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the defendant of and concerning the plaintiff. For the purposes of this appeal the publication must be assumed, because the complaint was dismissed because the article was not libelous even if it was false, and was published maliciously. If false, and if it was maliciously published, is it libelous? We entertain no doubt but that it was a libel. The words hold up the plaintiff to obloquy and contempt. They reflect upon the plaintiff's business, and his management of it. The charge of being a brute in his business is, in legal effect, directly charged and published, because the repeti. tion of injurious words as having been spoken by another is a libelous publication, as much so if maliciously published as if the direct charge had been made. The exceptions should be sustained, and a new trial granted, costs to abide event. All concur.

SMITH et al. V. FLOYD.

(Supreme Court, General Term, Second Department. July 28, 1893.) WILLS-CONSTRUCTION-POWER OF DISPOSITION.

Testator gave certain land to his son for life, “with the right and privilege of disposing of the same by will or devise to his children, if any he should have, and, in case he should die without leaving any children.

* I give and devise the same to the children of my daughter." Held that, though the son died intestate, his children were entitled to the lond.

Appeal from special term, Suffolk county.

Action by William E. T. Smith and others against Lydia S. Floyd to quiet title to land. From an interlocutory judgment overruling her demurrer to the complaint, defendant appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. Carter & Ledyard, (George H. Belkam, of counsel,) for appellant. Wilmot M. Smith, (Timothy M. Griffin, of counsel) for respondents.

BARNARD, P.J. William Smith, of Brookhaven, Suffolk county, died in 1857, leaving a last will and testament. He had two children,--Egbert T. Smith, now deceased, and the defendant. The plaintiffs are the children of Egbert T. Smith, and the question be tween the parties arises under the will of William Smith.

By this will the testator made provisions for his widow, now deceased. He gave the sum of $30,000 to the defendant, accompanied by a "desire that my said danghter shall keep the said legacy for the benefit of her children.” The testator then gave the lands described in the complaint to his son, Egbert T. Smith, “during the period of his natural life, with the right and privilege of disposing of the same by will or devise to his children, if any he should have; and in case he should die without leaving any children, lawfully begotten, then and in that case I give and devise the same to the children of my daughter, Lydia, to them, their heirs and assigns, forever.” Egbert T. Smith left no will, and the question is whether the lands, upon his death, went to his children. There is no residuary clause in the

will, beyond one which gives funds and money over and above legacies to his daughter, Lydia, absolutely. The true intent and meaning of the will is clear. The testator meant to convey this land to the children of Egbert T. Smith. He gave a power of disposition by will, but this was “to his children.” It was only in case that Egbert T. Smith died childless that the devise over was made to Lydia and her heirs. A construction which should disinherit these children of Egbert T. Smith, when the testator was so careful as to limit his power of disposition by will to them, would be unwarranted. Their father could not take away the estate from them by will, but he could by dying without one. If the intention to give the remainder to the children is clear, the law implies the gift to them. Baker v. Lorillard, 4 N. Y. 257; In re Will of Vowers, 113 N. Y. 569, 21 N. E. Rep. 690; 2 Jarm. Wills, (5th Amer. Ed.) 133. A gift over by the testator, based on default of children of Egbert T. Smith, strengthens the implication in favor of a gift to the chil. dren, if the power of appointment be not exercised. Butler v. Grey, 5 Ch. App. 26. The plaintiffs, therefore, took a good title to lands, upon the falling in of the life estate under the will of William Smith. The order overruling the demurrer to the complaint, and the interlocutory judgment therein, should be affirmed, with costs, but with leave to defendant to answer in 20 days on payment of costs. All concur.


(Supreme Court, General Term, Second Department. July 28, 1893.) CONTRACT-BREACH OF—WHAT CONSTITUTES.

