William E. Waring, for a nominal cover and apply the debtor's propconsideration; and thereafter and erty to satisfy his claims. 32 N. Y., to prevent the plaintiffs from getting 457. a judgment on their claim against It does not appear but that EdEdmund Waring, he had departed mund Waring has property within from this State, and was, with the this State, nor does it appear that assistance of and collusion with Edmund Waring might not have William E. Waring, concealing him- been served by publication or by a self so that plaintiffs could not by substituted service under Section any process at law get a judgment 135, of the Code of Procedure. No against him. The complaint de- cause of action is made out, so far mands for relief a judgment against as this suit is to be regarded as an Edmund Waring for the amount of equitable suit to set aside the conthis debt, and that the lands so con- veyances made by Edmund veyed by him to William E. Waring to William E. Waring, and as to be held chargeable to this judgment. the latter defendant and his wife The defendants answer by dif- the complaint was properly disferent attorneys, and each noticed missed. The case is not brought the cause for trial at Special Term within 32 N. Y., 57. before any notice of trial was served on plaintiffs. When the cause was reached at Special Term, the justice presiding entertained a motion on the opening to dismiss the complaint as to all the defendants. Subsequently the complaint was dismissed as to the defendants William E. Waring and wife, with costs, and N. the action was retained against Edmund Waring with direction that the cause as against him be tried at circuit with a jury. Edmund Coffin, for applt. H. H. Anderson, for respt. Held, It appears by the complaint that no judgment has been recovered by the plaintiffs against Edmund Waring for their claim, on account of the goods sold and delivered to him, and of course that no execution was issued or has been returned unsatisfied. It is only after the creditor has exhausted all the means in his power at law that he is entitled to the aid of a court of equity to dis Order dismissing complaint affirmed, on opinion rendered below by Justice Lawrence. Opinion by Brady, J.; Davis, P. J., concuring. VESTED REMAINDER. Noah Selleck, executor, &c., of Decided Dec. 30, 1879. A remainder is vested when there is a person in being who has a present capacity to take the estate in remainder, if the particular estate be then presently determined. In determining the intent of a testator in a par ticular clause of a will, the whole contents of the will must be looked at. Appeal from judgment declaring Mary Anderson entitled to a vested remainder under the will of David Decker. Action to obtain a construction of the will of David Decker, de- ject to be divested by her death, ceased. By the will the testator leaving issue, and she dying withdirected, first, that his real and per- out issue, had the right previous to sonal estate, except the house and her death to devise her interest in lot No. 13 Ann st., N. Y., should be said real estate, and that her execuequally divided at his death among tors were entitled to receive her his children who should survive him, share of the rents, the same as she and the descendants of any child would if living. That the words or children who died before him "My children," referred to in the leaving issue, the issue of such child last clause of the will above mento take the parent's share. Second, tioned, referred to his children surthat during the life of Emily Deyo, viving him, referred to in the prehis daughter, or until Ann street vious clauses. The intent of the should be widened by State or testator appears to be the same as municipal authorities, he directed if the testator had said in the last his executors to collect the rents, clause "To any children who shall and after paying taxes, &c., to di- survive me, and the descendants of vide the balance of said rents any," &c. This language would equally among his said children and clearly give to each child living at the descendants of any deceased the testator's death a vested right in child or children leaving issue, the these rents, subject to be divested issue of any deceased child or chil- only by death leaving issue. dren to take the parent's share. Upon the death of Emily Deyo he directed the property to be sold and the proceeds divided equally among his children and the descendants of any deceased child or children, such descendants, if any, to take parent's share. The only question in the case was whether Mary Anderson, one of the children of David Decker, who died during the lifetime of Emily Deyo, without issue, leaving a will devising her property, took a vested remainder in the property 13 Ann street at the death of the