the ordinary form as to infant's minority, 72 N. Y., 376, and if there are accumulations of income during her minority she will take them at majority. 92 N. Y., 508; 95 id., 13. In the fourth clause the words living at the time of "my death," probably should be "her death." But whatever the meaning, the infant has no interest in their construction. That clause only dis ing at her death, no question will arise over the words "my death." The bequest to the poor of Malone may be void, but the condition upon which it is given may never arise. So it is claimed that, as to one-half of the bequest to the First church, it is void under Ch. 369, Laws of 1860. Still at this time it cannot be determined whether the one-half of the remainder in the estate after the trust for the infant's life will prove at her death to be undisposed of or not. If she shall leave children living at her death, clauses five and six do not take effect. No action in the matter is at present called for upon the part of the executor. The guardian of the infant should not have been a party plaintiff. He has nothing to do with the matter. The guardian ad litem only should bring the action. Costs below were given out of the income and profits of the real and personal property held by the executor in trust for the infant. This was wrong, we think, and see 2 R. S. m. p., 730, § 63. Costs should be paid by plaintiffs; with this modification, judgment affirmed, with costs. Opinion by Learned, P.J.; Bockes and Landon, JJ., concur. ESTOPPEL. poses of a remainder after the in- N. Y. SUPREME COURT. GENERAL fant's death. Furthermore, the persons who will take that remainder are not now in existence. Difficulties should not be anticipated. If the infant leaves children liv TERM. THIRD DEPT. Wallace H. Webster et al., respts., v. Michael T. Scanlon, applt. Decided May, 1885. |