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If one having a debt or claim specific performance of the conagainst another satisfies or releases tract. It appeared that B. died in it in consideration of an executory 1840, leaving him surviving a promise by the debtor, he cannot widow and four children, two of afterwards enforce his original whom were minors. After some cause of action upon a mere fail- legacies he left the residue of his ure by the other party to perform estate to his executors in trust. his promise.

He directed the net income to be Judgment of General Term, af- divided and paid to his wife and firming judgment for plaintiff, children and to their issue in case of reversed.

their death in certain proportions Opinion by Andrews, J. All "until all my said children, or the concur, except Ruger, Ch. J., not youngest survivor of them, shall voting.

have attained the age of twenty

one years," at which time his esWILLS. TRUSTS.

tate should be divided as follows,

viz. : one-third to be set apart for N. Y. COURT OF APPEALS.

the use of his widow, the rents, Benedict et al., ex'rs, respts., v. income and profits thereof to be Webb, applt.

paid to her during her natural life, Decided March 17, 1885,

and the remaining two-thirds to Testator left a widow and four children,

be divided among his children, the two of whom were minors. By his will shares of his two sons to be paid he left his estate to his executors in trust over to them and the shares of his to invest and pay the income to his wife

two daughters to be held in trust, and children until all or the youngest survivor should come of age and then to

the income to be paid to the divide the estate. two-thirds to be divided daughters during their lives reamong the children, the shares of the two spectively. One of the daughters daughters to be held in trust for them was a minor. The testator vested respectively and the income paid to them

in his executors power to sell the during their lives, with power of sale to carry out the trust, etc. One of the real estate “if they should deem daughters was a minor. Held, That the it expedient for the purpose of suspension of alienation for two minor- making such division as ities would be equivalent to one for two lives ; that the trust for the minor daugh directed, or for carrying into effect ter was lawful, but that for the other all or any other of the purposes daughter was void, it being for three and trusts” specified in the will. lives.

George S. Hamlin, for applt. Plaintiffs, as executors of the Samuel Hand, for respts. will of B., entered into a contract Held, That this action could not with defendant to sell him certain be maintained ; that the power real estate which belonged to the vested in the executors by the will testator. The defendant claimed | was dependent upon the validity that the power of sale contained of the trust created by the will; in the will was not valid. This that as under the will the estate action was brought to compel a was not to be divided until both

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the minor children had attained should order it annexed to the judgment

roll. the age of twenty-one years, the

It is the duty of counsel to remain in or be suspension of alienation would be

represented in court until the jury is disfor two minorities, which would

charged, and they cannot, by withdrawbe equivalent to two lives; that as ing from court, deprive the court of its to the shares of the two sons which power to recall and reinstruct the jury.

A failure by the court, in such a case, to would then vest absolutely the

send for counsel before reinstructing the limitation of the trust was lawful,

jury is not error. and the trust as to the share of the In an action to recover the value of serminor daughter was also lawfully

vices, where the issue is as to what was

the greed price, evidence of the value of limited, for the reason that her

the services is competent as bearing on minority and the remainder of her

the probable truth of the claims of the life constituted but one life. As to respective parties. the share of the other daughter the Appeal from judgment in favor trust was void, the power of alien- of plaintiff entered on verdict, from ation being suspended for three order denying motion for a new lives, and as to that part of his es- trial and from order striking out tate the testator died intestate. exceptions from the case. 16 Wend., 71; 33 N. Y., 596.

Action to recover for services as Also held, That as to uphold the a nurse between Sept. 1, 1880, and trust as to the other children and

Oct. 19, 1881, alleged to have been set it aside as to this one would worth $10 per week, amounting in seriously interfere with the testa- the whole to $500, which sum detor's intention that all the children fendant agreed to pay, and it was and their issue should share equally admitted that $286.44 had been paid. in his estate, and produce great Answer, general denial; that injustice, the whole trust should defendant is a married woman livbe held void. 17 N. Y., 562; 47 ing with her husband and that the id., 390.

services were rendered at the Judgment of General Term, on agreed price of $5 per week, and submitted case for plaintiffs, re- that plaintiff has been fully paid. versed.

After the jury retired defendOpinion by Andrews, J. All ảnt's counsel left the court. Beconcur, except Ruger, Ch. J., Earl fore adjournment for the day the and Finch, JJ., dissenting.

jury asked for further instruction.

