...XXI, 423

Carley v. Potts, XII, 286, Affirmed,
May 8, 1885. No opinion.

Carpenter v. Woods, XXI, 145, Appeal
dismissed, May 5, 1885. No opinion.
Cooke v. The Lalance Grosjean Mfg.
Co.. XIX, 482, Reversed, June 2, 1885,
on opinion in Hickey v. Taaffe.
Corrigan v. O'Connor, XV, 60, Affirm-
ed. June 16, 1885. No opinion.
Coykendall v. Constable, XIX, 169. Re-
versed
XXI, 504
Delahunt v. The Ætna Fire Ins. Co.,
XIV, 479, Affirmed......... .XXI, 82
Dudley v. The N. Y., L. E. & W. RR.
Co., XX, 118, Affirmed, April 14, 1885.
No opinion.

Edwards v. The N. Y. & H. RR. Co., XIII, 497, Affirmed.......XXI, 231 Ellis v. The N. Y., L. E. & W. RR. Co., XIX, 34, Affirmed, April 14, 1885. No opinion.

Palmer v. The Pennsylvania Co., XXI,
130, Appeal dismissed, June 26, 1885.
No opinion.

Pantzar v. The Tilly Foster Mining Co.,
XVI, 341, Affirmed, June 9, 1885.
Parker v. Stroud, XVIII, 454, Re-
versed..
..ΧΧΙ, 196

Peck v. Peck, XX, 83, Affirmed, April
14, 1885, on opinion below.

Pineo v. The N. Y. C. & H. R. RR. Co.,
XX, 287, Affirmed, May 8, 1885. No
opinion.

Pond v. Starkweather, XX, 265, Af-
firmed...
..ΧΧΙ, 446
Power v. The N. Y., L. E. & W. RR.
Co., XIX, 408, Reversed........XXI, 158
Price v. Price, XIX, 331, Affirmed,
XXI, 194

Putnam v. The N. Y. C. & H. R. RR.
Co, XVI, 111, Affirmed, June 2, 1885.
No opinion.

Riley v. Scheffel, XIX, 438, Affirmed,
May 5, 1885, on opinion below.

Ryan v. Miller, XVII, 112, Affirmed,
June 26, 1885. No opinion.

The First Nat'l Bank of N. Y. v. The Continental Nat'l Bank, XVII, 42, Affirmed, June 2, 1885. No opinion. The Hadley Falls Nat'l Bank v. May, XVI, 524, Affirmed, June 26, 1885. No opinion.

PAGE

The Health Department of N. V. v.
Purdon, XX, 352, Affirmed.....XXI, 447
The Marine Nat'l Bank v. Ward, XXI,
176, Appeal dismissed, June 26, 1885,
No opinion.

The People v. Petmecky, XX, 107, Af-
firmed, June 26, 1885.

The People v. The Knickerbocker Ice

Co., XIX, 194, Affirmed........XXI, 488

The People ex rel. Dowdney v. Thompson, XIX, 455, Appeal dismissed,

XXI, 413

The People ex rel. Osgood v. Comrs. of Taxes, XXI, 93, Appeal dismissed,

.XXI, 378

The People ex rel. Short v. Bacon, XIX, 129, Affirmed, June 9, 1885.

The People ex rel. Swift v. Police Comrs., XVIII, 21, Affirmed....XXI, 503

The People ex rel. The A. & G. Bridge
Co. v. Weaver, XX, 565, Appeal dis-
missed, June 16, 1885. No opinion.
The People ex rel. The Cayuga In-
dians v. Land Office, XX, 505, Re-
versed, June 2, 1885.

The People ex rel. Townshend v. Cady,
XIX, 498, Affirmed, April 21, 1885.
No opinion.

The People ex rel. Wood v. Lacombe,
XX, 353, Affirmed.....

....ΧΧΙ. 450

Wagner v. The N. Y., L. E. & W. RR. Co., XX, 277, Affirmed, June 16, 1885, No opinion.

Wheeler v. The D. & H. C. Co., XX, 301, Affirmed, April 14, 1885. No opinio n.

Wyckoff v. De Graff, XV, 484, Reversed.........

.ΧΧΙ, 13

N. Y. COURT OF APPEALS.

ceased.

Decided Feb. 10, 1885.

Where the testatrix had testamentary capacity, a present knowledge of the contents of the will, and was surrounded by all the safeguards provided by the statute, the will can be avoided only by influence amourting to force or coercion and proof that it was obtained by this coercion.

To establish fraud or undue influence in the execution of a will something more must be shown than the relation of parent and child and an opportunity for unfair dealing. There must be evidence that the parent was imposed upon or overcome by the practices of the child to the benefit of the latter.

M. died Sept. 10, 1880, leaving three sons and four grand-children, children of a deceased daughter. On June 21, 1881, W. C. M., one of the sons, as executor, offered for probate as the will of M. an instrument dated August 9, 1879.

