of her executors, who alone qualified. Mrs. Dillon, by her said will, after giving some specific legacies, provided as follows:

"Item: As to the sum of fifty thousand dollars, ($50,000,) over which I have a power of disposition given me by my late husband, Robert James Difloh, in and by his last will and testament, iu the words following, to wit: 'Fourthly. At the death of my wife, I give fifty thousand dollars, in such manner and form, and to such person or persons, as she, by her last will and testament, may direct, limit, and appoint,'-I direct, limit, and appoint as follows: I direct and appoint my executors hereinafter named to receive the said sum of fifty thousand dollars, and to invest the same in any securities in which trustees are authorized to invest trust funds by law, and to pay one-fifth of the income thereof to Helen McLean, daughter of George McLean, of New York city, for and during the term of her natural life, and another one-fifth of said income to Frances Cuddon, known as Sister Mary Stanislaus, of St. Edward's Convent, of London. for and during the term of her natural life. And I direct and appoint Mrs. Susan O'Sullivan, wife of John O'Sullivan, of New York city, to receive the income of one-fifth of said principal sum of fifty thousand dollars for and during the term of her natural life. An I direct and appoint Mrs. Charles Beattie, wife of Rev. Charles Beattie, of Middletown, New York, to receive one-fifth of said income for and during the term of her natural life; and upon her death I appoint her husband to receive said income during his life; and upon his death, or upon the death of Mrs. Charles Beattie, whichever shall last occur, I appoint her children to receive one-fifth of the principal sum of fifty thousand dollars, to be divided equally between them as they severally attain the age of twenty-one years, the eldest child of any deceased child dying in the lifetime of Mrs. Charles Beattie to take such part of said sum as its parent would have taken, if living. And I direct and appoint Miss Rachel Cecilia Clark, of New York city, to receive the income of one-fifth part for and during the term of her natural life; and upon her death I appoint her mother, Margaret Cecilia Clark, to receive said income for and during her natural life, should she survive her said daughter."

The defendant having refused to pay over to the plaintiff the said $50,000, this action was brought to recover the same. Upon the trial a verdict was directed for the plaintiff, subject to the opinion of the court.

Various grounds are urged against the right of the plaintiff to recover. It is claimed that the appointment made by Mrs. Dillon's will is not authorized by the power; it being contended that the language of Mr. Dillon's will implies a gift directly to some person or persons, and not a trust for the benefit of indefinite beneficiaries. The familiar rule in reference to the validity of appointments under powers contained in wills seems to be that the appointment is to be read as though it had been incorporated in the original will, and, applying this rule of construction to the will and the appointment in the case at bar, it would seem that the language is not susceptible of the construction claimed upon the part of the defendThe gift is not to such person or persons as she may appoint, simply, but it is a gift "in such manner and form, and to such person or persons, as she, by her last will and testament, may direct, limit, and appoint;" thus giving the appointee, within the limits. of the law, the right to designate the manner and form in which the appointment shall be made, and necessarily the manner and form of the enjoyment under the appointment. It would seem, therefore, that under such a general power conferred by the will it

ant.

cannot be said that the power of appointment is limited to a direct and absolute gift, but the person exercising the power may place limitations upon the absoluteness of the enjoyment, within the restrictions prescribed by the law.

It is further urged that the provisions of Mrs. Dillon's will did not vest her executors with the legal title to the $50,000, but simply authorized the executors to receive the sum of $50,000, and invest the same, paying over the income as in the will provided, and that this was a power in trust, and did not confer the legal title to the fund upon the executors. Upon a reference to section 55, p. 728, vol. 1, of the Revised Statutes, we find "express trusts" defined. The language of the statute is:

"Express trusts may be created for any or either of the following purposes: (3) To receive the rents and profits of land, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of this title."

And by section 2, p. 773, vol. 1, of the Revised Statutes, the provisions in regard to real estate are made applicable to personal property. It would therefore appear that a devise to trustees of this $50,000, to invest the same, and pay over the income as in the will provided, created an express trust, and the trustee was clothed with the legal title.

