Opinion of the Court, per PARKER, J. due thereon out of such property; that to prevent a sale by him and secure for the assignee immediate and undisputed possession, the counsel for the assignee proposed the arrangement which was finally entered into. In order to carry it out the assignee borrowed the sum of nine thousand dollars and paid it over to the sheriff, who was further permitted to retain the surplus to make up the balance which he required as a condition precedent to a surrender of possession of the goods on which he had levied. Had the surplus not been taken into account in making up the nineteen thousand dollars, the assignee would have been obliged to raise and pay over an equal amount in order to accomplish the purpose which he had in view. It seems to be clear, therefore, that whatever may have been the rights of the assignee against the sheriff as to surplus prior to the agreement, that it was the intention of the parties and the legal effect of their action to treat the surplus and the nine thousand dollars borrowed by the assignee as paid over to the sheriff to effect a common purpose, to wit: A surrender of possession to the assignee of goods out of which the sheriff threatened to make the amount due on certain executions. The sheriff had no right to demand this money nor to retain possession of the goods under the levy made after the assignment, and the assignee, by an appropriate action, might have obtained an adjudication setting aside the levy and requiring the sheriff to surrender possession of the goods to him, but believing the course adopted to be for the best interest of the estate, he paid the money under protest and in order to obtain possession. The payment thus made was not voluntary, but compulsory, and the law implies a promise to repay, the remedy being an action as for money had and received. (Clinton v. Strong, 9 Johns. 370; Harmony v. Bingham, 12 N. Y. 99; Briggs v. Boyd, 56 id. 289–293; Bowns v. May, 120 id. 357-360.) The cause of action alleged in the complaint, however, was not for the recovery of money involuntarily paid to the defendant, but for the wrongful taking by the defendant from the assignee O'Brien of "dry goods, fixtures, attachments and Statement of case. personal property," and the testimony presented did not tend to establish it. As the evidence adduced pointing to a different cause of action was seasonably objected to, it was not error for the court to dismiss the complaint. (Southwick v. First National Bank, 84 N. Y. 420.) At the close of the plaintiff's case his counsel asked the court to so amend the complaint as to conform to the facts proved. The request was denied. As appears from the observations already made, the effect of granting the motion would have permitted a recovery upon an entirely different cause of action from that set forth in the complaint, and that may not ordinarily be done on the trial against the objection of the other party. (Barnes v. Quigley, 59 N. Y. 265; McMichael v. Kilmer, 76 id. 36; Arnold v. Angell, 62 id. 508.) Subsequently, and after the court had decided to dismiss the complaint, plaintiffs' counsel asked to be permitted to withdraw a juror, so as to permit a motion to be made at Special Term to amend the complaint. This request was also denied. The disposition of such an application rests so largely in the discretion of a trial court that the manner of its exercise after an affirmance by the General Term will not be reviewed here. The judgment should be affirmed. All concur, except POTTER, J., not voting. MARY HOTALING et al., Appellants, . HARRIET ANN MARSH et al., Respondents, et al., Appellants. P. died leaving him surviving his widow, a daughter and five grandchildren, two of them children of the daughter, three the children of deceased sons; he died seized of four parcels of real estate. By his will he directed his executors, if his widow consented, to sell said real estate, invest one-third of the proceeds and pay the income therefrom to his widow during her life in lieu of dower, and after her death divide the principal among his grandchildren then surviving; one-third he gave to his daughter, the other third to his daughters-in-law and their children. The testator directed his executors to dispose of his residu、 Statement of case. ary estate or put it in shape to divide equally among his said grandchildren whenever either shall become of age." The will then contained this clause: "It may so happen that my daughter # * * may live to have other children after my death, and after my executors may have divided my estate; in that case, it is my wish that they come in and share in the estate left my wife after her death in preference to the others, so that all my grandchildren may eventually receive the same amount." The widow refused to accept the provision made for her. In pursuance of a judgment in a suit for the partition and sale of the four parcels, three of them were sold, one-third of the proceeds being brought into court and the proceeds invested, the income to be paid to the widow during life as and for her dower interest. Thereafter, and during the life of the widow and before a division of the residuary estate, a child was born of the testator's daughter. Held, that the intent of the testator was to provide for every child born of his daughter after his death, and so that G., the child so born, was entitled to the benefit of the provision, although born before a division; also, that the refusal of the widow to accept the provision made for her did not operate to deprive the child so born of such benefit. * * * * * * The original judgment in the partition suit provided that the principal of the one-third directed to be invested for the benefit of the testator's widow should at her death be divided among