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herein the law provides a discretionary punishment of one year's imprisonment and a fine of $500, and also an obligatory punishment of a forfeiture of license, amounting to $800, and possibly a penalty under the bond given for nonviolation, of $1,600; and in addition to all this there is superimposed a reminder of the long ago abolished bill of attainder, in that the defendant cannot again follow his usual vocation of selling liquor for a period of five years. Thus, though the legislature calls such a violation a "misdemeanor,' the punishment, which alone is the true test, stamps the crime as more than a misdemeanor. To my mind, therefore, it is reasonable, if a defendant desires, that a trial before a jury of the defendant's peers should be had before these direful consequences can be visited upon him. Nor can the fact, if it be a fact, as has been suggested, that a jury will probably acquit a defendant charged with violating the excise law, be urged with force as a reason for denying this application. If this law, or the punishment which is provided for its violation, so offends the sense of justice of the community that juries will even violate their oaths to acquit where the evidence of guilt is convincing, I can only regret it. To my mind, it is not reasonable to refuse a jury trial for such reason. I am aware that the district attorney opposes this motion, but no facts whatever and no argument which I deem reasonable or valid is advanced in support of his contention. I must therefore adhere to my former decisions, and remove these cases wherein, as in this case, both important property rights are involved, and a proprietor is charged with a violation of the excise law. The consequences which follow the conviction of an employé are by no means so severe, and in such applications now before me no unusual facts are brought to my attention which would justify me in granting their applications, and they will be accordingly denied.

Applications granted as to the proprietors, but denied as to the barkeepers and employés. Submit certificates accordingly. Ordered accordingly.

(36 Misc. Rep. 128.)

In re SMITH'S WILL.

(Surrogate's Court, Tompkins County. October, 1901.)

WILLS-UNDUE INFLUENCE.

A widow 78 years old, who disliked to attend to business matters, gave to her attorney the care of the estate which she had received from her husband on his death, such attorney mingling her moneys with his own in his bank account, and she being accustomed to apply to him to get such moneys. He occasionally furnished her money, paid some of her bills, and entertained her at his home. Held, that a will in his favor will not be set aside for undue influence.

Proceedings to contest the will of Ann H. Smith, deceased. Probate decreed.

Monroe M. Sweetland (S. D. Halliday, of counsel), for proponent. M. N. Tompkins, for Cazenovia Seminary, a legatee.

S. E. Banks, for Ann Stoddard, a legatee.

J. B. Stanchfield, for contestants.

J. & T. E. Courtney, for special guardian.

ALMY, S. The deceased was 78 years old when she made this will. From the time of her husband's death, which occurred some four years before, she had continued to occupy the farm where she and her husband had resided during most of their married life; and since the death of her husband, through the influence of advancing years, she grew more and more feeble, but was able until just before her death to go about, attend church, and do her own housework. In all these matters she undoubtedly went beyond her strength, and, besides being so old, was frail, emaciated, bowed, and tremulous. Still her mind did not undergo any important change other than the gradual weakening due to increasing age. She was very religious, and had a decided dislike for all business, and a repugnance to learning or becoming acquainted with business matters of her husband, and, when requested by him to pay attention to matters he wished to instruct her in with reference to his investments, she simply replied, "I can't understand it," and asked. him to stop. This disinclination to matters of business, except in a few matters, seems to have continued, and when she received $20,000 from the estate of her husband in securities she did not undertake the care of them, but placed them in the hands of Mr. Davis, the proponent and principal legatee, and continued to live on in her exceedingly simple and economical way, leaving the management of her property, except the farm, to him. She took a great interest in church affairs and in religious matters, and the evidence does not disclose any circumstance where, in matters connected with subjects I have mentioned, she showed any incapacity of mind. There is evidence of forgetfulness in conversation, of a skimping and miserly economy in living, inconsistent with her means and liberality shown by her will, and witnesses express their opinion of some of these as irrational; yet in all the evidence there is not sufficient proof of lack of testamentary capacity. She was old, and feeble in mind and body. Her natural dislike or incapacity for business matters made her an easy prey to the influence of any one whom she trusted, and could easily have been deceived. But there is no evidence of the practice of deceit nor the exertion of undue influence upon the testator by Mr. Davis, the principal legatee. The furnishing, occasionally, of money for her requirements; looking up things for her comfort; paying for them, as well as paying her bills here in the city from her money; occasionally loaning her books and entertaining her at his house; presenting to her a fine picture of her late husband,-constitute the principal features of the evidence of the acts of Mr. Davis; and the conduct of the testatrix which it is contended indicates the influence of Mr. Davis over her is the mingling of her moneys with