testator, and whether her executors were entitled to a portion of the rents. E. L. Fancher, for applt. S. F. Rawson, for respt. Held, That Mary Anderson took a vested remainder at the death of David Decker in said property, sub-| Judgment affirmed on opinion be low. Opinion by Brady, J.; Davis, P. J., concuring. LIABILITY OF SHERIFFS AND N. Y. SUPREME COURT. GENERAL Henry G. Fisk, respt., v. Oliver Decided Dec. 30, 1879. Where it is shown by plaintiff that while property seized by a marshal was in his custody a portion thereof was abstracted and converted, the burden is upon such marshal to show, in order to free himself from liability, not only that he did not personally abstract the property, but that he is guilty of no negligence in employing unfit deputies or agents, to whom it was intrusted. The defense of infancy is a personal privilege, of which the infant alone may avail himself. erty. An infant cannot disaffirm a contract made by not personally abstract the prophim for the purchase price of goods sold and delivered to him, and at the same time retain the goods. If he would disaffirm the contract he must restore the property for which such contract was made. The court charged that upon the proof the marshal was liable to the owners of the goods for the safe return of the whole of them, Appeal from judgment for plaintiff "and if you find," he said, "that, on verdict. while they were in his custody, any Action to recover damages for the of those goods were converted by wrongful conversion by the defend- anybody, then he is responsible for ant, as U. S. Marshal, of property the value of those goods, whatever seized under a warrant in bankruptcy you find the value to be." Various proceedings instituted against one exceptions were taken, covering Fling, an infant, which were after- the various legal propositions laid ward discontinued. down by the court in its charge. The jury rendered a verdict for the plaintiff for the value of the property. Geo. A. Black, for applt. The defendant's answer justified the seizure under a warrant in bankruptcy to defendant as marshal, alleged the regularity of the bankruptcy proceedings and the infancy of Fling, and denied the conver- Held, That the plaintiff baving sion. shown that the property was abThe proof showed that the plain-stracted while same was in the tiff held a chattel mortgage on the custody of the defendant as margoods given by Fling, and also an shal, a prima facie liability was assignment by Fling of all claims established against the marshal, for damages against the defendant; and it was incumbent upon him to that Fling was an infant when such show not only that he did not permortgage and assignment were de-sonally. abstract the goods, but that livered, and at the commencement he was free from any negligence, and of this action. Plaintiff then showed that he exercised all the care and that during the time the property prudence required by law in selectwas in the custody of the defendant as U. S. Marshal it had largely diminished in quantity, and therefore in value, so that the property recovered back by Fling was upwards of $2,000 less in value than the property taken by the marshal, and that this diminution in the property took place while the same was in the custody of the marshal. The worthy deputy. marshal omitted to give any evidence of freedom on his part from negligence. He only showed that he did ing deputies or servants to whose custody he entrusted the property. He gave no evidence on that subject, and left the jury fairly to infer that the goods had disappeared through negligence of others legally attributable to the defendant, or that he had put in charge an unfit, incompetent and untrust We think that upon the proof in the case the law laid down by the judge at the trial in his charge was legally correct; on the proof the defendant subjected himself to the full extent of the liability laid down by the court. The judge's refusals to charge were confined to such propositions as were inapplicable to the facts in the case as disclosed by the evidence. The appellant cannot avail himself of the infancy of Fling. Infancy is a personal privilege, of which the infant alone can avail himself. 