the amount of the unlawful investment within one year from the
entry thereof when the trustees' commissions may be computed and
allowed. Matter of McDowell, 275.

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2. Testamentary Powers of Trusts Accounting-Wills.-
Where the principal asset of a testamentary trust was an unrent-
able building located in a business section and totally unadapted to
conditions of business of to-day, and the trustee has power under
the will to make permanent improvements where it would be reason-
ably anticipated that such an investment would be beneficial to both
the life beneficiaries and to the remaindermen, and irrespective of
the powers given to the trustees under the will there are special
equities as shown by the stipulated facts upon the accounting of
the surviving trustee, his account, in which the amount of expendi-
tures for repairs to the building was charged against the corpus of
the trust fund, will be settled as filed, all of the adult remaindermen
consenting and asking for a decree to that effect. Matter of Heroy,
305.

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3. Power of Trusts - Executors and administrators-Account-
ing - Wills
Residuary legatees Bonds. The provisions of a
testamentary trust considered upon the judicial settlement of the
accounts of the exccutors, and held: That it was the testator's inten-
tion to constitute the trust company named the trustee of the trust
mentioned in the will and codicil thereto. The fact that the trust

company was not named " trustee was of no consequence as the
duties it was to perform were those of a trustee and the power and
the authority given to it were such as a trustee would have. Under
the circumstances existing distribution to the residuary legatee
should be made only upon the execution by her of an agreement
with the executors to deliver to them sufficient securities to make it
possible for them to make a substitution, as provided by the will,
in case the yield of the securities mentioned falls below the amount
therein stated, and upon the faithful performance of such agree-
ment the residuary legatee should give a bond to the executors.
Matter of Goulden, 642.

TRUSTS.

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When not void Construction of Wills - Legacy - Children
Suspension of power of alienation. Where a devise to testator's
wife for life of all the income of his estate is subject to a precatory
suggestion in the following clause of the will that she shall, if she
wish, contribute from the surplus of her income to the making of
a trust fund for the benefit of testator's grandchildren, including
any subsequently born, until said trust fund shall amount to $5,000,
the same to be divided among said grandchildren share and share
alike upon the wife's death, and the same clause contains a general
legacy to the grandchildren of such sum from the personal estate in
remainder upon the death of said wife as should together with such
provision as she should have made for said fund be equal to $5,000,
no trust or power in trust is created, as such construction would
result in an attempt to create an unlawful accumulation. A trust
for the payment of income until the youngest child of testator should

TRUSTS- Continued.

attain the age of twenty-five years, with remainder to persons named,
is not void as an unlawful suspension of the power of alienation.
Matter of Lynch, 650.

See Transfer Tax; Trustees.

USURY.

See Foreclosure; Judgments; Pleading.

VERDICT.

1. Setting aside Evidence.-An order granted setting aside the
verdict herein on the ground that on the question of substantial
performance it was not sustained by the weight of evidence. Brain-
ard v. Ten Eyck, 20.

2. In Municipal Court of city of New York for damages caused by
leak in water tank Landlord and tenant · Trial · Negligence.—
Where in an action brought in the Municipal Court by a tenant to
recover for damages caused to its merchandise because of a leak
in a water tank under the control of defendants, its landlords,
the issue whether the leak was caused by defendant's negligence
was sharply litigated and a verdict of fifty dollars in favor of
plaintiff is so small compared with the undisputed testimony of
plaintiff's witnesses as to justify an inference that it was the
result of a compromise, a motion to set aside the verdict will be
granted. Where the order setting aside the verdict recited that
it was made on grounds other than that of inadequacy of damages,
the trial judge, so far as the verdict may have been set aside on
such other grounds, has no right to limit a new trial to the
question of damages, that question not being separable from the
other issues in the case. New York Petticoat Mfg. Co., Inc., v.
Flickinger, 225.

See Indictment; New Trial.

VILLAGES.

See Injunctions.

WAIVER.

See Guaranty.

WARRANT.

See Attachment.

WATERS AND WATERCOURSES.

See Injunctions.

WILLS.

Trusts

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Taxes

1. Construction of
Real property.- In
an action for the construction of a will held, that the entire trust
fund created thereby should be treated as a single fund and that
all taxes on and carrying charges of certain real estate with a
valuable building thereon, which by reason of a change in the
character of the neighborhood had greatly decreased both in
rental and fee value, were not properly chargeable against the
corpus of the trust fund but should be paid out of the gross
income thereof from whatever source received. Matter of Hurry,
326.