Vol. 21-No. 1.

that its execution was not her free and voluntary act; that she was not at the time of its execution of sound mind, memory and understanding; that it was not subscribed, published and attested in conformity with the statute; that the attesting witnesses did not sign their names at her request; that the instrument so offered for probate was obtained and its execution procured by the fraud, circumvention and undue influence of the three sons of M. or one of them. The property of the decedent consisted of real estate, which she distributed among her three sons subject to the payment by them to each of the grand-children of fifty dollars. There was no proof of influence exerted or existing. Upon the trial of the issues the Surrogate found that the testatrix subscribed the will described in the petition at the end thereof, in the presence of two attesting witnesses, who signed their names thereto at the request of the testatrix, in her presence and in the presence of each other; that at the time of subscribing it the testatrix declared to both of the witnesses that the instrument so subscribed by her was her last will and testament; that at that time she possessed testamentary capacity, but that said will was obtained from her through the undue influence of her son W. M. A decree was made denying probate to the will. On an appeal by the executors to the General Term, on a case containing the evidence, the decree of the Surrogate was reversed and the proceeding remitted to him with directions to admit the will to probate. The contestant appeals from that decision. The appellant's counsel conceded that before the testatrix signed the will "it was either read to or its contents explained" to her.

C. Morschauser, for applt. William J. Sayres, for respts. Held, That this being a case where the testatrix had testamentary capacity, a present knowledge of the contents of the will, and where at its execution she was surrounded by all the guards which the statute has prescribed to prevent fraud and imposition, the will can be avoided only by influence amounting to force or coercion, and proof that it was obtained by this coercion. The burden of proving this is on the party who

makes the allegation. 35 N. Y. 559; 68 id, 148.

It was claimed that because the

proponent of the will was the son of the testatrix and communicated to the scrivener the provisions to be inserted in the will, and became himself a beneficiary, fraud and undue influence was shown.

Held, Untenable. To establish fraud or undue influence in the execution of a will something more must be shown than the relation of parent and child and an opportunity for unfair dealing. There must be evidence that the parent was imposed upon or overcome by the practices of the child to the benefit of the latter before the burden of proof can be shifted. 35 N. Y. 559; 68 id. 148.

Also held. That it was not improper for the Supreme Court to direct judgment.

Sutton v. Ray, 72 N. Y., 482, distinguished.

Also held, that under the circumstances costs should be imposed on the contestant.

Order of General Term, reversing decree of Surrogate and directing the Surrogate to admit the will to probate, affirmed.

Opinion by Danforth, J. All

concur.

MANDAMUS. BROOKLYN

BRIDGE.

N. Y. COURT OF APPEALS. The People ex rel. Stranahan, respt., v. Thompson, applt.

Decided Jan. 20, 1885.

A mandamus cannot be granted to compel the issuing of a permit to the trustees of the Brooklyn Bridge to enter upon certain streets to lay foundations for the approaches to the bridge where the effect thereof will be to allow the trustees to place pillars or columns in such streets. Chap 399, Laws of 1887, prohibits the interposition of any obstacle to the free and uninterrupted use of the streets, and confers no authority which authorizes the exercise of any discretion in determining the character of the obstruction.

The relator applied for a mandamus to compel the Commissioners of Public Works and the Department of Parks to grant a permit to the Board of Trustees of the Brooklyn Bridge to enter upon Chatham and Centre Streets in the City of New York, for the purpose of laying the foundation to complete said bridge in accordance with a map filed in the register's office. The effect of the permit asked for would be to allow the relator to construct a platform over said streets supported by pillars or columns resting in one or both of said streets. Section 10, of chapter 399 of the Laws of 1867, the Act incorporating the Bridge Co., declares that said bridge "shall not obstruct any street which it shall cross, but that such street shall be spanned by a suitable arch or suspended platform as shall give suitable height for the passage under the same for all purposes of public travel and transportation." The motion for a mandamus was granted.

James C. Carter, for applt.

provision that the streets shall be spanned by a suitable arch or suspended platform means that the pillars or columns shall be erected outside of and beyond the streets. The statute confers no authority which authorizes the exercise of any discretion in determining the character of the obstruction. The Board of Trustees have no right, in the exercise of their powers under said section (§10), to say that any erection in the streets made by them can occasion only a trifling obstruction and is therefore not violative of the statute, nor have the courts power to review their action and decide, under the statute, how far and to what extent pillars or columns may be erected which will occasion any obstruction.

The legislature intended to confer absolute authority for the building of the bridge through such streets as might be required upon payment of compensation to abutting owners, and to protect the public streets and the crossings of the same by positive and clear restrictions, which are equally applicable to all streets necessarily to be crossed by the bridge, and no distinction can be made in favor of any portion of the bridge or its approaches which authorizes a disregard of the statute.

While property devoted to one public use may be applied to an

Held, Error; that the statute prohibits the interposition of any obstacle to the free and unobstructed use of the streets. The

express authority is given for that purpose by the clearest provisions of law.

Order of General Term, affirming order granting motion for