the widow's death, and the effect
of the will is to make the annuity,
from the majority of the youngest
child, a legacy payable by the ex-
ecutors as such, there being suffi-
cient personal property for the
purpose at the testator's death,
but secured by a charge upon the
realty in case of a deficiency in
the personalty, instead of continu-
ing the trust for the widow's bene-
fit, or creating a power in trust,
the realty so vests in the children
on the termination of the trust on
the youngest child's reaching his
majority, subject to the charge
upon it of the widow's annuity in
case of deficiency and the neces-
sary postponement of the ultimate
possession, that the right of dower
of the wife of a son of the testator
in his share of the realty then de-
volved will become consummate
on such son's dying subsequent to
such devolution of the estate but
during the lifetime of the testator's
widow. Clark v. Clark.

639

5. Priority of Dower over Annuity.
In such a case, where the annuity,
by reason of there being sufficient
personal property at the death of
the testator to furnish it, did not
become a charge upon the land by
force of the original devise, the
right of dower of the wife of a son
of the testator in the shares in the
realty taken by him through the
devise will have a priority over
the right of the annuitant, which
will not be affected by an arrange-
ment made between the annuitant
and the devisees after the right of
dower attached, making the an-
nuity a charge upon the land. Id.

6. Priority of Annuity over Dower.
Where, however, the son of such
testator obtained a part of the tes-
tator's realty by conveyances made
between the devisees and the an-
nuitant, by which such part was
subjected to the lien of the an-
nuity on the passage of the title
to him, the right of dower of his
wife as to such part of the estate
is subordinate to the lien of the
annuity.

EASEMENTS.

Id.

1. Landlord and Tenant - Easement
in Sewer. Although a landlord

may have a right, in the nature of
an easement, to continue the use
of a sewer running from premises
occupied by him to and under
adjacent premises leased by him
to another, this right does not per-
mit him, by an abuse of it, to so
injuriously affect the tenant's pos-
session as to make it impossible
or unsafe for the tenant to con-
tinue in occupation. Sully v.
Schmitt.
248

-

a8 a

2. Right of Way Street
Boundary in Deeds. The owner
of different parcels, constituting
together all the lands on both
sides of a cul de sac strip fifty feet
wide, which in his deeds from a
common grantor was designated
as a street, by which the parcels
were bounded, and which was so
delineated on maps contained in
the deeds, conveyed portions of
the lands to different persons by
conveyances in which the lands
were bounded and described sub-
stantially as in the deeds to him,
and in all of which the existence
of the street was recognized, and
in none of which was any inten-
tion to restrict or extinguish it ex-
pressed. In one of the deeds by
which part of the lands came to
him there was a clause to the effect
that both parties dedicated the de-
scribed strip forever to the public
as a public street, contemplating
its extension in the future; but it
appeared that it had never been
accepted by the public authorities
as a public street, and was not
used as such, but simply as a
means of ingress and egress to and
from the lands along its bound-
aries. The grantees, in one of the
conveyances from such owner of
all the lands, in which the con-
veyed premises were bounded on
the street, brought an action in
equity against their grantor and
his other grantees, to prevent the
obstruction of their right of way
in such street; in which action it
was found that subsequent to the
grant to the plaintiffs the defend-
ants had obstructed the street or
way by digging a ditch across it
and by inclosing a portion of it
with fences for their own exclusive
Held, that the plaintiffs' con-
veyance and the other conveyances
mentioned, with the maps bound-

use.

ing the premises upon a street,
secured to the plaintiffs an ease-
ment or right of way in the strip
of land so delineated, described
and recognized, and that, whether
it was, at the time of the grant to
them, a public street or not, such
easement or right of way was at-
tached as an appurtenance to the
land conveyed, and thereupon the
plaintiffs acquired the right to in-
sist at all times that the way be
kept open for the benefit of their
premises. Haight v. Littlefield.
338

not

3. Right of Way Obstruction in
Existence at Time of Grant. It
appeared that some of the fences,
by means of which the defend-
ants had inclosed and appropriated
some portions of the street, were
in existence at the time of the
plaintiffs' grant and to their knowl-
edge. Held, that this was
material; that as the defendants
had, prior to the grant to the plain-
tiffs, used, possessed and owned
the whole of the premises, includ-
ing the street, there was nothing
in the appearance of things at all
inconsistent with the terms of the
plaintiffs' deed, and, hence, that
the plaintiffs could insist that
their rights in the street should be
governed by the deed and not by
the actual physical appearances
when it was made.

-

Id.

4. Elevated Railroads Easements
in Street Abandonment. The
abandonment of the right of ease-
ments in a city street, appurte
nant to abutting property and en-
croached upon by an elevated
railroad, may be established by
evidence of acts clearly indicat-
ing an intention on the part of
the abutting owner to abandon
the right, followed by action
thereupon by the railroad com-
pany. Foote v. Metr. El. Ry. Co.

