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TAX-Continued.

Interest is recoverable upon a State tax, past due from a county.

See PEOPLE v. MYERS.

TENANCY- In its relation to tenancy under a lease.

See LANDLORD AND TENANT.

In common and joint tenancy in personal property, other than vessels.
See PERSONAL PROPERTY.

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TOWNS-Boards of supervisors — dividing assembly districts after an appor
tionment the districts need not contain an equal number of inhabitants –
wards of Brooklyn may be divided they are not towns within the purview of
section 5, article 3 of the State Constitution adopted November, 1874.

See MATTER OF BAIRD

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Highway commissioners — their duties are not intermitted by the appoint-
ment of commissioners of improvement — accident on a highway — liability of
the town.
See MCGUINNESS TOWN OF WESTCHESTER.
Highways in.

See HIGHWAYS.

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TRIAL ·Conversion-deposit in bank in one's own name of another's
funds — wrongful withdrawal and appropriation thereof — finding of referee.]
1. Where a complaint states facts showing that a deposit in a bank by the
defendant in his own name, of funds delivered to him by the plaintiff, was a
wrongful appropriation thereof, and alleges a conversion by the wrongful
withdrawing and use of the money, the action is one for wrongful conversion,
although the complaint does not characterize the deposit as a conversion.

The General Term will not reverse a judgment, entered upon the decision of
a question of fact by a referee, unless the evidence in favor of the appellant
greatly preponderates.

The refusal of a referee to find that a complaint, which plainly alleges
a conversion, contains a cause of action in tort, is not a ground for reversal,
especially where the referee does find that the defendant was guilty of a con-
version of the money in suit. THOMPSON v. VROMAN........

2. Fiduciary capacity.] A statement in a complaint of facts showing
that the defendant received the money in suit to deposit it in a bank for the
plaintiff, in effect alleges that the fiduciary relation of principal and agent
existed, although the word "fiduciary" is not used.

A finding that the defendant received the money in suit as the agent of the
plaintiff to deposit it in a bank is, in cffect, a finding that the defendant was
acting in a fiduciary capacity.

Where an agent receives money from a principal to deposit in a bank in the
principal's name, it is proper for a referee to refuse to find that such agent
was in no way acting in a fiduciary capacity. Id.

3. Bank account in evidence under stipulation.] In an action to recover
the amount of certain money of the plaintiff, alleged to have been deposited in
a bank by the defendant in his own name, and to have been wrongfully with-
drawn and converted by the defendant to his own use, a statement of the
defendant's bank account, taken from the books of the bank, was admitted

PAGE.

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335

356

245

TRIAL- Continued.

in evidence for the plaintiff under a stipulation that the statement was correct
and a true copy of the books kept by the bank, and showed the deposits to
the credit of the defendant and the amounts drawn out, and that "said state-
ment may be read in evidence on the trial in this action as original evidence,
and as equal evidence with the books."

Held, that the statement was properly admitted under the stipulation.

Where the evidence is sufficient to sustain findings of a referee that there was
a wrongful deposit of the money in suit in a bank by the defendant in his
own name, and also a wrongful withdrawing and conversion thereof, no
demand by the plaintiff, prior to the commencement of the action, is neces-
sary, and, therefore, an exception by the defendant to a ruling of the referee,
admitting in evidence a letter offered in order to show such a demand, is not
well taken. Id.

4. Denial of consent.] In an action to recover money alleged to have
been deposited in a bank by the defendant for the plaintiff, and to have
been wrongfully withdrawn by the defendant, it is competent for the plaintiff
to show that the withdrawal was not with his consent; and by way of proving
such negative fact the plaintiff should be allowed to state, on his examination,
that he did not consent. Id.

5. Charging the jury upon a question of law not presented by the case.]
The court read to the jury from a text-book a statement as to the law where
credit was given both to a principal and a surety. The defendants' counsel
objected to this, stating that there was no question of a joint obligation in the
case to which the court answered, that the proposition was an abstract one,
and that if the jury should find that there was no joint contract the proposition
would amount to nothing.