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his own in his bank account, and keeping no account from which she could obtain money without application to him, without protest or complaint from her, so far as the proof shows; and the fact that the testatrix, who, during her married life, showed a repugnance for business affairs, and declared her inability to understand them, actually wrote the will in question with her own hands. While these facts may be the ground for grave suspicions, they are not shown to be the result of misconduct on the part of Mr. Davis. Neither do the combined facts above stated establish, in my opinion, that the provisions of the will in behalf of the executor were obtained to be made by an improper influence exerted by him. It is true that in earlier years she was heard to speak of her relatives, and to express a desire that they might have her property, and mentioned one of them as the relative whom she wished to have her farm; but there is no proof that the change in her intention was brought about by Mr. Davis, unless the facts above stated shall be considered sufficient. In my judgment, they are not. Much stress is put upon the relation of attorney and client that existed between Mr. Davis and Mrs. Smith from the time of her husband's death until her decease. Yet the most that can be required of an attorney under such circumstances, aside from the matter of his influence, is that he shall act openly, fairly, and honorably toward his client; and in the preparation of the will in question it is not shown that the attorney took any part. On the contrary, it appears that Mrs. Smith actually wrote this will from a draft made by Mr. Davis' stenographer, after specifications furnished by Mrs. Smith. The testatrix, therefore, must have known the provisions of the will, and, if I am right upon the questions of testamentary capacity and of undue influence, it must be the expression of her intention and desire respecting the disposition of her property. The will in question must be admitted to probate, and established as the valid will of the testatrix.

Probate decreed.

MEMORANDUM DECISIONS.

PER CURIAM. The representations of plaintiff Adriance as to the condition of the water pipes, and arrangements connected therewith to prevent leakage, were independent of the lease itself and binding. The damages incurred in that behalf should have been allowed in the court below. Even had that been done, the plaintiffs were entitled to a judgment for the balance of their claim and interest, which should have been awarded to them, instead of a judgment for defendant as ordered. Judgment reversed, and new trial ordered, with costs to abide event.

ADAMS et al., Respondents, v. THIRD | Adriance and others against Frank Netschert. VE. R. CO., Appeilant. (Supreme Court, Ap- W. C. Findlay, for appellant. J. P. O'Brien, ellate Term. June, 1901.) Action by Samuel for respondents. dams and others against the Third Avenue Cailroad Company. H. A. Robinson, for apellant. Adams & Adams, for respondents. PER CURIAM. The plaintiffs' driver, upon is direct examination, testified that, when it ecame necessary for him to drive upon the efendant's track, he spoke to a boy who was iding on the seat of the wagon beside him, nd asked the boy if a car was coming from ehind: that the boy said there was one standng upon the crossing at about a distance of 50 feet; that he then, without looking, turnd in upon the track; and that, as he got upon he track and half way across, he looked to he south and saw a car approaching rapidly. n view of the rapidity and frequency with which electric cars are run, and the continual ecessity for vigilance to avoid accident, we re of the opinion that the plaintiffs' driver did ot exercise the degree of care that devolved pon him. Judgment reversed, and new trial rdered, with costs to abide the event.

AITKEN v. TINNEY. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by Nellie L. Aitken against Bernard J. Tinney. No opinion. Motion granted, with $10 costs.

