App. Div.]

which increased up to February 6, 1901, we have in evidence a fac simile of a letter relating to her Mt. Vernon property, which she wrote, as testified, in November, 1900, and which is clear and concise both in con- i text and outline. It is also stated that in January. 1901, she actually went to Mt. Ver non. There is other evidence in the record offered to show testamentary capacity, but we have given sufficient to show that there is presented a close question of fact, and one which, in our opinion, should be resolved by a jury. What has been said on this subject is applicable upon the question of undue influence. On one hand, we have the positive assertions of the physicians of the contestants and the many unusual and possibly significant circumstances connected with the making of the will, including its terms and phraseology; that it was immediately recorded; that the principal legatees were present before and after its execution, down to the death of the decedent, and that their own physician, attorney and nurse appeared upon the scene. On the other hand, we have the equally positive testimony both of physicians and laymen that Mrs. Miller not only had lucid intervals, but improved in health after February eighth, went on errands and acted perfectly sane, and that many of the unusual circumstances are easily to be explained. Thus, although the nearest relatives were not consulted in the making of the will and receive but a small bequest, it appears that Mrs. Miller was not on pleasant relations with her two nieces, and that they were actually in litigation with their father, Mr. Schultz, who was on most friendly terms with the decedent. Issues presented in this manner as to testamentary capacity and duress in a closely contested case where the credibility of the witnesses and their bearing and manner of testifying are of great moment, are most satisfactorily disposed of by the determination of the jury. Upon a review of all the evidence we are not entirely satisfied with the conclusion reached by the learned surrogate, and as we are in doubt as to its correctness we think this a proper case in which to refer the question for the determination of a jury. The principle which guides the appellate court in appeals of this nature is thus stated in Matter of Brunor (21 App. Div. 259): "The question, however, in cases of this kind does not depend upon the consideration as to whether the surrogate might have found from the evidence that the will was the free and voluntary act of the testatrix or that a jury might so find. But rather is it to be solved by a consideration of the whole evidence as a de novo question, and if, upon such consideration the mind of the court is in doubt upon the question of whether the will is the free and voluntary act of the testatrix, it becomes a question of fact for the determination of a jury, and it is the duty of the court to set aside the probate and direct a trial of the issues." Upon the whole case, therefore, and in view of our not being satisfied that the conclusion of the learned surrogate is sustained by a preponderance of evidence, we think a situation is presented which makes it our duty to send the case back for a jury trial. The decree herein entered refusing probate must accordingly be reversed and a trial ordered before a jury, with costs to the appellants to abide the event. Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred. Boyle & Everts Company, Respondent, v. John Fox and Others, Appellants.-Judgment affirmed, with costs- Appeal from a judgment entered upon the decision of the court after a trial at Special Term.

INGRAHAM, J. The action was brought to foreclose a mechanic's lien. The defendants gave a bond to secure the payment of any judgment obtained by the plaintiff, whereupon the action proceeded as against the defendant Fox as principal and the other defendants as sureties upon this bond. The defendant Fox in his answer admits the making of the contract, but denies that the plaintiff substantially furnished to the defendants all of the material provided for in the contract, and sets up as a counterclaim a breach of the contract as to the time within which the articles contracted for were delivered, and also as to the quality of certain articles furnished as not being in compliance with the contract, alleging that he has sustained damage in consequence of the failure of the plaintiff to perform the contract, and asks for judgment against the plaintiff for the damages sustained. Upon the trial the plaintiff proved the contract by which it agreed to furnish to the defendant Fox certain materials to be used in the construction of three four-story flats now being erected on 169th Street, 100 ft. west of Washington Avenue, on the south side of 169th Street, New York City," specifying certain sash and trim and other articles to be used in the construction of the building. The contract further provided that the payments were to be made by the party of the second part to said parties of the first part as follows: 1st payment when all standing trim and wardrobes and dressers are delivered to the satisfaction of owner, the sum of Sixteen hundred dollars ($1,600),’ and the other payments when the other articles were delivered. It was further provided that "Instead of all standing trim, wardrobes and dressers to be delivered in three weeks, change to, the delivery of material shall commence in three weeks, and all the trim under this contract shall be delivered within six weeks from date." This contract was dated June 1, 1900. On June 23, 1900, Boyle & Everts wrote to the defendants saying that they were ready to make the first delivery of trim according to the agreement, but were under the impression from Mr. Howes (plaintiff's agent) that the defendants were unable at that time to accept the delivery; that the plaintiff's representative came to New York and saw the defendant Fox about the twenty-sixth day of June, when Fox said that he was not then ready to take the articles contracted to be delivered; that subsequently, when the articles were delivered to the defendants, the defendant Fox told the witness that he was perfectly satisfied with the trim; that everything was all right, and he expected to get the money the next day and pay the plaintiff. This was in regard to the last payment of $1,100 under the contract, which, together with some extras furnished by the plaintiff, was the amount to recover which the action was brought. Mr. Howes, who was the plaintiff's agent in procuring this contract, testified that when the first delivery under the contract was sent to New York it arrived there in the early part of July, and was in New York for some days before it was delivered to Fox, and that the plaintiff had to pay demurrage on the cars; that at the time it arrived the white mortar was not on in the house, and Fox was not ready and could not receive the trim sent; that he told Howes to hold it; that the trim was subsequently delivered and put in the house, the first shipment having been delivered about the thirteenth day of July and the last of the articles furnished about the fourth day of October; that Fox promised to make the

