The People v. Ingersoll. Certainly a complete determination of the controversy in respect to said moneys or damages, cannot be had in an action to which the county of New York is not a party. (Code, § 122.) If it were conceded that the plaintiffs are interested in a remedy which should effectuate a return of the money taken from the treasury of the county, analogous to the relief in the case of the Attorney-General v. The Mayor of Dublin, (1 Bligh, N.S., 313,) still, it would be necessary that important amendments should be made. The facts stated do not bring the case within the reasoning of the Attorney-General v. The Mayor of Dublin. Especially is this true in respect to Ingersoll, who was not a public officer. The complaint is not framed for equitable relief against him. Only a case at law, asking for a judgment at law, is stated against him. It was suggested by the learned counsel of the plaintiffs, upon the argument, that if such an amendment should be found necessary upon the trial, the court might, upon the trial, order the amendment. The power or right of the court, upon trial, to order an amendment which should change the scope of the action, or the parties necessary to maintain the action, is doubtful, if not wholly unauthorized. In Davis v. Mayor &c. of New York, (14 N. Y., 506,) an amendment upon the trial, bringing in the Attorney-General as plaintiff, was made, and judgment then directed for the plaintiffs. It was subsequently reversed, and the amendment held to have been error. (See Union Bank v. Bassett, 3 Ab., N.S., 360. Ford v. Ford, 53 Barb., 525. Nosser v. Corwin, 36 How., 540. Bailey v. Johnson, 1 Daly, 61.) The last case holds that a change in the form of the action will not be allowed on the trial. The learned senior counsel for the plaintiffs, in his argument, urges that this court should respect and follow the decision made by the majority of the judges in The People v. Ingersoll. the 3d Department when the demurrer of some of the defendants was considered. The principle involved in the maxim "stare decicis et non quieta movere," was referred to, and must be accepted and applied to this case, in reaching a result. What is the effect of its application here? I. When the General Term decided the demurrer of the other defendants the complaint contained many allegations not now therein, and allegations upon which reliance was placed by the judges delivering prevailing opinions. II. It was then assumed that the county of New York could not maintain an action to recover the moneys taken by the defendants; and that assumption has been completely taken away by the unanimous opinion of the General Term in this district in the case of the Supervisors v. Tweed, (supra ;) and therefore the reasoning based upon that assumption has no force here, as an authority. III. The opinions which were delivered as to the other defendants place some effect upon the circumstance that the defendants were holding public offices. Although it is not here considered that this defendant, Ingersoll, is less liable by reason of being a private individual, still that circumstance, as considered in the light of the reasoning in the opinions, lessens the force of the result as an authority. (Cage v. Acton, 12 Mod., 288. 2 East, 469. 5 Taunt., 155.) Ratio legis est anima legis; mutata legis ratione, mutatur et lex. IV. The result in the 3d Department was reached by disregarding, if not by directly overruling, the case of the People v. Miner, (2 Lans., 396,) in 1868. Since that case was decided, the doctrines thereof have been examined by the same learned jurist who delivered the opinion in 2 Lans., 396, and the principles reaffirmed, by the General Term of the 4th Department, in the The People v. Ingersoll. People v. Albany & Susq. R. R. Co. (5 Lans., 26,) unanimously. It therefore appears that the cases immediately bearing upon one of the leading questions here involved are in conflict; and therefore this court, even at Special Term, is at liberty, as well as required, to rely upon the force of other cases applicable to the questions involved on this demurrer. Manifestly, such a course can in no just sense be considered as a disregard of the wholesome doctrine of stare decicis. No doubt is entertained as to the liability of the defendant Ingersoll, as well as the other defendants, to respond for the great fraud in which he has been a participant. But his demurrer to the plaintiffs' complaint must be sustained, because the complaint does not state "facts sufficient to constitute a cause of action," in favor of the plaintiffs, the people of the state. The demurrer of the defendant Ingersoll will be sustained; with leave to the plaintiffs to amend in twenty days, upon payment of costs. Ordered accordingly. (a) [NEW YORK SPECIAL TERM, March, 1873. Hardin, Justice.] (a) Affirmed by the General Term in the 1st Department, and the latter decision affirmed by the Court of Appeals, after a re-argument. (58 N. Y., 1.) The legislature subsequently passed an act authorizing the people of the state to sue in cases of this nature. (Laws of 1875, chap. 49.) 