misconduct on the part of defendant the relator complained to the Supreme Court and an order was made requiring him to show canse why an attachment should not be issued against him, and such proceedings were thereupon had against defendant for a criminal contempt of the court that an order was made fining him $250 and imprisoning him 30 days. Defendant appealed from that order to the General Term, where the order was reversed, with costs against the relator.

Elbridge T. Gerry, for applt. A. J. Dittenhoefer and John B. Pine, for respt.

Held, That so far as the General Term dealt with the matter of contempt, its determination is not reviewable by this court.

Also held, That in imposing costs upon the relator the General Term acted without authority; that the proceeding against the defendant was not a special proceeding as defined in the Code of Civil Procedure, because the special proceedings therein provided for are civil special proceedings. $3343, subd. 20.

Order of General Term, so far as it imposed costs, reversed, and the appeal as to the balance of the order dismissed.

Opinion by Earl, J. All concur.

NEGLIGENCE.

N. Y. COURT OF APPEALS. Connelly, adm'rx, respt., v. The N. Y. C. & H. R. RR. Co., applt. Decided March 14, 1882.

one of defendant's trains. It appeared that the train was visible for half a mile; that deceased sat facing the other way and apparently observed the train for the first time when he reached the track, when he whipped up his horses and attempted to cross. It did not appear that the horses were unmanageable, or that he might not have stopped them until the train had passed. Held, That he was guilty of negligence.

It

This action was brought to recover damages for the alleged negligent killing of C., plaintiff's intestate, by the defendant. appeared that C., on the morning of the accident, was driving a team of horses attached to a lumber box wagon on a highway which was crossed by defendant's tracks; that the train by which he was killed was in sight for nearly half a mile at a point on the highway more than 250 feet north of the crossing, and from a point 50 feet north to the track there was an unobstructed view of the railroad to the west for nearly a mile. Two of plaintiff's witnesses, who were going north and who passed C., who was going south, ten or fifteen rods. north of the crossing, when they reached a point in the highway from twenty to twenty-five rods north of the crossing, observed the train approaching from the west. It was then nearly half a mile distant. They looked back and saw C. sitting on his load, facing partly east at a distance estimated by them to be fifteen feet from the crossing. There were four tracks at this place, and the train was on the south track. C. drove on until he got upon the north track, when, observing, ap

parently for the first time, the approaching train, C. partly raised up and commenced whipping his horses. The horses got over the south track, but the wagon was intercepted by the train and C. was killed. It did not appear that the horses were unmanageble, or that C. might not have stopped his horses on the north track until the train had passed. It also appeared that C. was ascending a grade on the highway to reach the crossing, the rise being about one foot vertical to eleven feet lineal distance, and the embankment on either side was guarded by a rail. D. Pratt, for applt.

Wm. C. Ruger, for respt.

Held, That C. was guilty of negligence in omitting to look for the approaching train before reaching the crossing, and his proceeding on without stopping and observing it was an act of gross negligence.

virtue of a judgment recovered by him as survivor of himself and partner, and made the affidavit of ownership and amount due. Held, That B. had a right to redeem, and that it was not necessary for him to present any assignment of the judgment to himself or add to his affidavit any words showing his identity with the judgment creditor. Affirming S. C., 13 W. Dig., 168.

This action was brought to set aside a deed executed by a sheriff on the redemption of certain real estate from sale under execution. Plaintiffs objected that in the papers filed for the purpose of redemption, B., who sought to redeem, is described as the redeeming party without words indicating that he is the survivor of himself and one P., as he is named in the judgment record under which he sought to redeem. The judg ment was one in favor of B. and his partner P. B. claimed a right to redeem under section 1464 of the Code of Civil Procedure. was required by that section to file in the County clerk's office, or to deliver to the sheriff, as evidence of his right, a copy of the docket of the judgment under which he

He

All concur.

REDEMPTION. PARTNER

SHIP.

N. Y. COURT OF APPEALS.

Nehrbross et al., applts., v. Bliss et al., respts.

