eration is grossly inadequate, a court of equity will interfere and set the contract aside." While the court does not state where this opinion is to be found, we find substantially the language quoted in the case of Allore v. Jewell (94 U. S. 506), the court speaking through Mr. Justice Field, and we cannot concur with the trial court in the conclusion that it justifies the judgment. The case under discussion by Mr. Justice Field was that of an aged woman who had for a series of years been considered as of unsound mind, who, during a fit of sickness, was called upon by the defendant, his agent and an attorney, and induced to sign an agreement whereby, for a grossly inadequate consideration, she transferred a valuable piece of real estate. The court say: "The deceased was at that time between sixty and seventy years of age, and was confined to her house by sickness, from which she never recovered. She lived alone in a state of great degradation, and was without regular attendance in her sickness. There were no persons present with her at the execution of the conveyance, except the defendant, his agent, and his at-¦ torney. * ** *The testimony of her attending physician leads to the conclusion that her mental infirmities were aggravated by it (her illness). He states that he had studied her disease, and for many years had considered her partially insane, and that in his opinion she was not competent in November, 863, during her last sickness, to understand a document like the instrument executed." It also appeared that the attending physician had communicated this informa tion to one Dolsen, the agent of the defendant, and that Dolsen was the one who undertook to carry on the negotiation which resulted in the transfer, and that the deceased

was unable to understand the English anguage perfectly, and that Dolsen undertook to explain to her the language of the contract in French. After reciting these and other facts, the court comments as follows: "In view of the circumstances stated, we are not satisfied that the deceased was, at the time she executed the conveyance, capable of comprehending fully the nature and effect of the transaction. She was in a state of physical prostration, and from that cause, and her previous infirmities, aggravated by her sickness, her intellect was greatly enfeebled; and, if not disqualified, she was unfitted to attend to business of such importance as the disposition of her entire property, and the securing of an annuity for life. Certain it is, that, in negotiating for the disposition of the property, she stood, in her sickness and infirmities, on no terms of equality with the defendant, who, with his attorney and agent, met her alone in her hovel to obtain the conveyance." In was in connection with this state of facts that the court used the language quoted by the trial court in the case at bar: and it will be seen that the facts are so entirely different that the opinion can have no bearing upon the present case. As was said in The Matter of Will of Martin (98 N. Y. 193): "Here there is no proof of influence exerted or existing: none is pointed out by the appellant. The will is rational on its face. The property of the decedent was in real estate. It is distributed among her sons, subject to payment by them to each grandchild of fifty dollars. In the absence of evidence, however, the appellant relies upon the fact that the proponent of the will was the son of the testatrix; that he communicated to the scrivener the provisions to be inserted in the will. and became himself a beneficiary. Under different circumstances these things might be

[Vol. 32.

important, but in the presence of a capable
and intelligent testatrix-of proof that the
instrument offered for probate expressed in-
tentions in language dictated or adopted by
her, they are of no moment. Something more
must be shown than the relation of parent
and child and an opportunity for unfair deal-
ing. There must be evidence that the parent
was imposed upon, or overcome by the prac-
tices of the child to the benefit of the latter,
before the burden of proof can be shifted.
"So long as her mental powers enabled her
to understand and appreciate the amount
and condition of her property and to compre-
hend the nature and consequences of her act
in executing the will," say the court in The
Matter of Will of Snelling (136 N. Y. 515),
she was at liberty to dispose of her own in
such manner as seemed best to her, providing
the disposition was her own free act. What
the law terms undue influence is not estab-
lished by proof tending to show that the tes-
tator acted from motives of affection or
gratitude, though the objects of her bounty
were strangers to her blood. The influence
or moral coercion, or by whatever other term
designated, must be such as to overpower
the will of the testator and subject it to the
will and control of another, in which case it
assumes the character of fraud." There
was absolutely no evidence in this case show-
ing that the defendant exercised any influ-
ence over the mind or acts of the deceased,
and there was no conduct other than might
have been reasonably expected from a
daughter toward her aged and invalid father,
In short, we can see no evidence in this case
which entitles the plaintiff to any standing
in a court of equity. The defendant took
her father out of his wretchedness into
which he had been allowed to drift by the

