on this motion, the defendant was entitled, as matter of right, to have her default opened, and to be permitted to try this action, that right existed at the time of the perfecting of this decree. That being so, no subsequent act of the plaintiff should deprive her of the benefit of that right.

The defendant's attorney was notified of the decree on the 22d of June, 1892, and immediately, on the 23d, notified plaintiff's attorney that he would move to open the decree; so that the plaintiff, through his attorney, was not ignorant of the fact, at the time of his alleged marriage, of the defendant's purpose to move to open the decree. With this knowledge, and before the defendant had, under the circumstances in this case, a reasonable time to prepare and serve motion papers, the plaintiff, by an act for which the defendant is in no way responsible, enters into a second mar- riage, and now seeks to shield himself from a trial of this case by such marriage. If, as we think, and as seemed to have been held by the trial judge, this motion should have been granted but for that second marriage, we can see no good reason for depriving the defendant of that right by an act over which she had no control, and for which she was in no way responsible. The court of equity has exercised the power of opening a decree of divorce, and letting in the defendant to defend, in cases which would seem to appeal less strongly for such relief than in this case. In Dunn v. Dunn, 4 Paige, 425, where the parties resided in this state, but the defendant was temporarily absent in another state, where the subpoena was personally served upon her, to which she made no answer, and the bill was taken pro confesso, decree entered against her, and her husband entered into a second marriage, the court, after such marriage, set aside the default, and allowed the defendant to come in and defend, allowing the decree to stand until the trial and determination of the issue between the plaintiff and defendant, and provided in the order that, if the defense was sustained, the decree should be set aside and the bill dismissed; but, if the defendant was beaten, the decree should stand in full force for the protection of the second wife. We think the rights of all the parties in this action would be best subserved by making a similar order in this case. The order of the special term should be so modified as that the defendant may be permitted to come in and defend in this action on payment to the plaintiff of the term fee and witness fees for the term at which the decree was taken, and $10 costs of this motion, and the decree entered in this action to stand until the final determination of the action, and the subsequent marriage is so far upheld as that the plaintiff's cohabitation with the second wife, from the time of his marriage to her until the time of the determination in this action, shall not be treated as adulterous intercourse for the purpose of this action. Let an order be entered accordingly. All concur.

v.24N.Y.S.no.3-20

(70 Hun, 575.)

VAN SCHAICK v. VAN BUREN et al.

(Supreme Court, General Term, Third Department. July 8, 1893.)

CONTRACT-UNCERTAINTY.

An agreement by the payee of a note with the maker that at its maturity he will double the loan to the latter, and take a new note for double the amount of the first one, and a mortgage on certain land to secure it, is void for uncertainty in the absence of any stipulations as to what the terms of such new note and mortgage shall be.

Appeal from judgment on report of referee.

Action by James A. Van Schaick against Edgar C. Van Buren, Paul C. Van Buren, and T. Franklin Silvey on a promissory note, in which defendants pleaded an agreement by plaintiff to take a note of defendant Edgar C. Van Buren, secured by mortgage, on the maturing of the note in suit. From a judgment entered on the report of a referee in favor of plaintiff, defendants appeal. Affirmed.

The referee found the following facts:

That on or about April 1, 1884, at Schuylerville, N. Y., the plaintiff loaned to the defendants the sum of $1,500, and they executed and delivered to him therefor their promissory note, a copy of which is set forth in the complaint herein. That at the same time it was agreed by parol between the parties that, if certain funds expected by plaintiff from the west should come to him during the year, he would make therefrom a further loan of $1,500 to the defendant Edgar C. Van Buren, and take from him for both such loans a first mortgage for $3,000 on his farm in Sunderland, Vt., and surrender the note. That nothing was said between the parties as to the time or terms of the proposed mortgage. That the farm alleged in the answers to be of the value of $6,000 was represented to the plaintiff by the defendants Paul C. Van Buren and T. Franklin Silvey to be of the value of $4,000 to $6,000, and was in fact of the value of only $3,000. That the interest for one year was paid on said note before it matured; and thereafter, and about April 3, 1885, the defendants demanded of the plaintiff that he advance an additional sum of $1,500, and surrender the note and take a mortgage for $3,000 on said farm. That there were these two mortgages on said farm, one held by Mr. Law for $1,500, and one held by the defendant Silvey as indemnity against said note, and the defendants did not execute or tender to plaintiff any $3,000 mortgage. That plaintiff declined to make the further advance, and stated as reason therefor, in substance, that he had been obliged to send money west, instead of receiving money from there. The plaintiff had previously and on January 16, 1885, notified defendant Silvey by letter that he should want the money on the note in the spring. That the plaintiff is the owner and holder of said note. That the same became due and payable before the commencement of this action, and the defendants are indebted to the plaintiff thereon in the sum of $1,500, with interest thereon from April 1, 1885.

