App. Div.] Second Department, April, 1909. were enough to constitute adverse possession. A good farmer might fertilize his meadow lands and regularly break them up; but he would still have adverse possession of them within the meaning of the statute, if he merely cut and carried away the grass. This record suggests, what I understand to be the fact, that the farmers of Long Island regard their salt meadows as more valuable and the use of them more important than was evidently made to appear in some of the cases herein before cited. It appears that the salt meadows were the first lands allotted by the early settlers, and it seems to me that acts of ownership sufficient to give rise to a presumption of a valid grant ought to be sufficient, if under a paper title, to constitute a technical adverse possession. The judgment should be affirmed. HIRSCHBERG, P. J., GAYNOR, BURR and RICH, JJ., concurred. WILLIAM J. DRISCOLL and Others, Respondents, v. WHITFIELD C. HEWLETT, as Executor, etc., of THOMAS DRISCOLL, Deceased, and THE RECTOR, CHURCH WARDENS AND VESTRYMEN OF TRINITY CHURCH, ROCKAWAY, IN THE COUNTY OF QUEENS, Appellants. Second Department, April 30, 1909. Trust — bequest to religious corporation to apply income to care of burial lot-trust period not limited to two lives. A conveyance of lands to a religious corporation in trust to apply the income to the care of the testator's burial lot is authorized by section 7 of chapter 723 of the Laws of 1895. The duration of such trust need not be measured by lives in being Chapter 701 of the Laws of 1893, relating to gifts for public charitable purposes, has no application to a gift to a religious corporation in trust to apply the income to the testator's burial lot. HIRSCHBERG, P. J., and RICH, J., dissented. APPEAL by the defendants, Whitfield C. Hewlett, as executor, etc., and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Second Department, April, 1909. [Vol. 132. Nassau on the 16th day of January, 1909, upon the decision of the court rendered after a trial at the Nassau Special Term. John Lyon, for the appellant Hewlett. Albert II. Seabury, for the appellants, Rector, etc., of Trinity Church. John E. Walker, for the respondents. MILLER, J.: This appeal involves the validity of the attempted devise and bequest of the testator's residuary estate to a religious corporation in trust to apply the income to the care of his burial lot. The learned trial justice held that the residuary clause was void for offending the statute against perpetuities.* In the absence of some statute authorizing such a trust, the attempt to create it was doubtless futile. The statute relating to gifts for charitable purposes (Laws of 1893, chap. 701)† has no application, as the care of the testator's burial lot is not a charitable use. However, there is a statute which in terms authorizes the creation of just such a trust as was attempted in this case. (Rel. Corp. Law [Laws of 1895, chap. 723], §7.) That statute provides that a religious corporation may take and hold real property for the purposes of a cemetery and "may take and hold any property granted, given, devised or bequeathed to it in trust to apply the same or the income or proceeds thereof, under the direction of the trustees of the corporation, for the improvement or embellishment of such cemetery or any lot therein, including the erection, repair, preservation or removal of tombs, monuments, gravestones, fences, railings or other erections, or the planting or cultivation of trees, shrubs, plants or flowers in or around any such cemetery or cemetery lots." In the absence of authority it would seem too plain to admit of argument that that statute was intended to authorize the doing of precisely what the testator attempted to do in this case, but authority is not wanting. (First Presbyterian Church v. McKallor, 35 App. Div. 98; Hartson v. Elden, 50 N. J. Eq. 522; Moore's Executor v. Moore, Id. 554; * See Real Prop. Law (Laws of 1896, chap. 547), § 32; Pers. Prop. Law (Laws of 1897, chap. 417), § 2.- [REP. Amd. by Laws of 1901, chap. 291.- [REP. App. Div.] Second Department, April, 1909. Iglehart v. Iglehart, 204 U. S. 478; and see Gates v. White, 139 Mass. 353; Green v. Hogan, 153 id. 462; Morse v. Natick, 176 id. 510.) The statute in question was a re-enactment of chapter 198 of the Laws of 1884, with slight verbal changes, the principal change being the omission of the following words at the end of the paragraph or section in question: "Or for improving the said premises in any other manner or form consistent with the design and purpose of this act, according to the terms of such grant, donation or bequest." Words similar to the words "according to the terms of such grant, donation or bequest" are found in the statutes construed in the Iglehart, Moore and Hartson Cases (supra), and the McKallor Case was decided under the act of 1884. The learned trial justice thought that the omission of those words indicated an intention on the part of the Legislature to change the law, and, while authorizing a trust for the purposes specified, to require that the trust should not continue beyond two lives in being. We are unable to discern such a purpose. The words omitted appear to be surplusage, for, obviously, the trustees must take and hold "according to the terms of such grant, donation or