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First Department, March, 1910.

[Vol. 137.

auts urge that the seventeenth of July, when the plaintiff wrote to Schlesinger, is the date that marks the limit of reasonable time in the present case for the reason that the letter then sent clearly indicates that Rosenbaum had already determined that he wished to replace the stock. This suggestion is not persuasive in view of the plaintiff's absence from the city of New York and the fact that it was only on or about the previous day that he had received notice of the sale of his stocks. His letter was evidently written in haste, under more or less excitement, and without opportunity for full consideration of the various questions involved. The plaintiff, on the other hand, contends that because of the pretracted conference and pleas for delay on the part of the defendants his reasonable time for determining whether he wished to replace the stock was extended by the defend. ants' own acts to some period subsequent to August fourteenth, the date of the last interview between two of the defendants and plaintiff's partner. In my judgment, under all the circumstances, the reasonable time within which the plaintiff is entitled to the highest price at which the stock sold on the Excbange expired on the thirty-first day of July, when he spent the entire day in the city on his return from Washington. His letter of that date indicates that he had given sufficient attention to market conditions to decide as to what he wished to do with some of his securities, and no reason is apparent why he could not have reached a decision as to all of them. He naturally expected a reply of some sort to his letter to Schlesinger of July sixteenth or seventeenth. No reply being received, he was entitled to a reasonable period within which to determine upon his course of action. That period, as it seems to me, must be held to hare expired when he found himself in New York on the thirty-first of July with opportunity to obtain either by personal interview or telephone whatever expla. nation the defendants had to make of their conduct, to familiarize himself with market conditions and to consider his legal rights. To extend the period beyond this date would be to permit the plaintiff to speculate on a rise of the market at the expense of defendants, which the courts do not sanction. I accordingly conclude that the plaintiff is entitled to recover from the defendants the difference between the aggregate price at which his stocks were sold and the aggregate of the highest market prices of the same stocks during the period from July 12, 1906, to and including July 31, 1906. A draft report to this effect and appropriate findings may be submitted.

WILLIAM BRINKERHOFF, as Executor of and Trustee under the Last Will and

Testament of GeoRGE J. SEABURY, Deceased, Respondent, v. EUGENIA R. SEABURY and Others, Impleaded with Norman S. Green and Others, Appellants. Will trust accumulation of income valid and invalid provisions power of sale.

Appeal from a judgment entered in New York county clerk's office January 20, 1910.

Judgment affirmed on the opinion of Bischoff, J., in the court below.
The following is the opinion of the court below:

BISCHOFF, J.: The provision for the accumulation of income for fifteen years being obviously void, I am to determine the extent to which other directions in

App. Div.]

First Department, March, 1910. the will, depending upon or connected with the invalid provision, may be enforced. The payment of $3,000 annually for their lives to the testator's two daughters, as directed in paragraph 5, must be considered as upon a trust, separate and distinct from the trust provision for their benefit in paragraph 7. The 5th paragraph does not relate nor is it restricted to income in the hands of the trustees during the fifteen-year period (provided for in paragraph 6), and the powers of the trustees were not, necessarily, to come to an end under paragraph 5 when that period terminated. At that time paragraph 7 was to take effect, and while a trust fund was to be set apart for the daughters sufficient to yield this same amount of income, there is no clear and reasonable indication that the payment for their “natural lives,” in paragraph 5, was intended as a mere temporary provision for fifteen years. Since the persons who were to take the residue under the 8th paragraph, after the fifteen-year period, were such members of a designated class “as may then be living,” this residuary provision cannot be carried into effect by accelerating the bequest, for there was no pres. ent gist and no vesting of an estate in the residuary legatees, postponed merely as to the time of enjoyment. The persons to take were those who might fulfill the condition of survivorship, no remainders were to vest within the period of suspension allowed by law, and the gift itself is so dependent upon the void trust, with the attendant postponement for fifteen years, that it cannot be given effect if any regard be had to the testator's actual intention. (Fargo v. Squiers, 154 N. Y. 250, 260.) The trust estate for the two daughters, under paragraph 7, may properly be brought into existence by resort to the doctrine of acceleration (Kulish v. Kalish, 166 N. Y. 368), and the trustees have duties to perform with respect to the collection of income and the payments to these daughters of the annual sum of $3,000 for their lives, under paragraph 5. In other respects the 5th paragraph does not operate to create a trust or to effect an equitable conversion. So far as sales may be necessary to carry the trust provision for the daughters into effect, the trustees are undoubtedly possessed of a power of sale, according to the express words of the will, but there is no imperative direction to sell, and no apparent purpose is indicated which would necessitate a sale of all the real estate for the purposes of distribution. My conclusion is that the residuary estate is charged with the two trusts above referred to, for each of the testator's daughters, and that beyond this, as to the residuary estate, there was intestacy. Form of decision and judgment may be presented accordingly on notice of settlement.

Thomas Garrett, Respondent, v. National Fireproofing Company, Appellant. -- Judgment and order affirmed, with costs. No opinion.

Isaac Dincin, Appellant, v. Samuel Colcord, Respondent. — Judgment and order affirmed, with costs. No opinion.