ALBERS, Appellant, v. ALBERS et al., Respondents. (City Court of New York, General Term. May, 1901.) Action by Rose AlADELSON, Respondent, V. FUTURAN-bers against Frederick J. Albers and others. KY, Appellant. (Supreme Court, Appellate George C. Coffin, for appellant. M. Charles erm. June, 1901.) Action by Louis Adelson Foley, for respondents. gainst Jacob Futuransky. Stern & Stern, for ppellant. Cohen Bros. for respondent.

PER CURIAM. The defendant was justied in refusing to accept a partial performnce of the plaintiff's contract. The plaintiff ecognized this and offered to accept a return f the goods. The defendant undertook to reurn them by an expressman of his own choosng, who for this purpose became his agent. He was bound to return all the goods or none, nd the plaintiff had the right to refuse to acept a partial return. The defendant in point of fact did not return the goods he had reeived, and should pay their value. The judgnent, as rendered by the justice, was irregular, and should be modified so as to be a simple noney judgment for $66, the proven value of he goods, with interest and costs, and, as so nodified, is affirmed, without costs. Judgment nodified, and, as so modified, affirmed, without

costs.

ADENBAUM, Respondent, v. COHEN et l., Appellants. (Supreme Court, Appellate Diision, Second Department. October 11, 1901.) Action by Samuel Adenbaum against Joseph H. Cohen and others. No opinion. Judgment of the municipal court affirmed by default, with costs.

ADRIANCE et al., Respondents, v. NETSCHERT, Appellant. (Supreme Court, Appelate Term. June, 1901.) Action by James B.

CONLAN, J. The order requiring the plaintiff to give security for costs was made upon affidavits submitted by both sides. The affidavits of the two defendants positively assert that at the time of the commencement of the action the plaintiff, their sister, resided with her father at 752 Putnam avenue, Brooklyn, and that she still so resided in March, 1901. The affidavit of the plaintiff as positively states that she removed from 752 Putnam avenue about September 20, 1900, where she had been residing with her father, and engaged a room at 101 Waverly Place, Manhattan, and has since continuously resided there. If the latter were a real fact, it would 'not have been difficult to have corroborated the statement in her affidavit. She, however, failed to satisfy the justice sitting at special term of the truth of her statement, and there does not appear in the record any sufficient reason calling for an interference with the determination reached by the court below. The order appealed from must be affirmed, with costs. Order affirmed, with costs. HASCALL and O'DWYER, JJ., concur.

ALLEN, Respondent, v. YONKERS R. CO., Appellant. (Supreme Court, Appellate Divi|sion, Second Department. October 18, 1901.) Action by David E. Allen against the Yonkers Railroad Company. No opinion. Judgment of the city court of Yonkers unanimously affirmed, with costs.

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ALTMAN et al., Respondents, v. McCALL, | ter 446, Laws 1899, a boarding house kee Appellant. (Supreme Court, Appellate Term. given a lien "for the amount which may be June, 1901.) Action by Victor Altman and for board." His lien is practically the same a others against Ambrose A. McCall. Isaac that of an innkeeper. The plaintiff might Fromme, for appellant. J. Rosenzweig, for re- brought an action in replevin, it is true: spondents. to hold that his failure to do so should be p mitted to bar his claim for a return of amount paid under protest would be to down a very harsh rule. Judgment reverse. and judgment directed for plaintiff.

PER CURIAM. The defendant received no title to the merchandise under the insolvent assignment, because his assignors had no title thereto; it appearing that the goods were delivered to them on memorandum. The defendant, when he refused to surrender possession to the true owners, became liable individually after demand was made. No exception is presented which affects the original disposition made of the case. Judgment (67 N. Y. Supp. 959) affirmed, with costs.

ARCHER, Respondent, v. CITY OF MT. VERNON, Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Action by John Archer against the city of Mt. Vernon. No opinion. Motion granted, without costs, and order resettled.