plaintiff, and, after providing him a home and comfortable surroundings for a period of three months or more, she, upon the motion of the deceased, for and in consideration of $3,000, entered into a contract agreeing to furnish a home, with suitable medical attendance, and a decent burial when he should have concluded this life. He was seventyseven years of age, but he was liable to live for a number of years, and to require medical attendance during all of that time. No other child of the deceased, so far as appears from the evidence, had equal equitable rights to his property: and, in the absence of some evidence tending to show that his acts were unduly influenced by the defendant, the plaintiff cannot recover. There is no such evidence in the case. The judgment of the Special Term should be reversed and a new trial granted, costs to abide the event. The People of the State of New York ex rel. The Newburgh Savings Bank, Respondent. 132 624 v. George W. Peck, Assessor of the City of 157 51 Newburgh, and Others, Constituting the Board of Review of Taxes and Assessments of said City, Appellants. Order affirmed, with ten dollars costs and disbursements. - Appeal from an order directing that an assessment against the relator be set aside and canceled, and the same be stricken from the assessment roll as unauthorized and illegal. PER CURIAM: The learned opinion which accompanied the decision made by the court below renders it unnecessary for us to further discuss the questions presented by this appeal. All of the points now urged by the appellants were fully discussed by the court below, and, so far as the result is concerned, we concur in the disposition made of the matter and in the reasons assigned in the opinion for such conclusion. Upon one point, however, we do not think that we should commit ourselves to the views ex

App. Div.]

pressed by the court in its opinion. This relates to the construction placed upon the act of 1866. While we agree that such act, as well as its amendment in 1867, has been and now remains repealed for the reasons assigned in the court below, yet, if such acts were in force, we should hesitate in asserting that their proper construction, assuming thereby that taxation of the franchise of the bank, and also taxation of the surplus, was intended, would constitute double taxation. It is quite possible to view these two subjects as referring to distinct and separate properties. The franchise is one thing, the surplus produced by the business conducted under it is quite another, and one might well be held to have no relation to the other as an object of taxation. (Bank of Commerze v. Tennessee, 161 U. S. 134.) However this may be, it cannot affect the result which has been reached. In all other respects we concur in the views expressed by the court below. The order should, therefore, be affirmed, with ten dollars costs and disbursements. All concurred.

Bridget Maunix, Respondent, v. The Nassau Ferry Company, Appellant.- Motion for reargument or for leave to appeal to the Court of Appeals denied, without costs.- Motion for reargument of appeal.

PER CURIAM: Applications for reargument are usually based upon the proposition that the opinion of the Appellate Division shows that the case has been decided upon some misapprehension of the facts or law. This case, however, seemed plain enough to dispose of without a written opinion; yet we are now asked to grant a reargument because, although we wrote no opinion, our affirmance of the judgment indicates that we did not consider all the circumstances which tell in favor of the appellant. In other words, the position of the appellant is that, if we had understood the case, we certainly would have granted a new trial. As to this. it is enough to say that if our determination was erroneous, it was not by reason of a failure to consider any of the matters urged upon our attention by the learned counsel for the appellant, either in his oral argument or printed brief. We thought the record justified a view of the facts, involving no impossibility, and leading to the conclusion that the plaintiff was injured in consequence of the negligence of the defendant, without fault on her part. As the facts sufficed to support a recovery, the record disclosed no legal error which would warrant a reversal. The motion for a reargument must be denied, and we do not see that the case involves any question which ought to be sent to the Court of Appeals. All concurred, except Cullen, J., absent.

The People of the State of New York ex rel. George L. Chichester, Respondent, v. Isaac Jewel, Appellant.- Order affirmed, with costs.-Appeal by the defendant. Isaac Jewel, from a judgment of the Court of Sessions, held in and for the county of Suffolk, entered in the office of the clerk of said county on the 7th day of December, 1897, rendered upon the decision of the court affirming an order of affiliation, made and issued by two justices of the peace of the town of Brookhaven, county of Suffolk.