An officer was sent for defendant's PRACTICE. EVIDENCE. counsel, but he could not be found, N. Y. SUPREME COURT. GENERAL

and thereupon, in his absence, the

court further instructed the jury, TERM. FOURTH DEPT.

who brought in a sealed verdict in Frances Cornish, respt., v. Sarah the morning. After the rendition Graff, applt.

of the verdict defendant's counsel Decided April, 1885.

excepted to the right of the court When a case is settled and filed after entry

to further instruct the jury in the of judgment the Judges, Court or Referee absence of counsel, and also to the

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substance of the instruction. Both sel the point is available without exceptions were allowed by the an exception. If the court had the trial judge who settled the case right, but abused it, the point is almost a year after the judgment available on a motion for a new was entered, but did not order it trial, which has been made on a annexed to the judgment roll. case, and the appeal from the order

Afterwards, on motion before denying a new trial brings the another justice, these exceptions question before this court. 51 N.Y., were stricken out on the ground 558. that under $ 995 of the Code they The trial of a case is not concould not be taken after the jury cluded until the jury is discharged had rendered its verdict. On the from its consideration. Code Civ. case as resettled a motion was then Pro. $ 992. The power of the court made for a new trial, which was to recall and reinstruct the jury denied.

has never been judicially doubted Isaac D. Garfield, for applt. in this State. Counsel by purposely Hancock & Munro, for respt. or inadvertently withdrawing from

Held, An appeal from a judg- the court cannot take away the ment brings up for review only power, or suspend the right to exquestions of law which are con- ercise it until they can be found tained in the judgment roll. Sec- and brought in if willing to come. tion 1237, Code Civ. Pro., provides It is the duty of counsel engaged that a case settled and on file at in the trial of a case to remain in, the time a judgment is entered or be represented at the court durshall form a part of the judgment | ing its sessions until the jury hav. roll. When a case is settled and ing the case in charge is discharged. filed after the entry of judgment | 6 Jurist, (Exc.) 133. The failure the Judge, Referee or Court should of counsel to perform their duty order the case annexed to the does not deprive the court of its judgment roll. 30 Hun, 214. In power to discharge its duty. The the case at bar no order was made court is not required to send out at the Circuit directing a case to be its officers to invite counsel to atannexed to the judgment roll after tend to their duties and hear addientry and none was made by the tional instructions which the court judge who settled the case. Both proposes to give to the jury. Unparties desiring a determination of doubtedly, in most cases, courts this case on the merits we will de- will endeavor, as a matter of courcide it, but it must not be regarded tesy, to secure the attendance of as sanctioning this practice. counsel before reinstructing a jury,

The appeal from the order strik. but it is not error if it is not done. ing out the exceptions to the in- 67 How., 65, aff. 34 Hun, 625; 1 structions need not be specially Hals., 109 ; 26 Wis., 295; 7 Am., 81. considered, for if the court had Burke v. Webb, 2 W. Dig., 579; not the right to instruct the jury Bunn v. Croul, 10 Johns., 239 ; in the absence of defendant's coun- Taylor v. Betsford, 13 id., +37;

Moody v. Pomeroy, + Den., 115;! Judgment and orders affirmed, People v. Cassiano, 30 Hun, 358; with costs. Redman v. Gulnac, 5 Cal., 148 ; Opinion by Follett, J.; Hardin, People v. Trim, 37 id., 274; Camp. P.J., and Boardman, J., concur. bell v. Beckett, 8 Ohio St., 211; Kirk v. State, 1+ id., 512, distin- JUDGMENT. DIVORCE. guished.

N. Y. SUPREME COURT. GENERAL There is no statute or rule of

TERM. FIRST DEPT. practice in this State which pro- Wm. Gibson Jones, respt., v. hibits the court in civil cases from Lula V. Jones, applt. instructing the jury in the absence

Decided May, 1883. of counsel. The power to reinstruct a jury in the absence of

When an action of divorce is commenced

in another State by a husband or wife counsel may, like other powers,

resident therein against the other party be abused; and if it is the wrong at the time residing in this State, service can be corrected on a motion for a of the process of the foreign court in this new trial. But in this case there

