It is no answer to say that the train from which he alighted obstructed his view, as it was his duty to look after he had passed the rear of that train before he stepped upon the opposite track.

The whole conduct of the deceased showed a reckless want of care; instead of waiting until the train from which he had stepped had gone a proper distance so as to disclose an approaching train, he immediately turns up his coat collar and puts a muffler over his ears and proceeds to cross the track, without looking or listening, and regardless of a caution given him by the conductor. Judgment affirmed, with costs.

BARNARD, P. J., and DYKMAN, J., concur..

GRANT B. TAYLOR, App'lt, v. FRANK WYNNE et al., Resp'ts.'

(Supreme Court, General Term, Second Department, Filed July 18, 1890.) JUDGMENT-NOT A LIEN ON LEASEHOLD INTEREST WHERE ONLY TWO YEARS REMAIN UNEXPIRED.

A judgment is not a lien upon a lease having only two years to run, and an assignment of such lease prior to the issuing of execution conveys it free from the lien of the judgment.

MOTION for reargument of appeal from order dismissing summary proceedings.

Grant B. Taylor, for motion; Francis Larkin, opposed.

PRATT, J.-By § 1430 of the Code, "real property" is said to include leasehold property where there is at least five years unexpired of the lease.

In the present case there was but two years unexpired of the lease when the judgment was docketed.

The lease not being "real property " the judgment was not a lien upon it. The assignment to the wife conveyed it free from the lien of the judgment, and when the execution was afterwards issued against the husband the lease was no longer his property, and a sale upon an execution against him carried no title to the purchaser.

Another defect upon the face of the petition was that the judgment was not stated to be for twenty-five dollars, exclusive of

costs.

We are still of the opinion expressed on the former appeal. Motion for reargument denied. Ten dollars costs and disburse

ments.

BARNARD, P. J., and DYKMAN, J., concur.

In the Matter of the Estate of ADOLPHUS F. OCKERSHAUSEN, deceased.

(Supreme Court, General Term, Second Department, Filed July 18, 1890.) EXECUTORS AND ADMINISTRATORS-DISTRIBUTION-MAY BE ORDERED PEND

ING ACCOUNTING.

An order for partial distribution under §§ 2717, 2718, of the Code, can be made while the contest over items which affect the general settlement 1See 30 N. Y. State Rep., 352.

is going on. The remedy which a distributee has under these sections is not within the principle that two proceedings are pending for the same thing at the same time and that the first in time is the first in right.

APPEAL by executor from order of surrogate, directing executor to make distribution and conveyance of land purchased by him as executor on foreclosure of mortgage to the estate, made in a proceeding for that purpose, during the pendency of the executor's accounting before the surrogate and an action for the same object in the supreme court brought against the executor by the petitioner.

Woodward & Buckley, for executor, app'lt; Wm. M. Mullen, for resp't.

BARNARD, P. J.-George P. Ockershausen was appointed executor of deceased on the 12th of May, 1877. In August, 1879, one of the children of testator petitioned for an accounting before the surrogate of Richmond county where testator resided before and at the time of his death. The executor thereupon asked for a final accounting. On the 13th of October, 1879, at the return of the executor's citation, he filed his accounts with the surrogate. Henry A. Ockershausen, who had originally asked for an accounting, filed objection and the issue was sent to an auditor and is still pending. Two supplemental accounts have been since filed by the executor, and the same heir has made objections to them and they are still pending before a referee. On the 19th of September, 1889, Henry A. Ockershausen brought an action in the supreme court against the executor for an accounting and also against him as surviving partner of Ockershausen Brothers. This action is at issue and undetermined. In August, 1889 the contestant applied upon motion before the surrogate of Richmond county to obtain an order of distribution of the estate and this order was granted so far as to order the distribution of $6,000 and the conveyance of a piece of land to and among the heirs of deceased. This application was based in part upon a record and proceedings in the matter of the same estate mentioned in March, 1889, which is not returned with the papers. A partial distribution was then made, and the allegation that the executor showed by his accounts that he had from $12,000 to $15,000 without a claim upon it beyond a couple of thousand dollars, must be referred to this account, and must be deemed to be supported by it.