Adam Joseph Hafner, Respondent, v. Mechanics and Traders' Realty Com. pany, Appellant. - Judgment affirmed, with costs. No opinion.

In the Matter of the Judicial Settlement of the Account of Moses F. Dennis, es Executor, etc., of Van Wyck Horton, Deceased, Appellaut. George P. McCoy and Susan E. H. Ilackett, Respondents. – Decree affirmed, with costs. No opinion, First Department, March, 1910.

[Vol. 137. Louis Goldsticker and Martin Goldsticker, Individually and as Executors, etc., of David Goldsticker, Deceased, and Others, Appellants, v. David L. Phillips and Others, Respondents.— Judgment affirmed, with costs. No opinion.

Addie M. Hunt, Respondent, v. The Long Island Railroad Company, Appellant. — Judgment and order affirmed, with costs. No opinion.

James J. Devitt, Respondent, v. Jolin Laue, Appellant. — Judgment and order affirmed, with costs. No opinion.

Asphalt Construction Company, Respondent, v. De Witt C. Bouker, Jr., and Andrew A. Bouker, Appellants, Impleaded with William Kelly.- Judgment affirmed, with costs. No opinion.

Leo Frank and Israel De Keyser, Respondents, v. William Bernard, Appel. lant. — Judgment and order affirmed, with costs. No opinion.

Hubert T. Foote, Respondent, v. Henry H. Todd, Appellant. — Judgment affirmed, with costs. No opinion.

Mary Downes, Appellant, v. The City of New York, Respondent. — Judgment affirmed, with costs. No opinion.

Israel Friedman, an Infant, by Samuel Friedman, His Guardian ad Litem, Appellant, v. Adrian H. Joline and Douglas Robinson, as Receivers of the Metropolitan Street Railway Company, Respondents.- Judgment and order affirmed, with costs. No opinion.

Richard V. Mattison, Jr., Respondent, v. Agnes C. Mattison, Appellant.Judgment affirmed, with costs. No opinion.

Charles F. de Casanova and Edwin M. Friedlander, Appellants, v. Van FossenBugg Company, Respondent.- Order affirıned, with costs. No opinion.

Charles 0. Wright, Appellant, v. The Northern Assurance Company of London, Respondent. — Order affirmed, with costs. No opinion.

The Stein-Gray Drug Company, Appellant, v. The H. Michelsen Company, Respondent.– Determination affirmed, with costs. No opinion.

Harry B. Reibstein, Respondent, v. William A. Stenz, Appellant. — Judgment and order reversed and new trial ordered, unless plaintiff stipulates to reduce judgment as entered to the sum of $469.25, in which event judgment as 80 modified and order affirmed, without costs. No opinion. Settle order on notice.

The People of the State of New York, Respondent, v. Thomas Machienski, Appellant.-Judgment affirmed. No opinion.

Morris Freudenheim and Others, Respondents, v. Selig Gutter and Others, as Executors, etc., of Bernhard Gutier, Deceased, Appellants.— Judgment and order affirmed, with costs. No opinion.

William B. Bird and Others, Constituting the Firm of J. A. & W. Bird & Com. pany, Respondents, v. The Casein Company of America, Appellant. — Judgment and order affirmed, with costs. No opinion. Scott, J., dissenting on the ground that the contract was severable.

The Alden Speare's Sons Company, Respondent, v. The Casein Company of America, Appellant. — Judgment and order affirmed, with costs. No opinion. Scott, J., dissenting.

Marie L. Harrison, as Executrix, etc., of Jared F. Harrison, Deceased, Respond.

App. Div.]

First Department, March, 1910. ent, v. Hartford Life Insurance Company, Appellant.— Judgment affirmed, with costs. No opinion.

Rolland M. Bickerstaff, Respondent, v. Frank L. Perley, Appellant, Impleaded with Lee Shubert and John C. Fisher.— Judgment and order affirmed, with costs. No opinion. Miller and Dowling, JJ., dissenting.

Augustus W. Openhym and Others, Respondents, v. Chamberlin-JohnsonDu Bose Company, Appellant.-Judgment aflirmed, with costs. No opinion.

Bernard J. Ford, Appellant, v. Joseph Stern and Others, Respondents. — Judgment affirmed, with costs. No opinion. Scott, J., dissenting.,

Moritz Kepes, Respondent, v. Joseph Green, Appellant. — Judgment modified by deducting therefrom $183.36, together with the interest thereon, and as modi. fied affirmed, without costs. No opinion. Settle order on notice.

The People of the State of New York ex rel. Wood D. Loudoun, Relator, v. John Purroy Mitchel and Ernest Y. Gallagher, as Commissioners of Accounts of the City of New York, Respondents. -- Writ dismissed and proceedings affirmed, with fifty dollars costs and disbursements. No opinion.

John M. Stewart, an Infant, by Oscar Stewart, His Guardian ad Litem, Respondent, v. Fortunato D'Onofrio, Appellant. — Judgment and order affirmed, with costs. No opinion.