67b 487 16ap615 ALICE S. MAGEE vs. GEORGE J. MAGEE, executor, &c., and others. M. and his wife, the plaintiff, who had separated and were living apart at the time, a suit brought by the wife for a limited divorce being then pending, settled such suit, in October, 1871; and on the 27th of that month, they executed an instrument by which it was agreed that the plaintiff should live apart from M., and the latter was to pay her $5,000 yearly, and if she kept house, $500 more. It was payable at a savings bank in S., in equal monthly payments, to the credit of the wife, so long as she should remain the wife of M. or continue his widow, &c. And for securing the prompt and regular payment of such annuity, M. covenanted and agreed that he would make and execute a valid will, and keep the same at all times in force, in and by which he should provide for the fulfilment, on his part, of said instrument, and make the payments, therein provided for, a lien and charge upon his estate. The wife covenanted and agreed that she would accept and receive the provision made for her support, in lieu of all claim, charge or incumbrance, in any way or manner, or at any time thereafter, upon M. or his representatives, or upon his estate. M. had, on the 9th of November, 1870, executed a will by which he directed his executors to pay $2,500 to his wife, during her life, or until she should again marry. On the 30th of October, 1871, he added a codicil thereto, by which the said annuity to the plaintiff was revoked; and it was provided: "And I hereby give and bequeath to my said wife the sum of $5,000 yearly, to be paid to her, each and every year, in monthly instalments, so long as she shall continue my widow." M. died in April, 1873. The principal question was, whether the plaintiff was entitled to receive, out of M.'s estate, $5,000 a year during her life or widowhood, or $10,000. Held, 1. That the agreement of separation was valid and binding, and such an one as the parties might lawfully enter into; they being actually separated, and living apart, at the time it was made. 2. That the covenant of M. to pay $500 a year if the plaintiff should keep a 3. But that the covenant to pay an annuity of $5,000 was not contingent; that 5. That in the absence of any proof showing an intent on the part of the testa- Magee v. Magee. was that the giving of the annuity of $5,000 named in the codicil was intended as a compliance with the agreement of the testator to provide for that sum; that it was inserted in the will as an intended fulfilment of such agreement. And that it should be held a satisfaction of the agreement, pro tanto, if availed of by the wife. 6. That the plaintiff was entitled to receive only the annuity of $5,000; and to enforce the $500 rental covenant whenever she should bring herself within its terms. When the language of a codicil is clear; when no question arises as to the phraseology used; and no uncertain or ambiguous words are employed, the declarations of the testator to the scrivener who drew the codicil are inadmissible to establish the intention of the testator, at the time he executed the instrument. But evidence of the facts and circumstances under which the codicil was executed may be received, and may be looked into in determining what inferences and presumptions arise. TH HE plaintiff was married on the 26th day of June, 1867, at the city of Syracuse, to John Magee, and they lived together some two or three years and separated, she alleging his cruel treatment as the cause; and she brought a suit for a limited divorce, in this court, which was pending and about to be tried, in October, 1871. The action was settled by the parties and with the assent of the plaintiff's father and trustee, and the instrument of October, 1871, evidences the terms of settlement; she was to live apart from her husband Magee, and he was to pay her $5,000; and if she kept house, $500 more. It was made payable at the Syracuse Saving Bank in Syracuse, in monthly payments, to the credit of Alice S. Magee. The article of separation bears date 27th of October, 1871, and says: "And further, that he, the said party of the first part, shall and will well and truly pay or CAUSE to be paid to the said Alice S. Magee, for her maintenance and support, the just and full sum of five thousand (5,000) dollars yearly, each and every year so long as the said Alice shall remain his wife or continue his widow, and she shall be deemed his wife until divorced by decree of courts of state of New York, to |