The material part of his opinion is as follows:

Upon first reading the pleadings, a doubt arose in my mind as to the sufficiency of the answers to constitute a defense. However that may be, the proofs have not satisfied me that any valid, enforceable contract to make the further loan and take a mortgage was entered into, nor that the loan made and the one to be made were inseparable or dependent, nor that plaintiff has failed in the performance of any valid agreement made by him; and I am at loss to know what kind of a mortgage the defendant Edgar should have tendered to entitle him to specific performance or to damages for nonperformance. So far as the agreement between the parties rested in parol, it was void for incurable uncertainty. Pars. Cont. (6th Ed.) 561, 565; Abeel

City Ct.]

WALTON v. MATHER.

v. Radcliff, 13 Johns. 297; Baurman v. Binzen, (Sup.) 16 N. Y. Supp. 342. Nor was this part so much a part of the note as to vitiate it, or to constitute a complete defense to it except by way of counterclaim. Batterman v. Pierce, 3 Hill, 171; Abeel v. Radcliff, 13 Johns. 297; Swift v. Opdyke, 43 Barb. 274; Tipton v. Feitner, 20 N. Y. 423; Isaacs v. Plaster Works, 67 N. Y. 124.

JJ.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

R. A. Parmenter, for appellants.
L. Fraser, for respondent.

HERRICK, J. I am not entirely satisfied with the findings of It seems to me that the the referee upon the facts in this case. preponderance of evidence shows that the agreement upon the part of the plaintiff was to advance an additional $1,500 in the spring of the year following the giving of the note in question, and to then take a mortgage for the whole $3,000, and surrender up the note of $1,500. But, conceding the true state of facts to be as I have suggested, still the agreement is one that does not seem to be capable of being enforced by reason of its uncertainty. The authorities on that point cited by the referee in his opinion, and also by the court in the case of Baurman v. Binzen, (Sup.) 16 N. Y. Supp. 342, seem to sustain the contention of the referee upon that point, (see, also, Milliman v. Huntington, 68 Hun, 258, 22 N. Y. Supp. 997;) and I therefore think that judgment should be affirmed. I see no occasion for writing an opinion. Let judgment be affirmed with costs.

(4 Misc. Rep. 261.)

All concur.

WALTON v. MATHER.

(City Court of New York, General Term. June 28, 1893.)

1. AUTHORITY OF AGENT-EVIDENCE-QUESTION FOR JURY.

In an action for wrongful discharge as defendant's stage manager, plaintiff testified that defendant told him several times that one W. was her financial and personal representative, and the manager of her company. Held, that the evidence was sufficient to submit the question of W.'s authority to act for defendant to the jury.

2. CONTRACT OF EMPLOYMENT-WHAT CONSTITUTES.

*

*

A writing which recites: "This memorandum certifies that I have enMr. Henry E. Walton for the Margaret Mather Dramatic gaged * Co., season of 1890-1, at a salary of seventy-five (75) dollars per week, subject to the conditions and regulations of a contract which is to be substituted for the memorandum,"-is not a contract, as it is subject to conditions and regulations to be thereafter agreed on by the parties.

Appeal from trial term.

Action by Henry E. Walton against Margaret Mather for wrongful discharge from defendant's employ. From a judgment of nonsuit, plaintiff appeals. Reversed.

Argued before VAN WYCK and FITZSIMONS, JJ.

Nathan Lewis and S. G. Adams, for appellant.
Dittenhoefer & Gerber, for respondent.

VAN WYCK, J. At the close of plaintiff's case, at trial, he was nonsuited on the grounds that the parties never came to a complete, final contract, and that D. C. Willoughby had no authority to act for Miss Mather, the defendant. The plaintiff testified that "Mr. Willoughby, in 1890 and 1891, was the financial and personal representative and manager of the defendant, and I know that by Miss Mather telling me so," and that "Miss Mather told me a dozen times-twenty times-that Mr. Willoughby was the manager of her company." The proof in this regard was sufficient to carry the question of Mr. Willoughby's authority to the jury. Now, as to whether the parties ever came to a complete final contract: The plaintiff had marked in evidence the following:

This memorandum certifies that I have engaged this 12th day of June, 1890, Mr. Henry E. Walton, for the Margaret Mather Dramatic Co., season of 1890-1, at a salary of seventy-five (75) dollars per week, subject to the conditions and regulations of a contract which is to be substituted for the memorandum.

