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WILLARD BARTLETT, J. This is a controversy between the executrix and the two executors of the will of Dominick G. Bodkin, deceased. Upon a petition and affidavit showing that she disagreed with her coexecutors, Martin R. Bodkin and John Griffin, respecting the custody of money and other property belonging to the estate, Margaret F. Bodkin, the executrix, obtained from the surrogate of Kings county an order, under section 2602 of the Code of Civil Procedure, requiring the executors to show cause why the surrogate should not give directions in the premises. Upon the return of that order, Mr. John R. Kuhn, representing the executors, applied for an adjournment, and the proceeding was duly adjourned by an order dated June 15, 1903. This is the first order from which the executors appeal. Of course, they are not entitled to appeal from it so far as it grants the adjournment for which their counsel asked. It is apparent, however, that their real objection to the order relates to a further provision therein which requires the executors to sign and deliver to Margaret F. Bodkin individually a check drawn to her order for $1,386.18 for rents collected by the executors and deposited to the credit of the estate. The papers in the proceeding show without dispute that Margaret F. Bodkin individually was entitled to the money represented by this check; and it was entirely proper that the surrogate, in the exercise of his discretion, when asked to adjourn the proceeding, should make the desired adjournment conditional upon the signing and delivery of this check.

The second order sought to be reviewed amends the order of June 15, 1903, by reciting the answer of the executors as one of the papers upon which such first-mentioned order was made. This amendatory order was granted at the instance of the attorney for the executors, and the only part of which the appellants now complain is a clause at the end providing that "the order so amended remain in full force and effect." I have already expressed the opinion that the first order was right, and, in any event, this clause added nothing to its force or effect.

The third order attacked by this appeal was made upon the final return of the original order to show cause, and contains several directions as to the manner in which the executrix and her coexecutors shall manage the estate committed to their charge. The order recites that it is made after hearing M. F. McGoldrick, attorney for the petitioner, in favor of the application, and “John R. Kuhn, Esq., attorney for Martin Bodkin and John Griffin, appearing, and not opposing.” This recital is conclusive upon us in this court, and renders it unnecessary for us to inquire further into the propriety of the order. The executors cannot successfully attack an order which was made in the presence and with the knowledge of their counsel, without any opposition on his part. The orders of June 15 and July 27, 1903, should be affirmed, and the appeal from the order of June 26, 1903, should be dismissed.

Orders of June 15 and July 27, 1903, affirmed, and appeal from order of June 26, 1903, dismissed, with $10 costs and disbursements. All concur.

and 118 New York State Reporter

In re BURNS' WILL.

(Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. WILLS-EXECUTION.

Testator, being sick, told his nurse to call a certain person, who went to testator's room, where he signed a will in her presence, declaring to her that it was his will, and directing her to sign it as such. He then told her to call the nurse, whom he asked “to sign this last will," and the nurse, after reading it, signed as a witness. Held, that the instrument was duly executed as the last will of deceased.

Appeal from Surrogate's Court, Westchester County.

Application for probate of the last will and testament of James Burns, deceased, to which Edward Burns filed objections. From a decree admitting the will to probate, objector appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

Charles W. Coleman, for appellant.
Henry B. Pogson, for respondent.
Wilson Brown, Jr., guardian ad litem.

GOODRICH, P. J. The instrument in question is an informal document in the handwriting of the decedent's wife, and reads as follows:

7 5th Avenue, New Rochelle, March 26th, 1902. “This is my last will and testament. I do hereby give to my wife Catherine Burns everything I possess Money & Jewelry stocks, real estate and Bonds & Everything.

James Burns. “Witnesses:

"Nellie Hayden.

"Edward Crudden." Edward Burns, a brother of the deceased, filed objections to the probate that the will was not signed, published, and declared by the testator in the manner prescribed by law, that the decedent was not of sound mind, and that the execution of the instrument was obtained by the fraud, circumvention, and undue influence of Catherine Burns, the beneficiary named therein. As to the last two objections, there is no evidence whatever in the record to sustain either of them. The only question before us is whether the instrument was executed in accordance with law as the last will of the deceased. James left no children. He had been sick for seven months with heart disease and dropsy, and under the care of Edward Crudden, a professional nurse, and one of the subscribing witnesses. James told Crudden to call Nellie Hayden, the other subscribing witness, and she went to the room where James was sick in bed. He signed the instrument in her presence, declared to her that it was his will, and asked her to sign it as his will, which she did. He then told her to call Crudden. He asked Crudden "to sign this last will that he made." Crudden read the instrument, and signed as a witness. There is some evidence of an affidavit made by Crudden, which is somewhat inconsistent with his evidence before the surrogate, but the learned surrogate has found as matter of fact that the testator signed the will in the presence of Nellie Hayden, and acknowledged his signature to Crudden, declared to both that it was his will, and that the two, at his request, signed as subscribing witnesses. This evidence justified the finding of the learned surrogate in admitting the will to probate.

The decree should be affirmed, with costs to the respondent, and costs and disbursements to the special guardian. All concur.

ISAACSON V. WOLFENSOHN. (Supreme Court, Appellate Term. November 6, 1903.) 1. LANDLORD AND Tenant-SURRENDER-PRESUMPTION AS TO ACCEPTANCE

RELETTING.

The acceptance of a surrender is a matter of defense to an action for rent; and where the tenant fails to show the time and period of a reletting by the landlord during the term, it will not be presumed to have

been made at such time as to constitute an acceptance. 2. SamE-CREDIT in RENT.

Money received by a landlord on a reletting of the premises during the term to a third person must, in an action for rent, be credited to the

tenant. Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action for rent by Isaac Isaacson against Nathan Wolfensohn. Judgment for plaintiff, and defendant appeals. Modified. .