Decided April 11, 1882.

Where one of two partners dies, the legal rights under the firm contracts or causes of

action and the sole right to collect the partnership assets vests in the survivor. One B. redeemed from a sale on execution by

that right depended upon any assignment of the judgment, it must also be filed and an affidavit made by him stating truly the sum unpaid on the judgment. The copy of the judgment furnished by B. described a judgment in which he, "as survivor. of him and Jerome Pierce, deceased," is plaintiff. It was not accompanied by any assignment or other paper, save an affidavit, which alleged that B. "is the owner and holder of the judgment mentioned in the fore

going copy of docket of judgment and that there is due, etc." Joseph V. Seaver, for applts. George Wing, for respts. Held, That, upon the death of P., the legal right under the firm contracts or causes of action, and the sole right to collect the partnership assets, remained in B., the survivor, Viner's Abr. Partners, D.; Lindley on Partnership, 505; 17 N. Y., 354; and vested so effectually that upon his death it would have devolved upon his personal representative, and he alone could sue upon it. 1 Wms. on Exrs., 1585; 1 S. &. M., 623. If B. had died after judgment, redemption could have been had under 1466 of the Code of Civil Procedure by his executor or administrator. The right to the cause of action and to sue therefor came to B. by survivorship, and that is indicated in the title of the judgment. It was not necessary for him to present any assignment of it to himself, or add to the statement in the affidavit any other words showing his identity with the judgment creditor. He was in law the owner of the judgment, and appeared so on the face of the papers, and had the legal title to the judgment, as much as if the cause of action had stood in his own right. 1 Showers, 188; 6 Cow., 441; 45 N. Y., 786. The title to it was so completely vested in him that a demand against him in his own right might have been set off in diminution of his claim as surviving partner. 5 T. R., 493; 6 id., 582. As surviving partner he might join in one action a count

VOL. 14.-No. 9b.

for a debt due him in his own right and one due him as survivor. 27 N. H., 289.

Order of General Term, revers. ing judgment for plaintiffs, affirmed, and judgment absolute for defendants on stipulation.

Opinion by Danforth, J. All concur, except Tracy, J., not voting.

WILLS. TRUSTS.

N. Y. COURT OF APPEALS. Dill, exr., applt., v. Wisner et al., respts.

Decided Feb. 28, 1882.

An action by an executor for the construction of a will can only be brought where he is invested by the will with a trust in reference to the subject-matter in the devise. A testatrix, by will, devised all her real estate to certain persons and charged it with payment of debts, legacies, &c. The will contained no words of trust or power of sale or authority to the executors to distribute the money realized. Held, That the devise did not create a trust in the executors which authorized them to bring an action for construction, and that the refusal by the devisees to accept imposed no trust on the executors. On such refusal the land descended to the heir at law, charged with the payment of debts and legacies.

Affirming S. C., 11 W. Dig., 219.

M., plaintiff's testatrix, by her will, devised all her real estate to persons named therein, and charged the same with the payment of all just debts, funeral and testamentary expenses, and all the legacies previously given and bequeathed. The will contained no words of trust or power to execute a conveyance or to sell, and no directions or authority to the executors to distribute the money

realized. It was plain in its terms. and free from ambiguity.

Charles. H. Winfield, for applt.
D. M. De Witt, for respts.

Held, That the devise did not create a trust in the executors which authorized the bringing of an action for the construction of the will and for directions and instructions as to the same. No express power being given to the executors to sell, no such power can be implied from the mere charge of the debts and legacies upon the lands devised. 52 N. Y., 530, 536.

When lands are charged in a devise with the payment of debts they may be made available for that purpose, but with this the executor has nothing to do unless authority is conferred upon him, and it is for the creditor to take steps to enforce such a lien.

The right of an executor to commence an action for the construction of a will of real estate depends entirely upon whether he is invested with a trust under the will in reference to the subject matter in the devise, and it is only in such cases that a court of equity, on the assumption of its right of supervision over trusts and trustees, will assume jurisdiction. 33 N. Y., 593; 63 id., 221; 80 id., 320, 325; 56 id., 407, 413; 10 Paige, 193, 200.

