and 112 New York State Reporter and character of the passengers. This is the rule of Putnam v. Railroad Co., 55 N. Y. 108, 14 Am. Rep. 190, citing Flint v. Transportation Co., 34 Conn. 554, Fed. Cas. No. 4,873, and of Carpenter v. Railroad Co., 97 N. Y. 494, 497, 49 Am. Rep. 540. The plaintiff complained that while a passenger on a train of the defendant he was assaulted by other passengers, and he now appeals from a judgment entered upon a dismissal of his complaint at the close of his evidence. I think that he had made out a case which did not warrant a dismissal, and that, therefore, the judgment must be reversed, and a new trial must be granted. His evidence, if credible, established the following facts: The plaintiff, with a companion, became passengers of the defendant. When they began to talk in the German tongue, other passengers, without any provocation, began to insult and to revile them, to take hold of plaintiff's hat, and to hustle him. The plaintiff and his companion asked the offenders for peace without success, and thereupon the companion went out to the platform, which was separated from the interior of the car by a glass door, and asked the conductor to interfere. The conductor answered: “I can't do nothing. If I told them to stop, they wouldn't do it." And at first he did nothing, but afterwards he went into the car, told the offenders "to stop that fooling," and then went back. The offenders, who had only laughed at him, then resumed their boisterous conduct, their insults, and finally their "horseplay," so that just before they reached a station they threw the hat of the plaintiff to the floor, struck him, and when he rose to regain his hat threw him to the floor, and then walked over him out of the car to the station. This was no sudden indignity offered on the instant, and immediately followed by the escape of the offenders, but continued conduct of profanity, abuse, and "horseplay," which began when the plaintiff entered the car, continued for some time, and culminated in the assault and the injury. The conductor had notice at the beginning of this misconduct, and was requested to interfere. At first he did nothing, on the ground that, if he commanded the offenders to cease, they would not. And yet all that he finally did was that which he said. would accomplish nothing. Moreover, when he did tell the offenders to stop, the answer was but laughter, which was but evidence of contempt or derision, and no assurance of decent behavior thenceforth. And thereupon the conductor washed his hands of the affair, and went away. To my mind, this does not, as matter of law, acquit the defendant of its obligation to the plaintiff. And I find no proof that warrants the conclusion that the conductor was necessarily called away by the discharge of his official duties, so that his mere perfunctory request, which he said would be futile, could be held, as a matter of law, the exercise of the utmost vigilance to protect the plaintiff from such flagrant abuse. The judgment should be reversed, and a new trial granted; costs to abide the event. All concur. (75 App. Div. 292.) NAUL et al. v. NAUL et al. (Supreme Court, Appellate Division, Second Department. October 3, 1902.) 1. TESTAMENTARY CAPACITY-EVIDENCE. Declaration of a person, four months after the making of a will, that testator at the time of the declaration was not competent to do any business, is not competent evidence on the question of testamentary capacity. 2. SAME-PREJUDICIAL ERROR. The evidence of testamentary incapacity not having been very strong, error in admitting a declaration as to testator's incapacity four months after execution of the will will be held prejudicial. 8. SAME-ADMISSIONS-TENANTS IN COMMON. Admission of one of the tenants in common in the estate of testator that testator was incompetent is not admissible against his co-tenants. Appeal from special term, Kings county. Action by Eliza Walker Naul and others against Henry S. Naul and others. From a judgment for plaintiffs, and from an order denying a motion for new trial, certain defendants appeal. Reversed. Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ. Joseph A. Burr, for appellants. George H. Culver, for respondents. Ronald K. Brown, for infant respondents. WOODWARD, J. Joseph Naul, the testator, died in Brooklyn on the 24th day of January, 1899. His widow, Eliza Naul, his son, Henry Naul, and seven grandchildren, children of a deceased son, Joseph, who died intestate in Brooklyn on or about the 9th day of July, 1897, survive him, and these grandchildren are the respondents, plaintiff and defendant. The will of the said Joseph Naul was admitted to probate by the surrogate's court by a decree dated April 17, 1899, and upon an appeal coming to this court the decree was affirmed. 51 App. Div. 602, 64 N. Y. Supp. 1144. The present action was brought under the provisions of section 1537 of the Code of Civil Procedure, which requires that the plaintiff "must allege and establish that the apparent devise is void," and upon the first trial the jury found in favor of the plaintiffs, upon the ground that the testator was not competent to make a will. The learned trial court entertained and granted a motion for a new trial, and upon an appeal coming to this court the order was affirmed. 