367

5. Intention to Abandon Easements.
An intention on the part of an
abutting owner to abandon his
right of easements in a street is
not to be inferred from the fact
of his bringing an action at law
against an elevated street railroad
company to recover temporary
accrued damages for its unlawful

6.

invasion of his right, followed by
an agreement with a proposed
grantee of the abutting prop-
erty, reserving all claims arisen
or to accrue by reason of the
elevated road; and a declaration
of such intention, made by the
original owner on receiving pay-
ment from the railroad company
in settlement of such action, sub-
sequent to his parting with the
title to the premises affected and
to its conveyance to a third party
by his grantee, will not retroact to
the time of the commencement
of his action and so complete the
act of extinguishment as of that
date, when he was owner of the
premises. Such a state of facts
does not present a case for the
application of the above rule as
to abandonment of easements. Id.

Right to Compensation. The pen-
dency of an action at law, brought
by an original abutting owner to
recover temporary damages for
the trespass upon his right of
easements in a street by an ele-
vated railroad, and the existence
of an agreement between him and
his grantee of the abutting prop-
erty, reserving all claims arisen
or to accrue by reason of the ele-
vated road, will not affect a subse-
quent grant of the abutting prop-
erty to a third party by such
grantee before any lawful acqui-
sition of the easements by the
railroad company; but such ease-
ments pass as appurtenant to the
property, and such third party,
on becoming the owner thereof,
is solely invested with the right
of asking to restrain the operation
of the railroad and to recover
compensation for the easements;
and if the railroad company there-
after makes a settlement with and
payment to the original owner for
the easements, it does so at its
peril.
Id.

EJECTMENT.

Parties. While the plaintiff in an
action of ejectment may, he is
not obliged to join as parties de-
fendant all those who may be
occupants of the premises de-
scribed. The words of the Code
of Civil Procedure (§ 1502), "the
occupant thereof" may be read

Contract of Sale-Action for Price.
The complaint in an action
brought by the vendor to recover
the balance of the contract price
of bonds, kept open a tender
of undelivered bonds, and the
plaintiff recovered judgment.
Held, that by his election to sue
upon the contract, the plaintiff
had kept alive all his own obliga-
tions under it; that no acts done
by him after the commencement
of the action could affect the
cause of action; that the defend-
ant-vendees, upon payment of the
judgment, would be entitled to
demand the bonds and that a fail-
ure to comply would create a
cause of action in their favor;
that the fact that some of the un-
delivered bonds remained pledged
to others to secure liabilities of
the plaintiff proved nothing
against his right of recovery, but
if he could not redeem them he
could be compelled to account for
the moneys received for them;
and, that if any of the bonds had
been converted and passed beyond
his control, after the commence-
ment of the action and without
fault on his part, at most, if at all
under the circumstances, he could
be compelled to account for their
actual value. Stokes v. Mackay.

ELECTIONS.

223

1. Westchester and New York Coun-
ties. The voters in the territory
of Westchester county, annexed
to New York county by chapter
934, Laws of 1895, are entitled to
vote for senator, member of as-
sembly and justices of the Su-
preme Court, the same as though
the act had not been passed, and
elections in the annexed territory
are of necessity to be conducted
under the control of the election
officers of the city and county of
New York, and the returns are to
be made to the proper authorities |

2. Repeating in Voting - Eridence on
a Trial for Murder. On the trial
of an indictment for murder, com-
mitted during a municipal elec-
tion, the court admitted, under
the defendant's objection and ex-
ception, evidence of repeating in
voting, committed in the presence
and under the supervision of the
defendant, at the polling place at
which the killing with which the
defendant was charged occurred,
and at others in the same ward,
immediately preceding the killing,
which evidence disclosed a sys-
tematic plan of repeating on the
part of the defendant and his asso-
ciates, which was opposed by the
deceased. Held, that the evidence
was properly admitted as tending
to show that the defendant's act
in killing the deceased was delib-
erate and constituted murder in the
first degree. People v. Shea.

3.

78

Residence of Voter — Seminary
Students. Under the provision of
the Constitution of the state of
New York (Art. 2, § 3), to the
effect that for the purpose of
voting a residence cannot be
gained or lost by reason of pres-
ence or absence while a student of
any seminary of learning. it is
essential, to entitle a student whose
legal residence has been previ-
ously elsewhere, to vote in the
election district in which the
seminary is situated, that the in-
tent to change his legal residence
be manifested by acts which are
independent of his presence as a
student in the new locality. In
re Garvey.
117

4. Theological Students - Residence.
The rule requiring proof of change
of legal residence by acts inde-
pendent of the presence of the
student in the seminary, held, to
be controlling in the determination
of the right to registration, in the
election district in which the semi-
nary is situated, of certain stu-
dents of the General Theological
Seminary of the Episcopal Church,
in New York city, living in one
of the seminary buildings. Id.

See NEW YORK CITY, 3, 5.