PER CURIAM: The evidence justified the Court of Sessions in pronouncing the judgment which it did. The complainant testified clearly and distinctly to the sexual in

tercourse which resulted in her becoming with child. It is in usual course almost impossible to adduce testimony of the principal fact beyond the statement of the party or parties engaged therein. From this record, however, it appears that proof was given by other persons showing a considerable intimacy between the complainant and the defendant, and that they were seen together at about the time when the intercourse re

sulting in pregnancy was had. It is clear, therefore, that the court was authorized in reaching the conclusion which it did, and this court will not disturb it. (People ex rel. Kenfield v. Lyon, 83 Hun, 303.) The proof adduced in favor of the defendant. while of considerable probative force, is by no means conclusive. The case was presented for determination upon somewhat contradictory evidence, but no more so than is usual in such cases. The judgment should, therefore. be affirmed, with costs. All concurred.

Benjamin De Jong, Respondent, v. Louis B. Couch, Appellant.-Judgment affirmed, with costs.- Appeal from a judgment entered upon the verdict of a jury, and from an order denying defendant's motion for a new trial.-

HATCH, J.: The evidence given upon the trial authorized the jury to find that there was no breach of the contract upon the part of the plaintiff, and that he stood ready at all times to fulfill until there was a breach upon the part of the defendant. We must assume that the wife of the plaintiff went to the defendant and demanded that he procure Hart to execute the assignment, which, under the terms of the lease, it was essential that he should execute, and that the defendant then stated he was unable to procure the consent of Hart. The fair construction of the contract is that payment of the purchase price and the delivery of the papers were intended to be concurrent acts; and if the plaintiff was at this time ready to pay, as the jury has found he was, it was incumbent upon the defendant to deliver such papers as the contract contemplated should be delivered. Inability upon his part to deliver such papers co stituted a refusal to fulfill, and the plaintiff was not bound, in order to work a default, to then produce the money and make a formal tender. The defendant had already refused to carry out the terms of the contract, and an act of tender under such circumstances would constitute an idle ceremony. Such ceremony the law does not require. (Ziehen v. Smith, 148 N. Y. 558.) It is claimed, however, that Hart's consent to the assignment was not necessary, as he had recognized the defendant as his tenant, ard had thereby nullified the clause in the lease requiring consent before assignment. No such question was raised below, and such was not the theory of the defense. If, however, we now assume such fact, and that the defendant might have vested in the plaintiff good title without the intervention of Hart, the defendant is not thereby aided. When the demand was made for a fulfillment of the contract, he not only confessed to an inability to procure Hart's consent, but he made no effort to execute upon his own part. His attitude was one of refusal, not only as to Hart's action, but also his own. Consequently, in either aspect he was guilty of a breach. The evidence upon the trial was conflicting and quite irreconcilable. If

79

the defendant's version had been accepted, there was no breach. The court, however, fairly and correctly submitted the questions involved, and the plaintiff had the verdict. The effect of this was to establish plaintiff's right to recover the sum he had paid upon the contract. The judgment should, therefore, be affirmed. All concurred, except Woodward, J., absent.

Alexander Jablowski and Anton Hysco, Respondents, v. The National Prohibition Park Company, Appellant.- Judgment of County Court and Justice's Court reversed, with costs. Appeal by the defendant from a judgment of the County Court of Richmond County, entered in the office of the clerk of said county on the 11th day of April, 1898, affirming a judgment in favor of the plaintiffs rendered in a court of a justice of the peace in a suit to foreclose a mechanic's lien.

WILLARD BARTLETT, J.: The record contains no proof of the filing of any lien, and although it is stated in the brief of respondents counsel that the defendant admitted on the trial the filing and service of the lien, this was denied by counsel for the appellant upon the argument, and no such admission appears in the justice's return. What actually occurred in respect to this matter, however, is of little importance, in view of the fact that the judgment rendered by the justice is not a judgment of foreclosure, but is a simple money judgment, which there is not evidence enough to sustain. The testimony of the plaintiffs does show that in August and September, 1897, they did some work as masons in Prohibition Park, for which they have not been fully paid; but this work was done for two persons named Wazeter and Binney, who are not shown to have had any relations whatever with the National Prohibition Park Company, or even with any contractor employed by that corporation. Upon the proof set out in the return there was no basis for a recovery against this appellant, and the justice should have dismissed the complaint. The judgment of the County Court and Justice's Court should be reversed, with costs. All concurred. Thomas B. King, Appellant, v. Charlotte M. Bierschenk and Charles M. Bierschenk, Respondents.-Judgment reversed and new trial granted, costs to abide the event.Appeal from a judgment of the County Court, entered on a direction at the trial, dismissing the complaint.