Held, that, although there was no issue as to a joint obligation, the effect of
the charge was to allow the jury to find whether there was such an obligation
or not, and then to apply the law stated to the facts found. That this was
an error calculated to mislead the jury.

6.

See DOUGHERTY v. STONE...

.......

Duty of the trial court when no submission to the jury is requested.]
When, at the close of the testimony on a jury trial, the defendant moves
for a nonsuit, and the plaintiff moves for the direction of a verdict, and neither
party requests the submission of any question to the jury, the duty devolves
upon the court of deciding every question of fact as well as of law which
may exist in the case.

See PHILLIPS v. MASON.....

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Code of Civil Procedure, § 3255 — costs as a condition of the postpone-
ment of a trial from one term to another· witness fees.

See LAWSON v. HILL....

BAGE.

498

580

288

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Pleading-evidence inadmissible under the answer- conforming the
answer to the proofs after objection to the evidence — failure to deny an allegation
of the complaint it excludes an inconsistent affirmative defense.
See BEARD v. TILGHMAN

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Duty of the appellate court to order a jury trial on the reversal of a sur-
rogate's decree.

See MATTER OF RAPPLEE......

558

Actions against the city of New York-place of trial of — change of venue.
See GETMAN v. MAYOR..

236

Nonsuit-proper granting of, how determined by the General Term.
See ANDERSON v. YOUNG..

Error in a charge, how directly the exception must be presented.

See PETRIE v. N. Y. C. AND H. R. R. R. Co.....

Legal relief in an equity suit.

See W. J. JOHNSTON Co. v. HUNT.

In criminal cases.

See CRIMES

Place of

See VENUE.

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282

504

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TRUSTEE - An insane trustee for bondholders right of a bondholder to
foreclose the mortgage.

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See ETTLINGER v. PERSIAN RUG AND CARPET Co......
TRUSTS-Declaration of trust — effect of a reference thereto in a will.] 1. In
1887 Jonathan Scoville executed an alleged declaration of trust relative to four
certificates of stock, and therein stated that he set apart these certificates for
the following purposes, to wit: That the net income or dividends should, from
time to time, be apportioned into ten equal parts, of which three should be
paid over for the use and benefit of Magdalena Rings, three for the use and
benefit of Anna M. Rings, two to be paid to Henry C. Rings during life and two
to be paid to Minnie M. Rings for life; that in case of the decease or marriage
of Magdalena Rings, or of the decease of Anna M. Rings, whichever event
should first happen, the portion allotted to such person should be paid over to
the use and benefit of St. John's Episcopal Church, and the portion allotted
to the other should, after her decease (or marriage, if it be the said Magdalena),
be paid over to the use and benefit of the Buffalo Orphan Asylum; that, upon
the decease of the said Henry C. Rings, his portion should thenceforth be paid
to the use and benefit of the St. Vincent's Female Asylum, and that, upon the
death of Minnie M. Rings, her portion should thereafter be paid to the use and
benefit of the Buffalo Hospital of the Sisters of Charity.

One of the original declarations of trust was deposited, with the certificates
of stock, with a safe deposit company, and another, original, was delivered to
the beneficiaries.

Scoville died in 1891, and in the sixth article of his will he referred to the
trust which he had attempted to create, directed his executors to carry out
its terms, if possible; made a provision for the beneficiaries in case it could
not be carried out, and in that event directed that the securities be deemed a
portion of his residuary estate.

In an action brought for the construction of the declaration of trust, and
for a direction as to the effect of the will upon it, the court held that the
declaration was invalid as to all the beneficiaries and they appealed.

Held, that no trust whatever was created by the sixth article of the will,
because the deed of trust was not incorporated in it, and no disposition of
the property was made other than by reference.

That an unattested paper of a testamentary character could not be taken
to be a part of a will, although referred to in the will.

PAGE.

That the separation of the shares by Scoville and his execution of the
declaration were sufficient to subject the shares to the trusts, provided that
the latter were valid under the statute. LOCKE v. RINGS...
428

2. Violation of the statute against perpetuities.] That the trusts were
void for the reason that they violated the statute against perpetuities.