App. Div.]

elevator, or what is called in the record a "street lift," by which freight was taken from the basement to the sidewalk. Both of the elevators and the "street lift" were operated, not by the defendant, but by the owners of the building. On the 16th of November, 1900, the defendant had occasion to send a package weighing something like seventy-five pounds to an express office, and for that purpose one of the shipping clerks in the employ of the defendant informed the plaintiff, who called the operator of the freight elevator, who took the package to the basement and there placed it upon the "street lift." Nothing further was required except to indicate to the engineer who had charge of the engine which controlled the lift to start it, and when the lift arrived at a level with the street it stopped automatically. The plaintiff, without a suggestion from any one, got onto the lift and started it, and then endeavored to stop it, and in doing so sustained a serious injury. But the fact that he was injured did not give him a right of action against the defendant. Something more must be shown, viz., that his injury was the result of the negligent act of the defendant, and that nothing which he did contributed thereto. The plaintiff was not employed to run the elevator. He was not required to, and there was no necessity for his going upon the elevator. All he was required to do was to go to the sidewalk for which another way had been provided -and there tase the package on a truck, with which he had been provided, from the elevator to the express office. It is suggested, however, that the defendant was liable under the Labor Law, so called (Laws of 1897, chap. 415, §79). This statute is inapplicable, for the reason that the plaintiff was not employed to run the elevator, and whatever he did with reference to it was his own voluntary act. It cannot be that one who employs an errand boy between fourteen and fifteen years of age is guilty of negligence when he sends him on an errand because he does not send some one to look after him. The judgment is right and must be affirmed, with costs. Van Brunt, P. J., Patterson and O'Brien, JJ., concurred; Laughlin, J., dissented.

LAUGHLIN, J. (dissenting): Although the plaintiff was not expressly employed to run the elevator, he and other boys had been accustomed to operate it to the knowledge of the defendant company. If he was permitted by the defendant to operate the lift or elevator, although not so directed, this was a violation of the Labor Law (Laws of 1897, chap. 415, § 79), and affords a cause of action in the absence of contributory negligence. It cannot be held as matter of law that this boy was guilty of negligence in starting the lift and riding thereon as had been the custom, when, according to his evidence, it does not appear that he knew of any other way of performing the duty of getting this heavy bulky package to the express office in time to catch the five-thirty P. M. express wagon, which was enjoined upon him on pain of losing his situation. According to his testimony, this was the common way of operating the lift, and he was not aware of any other way of starting For these reasons I think the case should have been submitted to the jury. The People of the State of New York, Appellant and Respondent, v. Jacob V. Bootman and Howard R. Robinson, Respondents and Appellants.-Judgment affirmed. No opinion.

it up.

Janet Riddle, as Administratrix, etc., of David B. Alexander, Deceased, Respondent, v.