[Signed]

"D. C. Willoughby.
"Heury E. Walton."

Although this memorandum names the term of employment, rate of compensation, and general nature of the business, yet it is not a contract, because it is subject to conditions and regulations to be thereafter agreed upon by the parties. Hence, the minds of the parties had not yet met. And if plaintiff's cause had rested solely on this memorandum the nonsuit would have been justified by the rulings in the leading case upon this subject, of Chinnock v. Marchioness of Ely, 12 Law T. (N. S.) 251, and in Mayer v. McCreery, 119 N. Y. 434, 23 N. E. Rep. 1045. However, it must be remembered that in both of those cases the contracts were required to be in writing by the statute of frauds, while there is nothing in the memorandum here which requires the conditions and regulations to be agreed upon to be in writing, nor does it come within the provisions of the statute of frauds. Hence, those conditions and regulations could be waived, or agreed upon by the parties orally; and this plaintiff contends, by evidence, that all conditions and regulations were waived by Miss Mather, except as to the nature of the services to be performed by him, to wit, as stage manager of her company, while she contends in her answer

"That one of the conditions of the employment of the plaintiff was that his engagement and employment could terminate by either party giving to the other two weeks' previous notice of their intention to terminate."

It is true that by the answer she denied making any contract at all; but, as already shown, plaintiff's proof of Mr. Willoughby's authority to act for her was sufficient to carry that question to the jury, and as to her own participation in the making of the contract the plaintiff testified:

"I had the first conversation with Miss Mather in regard to this contract in August at the Victoria."

And that:

"After that paper of June 12, 1890, was signed, I saw Miss Mather in August, at the Victoria Hotel. That was the first time I had seen her, except on the

stage; personally, to know her. Mr. Willoughby was present and with me at the time. Mr. Willoughby introduced me to her. I said I had had the pleasure of seeing her before, but not personally, to be acquainted with her. He said, "This is the stage manager.' Mr. Willoughby said, "This is the stage manager.' She asked me various things about the people,-did I know any of them? I said I knew some of them, and then we had a further conversation, which was to this intent: I said, 'You will understand, before I commence with you, Miss Mather, that I have the entire sole control of the stage,-not to be a manager in name, to ring up the curtain, but I must be responsible for everything. I must be the stage director, not alone in name, but in act.' She agreed with me perfectly. That was thereupon settled, and we arranged for a call of the whole company. She told me when to call them. I mean by that that the stage manager puts up a notice, stating that there will be a rehearsal at such and such a time, on such and such a date, for every body, and in pursuance of that arrangement I called the company. I did. I signed it with my own name, as stage manager for Margaret Mather, and the company met. And after that I went on, and continued to render services as stage manager of the company every day up to the opening night, which was, I think, September 8th; and after that I continued every day up to December. From the time of the opening of the season, in September, until December, the company visited many places, and performed in different places. In December we were performing at the Fifth Avenue Theater. I was paid up to December regularly. Mr. Willoughby paid me at the beginning."

And that he was discharged without cause on December 8, 1890. The plaintiff should not have been nonsuited, for his proof shows that Miss Mather employed him as the stage manager of her dramatic company; that the terms of his employment were for her season of 1890--91, which commenced in August, 1890, and ended in May, 1891, and that the rate of his compensation was fixed at $75 per week; that he entered upon the performance of such employment in August, 1890, and continued the same to December 8, 1890, for which he was paid $75 per week by her manager; that he was then discharged, without cause; and that he is entitled to recover $75 for each of about 20 weeks remaining of the term of his employment. Judgment reversed, and new trial granted, with costs to appellant, to abide the event.

(4 Misc. Rep. 338.)

In re RILEY'S ESTATE.

(Surrogate's Court, Cattaraugus County. July 6, 1893.)

1. CONSTRUCTION OF WILL-CREATION OF TRUST-RIGHTS OF TRUSTEE. A testator left his brother $1,000 in lieu of all claims against testator or his estate. He appointed his son sole trustee of such bequest, to take charge of the same, and use it for the comfortable support of testator's brother, and to pay his funeral expenses on his death. Held, that the trustee had no authority over the person of the beneficiary, and hence could not compel him to live at the trustee's house.

2. SAME-RIGHTS OF BENEFICIARY.

The beneficiary was entitled to so much of the legacy as was necessary for his support, without regard to the question of his ability to support him elf.

8. SAME-DUTIES OF COURT.

Since the will does not authorize the trustee to determine the amount to be paid for the support of the beneficiary, and does not give the beneticiary the right to determine, such amount should be fixed by the court.