Plaintiff agreed to furnish defendants, for a specified term, two ice bridges at its wharves from which to sell ice; and defendants agreed to furnish ice to be thus sold during such term. The contract provided that plaintiff should receive a certain per cent. of the gross receipts from the sales; that, if either of the bridges should becomo uncovered, plaintiff should transfer thereto ice from the other bridge, and receive therefor 50 cents per ton; that, “in case both of such bridges are out of ice at one time," they should be supplied from plaintiff's bridges, "in the manner aforesaid." Held, that a failure by defendants to furnish ice for the bridges was a breach of the contract, entitling plaintiff to the 50 cents per ton for covering the bridges during the re. mainder of the term. Appeal from special term, Kings county.

Action by the Independent Ice Association against Wallace C. Andrews and others. From a judgment overruling a demurrer to the complaint, defendants appeal. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
James W. Hawes, for appellants.
Potter & Potter, for respondent.

DYKMAN, J. This is an appeal from an interlocutory judgment overruling a demurrer to the complaint on the ground that it failed to state a cause of action. The complaint is based upon a written

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agreement, and alleges a breach thereof by the defendants, to the damage of the plaintiff. Although the agreement is somewhat obscure, we yet think it imposes mutual obligations upon the par. ties thereto. It commences with a recitation that the plaintiff has a lease of two certain wharves, occupied as ice bridges. It agrees that if the defendants shall furnish ice to be sold over such bridges until the 1st day of April, 1891, the plaintiff will furnish free wharfage, hoist, and do all business connected with the selling of such ice, and offer all the facilities in its power to increase the trade that may be obtainable over those docks. Then it is provided that the defendant shall have the privilege of putting a bridge boss to represent their interest, and that the weighing should be done by their weighmaster, or under his supervision, as he shall elect; that the cash shall be taken by the defendants' cashier; and that all credits authorized by Mr. C. H. Eldridge, representing the plaintiff, shall be paid for daily by check of Eldridge. The plaintiff was to receive 10 per cent of the gross receipts, including credits, each day, for ice sold over the bridges, and five dollars a day was to be deducted from the said 10 per cent. to pay for the services of two men who are at each bridge to represent the interest of the defendants. Then it was stated to be further understood that the defendants should have the privilege of canceling the agreement upon 20 days' notice. Further, it was provided that, if either of the bridges became uncovered, the plaintiff should be expected to cover said bridge from the bridge which might have ice, in such manner as it thought best, and for such transfer it should receive, in addition to the 10 per cent, an additional allowance of 50 cents per ton, such transfer to be made in an economical manner. The last clause was this: "In case both of said bridges are out of ice at one time, they shall be covered from such of our bridges as may be provided and in manner aforesaid.” It was alleged in the complaint that the plaintiff performed all the obligations assumed by it under the agreement, but that the defendants neglected and refused to furnish ice to be sold over the wharf and bridges, excepting prior to about the 10th day of September, 1890, and that after such date they wholly neglected to furnish ice, as required by the terms of the agreement; that, by reason of such neglect, the plaintiff was compelled to and did cover the bridge mentioned from other bridges at which it had ice, from time to time, to the amount of about 6,000 tons, and that the transfer was made in an economical manner; that the defendants have paid nothing to the plaintiff either for the business carried on, or for furnishing ice to cover the bridges; and that the agreement has never been canceled.

Taken as a whole, the written instrument constituted a con. tract between the parties to enter upon the business of selling ice. The ice was to be furnished by the defendants, and sold by the plaintiff at its wharves, and, if they failed to furnish ice to cover the bridges, the plaintiff was to cover them, and receive 50 cents a ton for so doing. We assume that the word "cover" is

used in the agreement in the sense of furnish, and that the defendants were under cbligation to furnish ice at the bridges every day to continue the business in operation. Such being the contract, the failure of the defendants to furnish ice at the bridges constituted a breach, and the damage therefor is fixed at 50 cents a ton. In this view the complaint states a cause of action, and the judg. ment should be affirmed, with costs. All concur.


(Supreme Court, General Term, Second Department. July 28, 1893.) APPEAL-REVIEW-CONFLICTING EVIDENCE.

verdict for plaintifl will not be disturbed on appeal where the evidence is conflicting. Appeal from circuit court, Queens county.