That nothing was disposed of by the declaration except income; and that
there was no disposition of the principal at any time, the income after the
death of the first beneficiaries being directed to be paid to corporations which
are supposed never to die.

That it was the testator's intention that the principal should always be kept
in solido, and should never be released from the trust. Id.

3. Intent to create separate trusts.] It was admitted that the gifts of
income to the corporations were void.

Held, that the fact that upon the death of a beneficiary there would be a
severance of a proportional part of the principal, made necessary because that
part could no longer be employed for trust purposes, did not imply upon the
part of Scoville an original intention to create for each beneficiary a separate
trust in the principal proportioned to his interest. Id.

4. Testamentary trustees — unauthorized purchase of land with trust
funds the legal title vests in the trustee.] Thomas Connell died leaving a
will in which it was stated that as his personal estate was insufficient to pay
the legacies given by the will he devised his real estate to his executor, in
trust, to sell it and to pay from the proceeds of the sale his debts and the lega-
cies given by the will, and in the meantime to collect the rents and profits.
He gave his executor a power of sale, but gave him no power to mortgage
or to reconvert personal into real property.

In July, 1873, John Quinn qualified as executor, and in May, 1888, John

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TRUSTS—Continued.

W. Collins, who then owned certain land, in conjunction with his wife, con-
veyed the same to John Quinn, as trustee under said will.

A part of the consideration for this conveyance was a mortgage then exist-
ing upon the premises for $1,500, and the rest was money of the trust estate.
This mortgage was paid out of the moneys obtained on a mortgage covering
the premises given in August, 1884, by Quinn, as such trustee, to a building
and loan association, which subsequently foreclosed its mortgage, making, as
sole defendant in the action, Quinn, as trustee, who demurred to the complaint
upon the ground that the beneficiaries of the trust were not made parties.

This point having been decided against him, a judgment of foreclosure and
sale was entered, under which the property was sold to the association, which
subsequently conveyed it to Summerfield McLean. Thereafter McLean agreed,
in writing, to sell the premises to Francois J. G. Ladd, but the latter, upon
an examination of the title, refused to accept it.

Upon a submission of the controversy as to the validity of the title, upon an
agreed state of facts.

PAGE.

Held, that specific performance should be decreed. MCLEAN v. LADD..... 341
5. His right to mortgage it.] That, although Quinn used trust funds
to make his purchase from Collins, the legal title to the premises vested in
Quinn, and that, as the title did not come to him under the will of Connell,
the mortgage given by Quinn, as trustee, to the loan and building association
was a valid instrument. Id.

6. Rights of beneficiaries.] That the beneficiaries under the will of
Connell never acquired any direct estate or interest in the premises.

That, hence, they were not necessary parties to the foreclosure of the mort-
gage given by Quinn, as trustee, to the loan and building association.

That the action of Quinn was improper, and that the beneficiaries had a
right either to claim the investment made by him or to make him account
for the money, but that they were not entitled to both remedies; that until
they did some affirmative act, looking towards an election to accept an
interest in the lands, the trustee had power to convert them into money. Id.
7. Trust created by a writing not under seal· - what is a sufficient declara-
tion of trust.] In 1870 Reuben E. Fenton and wife conveyed to Abraham
Van Vechten certain land by a deed absolute in form, and it did not appear
that any declaration of trust, or instrument of that nature, upon the part of
Van Vechten, was executed at that time.

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In 1873 Van Vechten executed to John H. Platt, who was then the law
partner of Waldo Hutchins, a power of attorney authorizing Platt to convey
the premises, and on the same day wrote to Platt a letter, which he signed,
in which, after referring to the power of attorney, he stated: 'Whatever is
realized you will understand that it belongs to Waldo Hutchins and myself,
jointly and equally, and any further instruction Mr. Hutchins may give you,
you may comply with."

In 1887 Van Vechten wrote a letter to a tenant on the premises, in which he
said: "
Although the title of the whole premises is in me there is another party
who has an interest He also wrote letters, in 1885 and 1886, to Hutchins and
to his son relative to the property, and to taxes thereon.