Sections 2717, 2718, Code, give power to the surrogate to make the order. The remedy which a distributee has under these sections is not within the principle that two proceedings are pending for the same thing, and that the first in time is first in right. The partial distribution can be made while the contest over items which affect the general settlements is going on. The surrogate will not order a distribution so as to make the executor liable for the same money upon final accounting. If the facts are stated correctly in the papers, the surrogate left more than enough in the executor's hands to cover all liabilities.

The order should be affirmed, with costs and disbursements. DYKMAN and PRATT, J.J., concur.

ANNE C. WILSEY, Resp't, v. FREDERICK W. FRANKLIN, JR., et al., Ex'rs, App'lts.

(Supreme Court, General Term, Second Department Filed July 18, 1890.)

SREVICES-MEMBERS OF SAME FAMILY.

Claimant was a daughter of deceased, but had left home on her marriage and remained away until requested by deceased to come back and take care of her. She did so and remained fifty weeks, doing the work of nurse, housekeeper and servant, and then left and never afterwards lived with her. Deceased was helpless, exacting and hard to please, and had quarreled with claimant upon her marriage. Held, that this was not a case of services performed by one member of a family for another, and that the referee was justified in finding that the services were to be paid for.

APPEAL from judgment allowing a claim for services rendered to the claimant's mother, entered upon order confirming the report of a referee appointed under the statute.

Henderson Benedict, for app'lts; H. C. M. Ingraham, for resp't.

BARNARD, P. J.-The claimant is a daughter of deceased, and her claim is for personal services rendered to her mother. The question is whether the parties lived together and the services were rendered by one member of the family to another, or whether the services were to be paid for.

Deceased was a widow, over eighty years of age and quite helpless. The claimant had left her father's family upon her marriage in 1872. Her husband died in 1879 and after his death she lived in different places, and in March, 1881, she was living in Boston. Upon the death of the husband of deceased, she was left alone and she requested her son, Stephen Dixon, to request her daughter, the claimant, to come on from Boston and take care of her. Upon this request she came on from Boston and took care of her mother for fifty weeks, when she left the family of deceased and never afterwards lived with her mother.

The referee under the evidence was justified in finding that the services were to be paid for. The mother was helpless and from her age would probably continue to be so. Her husband was dead and she was left alone. She was exacting and hard to please. "It was a thankless task to serve her," says one of her children. She had quarreled with the claimant upon her marriage, and this estrangement had continued until after her husband's death. Under this state of facts she directs her son to write to the plaintiff and convey to her the request of her mother, that she should come on and aid in the housekeeping.

The case is not one where a child continues with her mother after becoming of age. The claimant had for years ceased to be a member of the family and she only went back to live upon her mother's solicitation and then to do the work of nurse, housekeeper and servant. The plaintiff went upon the understanding of the mother, "that she could come there with her and stay for a while." The employment was fully proven, and the usual inference of a promise to pay should apply to it.

Neither party could have expected such services as were ren

dered by the claimant to her mother would be gratuitously rendered.

Assuming a right of recovery, the amount of the claim is not complained of.

The judgment should, therefore, be affirmed, with costs.
DYKMAN and PRATT, JJ., concur.

In the Matter of the Judicial Settlement of the Executors of EDMUND H. PRIOR, Deceased.

(Supreme Court, General Term, Second Department, Filed July 18, 1890.) LEGACY.-INTEREST.

In the absence of an express direction in the will as to the time of payment of a legacy, it becomes due and interest begins to run at the end of one year from the issuing of letters testamentary, and not from the expiration of one year from the death of the testator.

APPEAL by the New York Infirmary for Women and Children from final decree of surrogate settling accounts.

By the will of testator he bequeathed to appellant the sum of $15,000, no time being fixed for its payment.