Oscar Stewart, Respondent, v. Fortunato D'Onofrio, Appellant. — Judgment and order affirmed, with costs. No opinion.

Emma E. Nestell, Appellant, v. Charles H. Hart and Others, Respondents.Judgment affirmed, with costs. No opinion.

Emma E. Nestell, Appellant, v. Charles H. Hart and Others, Respondents.Judgment and order affirmed, with costs. No opinion.

Ferdinand R. Minrath, as Substituted Trustec, etc., Respondent, v. New York Investinent and Improvement Company and Others, Impleaded with James M. Gifford, Appellant. — Judgment affirmed, with costs to respondents who appeared separately and filed briefs, on opinion of the court below. (Reported in Lauterbach v. New York Investment Co., 62 Misc. Rep. 561.)

J. Frederick Hoefle, Appellant, v. Annie Hallanan, Respondent. — Judgment and order affirmed, with costs. No opinion.

Bernhard Vogel v. Simon Nachemson and Others, Impleaded with Minnie Sable, Appellant, and Jennie Nachemson, Respondent. — Order affirmed, with ten dollars costs and disbursements. No opinion.

In the Matter of the Application of Pasquale Prencipe, Appellant, for a Peremptory Writ of Mandamus against the State Board of Pharmacy of the State of New York, Eastern Branch, Respondent. — Order affirmed, with ten dollars costs and disbursements. No opinion.

Daniel Caslin, an Infant, by Mary Caslin, His Guardian ad Litem, Respondent, v. Reed & Barton Company, Appellant. — Order affirmed, with ten dollars costs and disbursements. No opinion.

In the Matter of the Application of Boudinot Keith, as Trustee under a Deed of Trust Dated November 23, 1908, Appellant, for a Peremptory Writ of Mandamus. Peter J. Dooling, as Clerk of the County of New York, and Others, Respondents - Order affirmed, with ten dollars costs and disbursements. No opinion.

inie

First Department, March, 1910.

(Vol. 137. Standard Fashion Company, Appellant, v. Nicholas Bussendorffer, Respondent. - Order aflirmed, with ten dollars costs and disbursements. No opinion.

Banner Fashion Company, Appellant, v. Nicholas Bussendorffer, Respondent. - Order aflirmed, with ten dollars costs and disbursements. No opinion.

Walter W. Miller, Respondent, v. Charles E. Campbell, Appellant. — Judg. ment and order affirmed, with costs. No opinion.

District Number 1, Independent Order B'Nai B'rith v. Sarah Goldstein, Respond. ent, Impleaded with Dwight W. De Motte, as Trustee, Appellant.— Order aflirmed, with ten dollars costs and disbursements. No opinion.

Irving E. Raymond, as President of A. A. Vantine & Company, Respondent. v. Burnett Y. Tiffany, Appellant, Impleaded with Louis C. Tiffany and Alfred I. Mitchell, as Surviving Executors of and Trustees under the Last Will and Tes. tament of Charles L. Tiffany, Deceased, and Others.— Order affirmed, with ten dollars costs and disbursements. No opinion.

In the Matter of Mary Fagan for the Sale of Real Property Belonging to Harry Fagan and Other Infants, Appellants; Cornelius Danahy, Respondent.- Orders affirmed, with ten dollars costs and disbursements. No opinion.

Thomas Lavin, an Infant, by Martin Lavin, His Guardian ad Litem, Appel. lant, v. James C. Fargo, as President of the American Express Company, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion,

Kalman Gottlieb, Respondent, v. Fanny Horowitz, Appellant. — Order affirmed, with ten dollars costs and disbursements. No opinion.

Fannie Clarke, as Administratrix, etc., of James V. Clarke, Deceased, Respond. ent, v. New York Contracting Company, Pennsylvania Terminal, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion.

The People of the State of New York, Respondent, v. René Parnageon, Defendant. In the Matter of the Petition of Emil Birtolicius, Bondsman, Appel. lant, for Remission of Forfeiture of Bail.- Order affirmed. No opinion.

The People of the State of New York, Respondent, v. Alphonse Duraud, Defendant. In the Matter of the Petition of Emil Bartolicius, Bondsman, Appellant, for Remission of Forfeiture of Bail.— Order affirmed. No opinion.

The People of the State of New York v. Chauncey B. Bradley. The People of the State of New York v. Michael Merinda. – Motions to dismiss appeals granted.

William G. Mulligan v. Louis Sieferd, as Administrator.- Motion to dismiss appeal granted, with ten dollars costs.

John M. Stewart, an Infant, v. Fortunato D'Onofrio. Oscar Stewart v. For. tunato D'Onofrio. - Motions denied.

John Wollenhagen v. Jacob D. Butler.- Motion to dismiss appeal granted, with ten dollars costs.

Irving E. Raymond, as President, etc., v. Burnett Y. Tiffany.- Motion to dismiss appeal denied.

Simon Engel v. Maryland Casualty Company. - Application for leave to appeal from Appellate Term denied, with ten dollars costs. Order signed.

Cornelius C. Coakley v. “George” L. Rickard, etc. In the Matter of Edward

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