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In an action brought by Elizabeth E. Hutchins, as executrix of Waldo
Hutchins, deceased, to establish astrust in favor of the estate, judgment was
rendered in her favor against Van Vechten.

Upon an appeal from this judgment by Van Vechten:

Held, that, since the passage of chapter 322 of the Laws of 1860, it has not
been necessary to produce a deed or declaration of trust, under seal, in order
to establish a trust, but that it may be proved "by any writing subscribed by
the party declaring the same."

That the papers and documents in question sufficiently established a trust in
favor of Waldo Hutchins, and that its subject-matter was pointed out with
sufficient certainty. HUTCHINS v. VAN VECHTEN

......

8. Presumption as to the time when the trust was created.] That as the
evidence justified the finding that a valid trust had been created in favor of
Hutchins, the court would presume that it was created at the time of the
delivery of the deed by Fenton to Van Vechten. Id.

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TRUSTS-Continued.

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Executors, trustees and guardians — accounting by—jurisdiction of the
Supreme Court — when the power of alienation is not suspended several shares
held in solido-commissions—accounting separately as to each share impossible.
See FOOTE v. BRUGGERHOF.

A secret trust—when it cannot be alleged or sustained against a bona
fide purchaser.

See DOREMUS v. DOREMUS......

ULTRA VIRES:

See CORPORATIONS.

UNITED STATES-Assignment of a claim against the United States-
U. S. Rev. Stat., § 3477— money to be received on the completion of a government
contract-priority among assignments — marshaling of securities—evidence of
offer of compromise.

See YORK v. CONDE......

.......

UNITED STATES REVISED STATUTES, SEC. 3447- Assignment of
claim against the United States of money to be received on the completion of a
government contract — priority among assignments.

See YORK v. CONDE..

USURY-Agreement to buy back stock sold, at the price paid and one per cent
a month added, is not usurious as matter of law.] An agreeement in writing
by the seller of corporate stock to buy it back at any time, at the option of
the buyer, at the price paid therefor and " one per cent a month added," is
not, as matter of law, on its face, a contract void for usury in its inception;
and in the absence of evidence going to show that the negotiation between the
parties was, in the outset, to effect a loan of money, or that the scheme for a
sale and resale of stock was suggested as a mode of accomplishing that
purpose, it will warrant a direction of a verdict for the plaintiff in an action
brought thereon by the buyer of the stock against the seller.

PHILLIPS v. MASON.

VENDOR AND PURCHASER-Injunction—in an action in the nature
of ejectment-enjoining the removal by a contract vendee of carp with which a
pond is stocked.] 1. In an action brought by Richard D. Robens against two
persons named Hillman, and against Charles R. Barrett, to recover the
possession of premises which Robens had contracted to sell to William L.
Hillman, Robens obtained a perpetual injunction against all the defendants
restraining them from removing certain German carp from a pond on the
premises.

The complaint set up the contract of sale with Hillman and his default, and
alleged that the other defendants had, or claimed to have, an interest in the
premises. It also alleged that there was a pond on the premises in which the
defendants had placed German carp, and that, as an inducement to plaintiff
to refrain from enforcing his contract rights, the defendants agreed to sell
the carp when matured and apply the proceeds to the payment of the
purchase-price of the land; that they were removing the fish to another place,
and that without them the premises were not worth the sum due him.

The answer of the defendants Hillman alleged that no pond existed when
they bought the premises; that they had constructed it by a dam; and they
denied that the agreement set forth in the complaint with reference to the
carp had been made.

The answer of Barrett alleged that he himself had placed the carp in the
pond, and had removed some of them as he had a right to do. He also
denied the alleged agreement as to the carp or that he wrongfully withheld
possession of the premises.

Upon Barrett's appeal from a judgment for the plaintiff in the action, and
from an order denying a motion to dissolve the injunction :

Held, that the injunction relating to the fish was improperly granted.
That as to Barrett the complaint established no cause of action in ejectment.
That the complaint did not show that the carp were a part of the realty,

or that their removal was waste or would cause irreparable injury.
That fish which the owner could reclaim were his own property, while,
if they existed in a wild state, they belonged to no one.

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