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Codicils

Executors and administrators

WILLS-Continued.
2. Probate of
Surrogate's Court When application for ancillary letters of
administration denied Code Civ. Pro. § 2629.-A will executed
in the state of New York and a codicil thereto executed in the
state of Michigan, where testatrix resided at the time of her
death, were, after a contest, duly admitted to probate in the
state of New York, and an account by the executrix of the
executor of his proceedings under the will was duly approved
and settled by the surrogate and letters of administration with
the will annexed issued. Although exemplified copies of both
the will and the codicil were offered and used in a probate
proceeding instituted in the state of Michgan durng the pend-
ency of the first probate proceeding the will alone was admitted
to probate and letters of administration with the will annexed
granted to the petitioner herein. Upon his application for ancil-
lary letters of administration it appeared that no appeal was ever
taken from the decree of probate made by the Surrogate's Court
in this state; that the changes made in the codicil not only affected
the rights of certain persons but also the rights of all the residu-
ary legatess; that the most important difference between the
combined will and codicil as probated here and the will as pro-
bated in the sister state grows out of the provisions of the codicil
for the support, care and maintenance of the mute brother of
the testatrix. Held, that so far as property in this state was
concerned the will with the codicil was the real will and not the
will probated without the codicil and the application should be
denied. That while it might conform to the letter of section 2629
of the Code of Civil Procedure to grant the ancillary letters of
administration prayed for, it would violate its spirit and be an
idle ceremony. Matter of Eaton, 370.

See Executors and Administrators; Transfer Tax; Trustees;
Trusts.

WITNESS.

Evidence

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Depositions What question should be answered
by. If it appears from the testimony of the witness that an entry
in his handwriting was a true statement of the facts at the time it
was made but that even after inspection the witness has no
recollection of the facts, still the entry may be inspected and the
witness examined concerning it and it may be introduced in evi-
dence as an extension of the testimony of the witness. Bigio v.
Zrike, 561.

See Depositions; Trial.

WORKMEN'S COMPENSATION LAW.

1. As amended by Laws of 1916, chap. 622 — Benefits to new
class of employees -Statutes. That while the amendment (Laws
of 1916, chap. 622) to the Workmen's Compensation Act adds
a new class of employees who theretofore had been excluded from
its benefits it does not provide that a person not in the service
of the employer when injured is an employee, and, therefore, plain-
tiff was not entitled to any relief under that statute. Pierson v.
Interborough Rapid Transit Co., 130.

WORKMEN'S COMPENSATION LAW-Continued.

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2. § 29 Extension of liability of employer Subrogation
Actions Negligence Assignments Statutes Laws of
Awards
1914, chap. 41
State industrial commission. The
Workmen's Compensation Law (Laws of 1914, chap. 41) deals
directly only with the liability of an employer; it creates a new
remedy designed to make trade accidents a trade liability in cases
coming within its provisions; the liability of employers is extended
and they or the persons liable to pay the compensation are sub-
rogated by way of indemnity to all claims of the employees
against others who caused the injury. Under section 29 of said
statute, construed in connection with the other provisions thereof,
an employee when injured by the negligence of one other than
his employer and not in the same employ has a choice of remedies,
viz.: : a claim under the statute against his employer or a cause of
action at law against such other person, and in the former event
the cause of action against such other person must be surrendered
to the state for the benefit of the state insurance fund or to the
person liable to pay. In an action to recover for personal injuries
brought by an employee against a third party not his employer
it appeared that plaintiff had withdrawn a notice of election to
sue defendant which he had filed with the state industrial com-
mission and had filed a claim against his employer accompanied
by an assignment, in the form prescribed by said commission, of
any claim against third parties. The claim was allowed by the
commission and an award made. It was not paid by the employer,
who notified defendant of the award and claiming to be subro-
gated to the employee's rights against defendant called upon it
to pay the award. After this action had been brought defendant
paid the amount of the award to the state industrial commission
and received a release from the employer releasing defendant from
all liability for any claim arising out of plaintiff's injuries. The
commssion sent its check for the amount of the award to plaintiff
who refused to accept it and on notice to the employer but not to
defendant plaintiff applied to the commission to withdraw his
claim against his employer, claiming that the employer had failed
to secure the payment of compensation as provided by section 50
of the statute. The commission allowed the claim to be withdrawn
and apparently set aside the award. Held, that under the original
act (Laws of 1914, chap. 41, § 29), which governs this case,
plaintiff's title to the award was divested by the assignment and
he had no cause of action at the time the suit was commenced.
That by said assignment the title to the award vested in plaintiff's
employer and could not be divested without his consent, there
being nothing in said section 29 to indicate that the divesting of
the title was intended to be postponed until payment of the award,
and that neither the plaintiff nor the commission had power to
affect said title and that defendant's motion for a dismissal of
the complaint should be granted, and a verdict for the defendant
directed. That the surrender of the cause of action was ample
consideration for the assignment, the employee being under no
obligation to pursue the statutory remedy. Sabatino v. Thomas
Crimmins Construction Co., 172.