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secondarily liable. If she had l of the mortgagees.

The mort. been compelled to pay the whole gagees could have sued defendant or any portion of the mortgage directly upon his covenant to pay debts she undoubtedly would have the mortgages. 20 N. Y., 268 ; 24 been entitled to maintain an action id., 178. B. could have paid the to recover the amount paid, and mortgages and become subrogated would be entitled to be subrogated to the rights of the mortgagees, to the rights of the mortgagees. and could have maintained an ac8 Hun, 374 ; affirmed, 71 N. Y., tion directly upon the covenant. 9; 91 id., 92; 78 id., 318.

True, he did not voluntarily do so, After conveyance to B. she but his land has been sold for that could sustain no loss by reason of purpose; and we fail to see how the failure of defendant to pay off his equities are changed from what the mortgages. And having con- they would have been in case the veyed without warranty she could payment had been voluntary. He not be liable to B. She could has now been compelled to pay a maintain no action against defend portion of the mortgage debt. To ant, for she has suffered no damage. the extent of the payment made If, therefore, any cause of action he becomes the equitable assignee exists, it must be in favor of B., of the mortgages, and subrogated for he is the person who suffers by to the rights of the mortgagees, reason of the non-payment of the and as such has the right to sue mortgages Under the deed he defendant upon his covenant to took all claims or demands in law

the amount so paid. or equity that existed in favor of Sheldon on Subrogation, $$ 45, 74. Mrs. Wilcox. Defendant's cove 70 N. Y., 437, fully sustains this nant was to pay off and discharge view of the case. the mortgages which were a lien Plaintiff as assignee of Bingham upon this parcel, and we fail to stands in his place, and is entitled see why it is not such a covenant to the same rights as his assignor. as would run with the title. 9 It was contended that the referee Paige, 649 ; affirmed, 7 Hill, 260; adopted a wrong measure of dam7 N. Y., 171. In 70 N. Y., 437-440, ages. the guestion as to covenants af Held, That the rule applied was fecting the land and passing by correct. the conveyance, was not involved The 80 feet parcel was lost to B. and not considered.

on account of defendant's failure Hart v. Lyon, 90 N. Y., 663, to keep his covenant; the loss distinguished.

therefore to him was the value of If we are in error upon this the lot. In case B. had raised the point, we are of opinion that money and paid off the mortgages, plaintiff can recover upon the he would only have been entitled ground that he has become the to recover the amount so paid, and equitable assignee of the mort for this reason would not be engages and subrogated to the rights titled to recover more than the

recover

amonnt of the mortgages.

The on the farm, as provided by the mortgages, however, exceeded the contract, until the end of the year. value of the 80 feet parcel, and it This action was brought to recover does not appear that he was able the $200 under the contract. The to raise the money to discharge defense in effect is, that the conthem.

tract of hiring was terminated by Judgment affirmed.

the death of the employer, and Opinion by Haight, J.; Brad- that after that event plaintiff's ley and Childs, JJ., concur. services were rendered to the widow

of the testator, by whose will she

took a life estate in the farm. An CONTRACT. SERVICES.

offer of judgment was made for N. Y. SUPREME COURT, GENERAL services until the date of the death

TERM. FOURTH DEPT. of the employer. Thomas Lacy, applt., v. So

W. A. Nims, for plff. phronia A. Getman, exrx., respt.

Dorwin & Brown, for deft. Decided Jan., 1885.

Held, Error. Contracts ordi

narily bind the executors and adExecutors are not excused from the perform ministrators of the contracting par

ance of the contracts of their testator by ties. That is the general rule in reason of his death, where such contracts relate to ordinary hired labor and where executory agreements, but in some skilled personal services are not contem few cases performance may be explated. They may break the contract and cused, as for instance where perdischarge the laborer by paying him such damages as he may suffer, but where the

formance was prevented by an act contract is performed without objection by of law, 4 N. Y., 411, or where renthe executors, they must perform on their dered impossible by act of God part.

and without fault of the contractAppeal by plaintiff from a judg- ing parties, such as sickness or ment entered upon a verdict in his death of the party contracting to favor, and from the decision of the render services, or the death of court reducing the verdict.

