they could at once transfer; that if the three successive life estates preceding the remainder proved inadmissible, the only effect would be the destruction of the third. She died before conveying the | would have legal estates which same, leaving a will, by which she devised all her real estate to her husband for life, in trust, to receive the rents and profits and apply them in his discretion to the support and education of their children, with remainder to them in fee. She authorized her trustee to sell and convey the real estate "either in fee or lesser estate," and invest the money received for the benefit of her children in his discretion. Held, That the will of M. fully and completely disposed of the whole estate as she was authorized to do by the will of her mother; that if it should be construed as simply delegating the power to convey, it was valid; that such power could be delegated, being general and beneficial and not having in it any element of trust or confidence. Ingraham v. Ingraham, 2 Atk., 88; Berger v. Duff, 4 Johns. Ch., 368, distinguished. It was claimed that the power granted by the will of M. to her husband to convey the real estate "either in fee or lesser estate," authorized the creation of another life estate, and as it must date. back to the will of C., and be treated as if written therein, there would exist a trust estate for the life of M., a trust estate for the life of her husband, and a life estate in his vendee, and so the power of alienation would be unduly suspended. Held, Untenable; that at the end of the two trust estates the life tenant and the remaindermen Also held, That the lesser estate might be for the life of the trustee, and so keep the suspension within two lives, or for a term of years within his own life by express stipulation. When a lawful estate can be created under a power it is not to be assumed that an unlawful act was intended to be authorized. Root v. Stuyvesant, 18 Wend., 257, distinguished. Section 55, 1 R. S., 728 (the statute of uses and trusts), does not require a trust to be limited as to duration to the lives of the beneficiaries alone. It permits rents and profits to be received and held for the benefit of any number of persons during their lives, or for a shorter time. It is immaterial under the statute against perpetuities (1 R. S., 723, § 15) whether the two designated lives beyond which the power of alienation may not be suspended are strangers or beneficiaries. Order of General Term, affirming judgment for defendant, affirmed. Opinions by Finch and Earl, JJ.; Andrews and Danforth, JJ., concur with Finch, J.; Miller, J., concurs with Finch, J., as to the validity of trusts, but dissents in other respects; Rapallo, J., dissents; Ruger, Ch. J., not voting. SURETIES. JUSTIFICATION. | Code Civ. Pro., § 1335, 90 N. Y., N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Eugene A. Hoffman et al., exrs., applts., v. Philip Smith et al., respts. Decided Jan. 9, 1885. The refusal of sureties upon an undertaking to stay proceedings pending an appeal to the General Term to justify, after their sufficiency has been excepted to and notice of justification served designating a time for that purpose, relieves them of their liability upon such undertaking, and such liability cannot be revived, without their consent, by the withdrawal of the exception and waiver of justification. Appeal from judgment recovered on the dismissal of plaintiff's complaint at circuit. This action was upon an under 476; and that the refusal of the sureties in this case to justify relieved them from further liability, and the attorneys for plaintiffs in the action could not deprive them of this discharge, without their consent, by afterward withdrawing the exception and waiving their justification. That to have that effect the withdrawal of the exception and the waiver of justification should have been made before the sureties had, in fact, refused to justify. Judgment affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. JUSTICES COURT. APPEAL. NEW TRIAL. taking given to stay proceedings N. Y. SUPREME COURT. GENERAL pending an appeal to General Term. After the undertaking sued upon had been given, notice of exception to the sufficiency of the sureties was served, and this was followed by a notice of justification designating a time for that purpose. The sureties, however, refused to appear and justify, and subsequently the attorney for plaintiff in the action in which the undertaking was given served a notice withdrawing his exception and waiving justification. Wheeler H. Peckham, for applts. James M. Smith, for respts. Held, That the effect of a failure of the sureties upon an undertaking of this description to justify, after their sufficiency has been excepted to, is the same as if no undertaking had been given, TERM. FIFTH DEPT. Albert E. Reynolds, respt., v. William W. Swick, applt. Decided Jan., 1885. Where in an action brought in a Justice's Court to recover the possession of a chattel, the value as fixed by the pleadings exceeds fifty dollars, the appellant is entitled to a new trial in the county court, although no value was fixed or assessed by the justice in the judgment rendered. Appeal from order of County Court denying appellant a new trial in that court on an appeal from a judgment rendered in a justice's court. Action was brought in a justice's court to recover the possession of a horse, with damages for unlawful detention. The justice gave judgment in favor of plaintiff that he retain possession of the prop- | 289, decided under the old Code, erty, and that he recover $8 costs, sustains our construction of this but failed to assess the value of section, --that it is sufficient if the the property replevied. Defendant value is fixed by the pleadings. appealed for a new trial in the The Code as it then read was "if county court. Complaint alleged the value of the property as the value of the horse to be $150, assessed," etc., shall exceed fifty and demanded judgment for $25 dollars. The words "as fixed" for wrongful taking, etc. The are now substituted in the place answer admitted the value of the of the words "as assessed," and horse to be $130. Upon a motion it appears to us that the change by respondent to have the appeal was made for the purpose of redetermined to be one not for a new moving any doubt. The value of trial, the county court held that the property may be fixed by the defendant was not entitled to a pleadings or by the judgment of new trial in that court; that the the court, and in either case, if it appeal must be heard upon ques- exceeds fifty dollars, appellant is tions of law only. entitled to a new trial. Henry M. Davis, for respt. E. M. & F. M. Ashley, for applt. Held, That as the value of the property replevied, "as fixed" by the pleadings, exceeded fifty dollars, the appellant was entitled to a new trial in the county court, although no value was fixed or assessed by the justice. The Code of Civil Procedure provides, §3068, that "where an issue of fact or an issue of law was joined before the justice, and the sum for which judgment was demanded by either party in his pleadings exceeds fifty dollars; or where in an action to recover a chattel the value of the property as fixed, together with the damages, if any, exceeds fifty dollars, the appellant may, in his notice of appeal, demand a new trial in the appellate court, and thereupon he is entitled thereto, whether the respondent was or was not present at the trial." Order reversed, with $10 costs, etc. Opinion by Haight, J.; Barker and Bradley, JJ., concur. RAILROAD. NEGLIGENCE. