Fourth Department, March, 1910. [Vol. 137. evidence as to a personal transaction with the deceased, involving substantial part of her estate and about which she had given no testimony, and in reference to which she had not been interrogated. Not only were the defendants permitted to give evidence tending to establish that the deceased had orally agreed to transfer to them her interest in the New York real estate, or its value, but they were permitted, over plaintiff's objection, to give evidence of transactions alleged to have been had with the deceased which would tend to corroborate the fact that such agreement was made. Pauline A. Piffard thus testified that some years previous she had drawn a will for the deceased, and was permitted to give its contents, which testimony could have been given only for the purpose of showing that the alleged contract as to the disposition of the New York property was probably made. In the case of Martin v. Hillen (142 N. Y. 140) it was said (p. 144): "But he [the defendant] could not explain, impair or contradict the plaintiffs' version by means of another and independent personal transaction or communication between himself and the deceased. The contention of the defendant's counsel is that the defendant could testify to any fact or circumstance that concerned the transaction testified to by the plaintiff, and any new or independent personal transaction between the defendant and the deceased that tended to contradict it, or show that it could not have occurred, was evidence of that character and admissible. We think that such a construction of § 829 is not permissible. The words 'concerning the same transaction or communication' were inserted in the section for the very purpose of rendering such a construction impossible. It would open the door for the admission of all the evils. which the section was intended to prevent and would go far towards repealing it entirely, since the testimony of the executor or administrator bringing the action, in his own behalf, to a single distinct personal transaction or communication, would open the way for the adverse party to testify to any other personal transaction or communication, or to any number of them, upon the ground that they tended to explain or contradict the single transaction or communication given in evidence by the plaintiffs. This would practically defeat the purpose which the Legislature had in view." I think also that there was no consideration for the agreement Fourth Department, March, 1910. By App. Div.] which is the basis of defendants' counterclaim in this action. the terms of the alleged agreement entered into between the deceased and the defendants, provision was made for ample payment by the deceased for all services rendered to her. Her board and that of her maid, the care of the horses, wagons and coachman were all provided for by the terms of the oral agreement. It is not suggested that the payments so agreed to be made by the deceased were not ample for the services rendered, and I think it cannot be determined, even construing the evidence of the defendants most favorably to them, that there was any consideration for the alleged agreement on the part of the deceased to will or transfer to them upon her death property of the value of between $50,000 and $60,000. Finally, I conclude that the defendants did not establish their alleged counterclaim by such proof as would entitle them to recover under the rule as laid down by the Court of Appeals in Hamlin v. Stevens (177 N. Y. 39). I conclude that the plaintiff's exceptions should be sustained and a new trial granted, with costs to the plaintiff to abide the event. KRUSE, J., concurred. Plaintiff's exceptions overruled. Motion for new trial denied, with costs, and judgment directed for the defendants upon the verdict, with costs. GENEVA-SENECA ELECTRIC COMPANY, Appellant, v. ECONOMIC POWER AND CONSTRUCTION COMPANY and the CITY OF GENEVA, Respondents. Fourth Department, March 29, 1910. Appeal - practice - appeal to Court of Appeals after affirmance of demurrer by Appellate Division. Where the Appellate Division has affirmed a judgment sustaining a demurrer to a complaint upon the ground that it does not state facts constituting a cause of action, the plaintiff may appeal directly to the Court of Appeals from the final judgment of the Special Term entered on the affirmance by the Appellate Division. Upon such appeal the decision of the Appellate Division may be Fourth Department, March, 1910. [Vol. 137. reviewed, providing notice of an intention to do so be given in the notice of appeal. It seems, that it is only where the Appellate Division reverses such interlocutory judgment that the respondent must, after entry of judgment in the court below, appeal to the Appellate Division, take an affirmance and then appeal to the Court of Appeals. MOTION for leave to appeal to the Court of Appeals from a judg ment of the Appellate Division, entered on the 12th day of January, 1910, which affirmed a judgment of the Special Term. (See 136 App. Div. 219.). Lansing G. Hoskins, for the motion. Bissell & Riley, opposed. MCLENNAN, P. J. : The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained. From the interlocutory judgment sustaining the demurrer the plaintiff appealed to this court where the said judgment was affirmed on January 12, 1910. The appellant now asks leave to appeal to the Court of Appeals from such judgment of affirmance. We cannot agree with the appellant in saying that an appeal may not be taken direct to the Court of Appeals from the judgment of the Special Term sustaining the demurrer