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upon procuring the adjournment principal with accumulations of on Aug. 13, 1881, and that no error interest was to be paid to her at was committed in the progress of the age of twenty-one. The will the trial was called upon the Coun- also gave some small specific legaty Court to reverse the judgment. cies, and then bequeathed the rest

Judgment of County Court re- and residue of the estate to the versed and that of Justice's Court testator's

testator's daughter, E., to be affirmed, with costs.

paid to her after five years or Opinion by Harilin, P.J.; more if the executors should deem Boardman and Follett, JJ., con- best, and in the meantime to be cur.

kept invested. The referee has

found that the executors wilfully EXECUTORS.

neglected and omitted to perform

their duty as such to plaintiff by N. Y. COURT OF APPEALS.

omitting to set apart the amount Remington, respt., v. Walker, of the legacy and by omitting to ex’r, impl’d, applt.

re-invest from time to time the acDecided April 28, 1885.

cumulations of interest aceruing Testator's will bequeathed $9,500 to plain

upon it. The estate was sufficient tiff, which was to be kept invested by the

to pay plaintiff the amount due. executors, and out of the income they

There were three executors, all of were to pay for her support and educa- whom qualified, two of them being tion and pay the principal and accumu

sons of the testator; they managed lations of interest to her at the age of 21. No fund was set apart for her and no re

the estate until April 12, 1959, investments of accumulated interest were

when all the securities and the made. A bond and mortgage for $2,500 money on hand were turned over given to testator by one of the executors

to W., defendant's testator, the and on which some payments had been

other executor, and he then bemade was assigned to plaintiff, and on foreclosure the mortgagor paid the con

came the sole acting executor. tract debt with simple interest. Held, Among the securities

was That the mortgage could not be consid

bond given by M., one of the ered a trust fund set apart for plaintiff's benefit; that an account should be made

executors, to the testator for from the beginning of the executorship, $2,500, secured by a mortgage and full interest charged on the principal on the farm of the obligor. of the legacy.

On June 16, 1858, M. had paid This action was brought by thereon $144, and had made three plaintiff, a legatee under the will of payments later amounting to about her grandfather, for an accounting $200. With these exceptions M. and the payment of her legacy of had paid nothing for twenty years. $2,500. That sum was to be kept In 1870 he gave notice to W. that invested by the executors, and out he could not pay. The mortgage of its income they were to pay was assigned to plaintiff, and on such amounts as in their judgment being foreclosed M. paid the conshould be needed for plaintiff's tract debt with simple interest. support and education, and the This action was then brought


against the two surviving execu- cover damages for injuries received tors for the non-performance of by plaintiff through the falling of their duty under the will.

a window sash upon her while E. A. Nash, for applt.

passing premises in the City of J. M. Dunning, for respt.

New York. Both the lessors and Held, That the mortgage of M. the lessees were made parties decould not be considered as a trust fendant. The lease contained a fund set apart for the benefit of covenant on the part of the tenants plaintiff; that an account should to keep the demised premises in rebe made up from the commence- pair. ment of the executorship to the The complaint was dismissed as decree against both executors, and to the lessees, and a judgment was full interest should be charged rendered in favor of plaintiff upon the principal of the legacy. against the lessors.

The respective liabilities of the Adolph L. Sanger, for applts. executors between themselves are Alfred Pagelow, for respt. after questions. 7+ N. Y., 539. Held, That plaintiff was not en

Judgment of General Term, af- titled to recover on account of the firming judgment for plaintiff on failure on the part of the tenants report of referee, modified, and as to perform their covenant to keep modified affirmed.

the premises in repair. Such a Opinion by Finch, J. All con- covenant does not enure to the cur.

benefit of a stranger who sustains

an injury in consequence of its LANDLORD AND TENANT.

breach, but can only be enforced NEGLIGENCE.

by the covenantee or his assigns,

and their right to recover depends N. Y. COURT OF APPEALS.

upon different principles than those Odell, infant, respt., v. Salomon which govern in an action by a et al., applts.

stranger. A lessee occupying real Decided May 5, 1855.