bequest," if at all. The act of 1895 was a part of a revision, and certainly a purpose to change the law could not be inferred from the omission of such words. If the Legislature intended, while authorizing such a trust, to make the statute against perpetuities applicable to it, it would not have left its purpose to be inferred from the omission of needless words having no reference whatever to the point. Every man has the right, subject to the law, to dispose of his property as he pleases, and we must determine the validity of the attempted disposition in this case without regard to what we may think of its propriety. The judgment is reversed and a new trial granted, costs to abide the event. WOODWARD and JENKS, JJ., concurred; HIRSCHBERG, P. J., and RICH, J., dissented. Judgment reversed and new trial granted, costs to abide the event. Second Department, April, 1909. [Vol. 132. PHILIP J. COFFEY, Appellant, v. MARY C. BURKE, as Executrix of THOMAS P. BURKE, Deceased, and THOMAS F. MAGNer, Respondents. Second Department, April 30, 1909. Contract -- agreement by employee of city to sell information supporting law suits against it — such contract invalid counterclaim. A contract made between a municipal employee and an attorney at law whereby the latter agreed to pay the former one-third of any compensation received on the successful prosecution of actions against the city made possible by information from the city records furnished by the former is unconscionable and immoral. This is true, although the information was obtained from the municipal records of Long Island City prior to its incorporation with the city of New York, where after such merger the employee of the former city was continued as an employee of the latter. The courts will not entertain an action by the municipal employee to recover on such immoral contract. This is true, although the money has come into the hands of the attorney of the promisor, for his possession is that of his client. The courts will not entertain such action on the theory that since the original immoral agreement the parties settled their accounts so as to make an inde pendent contract, for the new promise founded upon the original contract is tainted with its illegality. APPEAL by the plaintiff, Philip J. Coffey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 1st day of May, 1908, upon the verdict of a jury rendered by direction of the court on the defendants' counterclaim, the complaint having been dismissed by direction of the court at the close of the plaintiff's case upon a trial at the Kings County Trial Term, and also from an order entered in said clerk's office on the 26th day of August, 1908, denying the plaintiff's motion for a new trial made upon the minutes. James C. Church [ William F. Hagarty with him on the brief], for the appellant. A. L. Pincoff's [Edward D. O'Brien with him on the brief], for the respondents. App. Div.] Second Department, April, 1909. The defendant Burke recovered $78,862.67 in a suit for legal services rendered by her testator, Thomas P. Burke, to the relators in certain mandamus proceedings. (See Burke v. Baker, 111 App. Div. 422; 188 N. Y. 561; People ex rel. Gleason v. Scannell, 172 id. 316.) This suit is brought on a contract whereby the plaintiff undertook to secure the retainers for Burke and to assist in the preparation of the cases, for which Burke was to pay him one-third of the compensation received. While Burke was doubtless forbid den to make such a contract, the plaintiff could still recover upon it so far as the mere procuring of the retainers was concerned. (Irwin v. Curie, 171 N. Y. 409.) But the trial court held that the plaintiff's relations to the city and to the matters involved in the mandamus proceedings were such as to render the contract unenforcible. The clients obtained for Burke by the plaintiff had been appointed firemen by the fire commissioners of Long Island City shortly before consolidation, in apparent violation of the charter of Long Island City, from the fact that the appropriation appeared to be exhausted; wherefore they were removed. They employed counsel, who instituted mandamus proceedings, evidently without knowing on what point they could win. Apparently, the cases dragged along until the relators became discouraged, when they were persuaded by the plaintiff to retain Burke, who had been corporation counsel of Long Island City. The plaintiff was secretary to the mayor and clerk to the board of civil service examiners of Long Island City at the time of consolidation, when he was transferred to the position of labor clerk under the civil service commissioners of the city of New York, which position he held at the time the contract in suit was made, and still holds. He knew, from information gained in the position held by him prior to consolidation, that the appropriation for the fire department had been exhausted by illegal payments. He testified: "I obtained the information relative to the appropriation of $40,000, which appeared to be on the face of it to be overdrawn, but which, as a matter of fact, was not, from my general knowledge of Long Island City affairs by reason of being Secretary to the Mayor. I imparted that information to Mr. Burke in 1899, after consolidation. *** I showed how they [referring to the items of APP. DIV.-VOL. CXXXII. 9 |