It is further urged that the appointment is invalid as it suspends the power of alienation for more than two lives, as to a part of the $50,000. As to this point it seems to us sufficient to say that it is not necessary, at present, to decide the proposition. The limitation to the first takers under the will is not subject to this criticism, because, even if these limitations had been incorporated in the will of Mr. Dillon, they would have been within the protection of the statute, and valid. But it is urged that the trust cannot be sustained upon the theory that the provision for the life of some of the appointees may be good, as there is but one trust for several objects, and the donor's scheme would be subverted by only partially enforcing it; and we are cited to the case of Haynes v. Sherman, 117 N. Y. 433, 22 N. E. Rep. 938. But upon an examination of that case it appears that it is not at all applicable to the case at bar, in view of the fact that there the infirmity in reference to the trust pervaded the whole trust, and it was not an invalid direction to take effect upon the termination of a valid provision, as in the case at bar. If the subsequent provisions of the appointment of Mrs. Dillon are subject to the criticisms claimed upon the part of the defendant, it will undoubtedly prevent those appointees from profiting by the appointment. But as the first takers under the appointment, for life, are not subject to this infirmity, the trust seems to be good as far as such appointment to them is concerned, even if it may be invalid as to the others, which latter point, however, we do not pretend to decide, as it is not necessary in the disposition of this case.

It is further urged that it is not allowable to suspend the power of alienation in reference to a trust estate by an instrument in exe

cution of a power; and we are referred to 1 Rev. St. p. 737, § 128, and to Dana v. Murray, 122 N. Y. 604, 26 N. E. Rep. 21, as authorities for this proposition. But an examination of the statute and the case cited seems not to support this contention. In fact the statute expressly recognizes the right to suspend the power of alienation by an instrument in execution of a power. It is to the fol lowing effect:

"The period during which the absolute right of alienation may be suspended by any instrument in execution of a power shall be computed, not from the date of such instrument, but from the time of the creation of the power."

This is entirely in harmony with the principle which has already been enunciated, that the question of the validity of an appointment is to be determined by reading it as though contained in the original instrument conferring the power of appointment; in the case at bar, by reading the appointment of Mrs. Dillon into the will of Mr. Dillon and determining whether, had the appointment been therein contained, it would have been valid. To the same effect is the case cited. Indeed, there seems to be no doubt as to this proposition. Applying this rule of construction to the will of Mr. Dillon, and the appointment of Mrs. Dillon thereunder, it would seem, as already suggested,-certainly as to the first lives contained in the appointment,—that it was good, no matter what may be the determination as to the subsequent estates attempted to be created.

As to the point that the proper parties are not before the court, it seems to be sufficient to say that this being an action at law, and no such objection having been taken either by answer or demurrer, the same was waived. We are of opinion, therefore, that the motion for judgment upon the verdict should be granted, with costs of this application and costs in the court below. All concur.

(70 Hun, 387.)

MITCHELL v. BROADWAY & S. A. RY. CO.

(Supreme Court, General Term, First Department. June 30, 1803.) PERSONAL INJURIES-EXCESSIVE DAMAGES.

In an action by an unmarried woman, 27 years old, for personal injuries, It appeared that she received a fracture resulting in shortening her leg and stiffening her ankle, and that she expended $1,000 for surgical services. It did not appear that the trial was conducted in a manner likely to arouse the sympathy or prejudices of jurors, and they were told to return such sum as would simply compensate plaintiff for her injuries. Held that, while a verdict for $15,000 was large, and one for a smaller sum would have been more satisfactory, it should not be set aside on appeal as excessive.

Appeal from circuit court, New York county.

Action by Jeanie Mitchell against the Broadway & Seventh Avenue Railway Company for personal injuries caused by defendant's negligence. Plaintiff, an unmarried woman, 27 years old,

was knocked down by one of the horses attached to defendant's street car, and run over. Her injuries consisted in a multiple fracture of the lower third of both bones of the lower left leg, which resulted in a shortening of the leg and a stiffening of the ankle. From a judgment entered on a verdict in favor of plaintiff for $15,000, and from an order denying its motion for a new trial, defendant appeals. Affirmed.

Argued before O'BRIEN, P. J., and FOLLETT and PARKER, JJ. E. Root, for appellant.

