counting, to compute the interest
upon the legacy until the amount
collected by the legatee equals the
interest, and then credit it as a
payment on the legacy; and then
compute the interest on the balance
until another payment is in like
manner so credited.
ing Defect in Building. When a
court of equity has acquired jur-
isdiction of an account arising
out of the estate of a decedent, be- |
tween executors, trustees, a bene-
ficiary under the trust, and re-
maindermen, it may do equity
between the parties, and to that
end may charge the executors in-
stead of the trust estate, with the 11. Improvements Made by Lessee of
expense of repairing a structural ! Trust Property. The life bene-
defect in a building conveyed by ficiary of a trust is not entitled,
the executors to the trustees as on an accounting with the trus-
part of the trust fund, by a deed tees and remaindermen, to be
without covenants and which credited with the value of perma-
might not support an action at law nent improvements made by a
for damages.
Id. lessee of the trust property at his
own expense, under a lease for the
beneficiary's life, on receiving from
the beneficiary a bond indemnify-
ing him against the loss which
would accrue to him if the bene-
ficiary's life should terminate be-
fore a specified time, where the
beneficiary has lived beyond the
specified time and it is apparent
that the cost of the improvements
did not come out of the rent. Id.
7. Relief from Conveyance. Equity
can give relief from a conveyance
of real estate, where there was a
mutual mistake of fact in reference
to the condition of the property,
arising from an essential defect in
the construction of a building, hid-
den and unknown at the time of
the transfer.
8. Insurance on Trust Property
Charged upon Income. Insurance
premiums paid by the trustees of
a testamentary life estate in fulfill-
ment of the obligation of mort-
gages placed upon the trust prop-
erty by the testator, and premiums
paid by the trustees, with the con-
sent of the life beneficiary, for ad- |
ditional insurance not in excess of |
the value of the life estate nor pro-
cured on account of the remain-
dermen, are properly chargeable
to the income, and not to the capi-
tal, of the trust estate.
Id.
9. Rate of Interest to Beneficiary of
Trust. Where executors, on turn-
ing over a portion of a life trust
estate to the trustees, agree that the
life beneficiary of the income shall
receive the interest to which she
is in law entitled on the unpaid
part of her trust legacy," the ex-
ecutors are chargeable with inter-
est at the legal rate in force at the
time it accrued.
Id.
10. Executor as Legatee Appropria
tion of Moneys Collected from Es-
tate- -Interest. Where an execu- │
tor, who is also a legatee, has ap-
plied to his own use money col-
lected from the estate by him as
executor, it is proper, on an ac-
12. Objection to Contract Setting up
Trust Fund - Laches. The ob-
jection, by the life beneficiary of
a testamentary trust, on an ac-
counting in equity, that a con-
tract, under which certain prop-
erty was conveyed to the trustees
by the executors towards setting
up the trust fund, was, as to such
property, in excess of the powers
of the parties under the will, is
too late, when it appears that the
contract was entered into for the
purpose of carrying into force
authority given to the executors
by a judgment construing the
will, and that, after accepting the
conveyance and entering into
possession, the trustees and bene-
ficiary had used the property for
their own benefit for nearly twenty
Id.
DAMAGES, 1, 2, 6, 7.
HUSBAND AND WIFE, 1-3.
SPECIFIC PERFORMANCE.
TAX, 19-21.
VENDOR AND PURCHASER, 1-3.
WILL, 1, 4, 5.
See EJECTMENT, 1-4.
REAL PROPERTY, 1, 4, 6.
REMEDIES.
See CIVIL SERVICE, 11.
CORPORATIONS, 16.
MECHANICS' LIEN, 5.
RES ADJUDICATA.
See JUDGMENT, 1.
1. 1 R. S. 724, § 22- Will — Re-
mainder Limited on Death without
Heirs. Where a will gives the use
and occupancy of the estate to
the testator's two sons, during life.
and gives the estate, after the
death of the "two sons and their
heirs, if they have any," to the
testator's brothers and sisters, the
testator is, by force of the statute
(1 R. S. 724, § 22), to be deemed
to have intended to create a re-
mainder in his brothers and sisters
after the death of his two sons
only in case the sons left no heirs
of the body; and in case the sons
leave heirs of the body them sur-
viving, then such heirs take the
entire estate, the realty in fee and
the personalty absolutely.
Moore.
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1857, Chap. 456- Elevated Rail-
road- Tax Assessment - · Annual
Report as Eridence. The annual re-
port of an elevated street railroad
company to the state railroad com-
missioners is competent evidence,
as in the nature of an admission,
for the assessing officers to act
upon in assessing the company
under the act "in relation to the
assessment of taxes on incorpo-
rated companies (L. 1857, ch.
456), and for the Special Term in
reviewing the assessment. People
ex rel. v. Barker.
417
In re
602 3. Idem - Taxation of Franchise.
Franchises cannot be included in
an assessment made under chapter
456, Laws of 1857.
2. 2 R. S. 506, § 33, 34- Tenant's
Right to Redeem after Ejectment |
7. 1880. Chap. 542- Tax-Foreign
Corporation as a Special Partner.
A foreign corporation is deemed
to be engaged in business in this
state, within the meaning of chap-
ter 542 of the Laws of 1880, and
the acts amendatory thereof, when
it becomes a special partner in a
limited partnership within the
state, which is the sole agent for
the sale of its products in this
country, and is liable to taxation
upon the amount of capital which
it contributed to the partnership,
as capital stock employed in this
state. People ex rei. v. Roberts.
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Idem - Trials in Police Depart-
ment-Rule as to Service of Notice.
The rule of the police department
of the city of New York, that
when charges have been preferred
against a member of the force,
specifications, with a notice of the
time and place of trial, shall be
served upon the party charged,
two days before the trial, having
been prescribed by the board of po-
lice under the authority of a stat-
ute (Consolidation Act, L. 1882, ch.