2 Johns., 279; 5 Id., 160; 13 Barb., 556; 61 N. Y., 344. Furthermore, the indebtedness of the infant to the plaintiff was largely for the goods covered by his mortgage, and subsequent transactions between him and plaintiff were in effect to retransfer to plaintiff the title to the goods, and if he could repudiate the mortgage under such circumstances, it would be his duty first, both at law and in equity, to restore the property for the purchase price of which the mortgage was given. Judgment affirmed. that the money so deposited should not be subject to the control of the company otherwise than for the payment of said coupons. Held, That an irrevocable trust was created for the benefit of the holders of the coupons, which the court should see executed, and that the funds in the hands of the bankers deposited could not be reached by attachment at the suit of a general contract creditor, as they were not the funds of the railroad company. Appeal from judgment on referee's report. Action to determine the rights of the parties with respect to certain moneys deposited with the defendants Kelley & Alexander, bankers, &c. The plaintiffs were the owners of certain coupons, maturing May 1st, 1875. The payment of these coupons had been assumed by the New Orleans, St. Louis and Chicago R. R. Co. For the purpose of providing for the payment of said coupons, the president of said railroad company raised certain funds, which were afterwards deposited by the assistant treasurer of said company with K. & Opinion by Davis P. J.; Brady, A., said bankers in New York city, J., concuring. IRREVOCABLE TRUST. to be applied by said K. & A. in payment of said coupons, and for that purpose only. K. & A. accepted the money and gave a receipt. therefor to Rodney, assistant treasurer of said company, which receipt, acknowledging the money, expressly The Rogers Locomotive and stated that K. & A. received the Machine Works, plffs, v. Albert Kelly et al., applts, et al. N. Y. SUPREME COURT. GENERAL Decided Dec. 30, 1879. A railroad company deposited with certain bankers a large sum of money in trust for the purpose solely of paying certain coupons maturing shortly after such deposit, and the receipt accepted by the company expressed money in trust, for the purpose of paying said coupons, which were specifically referred to, and further declared that said moneys so received should not be subject to the control of said company otherwise than for the payment of said coupons. After a portion of said money had been deposited with K. & A., shows that the deposit was made by they proceeded to pay the coupons the assistant treasurer in accordance in the order same were presented, with the general purpose of the and after paying a portion of the president of said R. R. Co. with re$30,000 which was deposited with spect to the application of said fund them for the purpose, the defendant to carry out the purpose of the deBills, who was a general contract pcsit, to wit: the payment of the creditor, commenced an action coupons. against the said railroad company by an attachment, which was served upon K. & A., who gave a certificate showing a balance of upwards of $13,000 in their hands of the fund deposited by Rodney under the cir cumstances aforesaid. It was error to hold that Bills had any claim to said fund. Judgment reversed. New trial ordered, with costs to abide the event. Opinion by Ingalls, J.; Davis, P. J., and Brady, J., concuring. WITNESSES. Afterwards Bills proceeded to judgment in his action, and the EVIDENCE. CREDIBILITY OF main question presented in this case was whether Bills, by his attachment, had obtained a lien upon the funds remaining with K. & A., and whether he was entitled to have same applied to the payment of his claim, or whether plaintiff and other parties, owners of the coupons, were entitled to have the money applied in payment of their claims. The referee held that the said R. R. Co. own the money, and that the attachment obtained by Bills, and served as aforesaid, secured to him a lien upon the fund, and he was entitled to have the money applied upon his judgment in preference to the plaintiffs as owners of the said coupons, and gave judgment accordingly. N. Y. COMMON PLEAS. GENERAL Thomas S. Nelson, respt., v. The N. Y., N. H. and Hartford RR. Co., applt. Decided Dec. 1, 1879. Where irrelevant and immaterial evidence is received upon the trial, a new trial will be granted if the appellate tribunal cannot say that the evidence could have had no effect upon the minds of the jury in the verdict rendered. The credibility of a witness cannot be impeached by the proof of particular tests not relevant to the matter in issue. The action was to recover damages for personal inujries received by the plaintiff, caused by the Wheeler H. Peckham, for applt. negligence of defendant. In the A. H. Holmes, for respt. course of the trial the plaintiff ofHeld, The referee erred; that an fered in evidence a letter written to irrevocable trust was created for the the plaintiff by defendant's attorney benefit of the holders of the coupons, after this case was at issue in regard which the court should see executed. to a settlement of the suit. The The purpose of the deposit was letter was read in evidence, subject clearly shown by the receipt given to defendant's objection. by K. & A., and the evidence clearly The following is the letter: |
