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App. Div.]

FIRST DEPARTMENT, FEBRUARY TERM, 1899.

ever, necessarily and under all circumstances vicious. They may be entered into for a lawful purpose and from honest motives, and in such cases may be upheld." But in the present case a sham bid was made by the plaintiff, and the real intent was to enable the defendant by such means to secure the contract without actual competition.

Although the point is not raised, it nevertheless becomes the duty of the court to intervene where it appears upon the face of the record that the contract is void as against public policy. As expressed in Robinson v. Oceanic Steam Navigation Company (112 N. Y. 315), "The court may, ex mero motu, at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action," and, as therein pointed out, "there are no doubt many cases where the court having jurisdiction over the subjectmatter, may proceed against a defendant who voluntarily submits to its decision." (Davidsburgh v. Knickerbocker L. Ins. Co., 90 N. Y. 526; Holman v. Johnston, 1 Cowp. 341.)

We have examined the numerous exceptions taken to the rulings upon evidence bearing upon the other causes of action, but find none. of such a character as to warrant a reversal.

We find no reason for disturbing the order of extra allowance of $300, which is, therefore, affirmed. The judgment, however, should be modified by deducting the damages awarded under the third cause of action, amounting to $3,188.90, and, as so modified, affirmed, without costs to either party on this appeal.

VAN BRUNT, P. J., PATTERSON, INGRAHAM and MCLAUGHLIN, JJ., concurred

Judgment modified as directed in opinion, and as modified affirmed, without costs to either party.

FIRST DEPARTMENT, FEBRUARY TERM, 1899.

[Vol. 38.

38
79 $585

16 SAMUEL CAMERON, Respondent, v. THE NEW YORK ELEVATED RAIL-
ROAD COMPANY and THE MANHATTAN RAILWAY COMPANY,
Appellants.

Action against a railroad by an abutting owner who, pending the suit, has parted with the title issues sent from the Special Term to the Trial Term — entry of judgment on the verdict — period of assessment of damages.

During the pendency of an action by an abutting owner against elevated rail-
road companies, the plaintiff parted with his interest in the property, and an
order was thereupon made, upon the motion of the defendants, transferring the
case from the Special Term calendar to the Trial Term calendar, and directing
a jury trial of the claim for past or rental damages alleged in the complaint to
have been suffered by the plaintiff during his ownership of the premises; the
trial judge followed the direction of the order, and judgment was entered
upon the verdict of the jury as of course as in an action at law.

Held, upon an appeal from the judgment, that, assuming that the action was still
to be regarded as an equitable action, and that it was improper to enter judg
ment upon the verdict as of course, instead of applying to the Special Term,
the defect was an irregularity for which the defendants might have moved to
set the judgment aside, but which was waived by their failure to do so;
That the trial court was bound to try the issue sent to it by the order, that is, to
have the jury fix and assess the damages from the commencement of the action
down to the time when the plaintiff parted with the title to the property.

APPEAL by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of June, 1898, upon the verdict of a jury, and also from an order entered in said clerk's office on the 28th day of May, 1898, denying the defendants' motion for a new trial made upon the minutes.

This action was brought to enjoin the operation of the defendants' elevated railway in front of the plaintiff's premises, and to recover past rental damages, or, in the event of the continued operation of the railway, to recover a gross sum as the value of the easements taken.

Alfred A. Wheat, for the appellants.

Charles A. B. Pratt, for the respondent.

App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1899.

O'BRIEN, J.:

Although it is insisted that the damages awarded are excessive, and that the verdict is contrary to the law and to the evidence, we have been unable from an examination of the record to find this contention sustained. The award was not excessive, but was within the proof.

A serious question is presented as to the admissibility of the testimony of an expert produced by the plaintiff upon values in 1873, when from the statement of his age it was clear that he could have but little or no personal knowledge on the subject. If the award were dependent upon such evidence alone, we should be adverse to sustaining it. But we have in the record considerable evidence of the rental history of the property, and this was in no way offset upon the cross-examination, which was devoted to bringing out the course of rents from 1875 to 1879, covering the period of the panic and the construction of the road, and a portion of the period about which the expert objected to give testimony. The defendants offered no evidence, except that of an engineer, as to the construction and dimensions of the road, together with proof of another witness as to the number of passengers carried at different times on the railway. The reliance of the defendants, apparently, was thus placed more upon the weakness of the plaintiff's proof than upon any evidence produced by themselves, and, as we have already intimated, there was, in such evidence of the plaintiff, sufficient upon which to base the award made by the jury.