61 App. Div. 622, 70 N. Y. Supp. 1145. Upon the second trial the jury again found in favor of the plaintiffs, and from an order denying a motion for a new trial the defendants, Henry S. Naul and others, appeal to this court. There is a conflict of evidence upon the question of the testamentary capacity of the testator, which, while not entirely satisfactory, it might be the duty of this court to hold was sufficient to support the verdict of the jury, were it not for the error which we find in the admission of evidence. Leah Van Cott Naul is the widow 13. See Evidence, vol. 20, Cent. Dig. §§ 816, 821. and 112 New York State Reporter 999 of Joseph Naul, the younger. She had a decree of separation from her husband, and is the mother of the infants involved in this litigation. The will in controversy was executed on the 8th day of March, 1897. The testator died on 24th day of January, 1899. The issue presented was whether the testator was mentally competent to make a will on the day of the execution of the instrument which has been admitted to probate. Henry Naul is interested in the matter as a tenant in common with his mother, and upon the trial, Leah Van Cott Naul being called as a witness, she said, in answer to counsel: "I recall an interview that I had with Henry Naul after the death of Joseph, my husband, in which something was said about the condition. of my father-in-law." She was then asked: "What was said at that interview?" This was objected to on the ground that what Mr. Henry Naul may have said about his father months after this transaction was incompetent, irrelevant, and immaterial. The objection was overruled, and an exception taken. The witness answered: "It was the night of the funeral of my husband. Henry said, 'What do you think of father?' I said, 'He looks feeble.' He said, 'Yes; he is not competent to do any business whatever.' An effort was then made to have the answer struck out, but the motion was denied, and an exception was taken. Joseph Naul, the witness' husband, died. about the 9th of July, 1897, about four months after the execution of the will; and an admission of Henry Naul that his father was incompetent to do any business whatever at that time was not competent evidence of the incapacity of the testator four months before, and it was clearly irrelevant and immaterial, and, the evidence of the testator's incapacity not being very strong, it may have been the controlling element in the determination of the jury. It is urged by the respondents that, "even if this statement did refer to his ability to make a will, it referred to a time about four months or more after the will was signed, and was too remote from the time of execution to be material. But how is this to help the respondents? The defendant has a right to have the question at issue submitted to the jury upon material and relevant evidence, and, having urged proper objections and taken exceptions, he is entitled to the benefit of the exception at this time. If there is room for an argument about whether it was physical or mental competency to which the conversation referred, it is quite as likely that the jury may have taken the one view as the other; and, as it had no proper relation to the question of the testator's mental competency at the time of executing the will, it should have been withdrawn from the consideration of the jury at the request of the defendant's counsel. It was incompetent, also, upon another ground. The general doctrine is doubtless correct that the admissions or declarations of a party, to the record may be taken as against himself or another party having a joint interest with him, but this rule can have no application to a proceeding to prove a will where other parties are interested in the estate as tenants in common. In this case the admissions or declarations of Henry Naul could not bind Eliza Naul, testator's widow, who is a tenant in common with her son, and the rule is well supported by authority that one tenant in common cannot admit away the rights of his co-tenant. In re Kennedy's Will, 167 N. Y. 163, 177, 60 N. E. 442, and authorities there cited. The evidence had no proper place in the case, and, as this may have prejudiced the rights of the defendants before the jury, there is no other way than to reverse the order denying a new trial. The judgment and order appealed from should be reversed, and a new trial granted; costs to abide the final award of costs. All concur. (Surrogate's Court, Queens County. September, 1902.) 