the survivors of the five grandchildren, “subject to open and let in and share in the same" any child the testator's daughter "shall have previously had lawfully born to her after the death of said testator, who shall then survive, and provided also that if previously to the birth of said after-born child a division of the residuary estate of the said testator shall have been made, then said after-born child shall be preferred out of the said principal sum to the extent, so far as may be, of making them equal with said five grandchildren." It was claimed that by this provision the after-born child could not share because born previous to the distribution of the residuary estate. Held, untenable; also, that, if necessary, the court would have power to amend the judgment. In an action brought before the birth of G. to obtain a construction of the residuary clauses of the will, it was adjudged that the residuary estate vested at the time of the testator's death in his five grandchildren, subject to open and let in any child lawfully born of the testator's daughter previous to either of the five grandchildren coming of age, and as one of said grandchildren had arrived of age and no child had been born of the daughter, that no child so born thereafter "would be entitled to any share in the said residuary estate." Held, that assuming G. was bound by said judgment, it did not affect her right to share in the principal of the one-third set apart for the widow; that it only determined her right to share in the residuary estate, which she did not claim. Upon an accounting by the executors, G., then an infant, appeared by guardian. The surrogate, in his final decrec, distributed the residuary Statement of case. estate among the other grandchildren, excluding G. Held, assuming the decree to be binding upon her, it did not affect the question under consideration here. (Argued January 22, 1892; decided March 8, 1892.) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon two orders made March 14, 1889, one of which affirmed a judgment in favor of plaintiffs entered upon an order of Special Term confirming the report of a referee, and the other affirmed an interlocutory order modifying the report of said referee. The nature of the action and the facts, so far as material, are stated in the opinion. W. H. Atwood for appellant Peters. By no rule of legal construction can Grace S. Marsh be deemed to be a residuary legatee under the third item of said will, entitled to share in any part of testator's residuary estate, or to be paid any preferential sum from any substituted fund, on account of such residuary share. Any construction which would make her a residuary legatee is against the Statute of Perpetuities and void as an illegal restraint on alienation. (O'Connor v. Higgins, 113 N. Y. 511; In re Underhill, 117 id. 471.) No child born to Harriet Ann Marsh, after the plaintiff Clarence Peters arrived at age, can share in the residuary estate. (Tucker v. Bishop, 16 N. Y. 402-404; Collin v. Collin, 1 Barb. Ch. 630-637; 2 Jarman on Wills, 75-77; 1 Roper on Legacies, 467; Hawley v. James, 16 Wend. 61; Coster v. Lorillard, 14 id. 265; Andrews v. Partington, 3 Brown's C. C. 401; Everett v. Everett, 29 N. Y. 39, 71, 75; Smith v. Edwards, 88 id. 92; In re Lapham, 37 Hun, 15; Roe v. Vingut, 117 N. Y. 204; Loder v. Hatfield, 71 id. 92.) Where a clause of a will is susceptible of a legal as well as an illegal construction, it is the duty of the court to seize upon the former so as to give full force and effect to the testamentary disposition, (Roe v. Vingut, 117 N. Y. 211; Butler v. Butler, 3 Barb. Ch. 304; DuBois v. Ray, 35 N. Y. 162; Grover v. Statement of case. Wakeman, 11 Wend. 193; Mason v. Jones, 2 Barb. 244; Atkinson v. Atkinson, 3 P. Wms. 260; Thellusson v. Woodford, 4 Ves. 312; Vernon v. Vernon, 53 N. Y. 351, 361; Thomas v. Snyder, 43 Hun, 14; Freeman v. Smith, 60 How. Pr. 311; Wood v. Mitchell, 61 id. 48.) This proceeding is taken at the foot of the judgment in this action, and is to be considered in aid thereof and not hostile thereto, and cannot change the terms and provisions thereof. (Redf. Sur. Pr. 352; Adair v. Brimmer, 74 N. Y. 539; Wilcox v. Smith, 26 Barb. 340.) Applying the argument reductio ad absurdum to this case, it cannot be claimed for an instant that had there been no actual payment from the residuary estate to the other legatees by the executors before the accounting, that Grace S. Marsh, being then in court, would have been entitled to share therein. (Morgan v. Darden, 3 Dem. 203.) Charles Simkpins for appellant Simkpins. This is not a special proceeding, but a motion made at chambers. Section 3240 of the Code provides that costs are in the discretion of the court when they are not regulated by law. This action is for partition, and is regulated by law, and the costs have already been given in the original judgment and cannot be given again. (In re N. Y. & W. R. R. Co., 26 Hun, 592; Stanton v. King, 76 N. Y. 585; In re P. & H. I. R. R. Co., 67 id. 371; Matler v. Holden, 126 id. 589; Savage v. Darrow, 4 How. Pr. 74; Pennell v. Wilson, 2 Abb. [N. S.] 466; 5 Robt. 774; In re N. Y. P. E. P. School, 24 How. Pr. 367.) The General Term erred in giving judgment for costs in the sum of $104, and ten dollars costs of the order of affirmance, when the appeals are from orders and not from the judgment. (Jordan v. Van Epps, 85 N. Y. 427; Hunt v. Hunt, 72 id. 218; Jenkins v. Fahey, 73 id. 355; Prior v. Prior, 49 Hun, 502; Clemens v. Clemens, 37 N. Y. 59; Levitt v. Wolcott, 95 id. 219; Griffin v. L. I. P. R. Co., 102 id. 449; Patrick v. Shaffer, 94 id. 430; Nemetty v. Naylor, 100 id. 562; Blakley v. Calder, 15 id. 617; Howell v. Mills, 56 id. 226; Cromwell v. Hull, 97 id. 209; Woodhull v. Little, 102 id. 165; Bobb v. |