either of the contracting parties By consent of counsel the court where skilled personal services are ordered a verdict for plaintiff for contemplated, as in 71 N. Y., $200, subject to the further con- | 91 N. Y., 179; 1 Allen, 418. sideration of the court. The court, But where the contracts relate upon further consideration, filed to ordinary hired labor, as in this his decision and opinion, reducing case, they may break the contract the verdict from $200 to $80, to and discharge the laborer by paywhich decision plaintiff's counseling him such damages as he may duly filed exceptions.

suffer. It is not impossible for Plaintiff hired to defendant's them to perform, and no reason is testator for one year, at $200, to apparent why they should not do ordinary farm work. Near the perform as in other cases of execumiddle of the year the employer tory contracts of their testator. died. Plaintiff continued to work | No case is cited where the death of

Vol. 20.-No. 20b.

40;

the employer worked a termination were both valid and operative, the power of such contract. In People v.

related only to the remainder, and could be

delegated. Globe Ins. Co., 91 N. Y., 174, it

In 1855 M. procured the trust estate to be conis held that on the insolvency and

veyed to her, and on her death devised al' dissolution of an insurance com her real estate to her husband for life in trust

for her children, and authorized him to sell pany a contract between it and a

and convey the same “either in fee or lesser general agent is dissolved by the

estate," and invest the proceeds. Held, That action of the State.

the wife fully and completely disposed of It is impossible to perform there the whole estate ; that the power granted to after.

the husband did not unduly suspend the The reduction of the verdict to

power of alienation. $80, and ordering judgment for This was an action of ejectment. that amount, was error.

It appeared that C., who was the The court erred in rejecting the common source of title, died in offer of the plaintiff to show that 1845, leaving a will by which she he performed the contract after devised certain real estate to a the death of the testator under the trustee for the benefit of M., her direction of the defendant. This married daughter, during her life, was not an offer to prove a new and provided that the same should contract, but simply to show that not be subject or liable for any of defendant elected to perform in M.'s husband's debts, and that he stead of repudiating it, for which should not, in any event, have any reason a new trial should be had. estate or interest therein.

This Judgment reversed, new trial devise was declared to be upon the granted, costs to abide event. condition, “and subject to the

Opinion by Boardman, J.; Har power and authority” of M. to din, P.J., and Follett, J., concur. dispose of the real estate “by

grant or devise.” If she failed to

do so the remainder was given to WILLS. TRUSTS. POWERS. her children living at her decease. N. Y. COURT OF APPEALS.

G. F. Comstock, for applts.

Winchester Britton, for respt. Crooke et al., applts., v. Prince, Held, That both the trust and respt.

power were valid and operative, as Crooke et al., applts., v. The under the role making it the duty County of Kings, respt.

of the court to harmonize and reDecided Dec. 2, 1884.

tain as far as possible all the pro

visions of a will, the power should One C. died in 1845, leaving a will which de- be understood as relating only to

vised certain real estate to trustees for the benefit of M., her married daughter, and the remainder and as operating provided that it should not be liable for M.'s solely upon that. husband's debts, and that he should in no It appeared that in 1855 M., unevent have any interest therein. The de

der Chap, 375, Laws of 1849, provise was subject to the power and authority of M. to dispose of the real estate by grant cured the trust estate to be cod or devise. Held. That the trust and power / veyed to herself.

She died before conveying the would have legal estates which same, leaving a will, by which she they could at once transfer; that devised all her real estate to her if the three successive life estates husband for life, in trust, to re- preceding the remainder proved ceive the rents and profits and ap- inadmissible, the only effect would ply them in his discretion to the be the destruction of the third.

support and education of their Also held, That the lesser estate

children, with remainder to them might be for the life of the trusin fee. She authorized her trus- tee, and so keep the suspension tee to sell and convey the real within two lives, or for a term of estate “either in fee or lesser years within his own life by exestate," and invest the money re

press stipulation. ceived for the benefit of her chil When a lawful estate can be dren in his discretion.

created under a power it is not to Held, That the will of M. fully be assumed that an unlawful act and completely disposed of the was intended to be authorized. whole estate as she was authorized Root v. Stuyvesant, 18 Wend., to do by the will of her mother; 257, distinguished. that if it should be construed as Section 55, 1 R. S., 728 (the simply delegating the power to statute of uses and trusts), does convey, it was valid ; that such not require a trust to be limited power could be delegated, being as to duration to the lives of the general and beneficial and not hav- beneficiaries alone.