Forty-second Street, Manhattanville and St. Nicholas Avenue Railway Company, Appellant. Judgment and order affirmed, with costs. No opinion. (Hatch, J., dissenting.) Friede Segerman, Appellant, v. Metropolitan Street Railway Company, Respondent.— Order affirmed, with costs. No opinion. Julia Heaney, Respondent, v. Metropolitan Street Railway Company, Appellant.-Judgment and order affirmed, with costs. No opinion.

George Steinson, Appellant, v. The Board of Education of the City of New York, Respondent. Order affirmed, with ten dollars costs and disbursements. No opinion. William Almon Wolff, Appellant, v. Charles Kaufman, Respondent.-Order affirmed, with ten dollars costs and disbursements. No opinion.

Freda Kaufmann, an Infant, by Ferdinand Kaufmann, her Guardian ad Litem, Respondent, v. Metropolitan Street Railway Company, Appellant. Judgment and order affirmed, with costs. No opinion.

Rosetta McMahon, as Administratrix, etc., of Michael Joseph McMahon, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. -Judgment and order affirmed, with costs. No opinion.

Louis Koerner, an Infant, by Moses Koerner, his Guardian ad Litem, Respondent, v. Eugene Gerbereux, Appellant.-Judgment and order affirmed, with costs. No opinion. The People of the State of New York, ex rel. John Meade, Relator, v. James Kane, Commissioner of Sewers of the City of New York, Respondent. - Writ quashed and proceedings affirmed, with costs. No opinion. Sidney J. Adler, Respondent, v. Mark Aron, Appellant. Judgment and order affirmed, with costs. No opinion.

In the Matter of the Application, etc., to Acquire Title to the Jerome Avenue Approach to the New Macomb's Dam Bridge, etc. Euphemia A. Hawes, as Executrix, etc., of Granville P. Hawes, Deceased, and Barclay E. V. McCarty, Appellants, v. Mary Hynes, Respondent. Order affirmed, with ten dollars costs and disbursements. No opinion. Winfield S. Madison, Appellant, v. Charles De Hart Brower, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion.

Carmi A. Thompson, as Ancillary Administrator, etc., of Alexander Edgell, Deceased, Appellant, v. Samuel Thomas, Respondent.Order affirmed, with ten dollars costs and disbursements, on the authority of Morse v. Press Pub. Co. (71 App. Div. 351). Watertown Paper Company and William Marshall Paper Company, Appellants, v. Josiah W. Place, as Assignee, etc., of Walter & Place, Respondent, Impleaded with Others. Order affirmed, with ten dollars costs and disbursements. No opinion. Standard National Bank v. Garfield National Bank. Motion denied, with ten dollars costs. Country Club Land Association v. Frederick Lohbauer.-Motion denied, with ten dollars

costs.

William D. Judkins v. Julian S. Carr.-Motion denied, with ten dollars costs.

Tribune Association v. Eisner & Mendelson Company.-Motion denied, with ten dollars

costs.

The People of the State of New York ex rel.
John E. Ellison v. John C. Hertle and
Another.- Motion granted so far as to dis-
miss appeal, with ten dollars costs.
In the Matter of Boerum Street.- Reference
ordered to take proof of the facts.
The People of the State of New York v. Tony
Ametta and Felix Boniface.-Motion granted.

Julius Saul v. The United States Fidelity and Guaranty Company.- Motion denied, with ten dollars costs.

Julius Levine v. Gustavus A. Goldsmith.-
Motion denied, with ten dollars costs.
Julius Levine v. Gustavus A. Goldsmith.-
Motion denied.

The People of the State of New York v. The American Loan and Trust Company. Motion granted. Questions to be formulated on settlement of order.

George Toplitz v. William M. Levering and Others. Motion denied.

Jacob M. Birnbaum v. Lewis A. May and Others. Motion granted on defendants paying ten dollars costs of this motion. If the plaintiff elects to withdraw his appeal the defendants must pay his printing disbursements and costs in the Court of Appeals up to the present time.

In the Matter of the Application of the Board of Fire Commissioners. On Petition of Eben J. Beggs Report confirmed. Margaretha Koch, as Administratrix, etc., v. Richard K. Fox and Others. Motion denied.

The People of the State of New York v. George Bissert. Motion denied.

William G. Davies and Others v. Francis A. Clark.- Motion granted, with ten dollars costs.

