SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. the share of his adopted daughter, Angeline Julia, involved an unlawful accumulation of the income of each share, so far as that income exceeded forty dollars a month during the first life, and twenty dollars a month during the second. The trial judge expressed the opinion that this surplus income would go to the next of kin of the testator if the scheme were allowed to stand in part; but he deemed it contrary to the intention of the testator to uphold any portion thereof, and, therefore, held that the whole scheme cutting down the absolute bequests must fall. From the judgment to this effect, and directing the payment to the plaintiff of her onetenth part or share under the will, the executors and certain infant defendants have appealed. William H. Harris, for the executors, appellants. Harold D. Watson and Charles Martin Camp, for the infant defendants, appellants. J. Harry Snook, for the respondent. WILLARD BARTLETT, J. : Inasmuch as the testator's daughters, Mary Eliza and Harriet Doremus, and his adopted daughter, Angeline Julia, are to receive only forty dollars a month out of the shares allotted to them under the will, it is undoubtedly true that if the income of a share amounted to more than forty dollars a month, the accumulation of surplus over and above that sum would be unlawful. In that event, however, such surplus would go not to the next of kin, as stated in the Special Term opinion on the authority of Hull v. Hull (24 N. Y. 647), but "to the persons presumptively entitled to the next eventual estate." (Real Property Law, § 53.*) The case of Hull v. Hull (supra), so far as that decision applies to the question under consideration, is overruled by Cook v. Lowry (95 N. Y. 103). We are not able to concur in the conclusion reached by the learned judge in the court below to the effect that the whole scheme of the will with reference to these two daughters and the adopted daughter, so far as it cuts down the absolute bequest to each of them, must be permitted to fail. The doctrine of Benson v. Corbin (145 N. Y. 351), that an absolute devise will not be cut *Laws of 1896. chap. 547. - [Rep. App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. down or lessened by subsequent words which are of an ambiguous or doubtful meaning, does not apply to a case in which the limiting provision is clear and definite. (Kurtz v. Wiechmann, 75 App. Div. 26.) In the case at bar the learned trial judge thought that "if the cutting-down provisions of this will be reduced to that which is legal, it is at least doubtful that the testator had any such intention as such reduced provisions express." It seems to us tolerably clear, however, that no violence will be done to the intention of the testator if the provisions of the will limiting the income to be received by the two daughters and the adopted daughter to forty dollars a month shall be upheld to that extent, allowing the surplus income, if there is any accumulation, to go to the persons presumptively entitled to the next eventual estate. The language of the 16th article in reference to these shares shows clearly that the testator did not contemplate the possibility that the income from any one of these shares would exceed the monthly payment for which he provided; because in each case he directs what shall be done with the share in case it should not be exhausted at the decease of the first beneficiary. He, therefore, plainly had in mind the probability that the principal of each share would have to be drawn upon in order to yield forty dollars a month to the beneficiary. We see no difficulty in regarding the bequest of each of these shares as in effect a bequest to pay an annuity to each of the beneficiaries, which is not invalidated by the fact that the payment of the annuity may not absorb the whole income. (Cochrane v. Schell, 140 N. Y. 516.) There is nothing in the case to suggest that the apparent purpose of the testator is a mere cover for an unlawful accumulation; and that purpose, it seems to us, can only be carried, out by permitting the monthly payments to be made and decreeing a distribution of the surplus income, if there shall be any, to the persons presumptively entitled to the next eventual estate. The judgment should be reversed, and the appellants should have judgment construing the will in accordance with the views expressed in this opinion. WOODWARD, HIRSCHBERG, JENKS and HOOKER, JJ., concurred. Judgment reversed, with costs, and judgment directed for the appellants, in accordance with the opinion of BARTLETT, J. SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN REARDON, Relator, v. JOHN N. PARTRIDGE, as Police Commissioner of the City of New York, and NATHANIEL B. THURSTON, as First Deputy Police Commissioner of the City of New York, Respondents. Trial of a member of the New York police force- the charges may be heard before a deputy and the sentence be fixed by the police commissioner — where such sentence was based on four charges sustained by the deputy, two of which were not established by the proof, the Appellate Division ordered a new trial. Under sections 300 and 302 of the revised Greater New York charter (Laws of 1901, chap. 466) the police commissioner of the city of New York has jurisdiction to punish a police officer who has been tried and convicted upon charges preferred against him before a deputy police commissioner. Where, in a certiorari proceeding to review the dismissal of a police captain in the city of New York, after he had been convicted upon four charges, it appears that only two of the charges were sufficiently established by the evidence, and that, in fixing the punishment, the police commissioner proceeded upon the erroneous assumption that all four charges had been established, the Appellate Division, in view of the fact that the accused had been a member of the force for a period of thirty-four