It appeared that the devisees refused to accept the devise in the will, and renounced the same.

Held, That this did not impose upon the executor any trust. 6 Cow., 333, 339. The real estate descended to the heir-at-law, and

was chargeable in equity with the payment of debts and legacies. 1 Paige, 32; 4 id., 115; 4 Kent's Com., 433; Willard's Eq. Juris., 489.

In an equitable action it is entirely discretionary with the General Term to determine as to costs, and this court, as a general rule, will not interfere with that discretion. 71 N. Y., 280; 60 N. Y., 552.

Judgment of General Term, reversing judgment giving construction of will, affirmed. Opinion by Miller, J. All con

cur.

USURY.

N. Y. COURT OF APPEALS. Dusenbury, applt., v. Seeley,

respt.

Decided Jan. 17, 1882.

Defendant procured a loan from plaintiff through P., to whom he agreed to pay $300 for procuring it. P., after consultation with plaintiff, demanded $350, which was paid. Plaintiff testified that he received no part thereof, and P. that he paid none of it to plaintiff; that he did not know where the check corresponding to a missing checkstub was, and that he did not remember that any money was paid to plaintiff about the time of the loan. It was proved that about a month after the loan plaintiff deposited a check made by P. for $145, and thereupon plaintiff and P. testified that it was given for a loan to P. Held, That the facts and circumstances surrounding the loan authorized the finding of usury.

This action was brought to foreclose a mortgage. It appeared that the mortgagor applied to one P., an attorney, to procure a loan of $4,500 for him, and agreed to pay P., for procuring this loan,

$300 and all disbursements. The plaintiff made the loan through P., and gave him his check for $4,500. Defendant testified that while he was negotiating for the loan with P., the latter took the plaintiff aside and talked with him, and on his return told defendant he could do no better than make the loan for $350. Plaintiff testified that P. said nothing to him about $350 bonus, and that he paid P. the entire $4,500, and received no part of the $350. P. testified that he received the $350, paid $50 for searches, and retained the remaining $300, and paid none of it to plaintiff. P. produced his check.

The court found that the loan was usurious, and rendered a judgment against plaintiff, which was affirmed at General Term.

Odle Close, for applt.
Calvin Frost, for respt.

Held, That the facts of the case and the circumstances surrounding the loan for which the mortgage was given were sufficient to authorize the finding of usury.

Judgment of General Term, affirming judgment for defendant, affirmed.

Opinion by Earl, J. All concur.

COSTS.

P.

it appeared from it that a checkstub had been torn from the book, and the check that had been detached therefrom was missing. testified that he could not say how the stub came to be torn out or where the missing check was. Just before and after the torn stub there were checks given in reference to the loan in question. The mortgage was dated March 4, 1875. It was proved that plaintiff kept a bank account, and that on April 6, 1875, plaintiff deposited in his bank a check for $145, given to him by P., and it was proved that this check had been returned to P. long before the trial. P. had testified that he did not remember any money was paid to plaintiff at or about the time of this transaction, and upon the proof being given as to the $145 check, P. and plaintiff both testified that they remembered the check to have been given for a loan made by plaintiff to P.

TERM. FIRST DEPT.

Lawrence Ennis, applt., v. Ed

ward P. Wilder et al.

Decided Feb. 3, 1882.

A term fee on an appeal from an order is not allowable.

Appeal from order denying motion to readjust costs.

The costs were adjusted March 15, 1881, and plaintiff moved for a modification of the decree as to allowance of extra costs, and also gave notice of motion for a readjustment of the costs. The motion for modification was denied March 23, and the motion to readjust was denied by Justice Lawrence on March 28. On motion to resettle the order of March 23, a modification was directed by denying the motion without prejudice to plaintiff's right to move for a readjustment. Thereafter an order was obtained from Justice Lawrence requiring defendant to show cause