It permits ing in it any element of trust or rents and profits to be received confidence.

and held for the benefit of any Ingraham v. Ingraham, 2 Atk., number of persons during their 88; Berger v. Duff, 4 Johns. lives, or for a shorter time. It is Ch., 368, distinguished.

immaterial under the statute It was claimed that the power against perpetuities (1 R. S., 723, granted by the will of M. to her $15) whether the two designated husband to convey the real estate lives beyond which the power of “either in fee or lesser estate,” alienation may not be suspended authorized the creation of another are strangers or beneficiaries. life estate, and as it must date Order of General Term, affirmback to the will of C., and be ing judgment for defendant, aftreated as if written therein, there firmed. would exist a trust estate for the Opinions by Finch and Earl, life of M., a trust estate for the JJ.; Andrews and Danforth, JJ., life of her husband, and a life concur with Finch, J.; Miller, J., estate in his vendee, and so the concurs with Finch, J., as to the power of alienation would be un- validity of trusts, but dissents in duly suspended.

other respects; Rapallo, J., disHeld, Untenable ; that at the sents; Ruger, Ch. J., not voting. end of the two trust estates the life tenant and the remaindermen

SURETIES. JUSTIFICATION.

Code Civ. Pro., S. 1335, 90 N. Y.,

476 ; and that the refusal of the N. Y. SUPREME Court. GENERAL sureties in this case to justify reTERM. FIRST DEPT.

lieved them from further liability, Eugene A.

Hoffman et al.,

et al., and the attorneys for plaintiffs in exrs., applts., v. Philip Smith the action could not deprive them et al., respts.

of this discharge, without their

consent, by afterward withdrawDecided Jan. 9, 1885.

ing the exception and waiving The refusal of sureties upon an undertaking their justification. That to have to stay proceedings pending an appeal to that effect the withdrawal of the the General Term to justify, after their exception and the waiver of justisufficiency has been excepted to and notice

fication should have been made of justification served designating a time for that purpose, relieves them of their before the sureties had, in fact, liability upon such undertaking, and such refused to justify. liability cannot be revived, without their

Judgment affirmed. consent, by the withdrawal of the exception and waiver of justification.

Opinion by Daniels, J.; Dacis,

P. J., and Brady, J., concur. Appeal from judgment recovered on the dismissal of plaintiff's complaint at circuit.

JUSTICES COURT. APPEAL. This action was upon an under

NEW TRIAL. taking given to stay proceedings N. Y. SUPREME Court. GENERAL pending an appeal to General

TERM. FIFTH DEPT. Term. After the undertaking sued upon had been given, notice of ex

Albert E. Reynolds, respt., v. ception to the sufficiency of the William W. Swick, applt. sureties was served, and this was

Decided Jan., 1885. followed by a notice of justification designating a time for that

Where in an action brought in a Justice's

Court to recover the possession of a chattel, purpose. The sureties, however,

the value as fixed by the pleadings exceeds refused to appear and justify, and

fifty dollars, the appellant is entitled to a subsequently the attorney for new trial in the county court, although no plaintiff in the action in which value was fixed or assessed by the justice the undertaking was given served

in the judgment rendered. a notice withdrawing his excep Appeal from order of County tion and waiving justification. Court denying appellant a new

Wheeler H. Peckham, for applts. trial in that court on an appeal James M. Smith, for respts. from a judgment rendered in a

Held, That the effect of a fail- justice's court. ure of the sureties upon an under Action was brought in a justice's taking of this description to jus- court to recover the possession of tify, after their sufficiency has a horse, with damages for unlawbeen excepted to, is the same as if ful detention. The justice gave no undertaking had been given, judgment in favor of plaintiff that

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