estate may become liable to a

stranger by negligently suffering A covenant by a tenant to repair does not

the demised premises to become enure to the benefit of a stranger who sustains an injury in consequence of its dangerous. The foundation of his breach, but can only be enforced by the liability is culpable negligence. He landlord or his assigns.

is not as to third persons the guarThe owner or occupant of a building is not chargeable with the duty of constant in

antor of safety or condition of the spection of the premises; reasonable care premises, but is bound only to reain their use so that they do not cause in- sonable care in his use and occu

jury to others is all that the law requires. pation of them, so that they may The fact that a defect was discovered by an

not cause injury to others. expert after close examination and keen scrutiny is not sufficient to charge the The owner or occupant of the owner or occupant with negligence in building is not chargeable with not having discovered and remedied it.

the duty of constant inspection This action was brought to re- which is required of railroad Vol. 21-No. 20b.

managers and others managing The action was for damages in dangerous machinery liable from trespassing on a certain farm and its nature to become defective and because, as alleged, defendant took cause injury. Reasonable care is an improperly long time to repair all the law requires, and what is a bridge. This bridge, the only reasonable care depends upon the exit for plaintiff, was over the railnature of the property, and the road track. Defendant removed dangers ordinarily to be appre- the bridge and did not replace it in hended in its use.

two months. At this point the It was proved that a public offi- railroad passes through a cut. cer, an expert in such matters, John Cadman, for applt. went to the premises after the ac- W. W. Brownell, for respt. cident in the performance of his Held, That the evidence objected official duty for the express pur- to was competent. Plaintiff had pose of searching for the defect; stated at length how the removal that he discovered it by close ob- of the bridge had injuriously affecservation and keen scrutiny, aided ted his farming operations. He by his knowledge of the mode of was then allowed to state what in constructing such sashes.

his opinion was the difference in Held, That this was not sufficient value that season of the use of the to charge defendants with negli- farm with the bridge in place and gence in not having discovered and out of place during the period of remedied the defect before any alleged unreasonable delay. He thing occurred to call attention toit. answered $300. We think this

Judgment of General Term, af- was merely a statement of the value firming judgment for plaintiff in bulk in a case where it is obvious against the landlords defendants, that an inventory of all the items reversed, and new trial granted. in detail was impossible. The inOpinion by Rapallo, J. All con- jury was peculiar to this farm, and

no other farm is similarly situated.

The witness might have been crossTRESPASS. EVIDENCE.

examined as to the manner in

which he reached the result he N. Y. SUPREME COURT. GENERAL

stated. 9 N. Y., 183; 31 id., 91; TERM. THIRD DEPT.

55 Barb., 585; 17 N. Y., 310. It Teunis W. Vandenburgh, respt., is true that a witness may not The Boston & Albany RR. Co., testify to damages. 2 N. Y.,

517. applt.

But it is a mistake to suppose that Decided May, 1855.

this rule is violated by asking a In an action to recover damages for being witness simply what is the differdeprived of the use of a farm crossing ence in value of the subject in one while defendant was rebuilding a bridge condition and in another condition. a witness was allowed to testify what in his opinion was the difference in value of

It is the preferable method that the use of the farm without and with the

the witness should speak of the obstruction. Held, proper.

two values, and if he do not do so



on the direct he may be compelled | indebtedness of any company shall to do so on the cross.

at any time exceed its capital stock Judgment affirmed.

the trustees assenting thereto shall Opinion by Landon, J.; Bockes, be personally liable for such excess J., concurs; Learned, P.J., not to the creditors of the company. acting.

The mill was organized in 1865 with

$150,000 capital, which the same CORPORATIONS. TRUSTEES.

year was increased to $250,000,

and which was fully paid in. It N. Y. SUPREME COURT. GENERAL

manufactured from 1867 to Jan. TERM. THIRD DEPT.

1879, when it suspended, owing a Charles E. Patterson,


bank $139,000. Plaintiff was apapplt., v. Daniel Robinson et al., pointed receiver of this bank in respts.