years, during which time he had been reprimanded but once and been fined altogether but six days' pay, considered that, if the police commissioner had based his judgment only upon the two charges which were sustained by the evidence, he might have inflicted a much lighter punishment upon the accused officer, and accordingly reversed the determination of the police commissioner and directed a new trial of the officer upon the charges which had been sustained by the weight of evidence. CERTIORARI issued out of the Supreme Court and attested on the 13th day of August, 1902, directed to John N. Partridge, as police commissioner of the city of New York, and another, requiring them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings had in dismissing the relator from the office of captain of police in the city of New York. Hugo Hirsh, for the relator. Walter S. Brewster [James McKeen with him on the brief], for the respondents. WILLARD BARTLETT, J.: The first question to be considered in this case relates to the manner in which jurisdiction was exercised in the trial and dismissal of App. Div.] the relator. He was tried before Nathaniel B. Thurston, first deputy police commissioner of the city of New York. The charges against him were three in number: First, neglect of duty; second, conduct unbecoming an officer, and, third, violation of the rules of the police department. The first deputy commissioner adjudged him guilty of the first and second charges, and not guilty of the third charge; and he recommended that the relator be dismissed from the force. Upon this conviction the police commissioner subsequently pronounced judgment dismissing the relator. It is now contended that the proceeding was invalid because it involved a judicial hearing judicial hearing by one officer and a final determination by the other. The provisions of the revised Greater New York charter (Laws of 1901, chap. 466), however, in respect to the trial of police offenders, appear to contemplate precisely this procedure. Section 300 empowers the police commissioner to adopt rules and regulations for the examination, hearing, investigation and determination of charges against any member of the police force, but prohibits the punishment of any such member "until written charges shall have been made or preferred against him * * * nor until such charges have been examined, heard and investigated before the police commissioner or one of his depu ties." Clearly enough, this authorized a trial of the relator before the first deputy police commissioner. As to the subsequent exercise of the power of dismissal by the police commissioner himself after a trial before one of his deputies, we have the provisions of section 302 of the revised Greater New York charter, the first part of which is as follows: "The police commissioner shall have power, in his discretion, on conviction by him or by any court or officer of competent jurisdiction, of a member of the force of any criminal offense, or neglect of duty, violation of rules, or neglect or disobedience of orders, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming an officer, or any breach of discipline, to punish the offending party by reprimand, forfeiting and withholding pay for a specified time, suspension without pay during such suspension, or by dismissal from the force." Under section 300 the first deputy police commissioner was an officer of competent jurisdiction; the relator had been convicted before such officer of SECOND DEPARTMENT, JULY TERM, 1903. SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. competent jurisdiction of neglect of duty and of conduct unbecoming an officer, and hence, under section 302, the police commissioner was expressly invested with authority to punish the offender by inflicting any of the penalties mentioned in that section, the maximum penalty being dismissal from the force. In view of these provisions of the revised charter, which give express legislative sanction to the method of procedure adopted in this case, it seems to me that the jurisdiction of the respondents is not open to serious doubt. Since the oral argument we have been referred to the decision of the Appellate Division of the first department in the case of People ex rel. De Vries v. Hamilton (84 App. Div. 369). There the relator was an exempt fireman, holding the position of docket comparing clerk in the office of the county clerk of New York county. Upon a charge of intoxication he was tried before the deputy county clerk, and after the hearing was closed the evidence was submitted to the county clerk, who examined the same in the absence of the relator and without notice to him, and made an order removing him from his position. The Appellate Division held that while the deputy had authority to take the proof and conduct the trial, there was no power subsequently to pass the proceeding over to the county clerk to make the determina"In the orderly course of judicial procedure," said HATCH, J., "a trial may not be severed so that one functionary may take the proof and another make the determination. Such power has never been exercised, so far as we are aware, unless it was conferred by statutory enactment." In the present case, however, as I have endeavored to show, the statute applicable to police trials in the city of New York, permits the police commissioner to pronounce judgment upon a conviction had before one of his deputies. The De Vries case, therefore, has no application here. tion. The determination by the first deputy police commissioner convicts the relator of four distinct offenses. The deputy finds: 1. "That on numerous occasions in 1901 and 1902 Captain Reardon failed to make certain entries in the blotter, as required by Rule 5, Paragraph E, of the Rules and Regulations of the Department;" 2. "That he directed and permitted blank spaces to be left in the blotters by officers under his command, which spaces were after |