The People of the State of New York v. The American Loan and Trust Company.-Motion to resettle order denied.

In the Matter of Charlotte Miller, Deceased.Motion dismissed, without costs. Memorandum per curiam. Mary Donovan, as Administratrix, etc., of Timothy Donovan, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant. Judgment and order affirmed, with costs. No opinion.

[Vel. 72.

Abram Bergman, an Infant, by Jacob Bergman, his Guardian ad Litem, Appellant, v. Angelo Frasinetti, Respondent.- Judgment affirmed, with costs. No opinion.

Emeline M. Gray, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.-Judgment affirmed, with costs. No opinion. Charles A. McCredy, Plaintiff, v. Daniel Woodcock, as Attorney for Granville F. Dailey and Others, Underwriters of the Insurers' Alliance, Defendant.- Exceptions overruled and judgment directed for plaintiff, with costs. No opinion. Margaret Paetow, Respondent, v. Metropolitan Street Railway Company and The Fortysecond Street, Manhattanville and St. Nicholas Avenue Railway Company, Appellants.Judgment and order affirmed, with costs. No opinion.

James Tilley and Others v. Samuel D. Coykendall, Motion for leave to go to the Court of Appeals granted. See memorandum. Walter J. Orton, Appellant, v. Fidelity and Deposit Company of Maryland, Respondent. -Judgment affirmed, with costs. opinion.

No

Annette B. W. Wetmore (now Annette B. Markoe), Respondent, v. William B. Wetmore, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Emil Heuel and Others, as Executors, etc., of Conrad Stein, Deceased, Appellants, v. Henry Murray, Respondent, Impleaded with Others. Order affirmed, with ten dollars costs and disbursements. No opinion.

The Saranac and Lake Placid Railroad Company, Respondent, v. Charles E. Arnold and Alfred J. Voyer, Appellants.- Order af firmed, with ten dollars costs and disbursements. No opinion.

Frederick Williamson, Respondent, v. Press Publishing Company, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion.

Mary Keating, Respondent, v. John L. B. Mott, Appellant. - Order affirmed, with ten dollars costs and disbursement. No opinion. James H. Parker and Others, Appellants, v. Henry H. Melville, Respondent.- Order affirmed, with ten dollars and disbursements. No opinion.

Simon E. Bernheimer v. Josephine Schmid.—
Motion denied, with ten dollars costs.
Rudolph L. Blumenthal and Others v. Amos
L. Prescott and Others.- Motion denied.
The People of the State of New York v. Jacob
V. Bootman and Others.- Motion granted.
Questions to be formulated on settlement of
order.

In the Matter of Pitt Street.- Motion granted.
Solomon Meyer v. Albany and Hudson Railway
Company.- Motion granted, with ten dollars
costs.

The order appears to have been made ex parte, as the record fails to show that there was before the court any applicant for the order, or any opponent, or any papers in the nature of proof of any facts to found the order upon.

PER CURIAM: No appeal lies from an order or decree of this character. A motion in the Surrogate's Court should be first made to vacate the order as void for lack of juris

App. Div.]

diction. The appeal is, therefore, dismissed. The order being without precedent, the dismissal is without costs.* All concurred. Franklin P. Saunders, Respondent, v. The Post-Standard Company, Appellant.-Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event.-- Appeal from an order of the Onondaga Special Term, entered in the county clerk's office of Cortland county on the 14th day of October, 1901, denying defendant's motion to change the place of trial from the county of Cortland to the county of Onondaga.—

