ecutors, and after a reasonable opportunity to examine into its validity and fairness, the executors do not offer to refer on the ground that they doubt its justice, or do not dispute it, it acquires the character of a liquidated and undisputed debt against the estate. (Lambert agt. Craft, 98 N. Y., 342.)

2. Although where application is made by the creditor, by petition to the surrogate to direct payment of such a claim, it is in the power of the executors under the provisions of the Code of Civil Procedure (secs. 2717, 2718) to divest the surrogate of jurisdiction and put the claimant to his proof in another court; if they fail to do this, it is only necessary for the su: rogate to be satisfied by proof, that there is personal property of the estate applicable to the payment or satisfaction of the claim, and which may be applied without injuriously affecting the rights of others (sec. 2718, sub. 2). (Id.)

3. An oral plea of a general denial in answer to the petition is ineffectual for any purpose. (Id.)

4. It seems that in any case as the jurisdiction of the surrogate to direct payment of a debt is confined to undisputed claims, the petitioner is neither required to state the facts which go to make out his debt, nor if stated, will he be permitted to establish them. The presentation of the petition, and the citation issued thereon (sec. 2516), brings in the executor, not to plead or respond to the petition, but by a verified written answer to set forth affirmative facts, if any exist which show "that it is doubtful whether the petitioner's claim is valid and legal," and also "denying its validity or legality absolutely or upon information and belief." The answer must meet both requirements to require a dismissal of the petition. (Id.)

5. A surrogate, on settlement of the accounts of an executor or administrator, who has made advances for the support and maintenance of a minor entitled to a share in the estate, has jurisdiction to determine, upon equitable principles, a claim for such advances; and an allowance is proper where the expenditure for which reimbursement is so sought is such as would have been authorized by the court had application been made in advance. (Hy land agt. Baxter, 98 N. Y., 610.)

6. Where, therefore, in an action by an administrator to have advances made by him for the support of the testator's minor children, applied in deduction of the sums adjudged against him on settlement of his accounts by the surrogate on account of the distributive shares of said minors, it appeared that in the account presented by the administrator before the surrogate the advances were set out and a credit claimed for the amount thereof, but the claim was disallowed: Held, that the decision of the surrogate thereon was res adjudicata; and so, conclusive upon the parties in this action. (ld.)

for that purpose (See ante, 454). (Id.)

TRADE-MARK.

1. A person who has been a hired workman of another, a mere employe for a time, afterwards engaging in the same business of his former employer and occupying a store in the same city, has no right to use the name of such former employer upon his cards, signs, &c, by saying "late with," &c., and such use will be restrained by injunction. (Van Wyck agt. Horowitz, ante, 279.)

TRIAL.

1. Subdivision 2 of section 1347 of the Code of Civil Procedure provides that appeals may be taken to the general term of the supreme court from an order granting or refusing a new trial, "except that where specific questions of fact, arising upon the issues in an action triable by the court, have been tried by a jury, pursuant to an order for that purpose as prescribed in section 971 of this act. an appeal cannot be taken from an order granting or refusing a new trial upon the merits:" Held, that the prohibition against appealing from an order "upon the merits was intended to limit and restrict the consideration of the effect of the evidence to the jury and to the court before which an application to set aside the verdict and for a new trial, might be made under the provisions of section 1003 of the said Code. (Bowen agt. Becht, 35 Hun, 434)

2. That it was not designed to extend beyond a review of the effect of the evidence bearing upon the issue tried. (Id.)

3. That the exception was not intended to prevent the review, by appeal, of rulings made by the

justice presiding at the trial before the jury, by which proper evidence was rejected, or improper evidence received, or unsound rules applied to the consideration of the evidence in the submission of the case to the jury. (Id.)

4. That where such erroneous rulings have been made, and the verdict in part influenced by them has been made the basis of the final recovery, a new trial should be ordered, despite the provisions of section 1003 of the said Code, declaring that "an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial, may, in the discretion of the court which reviews it, be disregarded if that court is of opinion that substantial justice does not require that a new trial should be granted." (Id.)

5. Where such erroneous rulings have been made by the justice presiding at the trial before the jury of the specific questions referred to them, and it appears from the decision of the justice before whom the issues in the action were tried at special term, and from the judgment entered thereon, that the findings of the jury upon the questions submitted to them were considered by him in arriving at his decision, the judgment will be reversed. (Id.)

6. To the complaint in this action, which contained five separate causes of action, the defendant demurred, upon the grounds that there was an improper joinder of causes of action, that the second cause of action therein stated did not state facts sufficient to constitute a cause of action, and that the third cause of action did not state facts sufficient to constitute a cause of action Upon the hearing of the issues raised by the demurrer it was decided that the second cause of action as set

forth in the complaint did not state facts sufficient to constitute a cause of action. The defendant thereupon ente ed a judgment dismissing the complaint as to the second cause of action and for costs. Upon an appeal taken by the plaintiff from this judgment: Held, that as the issues of law raised by the first and third grounds of demurrer had not been decided, no final judgment could be entered. (Robinson agt. Hall, 35 Hun, 214.)