This brings us to the question most strongly urged on this appeal, as to whether the court erred in submitting to the jury the question of rental damages for the period from the date of the commencement of the action down to the time the plaintiff sold the property. In addition to the reasons given by the learned trial judge in his opinion delivered subsequent to the rendition of the verdict, there is another consideration which we think is conclusive in favor of the disposition made. The case appeared upon the day calendar of the Special Term for the trial of equity cases, as shown by the recitals in the order transferring it to the Trial Term, "Plaintiff having then and there admitted, through his counsel, * * * that he has, since the commencement of this action, parted with his alleged APP. DIV.-VOL. XXXVIII. 3

* *

FIRST DEPARTMENT, FEBRUARY TERM, 1899. [Vol. 38. title to the premises described in the complaint, and that he no longer claims to be the owner of said premises, and that defendants, through their attorney, * having thereupon duly demanded a jury trial of the claim for past or rental damages alleged in the complaint to have been suffered by the plaintiff during his ownership of said premises, and said motion having been granted, now, therefore, on motion of * attorney for the defendants, it is hereby ordered that this cause be transferred to the calendar of the Trial Term."

*

*

The trial judge did just what this order directed him to do, namely, submit to the jury "the claim for past or rental damages alleged in the complaint to have been suffered by the plaintiff during his ownership of said premises." Notwithstanding this order obtained by defendants, their present contention upon this appeal is that the trial judge erred in trying the case in the manner and upon the issues directed by such order.

It is unnecessary in this case to determine whether the practice followed after the rendition of the verdict was correct or not. Assuming the defendants to be right in their insistence that if this was still to be regarded as an equitable action, it should have been remitted to the Special Term and the judgment entered by that court, instead, as was here done, of having the judgment entered as of course upon the verdict of the jury, as though it were an action at law, the entry of the judgment in the way it was done was merely an irregularity upon which they might have moved to set the judgment aside. But this they have not done.

The question, therefore, which the defendants desire to raise as to the right of the plaintiff to have the jury fix and assess the damages from the commencement of the action down to the time when he parted with title to the property, is not before us, for the reason already stated, that the trial court proceeded, as it had the right and was bound to do, to try the issues which under the terms of the order were sent to that part of the court for trial.

The judgment appealed from should be affirmed, with costs.

VAN BRUNT, P. J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.

Judgment and order affirmed, with costs.

App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1899.

In the Matter of the Appraisal under the Act in Relation to Taxable Transfers of Property, of the Property of MARY A. EDSON, Deceased.

BIRD S. COLER, Comptroller of the City of New York, and JAMES
A. ROBERTS, Comptroller of the State of New York, Appellants;
JOHN E. PARSONS, Individually and as Executor, etc., of MARY A.
EDSON, Deceased, and Others, Respondents.

Inheritance tax — a legacy absolute in terms, impressed by extrinsic proof with a trust - a remittitur from the Court of Appeals examined — the judgment of the Supreme Court entered thereon is not conclusive.

An executor who, under the will, takes a third of the residuary estate absolutely, unincumbered by any trust imposed by the will itself, is not relieved from paying the inheritance tax imposed by the Collateral Inheritance Tax Law (Laws of 1887, chap. 713) by the fact that, in an action brought to obtain a judicial construction of the will, it is held as a result of extrinsic evidence that he took the legacy impressed with a trust in favor of the testatrix's brother.

The State, not being a party to the action brought to obtain a construction of the will, is not concluded as to its right to collect the tax upon such legacy by a judgment of the Supreme Court, entered upon the remittitur of the Court of Appeals, but may, for the purpose of determining what was decided in the Court of Appeals, examine the remittitur and the opinion of the Court of Appeals where such opinion is made by the remittitur a part of the judgment of the Court of Appeals.

APPEAL by Bird S. Coler, comptroller of the city of New York, and James A. Roberts, Comptroller of the State of New York, from an order of the Surrogate's Court of New York county, entered in said Surrogate's Court on the 29th day of July, 1898, modifying an order entered in said Surrogate's Court on the 6th day of June, 1898, assessing the transfer tax upon property passing to John E. Parsons under the will of Mary A. Edson, deceased.

Jabish Holmes, Jr., for the appellants.

Edward M. Shepard and Thomas T. Sherman, for the respondents. O'BRIEN, J.:

Mary A. Edson died May 29, 1890, leaving a last will and three codicils in which Messrs. John E. Parsons, John A. Bartow and Charles S. Fairchild were named as executors. By the 8th clause of the will and the 5th clause of the second codicil she gave her ulti

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