SO

PER CURIAM: The action is brought for damages for an alleged libel. In one of the issues of the defendant's paper it was stated, in substance, that a souta-bound train on the Delaware, Lackawanna and Western road ran into a herd of cattle at Dunlap's crossing, half a mile north of Jamesville, killing one and injuring two so badly that they had to be shot after going through great torture; that the cattle belonged to the plaintiff that the two injured were badly hurt that they were unable to rise. The article then proceeds, "Saunders, it is alleged, hitched a pair of horses to them and dragged them along the tracks about 600 feet, breaking bones that had not already been broken. It is claimed that he then left them there. A dispute arose as to whether the railroad company should ill the cattle or Saunders. Both refused, and the animals were left in a dying condition until late in the afternoon, when Superintendent O. R. Casey, of the Society for the Prevention of Cruelty to Animals, was notified. He went to Jamesville and shot the cows. Last night Mr. Casey said that he would doubtless swear out a warrant in the case." It appears that the plaintiff was not in fact present when the accident occurred, or when the cattle were drawn off from the track, but that he soon thereafter came to the place; that the cattle were left to suffer by reason of the refusal of the plaintiff and of the station agent to kill them, and that the suffering was only relieved by the representative of the Society for the Prevention of Cruelty to Animals, who came from Syracuse five hours after the injury was caused. Without discussing in detail the materiality of the various witnesses upon either side, whose testimony is claimed to be necessary, we are satisfied that the defendant has established a right to have the venue of the action changed to Onondaga county for the convenience of witnesses. This is true, if the number of witnesses only be considered. When in addition it appears that the transaction, to which most of the testimony will be pertinent, occurred in the county of Onondaga, six miles from Syracuse and nearly forty miles from Cortland, the defendant's application would seem to be unanswerable. The order should be reversed. All concurred. Hiram H. Silliman, Respondent, v. Robert S. Smith, Appellant, Impleaded with Others.Judgment reversed, with costs to appellant, referee discharged and case remitted to court below for further action.- Appeal by the defendant, Robert S. Smith, from a judgment entered in the county clerk's office of Delaware county on the 11th day of July,

1901.

PER CURIAM: This judgment is unpractical. The defendant cannot be directed by a judg ment to account to a plaintiff. The accounting must be made before the court or a referee, who shall determine the amount

due, and after having made such determination shall direct judgment therefor. The judgment must, therefore, be reversed. The record does not show the order of reference. Whether it was a reference to hear and determine or a reference to state an account does not appear. The defendant by failing to answer the plaintiff's complaint has admitted all material allegations therein. Upon those allegations, as thus admitted, the plaintiff is entitled to an accounting by the defendant. This accounting may be had before the Special Term or before a referee appointed for that purpose. All concurred. Jeremiah Towsand, Respondent, v. Charles Ford and Fred Ford, Appellants.- Judg ment reversed on law and facts, referee discharged and new trial granted, with costs to appellant to abide event.-Appeal by the defendants from a judgment in favor of the plaintiff, entered upon the report of a referee.

PARKER, P. J.: It appears from the record in this case that most, if not all of the stone for which the plaintiff has recovered, were under and supporting a building at the time the defendants refused to surrender them to the plaintiff. Such building and the stone upon which it rested were on premises belonging to the Erie Railroad Company. In 1894 such premises and building were by such company rented to Baker for one year, and each year thereafter the leasing was renewed to Baker until 1900. In 1897 a part of the building was destroyed, and the company agreed with Baker that if he would repair it he could have the building. I understand Baker did repair it, and thereafter, that is, in 1898 and 1899, the lease was to him of the premises, he owning the building and leasing the premises merely as a place upon which to keep the building. In 1900 Baker sold all his interest to the defendants Ford, and on July 23, 1900, the Fords took a written lease from the company, which was put in evidence and is fully set forth in the case. It leases to the Fords the premises for one year as a "site for building." The Fords, then, owned the building, and evidently both parties understood the lease to give them the right to maintain their building there for a year, unless the thirty days' notice to take it off and surrender the lease was given by the company, as therein provided. The stone in question were all this time supporting the building and had so supported it since its construction many years ago. The plain purpose of the lease, therefore, was to give to the Fords the right to maintain their building upon the wall on which it then rested, and such stone, as between those parties, was deemed real estate and passed under the lease. Therefore, the defendants, as the lessees, had an interest in the stone and were entitled to have them remain there as a part of the realty supporting their building until the end of the year, or until they received the thirty days' notice provided for. Such are the circumstances under which, on July 23, 1900, they received from the company the possession of the stone in question. On August 24, 1900, they refused to surrender them to the plaintiff. Did the plaintiff show a better right to their possession than the defendants had? I think not. Even if the bill of sale taken by the plaintiff in July, 1897, be deemed to apply to the stone under this building, and even if Sheffer was shown to be the agent of the company with power to transfer the title to such stone, yet the defendants Ford, when they took their lease,