7. That the remedy of the plaintiff was not by appeal, but by a motion at special term to have the judgment SO irregularly entered vacated and the remaining issues properly disposed of. (Id.)

8. That the appeal should be dismissed. (Id.)

9. The rule which is to be applied where a contradiction exists between the findings of fact and conclusions of law appearing in the decision, signed by the judge or referee, and the findings made upon special requests therefore submitted by either of the parties, considered, and the old rule that in such cases the special findings is to control, criticised and doubted. (Sisson agt. Cummings, 35 Hun, 22.)

10. The proper manner of preparing the findings of fact and conclusions of law which are to be signed by the judge or referee and filed as his decision, stated.

(Id.)

11. Referee's report-when set aside because of bias and prejudice upon the part of the referee what will excuse delay in making the motion (See Burrows agt. Dickinson, 35 Hun, 492.)

12. By the court-findings of fact and conclusions of law must be made and signed a trial of a contested question of fact by the

court cannot be reviewed unless such a decision be made. (See Benjamin agt. Allen, 35 Hun, 115.)

13. Trial for murder in the first degree when the question of premeditation and deliberation must be left to the jury errors in the charge when not cured by a subsequent modification thereof defense of an alibi - it is error to charge that it is a suspicious defense what evidence may be admitted to sustain the defense. (See People agt. Kelly, 35 Hun, 295.)

TRUST.

1. The courts recognize a difference between the intent of a testator to create a legal direction on his devisee and the intent solely to create a moral obligation; the latter does not create a trust. (Bowker and others agt. Wells and others, ante, 150.)

2. While a secret trust to apply 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 estab lished in such a manner that if legal it would be binding upon the trustee. (Id.)

3.

D. by her will gave the bulk of her estate to four persons, or such of them as might survive her and be of sound mind, absolutely, as joint tenants and not as tenants in common (expressing a wish although stating that it was not to be taken as a legal direction), the estate so bequeathed and devised should be applied by these four gentlemen as they might deem wise to the promotion in the United States of sound political knowledge. In an action to construe the will:

Held, that the language of the will, if directed toward a purpose capable of legal enforcement, would not have created a trust, and as there is no promise shown

de hors the will to apply the devised property to such purpose, the devise is valid and the devisees take the property absolutely as their own (O'Hara agt. Dudley, 95 N. Y., 403, distinguished). (Id.)

See WILL.

Ward agt. Ward and others, ante 345.

TRUSTEES.

See CORPORATION.

United States Ice and Refrigerator Co., agt. Reed et al., ante 253.

VERIFICATION.

1. A verification of a pleading made by the secretary of a domestic corporation in the usual form, as required by the Code, when a pleading is verified by the party, is a sufficient verification. (American Insulator Co. agt. Bankers' and Merchants' Telegraph Co., ante, 120.)

2. It is only agents or attorneys that are required, when verifying pleadings, to set forth the grounds of their belief as to all matters not stated upon their knowledge, and the reason why the verifica tion is not made by the party. A corporation cannot take an oath, and the statute points out the way in which it must verify a pleading. Such verification is the verification of the corpora tion and a verification by the party. (Id.)

WILL.

1. The primary fund for payment of legacies is personal estate and realty, cannot be charged with the burden unless by express direction or clear intent drawn from the will, aided by outside circumstances, if any there be. (Reyher agt. Reyher and others, ante, 74.)

2. The will of R., after directing the payment of his debts, directed his executors to pay to his father, mother, brother and sister, certain sums of money, and then directed that all the rest, residue and remainder of his estate, both real and personal, be equally divided between his daughter and widow, who was appointed executrix, giving her full power to sell and convert all the estate into money. The personal property was insufficient to pay the legacies in full:

Held, that the legacies were chargeable upon the real estate. (Id.)

3. It is the duty of the court to ascertain from the will itself the intention of the testator, and if the provisions of the will are legal, to give effect to them according to the intention of the testator. Invalid provisions, as a matter of course, must fail. (Lee agt. Lee, ante, 76.)

4.

By the will one half of the residuary estate was given to trustees, who were directed to receive the income thereof during the lifetime of the testator's son, H. W. L., and to pay the same to him so long as he should live. But upon his death, leaving a wife him surviving, one-quarter of the income was to be paid to her so long as she should remain unmarried. On his death, without leaving a widow, the whole of such share set apart for his benefit, or if he should leave a widow, three-quar ters of such share was given absolutely and in fee to his children. But should his son leave "a widow," then at her death or remarriage the one-quarter of his share was disposed of in like manner as the rest of the share. H. W. L was married at the time of his father's death, and he, as well as his then wife, are still living:

Held, that it would be prema. ture, at this time, to pronounce this portion of the will invalid, for effect may be given to the tes