1. WILL-INSUFFICIENT EXECUTION-REPUBLICATION. Where a will is not signed by testatrix at the end thereof, but certain codicils referring to the will and reaffirming it are duly executed, the will is thereby republished, and the codicils and the original will are the will of the testatrix. In the matter of the probate of the last will and testament of Mary Anne Douglass, deceased. Decree of probate entered. Ed. J. Knauer, for proponent. Lucius N. Manley, for public administrator, contestant. NOBLE, S. Mary Anne Douglass died at Long Island City on the 6th day of January, 1902, leaving a last will and testament, supplemented by two codicils. She left her surviving no next of kin. On that account the public administrator was cited to appear as a necessary party. On the return day of the citation, the public administrator appeared and filed objections. The principal objection, and the only one pressed, is that the instrument offered for probate as the last will and testament of the decedent is not executed in conformity with the provisions of the statute, and that it is not signed and executed at the end thereof as required by statute. An examination of the instrument shows: That it is a full cap sheet, folded across the middle, from left to right, so as to make two leaves of four pages, with a manilla paper back attached. Upon the first page, at the top, is printed the formal beginning of a will, and upon the lower half of the second page is printed the formal part of the ending of a will and the attestation clause. The third and fourth pages and the manilla cover were originally blank. Upon the first page is written, at the top, "Page No. 1," and the name and residence of the alleged testatrix, and certain other written matter purporting to be clauses of a will, which clauses are numbered from "First" to "Twelfth," inclusive; then follows the writing "continued on page numbered 2." Upon the top of the following page is written, "Continued from page No. 2," and then this page is numbered, "Page No. 3"; then another clause is written numbered "Twentieth"; then follows a clause which purports to appoint "Henry C. Johnson, and 112 New York State Reporter Jr., and William F. Coffee, of Long Island City, N. Y.," to be executors, combined with a revocation of all former wills, and expressing a desire that they (the executors) shall not be required to give security for the faithful performance of their duty as such executors; then follows, on the same page, the formal ending of a will, with date written in, and the signature of "Mary Anne Douglass" (the alleged testatrix), and the signatures of Edward T. Stivers and John M. Tier, witnesses; then follows the attestation clause, signed by the said Stivers and Tier, and their respective addresses. Upon the third page of the paper, at the top, is written "Continued from Page No. 1, and then this page is numbered "Page No. 2"; then follow what purport to be clauses numbered "Thirteenth" to "Nineteenth," inclusive; then follows, at the bottom of the page, in writing, "Continued on page. numbered 3." Upon the top of the fourth page of the paper is written, "Codicil number one," and then follows the writing purporting to be a codicil, with signature of the alleged testatrix, and attestation clause and signatures of witnesses. At the bottom of this page is written "Codicil number two," and then follows the writing purporting to be a codicil, which writing is continued to bottom edge of this page, and carried over to the first page of the manilla back, on which it concludes with the signature of the alleged testatrix, by her mark, signatures of the witnesses, attestation clause, and signatures and addresses of witnesses. There is no question as to the proper execution of both codicils. It is conceded that they are executed in conformity with the provisions of the statute. If the instrument purporting to be the will stood alone, unsupported by the codicils, I should have no hesitancy in denying it probate as being invalid and void as a testamentary disposition, for the reason that it is not signed and executed as provided by statute under the interpretation of the court of appeals in a number of cases, all of which are particularly emphasized in Re Andrews' Will, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294. But the codicils to this instrument put an aspect on this case which distinguishes it from all the cases commented upon in the Andrews Case, and also distinguishes it from that case. In the earlier cases the rule is declared that where the codicil distinctly refers to and identifies the will, and reaffirms the same, the will and codicil together constitute the will of the testator, and that the provisions of the former may be treated as embodied in the latter, and both may be treated as if executed and published at the same time. Brown v. Clark, 77 N. Y. 369. In this case, Andrews, J., delivering the opinion of the court, on page 377, says: "It is established by a long line of authorities that any written testamentary document in existence at the execution of a will may, by reference, be incorporated into and become a part of the will, provided the reference in the will is distinct, and clearly identifies, or renders capable of identification, by the aid of extrinsic proof, the document to which reference is made." He then cites a number of cases in which the doctrine of incorporation is maintained. Following the citations, he quotes the following from Williams, Ex'rs, p. 97: |