410, 250, 272), has the force of
a statute to the extent that the au-
thority conferred was complied
with, and so long as it continues
in force is as binding upon the
members of the board as it is
upon the members of the force.
People ex rel. v. Martin.
13. 1884, Chap 252-Street Railway
- Right to Use Street not Named
in Articles of Association. The
use of a city street, not named in
its articles of association, by a com-
pany organized under the Street
Surface Railroad Act (L. 1884, ch.
252), merely for hauling cars to
and from a car storehouse, is im-
pliedly, if not expressly, sanc-
tioned by the law when a majority
of the abutting owners consent,
and the storehouse is located upon
the only vacant land available,
which was not within the restric-
tions imposed by the resolution
whereby the city authorized the
company to make necessary con-
nections in the street named in the
articles and "in such parts of
those adjacent thereto as may be
necessary." Brooklyn H. R. R.
Co. v. City of Brooklyn.
14. 1885, Chap 342- · Constitution-
ality of Mechanics' Lien Law.
Trial by Jury. The fact, that
at the time of the adoption of
the provision of the Constitution
of 1846 (Art. 1, § 2), that "the
trial by jury in all cases in which
it has been heretofore used shall
remain inviolate forever," there
was in force a Mechanics' Lien
Law (L. 1844, ch. 220) which pro-
vided for trials as in actions of
assumpsit, does not invalidate the
Mechanics' Lien Law of 1885 (Ch.
342), which provides that actions
thereunder shall be tried in the
same manner as actions for the
foreclosure of mortgages.
Schil
linger C. Co. v. Arnott.
584
1888, chap. 119. See pars. 17 and 18,
this title.
15. 1891, Chap. 4- Rapid Transit
Acts Constitutionality. The
Rapid Transit Acts (L. 1894, ch.
752; L. 1895, ch. 519, amending L.
1891, ch 4), which authorize cities
of over one million inhabitants to
construct railroads therein which
shall be deemed public highways,
at their own expense, if so deter
mined by the vote of a majority of
the electors, and to issue bonds in
payment therefor, are not violative
of the Constitution. Sun P. & P.
Assn. V. Mayor, etc., N. Y. 257
16. 1892, Chap. 399— Transfer Tax
-Appeal to Surrogate from Ap-|
praisal - New Allegations. On
appeal to a surrogate from the
confirmation of an appraiser's re-
port as to an estate for the purpose
of a transfer tax and from an
assessment of the tax in conformity
therewith taken under section 13
of the act of 1892, appellants
should be permitted to file ad-
ditional allegations that since the
appraisal, litigation has been com-
menced to determine who are the
heirs and next of kin of the de-
cedent, thus creating a controversy
which affects the title to the whole
estate, although the sixty days
allowed for an appeal have ex-
pired and the grounds specified in
the notice of appeal do not include
the matter of these allegations,
when it appears that the litigation
was not commenced until after the
expiration of the time allowed for
an appeal; and the surrogate
should either postpone the ap-
praisement until the litigation is
determined, or at least receive and
consider the proofs of the allega
tions. In re Westurn.
17. 1892, Chap. 577- Municipal
Employment Confidential Rela-
tion. A confidential relation, be-
tween an appointing officer and
his subordinate, exists within the
meaning of Laws of 1888, chapter
119, section 1, as amended by chap-
ter 577, Laws of 1892, when an
officer, upon whom the statute
casts a duty involving skill and
integrity, and a liability either
personal or on the part of the mu-
nicipality which he represents,
intrusts the discharge of the duty
to the subordinate. People ex rel.
v. Pulmer.
217
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18. Idem Assistant Warrant Clerk
to the Comptroller of the City of
Brooklyn-Confidential Relation.
An assistant warrant clerk in the
office of the comptroller of the city
of Brooklyn, by reason of the fact
that a greater portion of the duties
devolving upon his position in-
volve skill and integrity, which
duties, if carelessly or negligently
performed, might result in great
loss to the comptroller or the city,
holds a confidential relation to his
superior officer within the mean-
ing of Laws of 1888, chapter 119,
section 1, as amended by chapter
577, Laws of 1892, and may be dis-
charged without cause shown. Id.
19. 1893, Chap. 661 — Un la w ful
Practice of Medicine - Prior Con-
riction of Felony - Public Health
Law. A person convicted of a
felony, whether before or after
the passage of the Public Health
Law (L. 1893, ch. 661, as amended
by L. 1895, ch. 398), is within the
provisions of section 140, prohib-
iting the practice of medicine by
any person who has ever been
convicted of a telony," and sec-
tion 153, making such practice by
any person after conviction of a
felony a misdemeanor." People
v. Hawker.
234
1894, chap. 752. See par. 15, this
title.
20. 1895, Chap. 570 Betting on
Horse Races-Penalty. The mak-
ing or recording by a person upon
a race course authorized by, or
entitled to the benefits of, chap-
ter 570, Laws of 1895, of a bet
upon a horse race taking place
thereon, even if it be denominated
bookmaking, is subject to the ex-
clusive penalty of forfeiture of
the amount of the bet, to be re-
covered in a civil action, pre-
scribed by section 17 of the act,
and consequently is excepted from
the provisions of section 351 of the
Penal Code, provided such mak-
ing or recording are not accom-
plished by any of the acts specific-
ally excepted in said section 17.
People ex rel. Sturgis v. Fallon. 1
26. 1895, Chap. 601 - Constitution-
ality of- Police Justices in the
City and County of New York-
Abolition of Office - Abridgment of
Term. Chapter 601, Laws of 1895,
relating to the inferior courts of
criminal jurisdiction of the city
and county of New York, is con-
|