and dismissing the complaint which was entered subsequent to and in pursuance of the judgment of affirmance of this court. The matter is provided for in section 1336 of the Code of Civil Procedure. The case of Abbey v. Wheeler, (170 N. Y. 122) referred to by the appellant, simply holds that where the Appellate Division reverses such an interlocutory judg ment the respondent must, after entry of judgment in the court below, appeal to the Appellate Division, take an affirmance and then appeal to the Court of Appeals. But it is distinctly stated in Dieterich v. Fargo (194 N. Y. 359) at the bottom of page 362, and again in McNamara v. Goldan (Id. 315) at page 319, that where the Appellate Division affirms such an interlocutory judgment the appellant may appeal direct to the Court of Appeals from the final judgment entered upon such affirmance in the court below. Upon App. Div.] Fourth Department, March, 1910. such an appeal the decision of the Appellate Division may be reviewed, provided notice of intention to review it is given in the notice of appeal. For this reason the motion should be denied, with ten dollars costs. All concurred. Motion for leave to appeal to Court of Appeals denied with ten dollars costs. In the Matter of the Probate of the Last Will and Testament of WILLIAM E. TRUMBLE, Deceased. Trust and DepoSIT COMPANY OF ONONDAGA and Others, Appellants, Respondents; GEORGE D. READ and Others, Respondents. Fourth Department, March 29, 1910. Will-trust construed - bequest of income to surviving sisters and to the heirs of such as die trust for heirs of sisters offends statutes against perpetuities-trust for sisters not void-separation of legal from illegal trusts - subjects of illegal trust pass as unbequeathed assets. Where a testator after giving a life estate to one sister with remainder to her children, provides that the residue of his property be converted into cash and deposited by the executors in banks paying interest, such income to be paid to such other sisters of the testator as are living at his death at the rate of forty dollars per month to each until such moneys and interest are fully paid to them, with a further provision that if any of the surviving sisters die before the fund is fully paid out, the executor shall pay to her heirs the monthly sum of forty dollars until the same is fully paid out, the provision in favor of the heirs of a deceased sister is void as offending the statute against perpetuities. But the provision for the sisters, as distinguished from the provision for their heirs, is not void in that there is no creation of a common fund in which they have a joint interest with the right of survivorship; but on the contrary, an independent trust is created for each sister, and the illegal provision in favor of the sister's heirs may be disregarded as the two provisions are independent. As the provision for the heirs of deceased sisters is invalid any fund left on the death of a sister should be distributed as unbequeathed assets. MCLENNAN, P. J., and ROBSON, J., dissented, with opinion. SEPARATE APPEALS by the Trust and Deposit Company of Onondaga, proponent, and by Amanda F. Parkhurst and others, contest Fourth Department, March, 1910. [Vol. 137. ants, from parts of a decree of the Surrogate's Court of the county of Oswego, entered in said Surrogate's Court on the 28th day of October, 1909, construing the will of William E. Trumble, deceased. The controversy is over the construction and effect of the 4th and 5th clauses of the will of William E. Trumble, late of the city of Oswego, which are as follows: "Fourth. I give and bequeath all the rest, residue and remainder of my estate, if any, to be paid out as set forth in this paragraph of this, my last will and testament, equally to such of my sisters, Amanda F. Parkhurst, Waty A. Hodgerney, Rebecca J. Dalrymple, Fanny M. Tyler and Mary B. Draper, as are living at the time of my death. “I hereby direct my executor, hereinafter named, to convert my estate which has not been disposed of by this will, into money and deposit the same in banks or trust companies paying interest on deposits, and to pay therefrom monthly to such of said sisters named in this paragraph of this will as are living at the time of my death the sum of forty dollars to each until such moneys and interest are fully paid out to them. "In case one or more of my sisters named in this paragraph of my will shall survive me, but shall die before said fund is fully paid out, then in that case from that time on, I direct my executor hereinafter named to pay to the heir or heirs of such sister, except the heir or heirs of my sister, Amanda F. Parkhurst, the monthly sum of forty dollars until said fund is fully paid out; it being my intention and direction that the said heir or heirs, except the heir or heirs of Amanda F. Parkhurst, shall be substituted in the place of said sister and receive the said sister's payment of forty dollars per month, and said forty dollars per month shall be divided among the heir or heirs of such sister in the proportion prescribed by law for the division of personal property among heirs of a deceased person. And in that event to that end, I hereby give and bequeath to such heir or heirs the sum or sums which he or they shall be entitled to receive under this fourth paragraph of my last will and testament except the heir or heirs of Amanda F. Parkhurst as stated above. "Fifth. I expressly declare that it is my intention in this my last will and testament, that any relative or relatives of mine not named in this last will and testament shall under no circumstance have |