S. C. Baldwin, for respondent.

PER CURIAM. The defendant concedes its liability for the injuries sustained by the plaintiff, and argues no exception but the one taken to the refusal of the trial court to set aside the verdict as excessive. The evidence shows that the plaintiff was severely and permanently injured, has suffered great pain in the past, and that she will probably continue to suffer during life. The testimony of the plaintiff, and of her physicians, as to the extent of her injuries and suffering, was not contradicted on the trial. There is no evidence in the record which tends to show that the trial was conducted in a manner likely to arouse the sympathy, prejudices, or passion of the jurors. The charge was temperate, and the jury was instructed to return such a sum as would simply compensate the plaintiff for the injuries sustained. It appears that she necessarily expended about $1,000 in the employment of physicians and surgeons by reason of her injuries. While we regard the verdict as large, and should have been better satisfied had a less sum been awarded, we do not, under the circumstances, feel justified in setting it aside. Had the trial been so conducted as to arouse prejudice or passion against the defendant, we would be justified in ordering the damages to be reassessed, in case a reduction should not be assented to. But upon the whole record we think the power should not be exercised in this case, and that the judgment and order should be affirmed, with costs.

(70 Hun, 205.) QUINN et al. v. ALDRICH.

(Supreme Court, General Term, First Department. June 30, 1893.)

1. ACCEPTANCE OF ORDER-LIABILITY OF DRAWEE.

Where a person who is to pay for the erection of a building in specified payments accepts an order drawn by the contractor, and agrees to pay it when the latter becomes entitled to a certain payment, the acceptor is not liable in an action thereon, in the absence of any evidence that the drawer was entitled to such payment.

2. SAME-PAYMENT BY ACCEPTOR TO DRAWER.

The fact that such acceptor paid money to the drawer on such payment and the subsequent payment is immaterial, and does not justify the inference of fraud, since the former had a right to give the latter any money he chose, and on any account he pleased.

v.24 N.Y.s.no.1-3

Appeal from special term, New York county.

Action by Patrick J. Quinn and John Gault against Spencer Aldrich. From a judgment dismissing the complaint, plaintiffs appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT, J.

A. C. Thomas, for appellants.

W. B. Dall, for respondent.

VAN BRUNT, P. J. The defendant had a building loan contract with one Vandewater, which provided for payments, 15 in number, each in the sum of $10,000. Among the other payments provided for by said contract was the ninth payment, called the "brown mortar, rough plumbing, boilers in, payment," and the tenth payment, called the "white mortar and iron stairs payment," in the pleadings. The contract also provided that if the builder should proceed to and erect the buildings as in said contract agreed, and should produce to the defendant the certificate of W. J. Rider that the work thereon had progressed to the points in said contract mentioned, and that the same had been in all respects constructed as therein required, the defendant would advance to said Vandewater said loan, no installment or part thereof being payable until 48 hours after the certificate of said Rider should have been furnished to defendant. It also provided that if, at any time that said house should have progressed so far that an installment of said loan was payable, there should be any lien thereon other than the lien of certain mortgages therein mentioned, the said installment should not be advanced until said lien was removed, and also that the defendant might, at his option, advance money at other and different times than was specified, and when so advanced the same should be considered as an advance upon the installment or installments next thereafter to become due. It appears that Vandewater, on the 23d of March, 1890, gave to the plaintiffs an order upon the defendant to pay them $500 out of the ninth, or brown mortar, etc., payment, when said payment became due and payable. This order was presented to the defendant, who acknowledged its receipt, and returned the same, having had a copy made for himself; the defendant stating that when Vandewater was entitled to said ninth payment he would reserve the said $500 out of said ninth payment, with which to pay the said order. The defendant paid to Vandewater, after notice of said order, on account of said ninth payment, sums amounting to $6,500, and also paid $500 on the tenth payment, and this action was brought to recover the $500 represented by said order.

It is urged upon the part of the appellants that the order in ques tion was an assignment of the moneys thereafter to become due to Vandewater on the ninth, or brown mortar, payment, and constituted a first lien thereon. But it is insisted upon the part of the respondent that the plaintiffs, as equitable assignees of Vandewater, had no greater or other rights than their assignor. In considering the rights of the parties it may not be amiss to examine