Bowker and others agt. Wells and others.

trust raised on the face of the will, for the testatrix declares that she intends to make the gift absolute, and that there should be no legal obligation upon the devisees to comply with her wishes as to the eventual disposition of the property. As she has said in the plainest terms there shall be no trust, the courts cannot say there is such a trust. Further, there is no illegality or contravention of public policy in affecting the object she sought to attain. In this respect also the case differs from that which the court of appeals interpreted as the intention of the testator in O'Hara agt. Dudley.

Miss Dugdale wished no accumulation of the fund; she suggested no restraint upon its absolute disposition for any period but two lives in being, and not necessarily for that time. In fact, if there were a trust it would be inoperative because the beneficiaries would be indefinite. But this the testatrix knew, and she did not intend to cast upon the courts the duty of seeing that her wishes were carried out, but left that solely to the sense of propriety her devisees might possess. If that sense of propriety does not dictate a disposition of the fund in accordance with the testatrix's wishes, that is exactly what the testatrix intended they should do in that contingency, though she hoped the contingency would not occur. In such case it cannot be said that any fraud is practiced on the testatrix, for the devisees never made any promise to her.

Without reviewing the decided cases at length, two principles seem established by them: First. The courts recognize the difference between the intent of a testator to create a legal direction on his devisee and the intent solely to create a moral obligation, and that the latter does not create a trust (1 Jar. on Wills, p. 385). Second. That while a secret trust to apply the devised property to an illegal purpose will render the devisee a trustee for the heirs at law or next of kin, the trust must be established in such manner that if legal it would have been binding upon the trustee (1 Jar., p. 233).

As is my judgment the language of the will, if directed toward a purpose capable of legal enforcement, would not VOL. II 20

In re Mary Brasier.

have created a trust, and as there is no promise shown de hors the will to apply the devised property to such purpose, it follows that the devise under discussion is valid, and that the devisees take the property absolutely as their own. Costs of all parties to be paid out of the fund.

N. Y. COMMON PLEAS.

In re MARY BRASIER for leave to prosecute the official bond of CORNELIUS FARLEY, a city marshal.

Marshal's official bond — Liability of sureties ·

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Judgment for costs on interlocutory order - Code of Civil Procedure, section 779.

The sureties on the official bond of a city marshal are not liable until after a valid judgment has been recovered against their principal.

A judgment entered on an interlocutory order awarding costs is not a valid judgment. Such costs are practically motion costs, and must be collected as such.

General Term, June, 1885.

E. P. Wilder, for appellant.

J. Geo. Flammer, for respondent.

ALLEN, J.-We are of the opinion that the order of the special term granting to the petitioner leave to prosecute the official bond of Cornelius Farley, one of the marshals of the city of New York, ought to be reversed, for the reason that the court below was without jurisdiction to enter the judgment for appellate costs, which forms the basis of the application for the order, and that the judgment, being unauthorized by law, is a nullity. We have no doubt that the sureties on the bond would be liable for all costs that accrued in the action, which resulted from the official misconduct of the marshal, whether they were costs of trial or costs of appeal, so long as

In re Mary Brasier.

such costs were incorporated in or formed a valid judgment within the jurisdiction of the court.

The act of 1882 (Laws of 1882, p. 417, sec. 1701) provides that only a person who shall have first obtained a judgment against the marshal for official misconduct may move for leave to prosecute his official bond. Of course, the judgment contemplated by this statute is a lawful and a valid judgment.

From the papers before the court it appears that action was commenced by the petitioner against the marshal to recover possession of personal property which had been taken from her by him while acting under an execution against one Ing. The action was tried and resulted in a verdict for the plaintiff, and a judgment was entered for the return of the property and for $136.82 costs.

A motion to vacate this judgment for an alleged irregularity in the taxation of costs was made by the said marshal. The motion was denied, from which decision an appeal was taken to the general term of the city court, and from thence to the general term of this court, in both of which the order appealed from was affirined, with costs; and upon the remittitur going down a judgment was entered in the city court in favor of the plaintiff, and against Farley, as marshal, for seventy-six dollars and ninety-six cents costs.

The original judgment for $136.82 trial costs was paid and the property sued for restored to the petitioner. The application for leave to prosecute is founded upon the judgment of seventy-six dollars and ninety-six cents for costs of appeal from the order above referred to. We do not think there is any authority in law for the entry upon the remittitur of this court affirming the order of the city court of the judgment of seventy-six dollars and ninty-six cents for the costs of the appeal. An entry of judgment for costs upon an interlocutory order or upon an order of the general term affirming the order affecting a question of practice is nowhere authorized. A judgment cannot be perfected for costs of this character. The appeal here was in fact a continuation of the motion on

Palmer agt. The Pennsylvania Company.

appeal, and the costs of the successful party are motion costs within the meaning of section 779 of the Code of Procedure, and are to be collected as other motion costs are collected (Phipps agt. Carman, 26 Hun, 518; Brown agt. Lugh, 50 N. Y., 427; Wilkin agt. Raplee, 52 N. Y., 248). As this point was not raised upon the argument of this motion in the court below, no costs of this appeal are allowed.

Defendant issued a freight receipt with the name of person served upon it as agent; receipt to be signed for agent not for company; receipt printed in blank with "Form 21, N. Y.," at head:

*

*

Held, that the Code does not specify agency, except person served must be managing agent. * Every object is attained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of service made. The statute is satisfied if he be managing agent to any extent.

Dutchess Special Term, November, 1884.

Grant B. Taylor, for plaintiff. (70 N. Y., 227; 87 N. Y., 137; 9 How. Pr., 448; 2 E. D. Smith, 519; 57 Barb., 438; 49 How. Pr., 117; 1 Keyes, 347.)

R. F. Wilkinson, for defendant. (5 How. Pr., 183; 6 How. Pr., 308; 8 Abb. Pr., 427; 13 Hun, 150; 17 Hun, 316.)

BARNARD, J.-The sole question on this motion is one of fact. Under subdivision 3 of section 432 of the Code service may be made upon a foreign corporation which has property within this state upon a "managing agent of the corporation within this state." The service of the summons was made

Palmer agt. The Pennsylvania Company.

upon Thomas C. Pollock. Pollock is employed by the Pennsylvania Railroad Company and paid by them, but he has the right to do something for the defendant. The moving affidavits leave it in doubt as to the precise extent of his powers. As a matter of convenience between the two companies he is authorized to transact certain details in connection with the business of the defendant. These details are not given beyond an expression in the moving affidavits, "such as the transmission of reports" to the defendant. The opposing affidavits show that the defendant has issued a form of freight receipt, "Form 21, N. Y.," which contains thereon a printed statement upon its side: "Thomas C. Pollock, agent. Office, New Pier 28, North River, New York." At the bottom there is printed the words, "Received payment for the Company.... .for agent." Pollock used this form of receipt. In the absence of explanation this receipt imports enough to make out a managing agency.

The Code does not specify the extent of the agency beyond the fact that the person upon whom service is made shall be a managing agent. The defendant would be bound by Pollock's contracts for freight sent as well as by his receipts for freight received. I think this is enough to make the service good. Motion denied, with ten dollars costs to abide event.

Second Department, General Term, February, 1885.

PRATT, J.-There is no doubt that defendants hold Pollock out to the world as their agent in the city of New York. It is plain that he has a large authority, and within a wide field his acts are binding on defendant.

The Code does not specify the extent of the agency required to bind defendants by service of process, except that the person upon whom the service is made must be managing agent. Were the rule to be established, as contended by appellants, that the agent must have charge of the whole business of the corporation the statute would be a dead letter, for such an