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Charles Dushkind, for appellant.
Jacob S. Strahl, for respondent.

BISCHOFF, J. The evidence does not show an acceptance of the tenant's surrender of the premises, and the justice was authorized to find the facts as to the terms of the lease and the tenant's default in the plaintiff's favor. It appears, however, from the plaintiff's testimony, that he relet the premises for some time during the term, and received $9. We are not to assume that this reletting was at the beginning of the term for which rent was claimed in this action, and thus hold the plaintiff to an election to accept the defendant's surrender, for this was matter of defense, and the defendant failed to show the time and period of the reletting; but, if there was no surrender and acceptance, the reletting during the term was at least for the tenant's account, one or the other contingency being necessarily involved. See Gray v. Kaufman Co., 162 N. Y. 388, 56 N. E. 903, 49 L. R. A. 580, 76 Am. St. Rep. 327. We may assume (the defendant not having proven the date that the reletting was at the end of the term, but, the fact of reletting being admitted, the justice should have credited the amount which the plaintiff thus received.

Judgment reversed and new trial ordered, with costs to appellant to abide the event, unless respondent stipulate to reduce the damages to $31, in which event the judgment will be affirmed, without costs. All concur.

and 118 New York State Reporter

WATSON V. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. November 6, 1903.) 1. STREET RAILWAYS-COLLISION WITH TEAM-CONTRIBUTORY NEGLIGENCE.

The driver of a covered wagon stopped it when it was nearly dark, without a light, on a street car track, waiting for a train to pass, remaining, without any precautionary measures, for two or three minutes, till struck by a street car from the rear. Held, that he was guilty of con

tributory negligence. Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Catherine Watson against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Henry A. Robinson (A. K. Wing and Wm. E. Weaver, of counsel), for appellant.

Sanders & Feltenstein, for respondent.

FREEDMAN, P. J. Plaintiff brought this action to recover damages to her horse and wagon, occasioned by being run into by one of defendant's cars. No defense was interposed by the defendant, and the testimony may be said to be sufficient to show that the defendant was guilty of negligence; so that the only question to be determined is as to the contributory negligence of plaintiff's driver who was in charge of the wagon at the time of the accident. The collision occurred at the corner of Twenty-Fourth street and Eleventh avenue on December 9, 1902, at about 20 minutes before 6 p. m. It was getting dark at this time, and the driver had a covered wagon with the back cover up. He entered Thirty-Fourth street at Tenth avenue, and drove west on the north track of defendant's road until he reached Eleventh avenue. A steam road-the Hudson River Railroad-runs through Eleventh avenue. As he reached Eleventh avenue, the flagman stationed there came out of his house, and put up his hand as a signal for the driver to stop. He stopped to allow a freight train to pass. He testifies that when he stopped he looked behind him, and saw no car. He allowed his horse and wagon to remain upon the defendant's north-bound track until a car from behind struck him, and, as at this time the freight engine had reached a point opposite him, forced his horse and wagon against the locomotive, causing the injuries sued for. It appears that at the time the driver stopped his wagon upon the defendant's tracks the engine was some distance south of a point directly opposite him, and that he remained in his position for, as he says, "I judge it was about two or three minutes, because the thing was sliding and puffing awaythe wheels would slide before it could get away with the big freight." He had no light upon his wagon, and he gives no reason for entering and remaining upon the defendant's tracks. He seemingly without reason, and without looking for an approaching car from the rear, voluntarily remained in a perilous position for two or three minutes until struck. Respondent's attorney states in his brief that "the noise produced by the puffing of the steam would naturally prevent, by reason of the engine's close proximity, the sound of the approaching car being heard. This, instead of being a justification for the driver in occupying this hazardous position, would require from him a greater exercise of vigilance to avoid approximate danger. The facts in the case are materially different from those in the case of Schilling v. Met. St. Ry. Co., 47 App. Div. 500, 62 N. Y. Supp. 403, relied upon by the respondent. In the latter case the plaintiff entered upon a street in “broad daylight,” and drove a single block, when he was struck by a car from behind; and the court held that it could not be said, as a matter of law, that he was guilty of contributory negligence. In the case at bar the driver of a wagon after dark, or when it was nearly dark, without a light, steps upon the car tracks, retaining a position presumably known to be dangerous, when a passing train creates such a noise as to render him unable to hear an approaching car; remaining there, without looking or taking any precautionary measures of safety, for two or three minutes, and until run down.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event. All concur.

TREADWELL V. GREENE.

(Supreme Court, Appellate Division, First Department. November 13, 1903.) 1. WITNESSE8-EXAMINATION BEFORE TRIAL-AFFIDAVITS BY ATTORNEY.

Where an application to examine a witness before trial was based on affidavits made by defendant's attorney, who had actual knowledge of the facts of which he made positive averment, and the sources of bis information and the grounds of his belief as to facts alleged on information and belief were set forth, and it appeared that defendant at the time of the application was in a foreign country, the application was not ob

jectionable because the affidavits were not made by the defendant. Appeal from Special Term, New York County.

Action by George A. Treadwell against William C. Greene. From an order granting a motion to vacate an ex parte order directing the examination of James Shirley as a witness on behalf of defendant before trial, defendant appeals. Reversed.

See 84 N. Y. Supp. 354.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

M. E. Harby, for appellant.
Charles M. Demond, for respondent.

HATCH, J. The moving affidavit in this case complies with every rule required by section 872 of the Code of Civil Procedure to authorize the examination of a witness before trial. The learned court below vacated the order for the examination of the witness upon the ground that the affidavit was made by the attorney instead of by the party, and that the weight of authority required the affidavit to be made by the party whenever practicable. This undoubtedly is the

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