State upon the defendant will not confer

jurisdiction over the latter's person nor was no abuse; the additional in

authorize a judgment dissolving the marstructions were given publicly, riage which will be effectual or operative during a regular session of the beyond the State in whose tribunals it court, and after a prolonged but

may have been obtained, and the foreign

court cannot acquire such jurisdiction by unavailing search for defendant's

the appearance of the defendant for the counsel by the officers of the court

purpose of objecting and alleging the under its direction.

want of it, and, if such plea or answer be

overruled, he may still contest the merits In an action to recover the value

of the action without depriving himself of services when the issue is, what of the validity of the objection taken to was the agreed price, the complaint the jurisdiction of the tribunal in proceedaverring that the services were

ings brought for the direct purpose of

reviewing and correcting the adverse deciworth the agreed price, evidence

sion; but, when a husband appears for the of the value of the services is com

above purpose in an action for a divorce petent as bearing upon the prob- brought against him by his wife, and able truth of the claims of the judgment is entered therein affirming the

jurisdiction of the court and dissolving respective parties. 41 N. H., 2:2;

the marriage, such judgment will be a 15 Gray, 5:35; 51 N.Y., 635 ; 9 Bos., bar to an action for divorce brought by 22+; Abb. Trial Ev., 367, 368.

him against his wife in this state, and it Marsh v. Holbrook, 3 Abb. Ct.

cannot be impeached for want of juris

diction collaterally in the latter action App. Dec., 172, distinguished.

even though it may be considered erroneThat defendant was not injured

ous by the courts of this State. by the additional instruction that Appeal from judgment recovplaintiff was entitled to recover the ered on trial at Special Term. contract price, whatever the jury Plaintiff commenced this action found it to be, and that the con- for the purpose of obtaining a tract price was either $5 or $10 per divorce from

from defendant. Deweek. That was the precise issue. fendant appeared and answered,

Vol. 21.-Xo. 17.

and, subsequent thereto, acquired husband or wife to the defendant. a residence in the State of Texas, 3 R.S., 6th ed., 155-6; Code Civ. where she commenced proceedings Pro., $ 1756. to obtain a divorce from plaintiff. 58 Maine, 508, distinguished. Plaintiff was served in the city of That it is now well settled by New York with a citation issued the authorities that when an action by the Texas court in said proceed- of divorce is commenced in anings, and subsequently appeared other State by a husband or wife therein and filed an answer, first, resident therein against the other alleging want of jurisdiction on party at the time residing in this the part of the court, and after- State, service of the process of the wards presenting his defense to foreign court in this State upon her action on the merits. The the defendant will not confer jurisissue thus joined came on for trial, diction over the latter's person nor and a judgment was rendered af- authorize a judgment dissolving firming the jurisdiction of the the marriage which will be effeccourt and dissolving the marriage. tual or operative beyond the State Thereafter, the defendant herein in whose tribunals it may have obtained leave to set up this judg- been obtained. 4 Lans., 358; 110 ment of the Texas court as a de- U.S., 151 ; 19 Ohio, 502 ; 122 Mass., fense to this action by way of 156; 76 N. Y., 78. . supplemental answer, and the That it has also been held, not questions of law and fact raised only by the courts of this State, thereby were tried at Special but in other States and in the SuTerm where it was held that the preme Court of the United States, Texas court had no jurisdiction of that a court in which a legal prothe plaintiff at the time of render- ceeding has been carried on withing the judgment, and judgment out obtaining jurisdiction of the was entered overruling the de person of the individual designed fense.

to be proceeded against could not Wm. W. Badger, for applt. acquire such jurisdiction by his Edwin B. Smith, for respt. appearance for the purpose of ob

Held, That, if the judgment jecting and alleging this want of of the Texas court was binding it, and that, if his plea or answer upon plaintiff, it constituted a de- were overruled, he might still confense to this action, for if defend- test the merits of the action ant's marriage with plaintiff had without depriving himself of the been thereby dissolved she was no validity of the objection taken to the longer his wife and he was accord- jurisdiction of the tribunal, 4 Den., ingly disabled by that fact from 72; 37 N. Y., 9; 17 Wend., 85; further prosecuting this action 4 Barb., 541 ; 9 Barb., 61 ; 15 How., against her under the laws of this 17; 1 T. & C., 578; 19 Wall., 223; State; the right to maintain such 98 U.S., 476; 4 Robt., 616; 120 an action being secured only to a Mass., 549; 20 Texas, 289; 7 Texas, person sustaining the relation of 599; 106 U.S., 118; and under the

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