In re ARMORY SITE. (Supreme Court, Appellate Division, First Department. Octo ber 18, 1901.) In the matter of the armory site. No opinion. Motion granted.

BAILEY, Appellant, v. KRAUS, Respe ent. (City Court of New York, General Te May, 1901.) Action by Oscar S. Bailey ar George J. Kraus. Warren, Boothby & W ren (L. E. Warren, of counsel), for appel Chas. L. Hoffman, for respondent.

HASCALL, J. Action was brought by plac tiff to recover for the board and care of fendant's horses and carriages. Defendants up a discharge in bankruptcy. The lear court at trial term dismissed the complaint der the case of Stevens v. King, 16 App. D367, 44 N. Y. Supp. 893. We think this error. The authority cited is certainly good far as requisites of notice to creditors proofs thereof are concerned, but does no to the extent of deciding that under an indife ent pleading any testimony offered concernt; bankruptcy and proceedings incident the must be received as binding, whether comples or not, interlocutory or final. In the case fore us there is no evidence of a decree of de charge, nor offer to prove one, in the stom be reversed, and a new trial ordered, wil costs to appellant to abide event. Judgment versed, and new trial ordered, with costs t appellant to abide event.

ASHINOFF, Respondent, v. SIVIN et al., Appellants. (Supreme Court, Appellate Term. June, 1901.) Action by Max Ashinoff against Samuel Sivin and others. B. Gerson Oppenheim, for appellants. Elias Rosenthal, for re-shrift given to the appellant. Judgment sh spondent.

On

PER CURIAM. The question which was litigated was whether the defendants employed the plaintiff for a definite term of six months, or merely took him for a week on trial. this question the evidence was conflicting, and we see no reason to disturb the finding of the jury. There was no evidence to justify the submission to the jury of the question whether there had been what defendants call an accord and satisfaction between the parties, by which they apparently mean an agreement to abrogate the contract. The plaintiff certainly worked for a week, and accepted a check which was expressed as being "in full payment of all claims up to date." That had no apparent reference to any future claim, either for services or for damages for breach of contract. The evidence of damage was meager, but the plaintiff showed that he made $25 during the week that he did work for defendants, and the jury apparently based their verdict upon a much smaller probable profit for the balance of the term. Judgment should be affirmed, with costs. Judgment affirmed, with costs.

ATTERBURY, Appellant, v. SOMERS, Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by Albert H. Atterbury against Stanley A. Somers. A. H. Atterbury, for appellant. S. Campbell, for respondent.

PER CURIAM. The defendant's tender of the amount due extinguished the boarding house keeper's lien. At common law and by statute an innkeeper had a lien upon the goods of his guest for the amount actually due, and by chap

CONLAN and O'DWYER, JJ., concur.

BARCUS v. DORRIES. (Supreme Cour Appellate Division, Fourth Department. O tober 18, 1901.). Action by James S. Bar against August L. Dorries. No opinion. Me tion for leave to appeal to the court of appeas denied, with $10 costs.

BARNEY, Respondent, v. MACKAY, Ap pellant. (Supreme Court, Appellate Teri June, 1901.) Action by Augustus W. Barte against Henry Mackay. R. A. M. Hobbs, for appellant. P. H. Loftus, for respondent.

PER CURIAM. The motion to dismiss the complaint at the close of plaintiff's case shal have been granted, because there was entire ab sence of facts showing any negligence by the driver of the runaway horses. Also, upon the whole case, it may be added that there is 20 proof that he was either negligent or unskilful The horses were frightened by the near passage of an elevated train. Judgment reversed, and new trial ordered, with costs to abide event.

BARTO, Appellant, v. STATE, Respondent (Supreme Court, Appellate Division. Third De partment. September 4, 1901.) Action by Ed ward R. Barto, an infant, by Edward H. Bart his father, his guardian ad litem, against the state of New York. No opinion. Motion de nied.

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