Testator died October 16, 1888, and letters testamentary were granted January 18, 1889. Appellant claims interest on the legacy from October 16, 1889, one year after testator's death, while the executors maintained that it bore interest only from January 18, 1890, one year from the granting of the letters. The surrogate sustained the contention of the executors, and the decree provides for payment of interest from one year after the grant of letters testamentary.

R. W. De Forest, for app'lt; Wilson M. Powell, for resp'ts.

BARNARD, P. J.-The case of Bradner v. Faulkner, 12 N. Y., 472, is a direct authority upon the question presented by this appeal. By the common law, one year after the death of a testator was given in which the executor collected the assets, and a legacy was not, in the absence of expressed direction, payable sooner. It was the uniform practice to allow interest only after the legacy was payable. The Revised Statutes changed the rule so that legacies could only be paid one year after the granting of letters testamentary. 2 R. S., 90, § 43.

The court of appeals, in Bradner v. Faulkner, held that the legacy in that case did not draw interest from the death of the testator, but from and after one year from the granting of letters testamentary.

In the case of Cooke v. Meeker, 36 N. Y., 15, the court of appeals held the same way. There is no conflict between the opinions of the court. The judgment was that interest be allowed from one year from the granting of letters testamentary, and that was affirmed by the court of appeals. It is true that one of the judges stated that the statute was an affirmance of the common law, and did not change the rule as to interest; but this remark evidently had reference only to the facts of that case. What was apparently intended seems to be that the statute did not give interest from

the death of testator, but from and after the expiration of a year from the granting of letters testamentary.

The question presented in the case of Wheeler v. Ruthven, 74 N. Y., 428, was whether the legacies were due until the end of a life estate. The court, in the opinion, speaks of a legacy being due at the end of a year from the death of testator, as if the statute so read. The statute was entirely unimportant in the case. question was whether the legacies were "due and payable at the end of the year from testatrix' death, so as to bear interest from that time, according to general rule."

The

In the case of Thorn v. Garner, 113 N. Y., 198; 22 N. Y. State Rep., 692, the court of appeals again had the question of interest upon legacies under consideration. The question was whether interest was payable from the death or from the expiration of one year from the granting of letters testamentary. The rule that interest is only to be charged from the end of one year from the granting of letters testamentary is again re-stated in Van Rensselaer v. Van Rensselaer, 113 N. Y., 207; 22 N. Y. State Rep., 947. The general rule is that interest can only be charged from the date when the legacy is due, and the statute controls that; and now the cases based upon a rule which once existed and is now destroyed by statute have no importance in hostility to the general rule. The effect of the statute is to make due a legacy one year from the issuing of letters, and not in one year from the death of the testator.

The judgment should be affirmed, with costs.
DYKMAN and PRATT, JJ., concur.

CHARLES H. HUNTER, Resp't, v. THE NEW YORK, ONTARIO &
WESTERN R. R. Co., Applt.

(Supreme Court, General Term, Second Department, Filed July 18, 1890.) NEGLIGENCE-MASTER AND SERVANT-RAILROAD BRAKEMAN.

Plaintiff was a brakeman employed by defendant, and was on top of a car eleven feet two inches high as it approached a tunnel, which was twenty feet high at the entrance, but which had a brick arch fifteen feet nine inches high, commencing about 200 feet from the entrance. Plaintiff testified that as he entered the tunnel he rose up to go to another brake and remembered nothing after that. He was found in the tunnel with his leg cut off and a cut on his head. Held, that a verdict in his favor would not be disturbed.

APPEAL from judgment in favor of plaintiff for $8,000, entered on verdict of a jury.

Action for personal injuries alleged to have been caused by defendant's negligence. Plaintiff was a brakeman in the employ of defendant. After passing through a tunnel he was discovered to be missing, and was found in the tunnel with one leg cut off and a cut on his head. The remaining facts appear in the opinion. John B. Kerr (Wm. Vanamee, of counsel), for app'lt; T. A. Read, for resp't.

DYKMAN, J.-The plaintiff in this action was a brakeman in the employ of the defendant and received injuries while passing N. Y. STATE REP., VOL. XXXII. 90