Action by Thomas Curry against Patrick J. Gleason. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

S. B. & D. Noble, for appellant.
William E. Stewart, for respondent.

DYKMAN, J. This action was brought to recover the sum of $1,058.32 loaned to the defendant by the plaintiff between the 1st day of January, 1887, and the 6th day of January, 1890. The de. fense set up in the answer was a general denial. The cause was tried at the circuit, before a jury, where the plaintiff testified to his claim in detail; and the defendant, as a witness in his own behalf, denied that he ever borrowed any money from the plaintiff, and denied his claim absolutely. The cause was submitted to the jury upon that contradictory testimony, and the jury found a verdict in favor of the plaintiff for the full amount of his claim. The defendant has appealed from the judgment, and from the order denying the motion for a new trial on the minutes of the court. Under well-settled rules of law, it is obvious we cannot interfere with the judgment. There are no questions of law involved, and the testimony was contradictory, and thus presented a case peculiarly within the province of the jury. The testimony of the plaintiff was amply sufficient to justify the verdict, and the jury must have found it true. The judgment and order appealed from should be affirmed, with costs.

All concur.

PALMER V. PALMER. (Supreme Court, General Term, Second Department. July 28, 1893.) 1. EASEMENTS—WAY OF NECESSITY.

Out of the rear of a farm, in which plaintiff and defendant had interests by inheritance from their father, a burial plot was conveyed to plaintiil.

On the same day, plaintiff and the other heirs conveyed their interests in the farm to defendant. Neither deed provided for any right of way over the farm to the plot. This plot lay to the side of a burial ground which faced on a public lane, and to the rear of a burial plot which had been conveyed to defendant and his brothers by their father, and which cornered on the lane. The three burial grounds were inclosed by one fence. Steps led from the lane to the plot of defendant and his brothers, over land of defendant, and plaintiff's plot could be reached over either of the others. Held, that plaintiff had no way of necessity across defendants

farm to her burial plot. 2. SAME-EXTINGUISHMENT.

It there was any such way of necessity, it was extinguished when defendant made the land over which the steps passed a part of the lanc. thereby enabling one to go onto the plot of defendant and his brothers, and thence unto plaintiff's, without passing over private property of defendant.

Appeal from special term, Westchester county.

Action by Harriet M. Palmer against John W. Palmer to establish a right of way in plaintiff over defendant's farm, and to enjoin defendant from interfering with her in the exercise of that right. Judgment for defendant. Plaintiff appeals. Affirmed.

Argued before BARNARD, P. J., and PRATT, J.
Isaac N. Mills, for appellant.
William A. Woodworth, for respondent.

BARNARD, P. J. John Palmer, a resident of Mamaroneck, in Westchester county, owned a farm on Weaver street,-a public highway. There was in the rear of this farm a private family burying ground. Palmer died in 1872, leaving five children. Before his death he conveyed the then family burying ground to his three sons. The three sons, in 1874, conveyed to the plaintiff and her sister a small piece of land adjoining this family burial plot, to be a burial place for them and their heirs. Susan A. Dean, one of the sisters, conveyed this small plot to the plaintiff in 1876. There was no right of way reserved in the deed from the brothers to the two sisters, or in that from Mrs. Dean to the plaintiff. The questions presented are: Was there ever a way of necessity? Or, if there was, has it been extinguished by the creation of another and more convenient way of access to the lot? These are questions of fact, under the evidence presented, which involve an examination of the circumstances shown to have existed when the conveyance was made to the plaintiff and her sister. There was a very old burial ground, called the “Bloomer & Haight Burial Ground.” On the west of this there was an old family plot of the Palmer family, with a path between the two plots, running north and south. The plot conveyed to the plaintiff was north of the Palmer plot, and was at the end of this path; the two Palmer plots making, with the Bloomer plot, a substantially rectangular plot of land. The Bloomer & Haight plot fronted on an old lane, which had been used as a means of approach to that lot for nearly a hundred years, (the Palmer plot.) The Palmer plot reached the old lane at its corner, only; but in 1872 the owner built a fence around the whole plot

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