N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J. proceedings instituted under the Rapid Transit Act (Laws of 1875, chap. 606). Frederick P. Delafield for appellant. The award should have been set aside and a new appraisal ordered, the commissioners having erred in failing to allow for benefits to the defendant by reason of the operation of the plaintiff's elevated railroad. (Code Civ. Pro. § 3360; N. Y., L. & W. R. Co. v. Arnot, 27 Hun, 151; N. Y., W. S. & B. R. Co. v. Le Fevre, 27 Hun, 537; Rich v. N. Y. El. R. Co., 16 Daly, 518; 46 N. Y. S. R. 673; Whitney v. Boston, 98 Mass. 312; Kane v. M. R. Co., 42 N. Y. S. R. 416; Newman v. M. El. R. Co., 118 N. Y. 618.) Francis R. Whitney for respondent. The award was more than justified by the evidence. (Code Civ. Pro. § 3370; Perkins v. State, 113 N. Y. 660, 661; In re City of Buffalo, 1 N. Y. S. R. 750; In re M. El. R. Co., 76 Hun, 376.) Evidence of decrease since the coming of the railroad, in business in the vicinity of the premises, as well as evidence of decrease in the particular business carried on in the premises in question, was properly admitted. (Drucker v. M. R. Co., 106 N. Y. 163; Doyle v. M. R. Co., 128 N. Y. 498.) ANDREWS, Ch. J. No appeal lies to this court from the order of the General Term affirming the order of the Special Term confirming the report of the commissioners of appraisal. The condemnation proceedings were instituted under the provisions of the Rapid Transit Act (Ch. 606 of the Laws of 1875). The first report of the commissioners was sent back for correction on the application of the petitioner, and was corrected in certain particulars and returned to the court at Special Term and was confirmed. The petitioner appealed from the order of confirmation to the General Term, where the order was affirmed. The petitioner seeks in this court to reverse the order of affirmance, on the ground that the commissioners treated the property of the respondent not as a 147 346 170 315 whole, but as consisting of three distinct parcels. The case shows that there was one tract on which there were three separate buildings, and the claim is that the depreciation of one piece should have been set off against the advantage to the others. The question does not go to the jurisdiction of the commissioners, and, upon the claim made, presents an error of law simply. We held in the case of The Metropolitan Elevated Railway Company (128 N. Y. 600) that condemnation proceedings under the Rapid Transit Act were governed by the rule applicable to proceedings under the General Railroad Act of 1850, and that the determination of the Supreme Court at Special Term confirming the report of commissioners is final, and that no appeal therefrom to this court can be taken either for error of law or fact. A similar determination was made in The Matter of the Commissioners of the State Reservation at Niagara (102 N. Y. 734) under a stat ute nearly identical, so far as respects this question, with the Rapid Transit Act. If the case presented a question of jurisdiction the rule might be different. (Matter of S. B. R. R. Co., 143 N. Y. 253.) The appeal should be dismissed. All concur. Appeal dismissed. HIRAM F. HENRY, Appellant, v. NORMAN M. ALLEN et al., Respondents. RETURN ON APPEAL · MOTION FOR NEW TRIAL. The pendency of an appeal in the Court of Appeals is no bar to a motion in the court below for a new trial; hence, an order that the return be transmitted to the court below for use on such motion is unnecessary. (Argued October 21, 1895; decided October 29, 1895.) 1 THE nature of the proceeding is stated in the opinion. John G. Milburn for motion. W. II. Henderson opposed. N. Y. Rep.] Opinion of the Court, per BARTLETT, J. BARTLETT, J. The appellant moves for an order directing that the return herein be transmitted to the Supreme Court, and that this case be remanded there, without prejudice to the appeal to this court heretofore taken, for the purpose of enabling him to move for a new trial on the ground of newlydiscovered evidence. We deny this motion for the reason that the pendency of the appeal is no bar to a motion in the court below for a new trial. We have heretofore pointed out that upon an appeal to this court the record itself is not transmitted to us, but a transcript thereof, and the case for all general purposes still remains in the court of original jurisdiction. (People er rel. Hoffman v. Board of Education, 141 N. Y. 86.) In the above case we said: "In all matters pertaining to the appeal itself and to the proper hearing thereon this court has jurisdiction, and also in regard to all applications which by statute may be made to this court after the taking of the appeal, but as to all other applications the case is regarded as still pending in the court of original jurisdiction, and such applications should be made to that court." The production in the court below of the return to this court on the motion for a new trial is manifestly unnecessary, as that motion is made on facts dehors the record. If the Supreme Court, in the exercise