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Lester W. Babcock, respt. v. The N. Y. C. & H. R. RR. Co., applt. Decided Oct., 1884. Plaintiff was injured by falling from a side- Held, Merrill v. Pattison, 44 How., Evidence as to the manner in which side walks were built across similar ditches in adjoining cities is inadmissible. Appeal from judgment in favor of plaintiff entered upon verdict and from order denying motion for a new trial on the minutes. the question whether defendant was liable to maintain the crossing over the ditch, and in connection with that told the jury that from the evidence they had a right to find that a contract existed betweet the village authorities and defendant by which defendant agreed to take care of the crossing over the ditch so far as it was within the line of the territory occupied by it. The last proposition was excepted to. Action to recover damages for injuries to plaintiff caused by his falling from a sidewalk in the village of Geddes, on the side of defendant's road into a ditch on the evening of November 23, 1877. The sidewalk extended from the track west over the ditch, which was 6 feet from the track, 5 feet wide at top and 3 at the bottom, with an average depth of 3 feet 8 inches. It was made for the purpose of carrying off surface water, had been there ever since the road was built, and there was evidence tending to show that the necessity for the ditch was occasioned by the building of the road. The width occupied by the railroad, as indicated by the line of the fences, was 85 feet. The sidewalk was 5 feet 4 inches wide; on the right hand side, going westerly, there was a fence; on the left side, from which plaintiff fell, there was no guard. There was evidence tending to show that defendant's predecessor, The Syracuse & Auburn RR. Co., built the sidewalk originally over the ditch soon after the building of the road, and that whatever repairs had been made to it for six years prior to the trial had been made by defendant; but what repairs were in fact made did not appear, nor did it appear that the village ever exercised any control over it. The court submitted to the jury the consent of the commissioners W. G. Tracy, for applt. W. Nottingham, for respt. Held, No error. Under the act incorporating the Auburn & Syracuse RR. Co., Laws of 1834, Ch. 228, if it crossed a highway it was required to restore it to its former state or in a sufficient manner not to have impaired its usefulness. This obligation to restore would apply to any part of the street within its line that was interfered with, 29 Conn., 434; and in case a bridge was built in order to perfect such restoration, there would be an obligation on the part of the corporation to keep the bridge in repair. 37 How. Pr., 427; 12 N. Y., 268; 36 id., 214; 23 Wend., 446. By Chap. 300, Laws of 1835, which was in force when this railroad was built, the commissioners of highways were authorized to consent to the crossing of the street by the railroad, but the act also provided that the street "shall be so restored to its former state as not to have impaired its usefulness." So that whether the railroad company derived its privilege to cross from its charter or from it took it subject to the obligaion to restore, which was in the nature of a contract, 26 Hun, 428; 49 N. Y., 657; the consideration of which was the privilege granted. This obligation was for the benefit of the public and especially enured to the benefit of those who otherwise would have been charged with the duty of maintaining the streets. As to whether or not, in the case before us, this duty extended to the maintenance of the sidewalk or bridge over the ditch was the question at issue on the trial, and that question could very properly be determined by the conduct of the parties in interest in regard to this particular subject. There was evidence tending to show that defendant had assumed this duty and that the village authorities had not. The bridge was left without a guard at the place Also held, That the court did not err in refusing to allow defendant to show how sidewalks were built across similar ditches in the adjoining city of Syracuse. That would open too broad an issue. Nor under the evidence did the court err in declining to charge "that if this walk was constructed over this sluiceway in the same manner that walks in like places were constructed, defendant has exercised ordinary care and prudence in the manner of its construction and would be guilty of no negligence." Judgment and order affirmed. Opinion by Merwin, J.; Hardin, P. J., concurs; Follett, J., not sitting. ASSIGNMENT FOR CREDITORS. of the accident, and whether this N. Y. SUPREME COURT. GENERAL was negligence on the part of defendant that caused the injury was for the jury to say. Plaintiff testified that he was walking pretty slow and it was so dark he could not see the sidewalk at all. He had passed over there that day in the forenoon and also previously three or four times, but when did not appear. Held, This is not like the case of a party passing over a railroad track and being bound to do certain things in order to escape the imputation of negligence. Plaintiff with such knowledge as he had, in fact, of the walk was bound to use reasonable and proper care to avoid injury. Whether he did so was for the jury to say. TERM. FIRST DEPT. Hugh N.Camp, temporary admr., respt., v. William H. Buxton, applt. Decided Jan. 9, 1885. When a general assignment for the benefit of creditors has been properly acknowledged both by the assignor and assignee, but the certificates of acknowledgment annexed thereto are defective, the notary taking such acknowledgments may, after the death of the assignor, make proper certificates, and the assignment may then be filed and recorded and take effect from that date, provided that no rights of other parties intervene. Appeal from order enjoining defendant from acting as the assignee of the property of K. for the benefit of creditors, and from in |