Oct. 1878, and in July, 1879, reDecided May, 1885.

covered judgment against the mill

for the above indebtedness; this is Where, under $ 23, Ch. 40, Laws of 1848, relative to manufacturing corporations, it

wholly unsatisfied. The referee is sought to hold a trustee upon the ground found for defendants. that he has assented to an increase of the 0. Gambell, for receiver. indebtedness of the company in excess of E. Cowen, C. A. Waldron and the amount of the capital stock, it is not

W. C. Holbrook, for defts. enough to show that he signed the annual reports. If it appear that he did not at- Held, That the judgment should tend the meetings of the trustees, took no be affirmed as to the defendants share in the conduct of the corporation Griswold and Kinckerbacker. It and signed the reports upon the statement of another trustee that they were correct

appears that the debt of the mill and without any knowledge of the truth

to the bank steadily increased in of the facts he will not be deemed to every year. The referee has found have assented to an increase of indebted

that these two defendants did not A failure to dissent is not equiva

assent to the increase of indebtedlent to an assent to the creation of the debt within this section.

ness. It does not appear that they Where the indebtedness of a corporation is ever attended any meeting of the already beyond the amount of its capital trustees or were consulted with refthe liability of the trustee to those who

erence to the management of the subsequently become its creditors attaches at the instant the debt is created, and that

business or participated in its afliability cannot be divested except by the fairs except to sign the annual reconsent of the particular creditor.

ports; and then only upon their Payment to other creditors, by which the

faith in the assertion of an associaggregate indebtedness of the corporation during the trustee's term is reduced, will

ate trustee that they were correct. not relieve him from liability to that To make a trustee liable under creditor to the creation of whose debt the

$ 23, supra, his subsequent failure trustee did assent.

to dissent is not equivalent to an This action was brought against assent concurring with the creation defendants as trustees of a woolen of an excess of debt. mill under $ 23, Ch. 40, Laws of As to the defendants Robinson 1818, which provides that if the and Pinkham the judgment must


be reversed. The question is it cannot be divested except with whether with their assent the in the creditor's, consent. Therefore debtedness of the mill increased in Robinson's liability to the bank their term of office as trustees. could not be discharged save by We agree with the referee that the payment to the bank. The de interest accruing on a debt to which crease of the aggregate excess of they had not assented and which liability caused by paying creditors was in existence when they came other than the bank would not in office is not an increase of in- cancel Robinson's liability to it. debtedness within this section. The referee finds that he assented But the referee found that on May to an increase of liability to the 1, 1875, when these defendants bank for $31,000 and Pinkham for took office the debt of the mill was $1,392. to all persons $134,214, of which Judgment directed against them $300,000 was due the bank. That for these sums and affirmed as to in Jan., 1879, when this action was Griswold and Kinckerbacker, begun the total debt was $515,770, Opinion by Landon, J.; Bockes, of which $139,000 was due the J., and Learned, P.J., concur. bank. Thus in the time of Robinson's controlthe total debt increased only $81,656, while the interest on

NEGLIGENCE. the old debt was $111,411. And because in this view the total debt

N. Y. COURT OF APPEALS. of the corporation had not increas- Lowery, respt., v. The Manhated under Robinson, although the tan R. Co., applt. debt to the bank had increased (be

Decided May 8, 1885. yond interest) $31,000, the referee

Lire coals fell from one of defendant's enheld that Robinson had not assen

gines upon the back of a horse, which ted to an increase of indebtedness.

thereupon became unmanageable. The We think this was error. After driver attempted to drive him against the May 1, 1875, there was no time

curbstone to check his speed, but the when the total indebtedness did

wagon was overturned, the driver thrown

out and plaintiff was run over and innot exceed its capital stock. The jured. Held, That the proximate cause debt to the bank at all times in- of plaintiff's injuries was the wrongful creased, and beyond accruing in

act of defendant and it was liable there

for. terest. Any increase of indebtedness, then, was one upon which the This action was brought to retrustees were liable and liable to cover damages for injuries received the creditors to whom this excess by plaintiff through the alleged was owing. Having gone beyond negligence of defendant. It apthe limit of the capital any further peared that live coals and ashes indebtedness is one as to which the fell from an engine on defendant's personal liability of the trustee road upon the back of a horse attaches the instant the debt is attached to a wagon, and upon created. And having once attached the hand of the driver in the street

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