of its discretion, grants the motion for a new trial, the legal effect will be the vacating of the judgment from which the appeal has been taken to this court, and a motion to dismiss the appeal would then be proper. The motion should be denied, without costs. All concur. Motion denied, Statement of case. [Vol. 147. In the Matter of the Application of MORRIS B. BAER, Appel- 1. WILL-FINAL DISTRIBUTION - BENEFICIARIES. Where final division and distribution is to be made among a class, the benefits of a will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made. 2. CONTINGENT DEVISE - SURVIVORSHIP. Where a future interest is devised, not directly to a given person, but indirectly through the exercise of a power conferred upon trustees, the devise is designed to be contingent, and survivorship at the time of distribution is an essential condition to the acquisition of an interest in the subject of the gift. 3. TIME OF DISTRIBUTION. The rule that in case of a devise to one person in fee, but in case of his death to another, the death referred to will be construed to be a death in the testator's lifetime, has no application where a point of time for distribution is mentioned other than the death of the testator, or where a life estate intervenes, or where the context of the will contains languge indicating a contrary intent. PARTITION PARTIES MARKETABLE 4. WILL CONSTRUCTION TITLE. The will of G. devised certain property in trust for the use of her daughter E., and at her death to her issue, if any; in case E. died without issue the trustees were directed to apply the rents and profits of the property to the suport of M. during life, and at her death to convey the remainder "to the children and lawful heirs of my brother, Harmon Hendricks, deceased, to share and share alike per stirpes." E. died intestate before M. and without issue; thereafter M. died and the trust terminated. H., the deceased brother, left ten children, who were alive at the death of G., but all died before E.; some of these children left wills, under which any interest in the real estate in question which vested in them upon the death of G. would pass. In an action brought to partition the property none of the devisees of these children were made parties, but all persons who answered the description of living heirs of H. at the death of M. were brought in. A motion by the purchaser at the partition sale to be relieved from his purchase upon the ground that the title was unmarketable was denied, and he was ordered to complete his purchase. Held, that the devise was contingent upon the death of E. without issue, and did not vest at the death of G. in the then living children of her brother H., but was postponed until the death of M.; it then vested in the lawful heirs of H. then living; that as all persons who answered to this description at the time of distribution had been made parties to the action of partition and become bound by the judg ment, the title tendered was good and marketable. Also held, that the title was not involved in so much doubt as to justify the purchaser in refusing to perform, and as the court below had exercised its discretion in that respect its order compelling performance ought not to be disturbed. Reported below, 87 Hun, 483. (Argued October 21, 1895; decided October 29, 1895.) APPEAL from order of the General Term of the Supreme Court in the first judicial department, made June 14, 1895, which affirmed an order of the Special Term denying a motion by the purchaser of premises sold under an interlocutory judgment in an action of partition, to be relieved from his purchase, and ordering him to complete such purchase. The facts, so far as material, are stated in the opinion. Thomas W. Butts for appellant. If there be an element of doubt the purchaser at a judicial sale must be relieved from his contract. (Jordan v. Poillon, 77 N. Y. 518; Shriver v. Shriver, 86 N. Y. 575-584; Fleming v. Burnham, 100 N. Y. 1-8; Abbott v. James, 111 N. Y. 673-678; Vought v. Williams, 120 N. Y. 253-257; Kilpatrick v. Barron, 125 N. Y. 751–755.) The gift is in form a mere direction to divide and pay at a future time, and although it is a rule of construction that such a gift shall be held to be contingent, and that the beneficiaries are to be determined at the time of the distribution, the rule is subject to and controlled by the intention of the testator, which intention, if not declared in clear terms, may be sought in circumstances and in the light afforded by other clauses of the will. (In re Tienken, 131 N. Y. 409; In re Smith, 131 N. Y. 239; Goebel v. Wolf, 113 N. Y. 405; In re Gardner, 140 N. Y. 122; In re Seebeck, 140 N. Y. 241.) "After" is a word which has been interpreted and given its due place. It relates to the time of distribution and not to the beneficiaries. It fixes the time of enjoyment. It does not limit or enlarge the number of remaindermen. (Moore v. Lyons, 25 Wend. 118; Livingston v. Greene, 52 N. Y. 118; Nelson v. Russell, 135 N. Y. 137.) The testatrix intended that her ultimate beneficiaries |