PER CURIAM: We are of the opinion that the allegation in the complaint should be considered one of fact and not a conclusion of law. Therefore, though faulty, the complaint was not subject to demurrer or dismissal on the trial as not stating a cause of action, but the defendants' remedy was to move to make it more definite and certain. The judgment should be reversed and a new trial granted, with costs to abide the event. All concurred.

In the Matter of the Probate of the Paper Propounded as the Last Will and Testament of Michael Manton, Deceased.- Decree of surrogate reversed and a trial directed to be had of the issues at a Trial Term of the Supreme Court, held in and for the county of Suffolk, of the following questions: First. Was the instrument purporting to be the last will and testament of Michael Manton, deceased, dated the 10th day of December, 1896, freely and voluntarily made by him? Second. Was the execution by the testator of the instrument purporting to be his last will and testament, under date of December 10, 1836, procured to be executed by fraud, coercion, or undue influence prae

[Vol. 32.

ticed upon him? Costs of the appeal to abide the final award of costs.- Appeal from a decree of the Surrogate's Court of Suffolk county admitting a will to probate.WOODWARD, J. This seems to us a case in which there are questions of fact that, under the rule laid down in Matter of Brunor (21 App. Div. 259), should be submitted to a jury. Michael Manton, who is alleged to have executed the will under consideration, was past ninety years of age. He had never been married, and could neither read nor write. He had been very deaf for a number of years, and at the time of making the alleged will he was in a weak and childish condition. Near him resided his nephew and namesake, Michael Manton, second, who occasionally visited him, and his wife and children did errands for him from time to time. John Manton, brother of the deceased. also lived near him with his wife. Early in November, 1897, deceased was taken sick. Mrs. Michael Manton, second. put him to bed in his own home, and John Manton and wife moved into the house with deceased and lived with him, taking care of him until the time of his death. There was evidence to show that John Manton had for a series of years tried to induce his brother to make a will in his behalf, and that deceased had persistently and up to within a few weeks of his death, refused to do so. There was some evidence that deceased had quarreled with John Manton, and that he had said unkind things of his nephew and wife, though it seems that there was nothing calculated to establish insane delusions. There is, however, much testimony tending to establish undue influence on the part of John Manton, the principal beneficiary under the will, and it is open to serious doubt whether the paper purporting to be the last will and testament of Michael Manton was in fact the voluntary act of the deceased in distributing his estate. There were facts developed upon the trial which, in our judgment, were sufficient to warrant a finding that the paper offered for probate as the will and testament of Michael Manton did not express his free will. The fact that he had often been importuned to make a will, and that he had persistently refused to do so the last time. within two weeks of his death, taken in connection with the conduct of John Manton, the proponent, at the time of the execution of the paper, as well as at other times, raises a sufficient issue of fact to warrant this court in setting aside the decree of the surrogate, and in ordering that the question of undue influence be tried by a jury at a Trial Term of the Supreme Court to be held in the county of Suffolk. This disposition of the case is warranted by the evidence before the Surrogate's Court, and by the usage as established in Matter of Van Houten (11 App. Div. 208) and in Howland v. Taylor (53 NY. 627). A trial before a jury at a Trial Term of the Supreme Court held in the county of Suffolk is, therefore, ordered of the following questions: First. Was the instrument purporting to be the last will and testament of Michael Manton, deceased, dated the 10th day of December, 1896, freely and voluntarily made by him? Second. Was the execution by the testator of the instrument purporting to be his last will and testament, under date of December 10, 1896, procured to be executed by fraud, coercion or undue influence practiced upon him? Costs of the appeal to abide the final award of costs. All concurred.

The People of the State of New York ex rel. Brooklyn Young Men's Christian Associa tion, Appellant, v. Theodore B. Willis, as