turned into a judgment at law for a sum of money, and that, too, not on a motion to amend the judgment, but by adding to the order denying defendant's motion for a stay something neither party had moved for, to wit, leave to issue execution for the sale of the land to satisfy the judgment. So much of the order appealed from as directed a sale should be reversed, and the order denying defendant's motion to vacate the sheriff's certificate of sale should also be reversed, both with costs.

(75 Hun, 593.)

In re TOWNSEND'S WILL.

(Supreme Court, General Term, Second Department. February 12, 1894.) WILLS-CAPACITY OF MAKER.

Testator has sufficient capacity to make a will where he can comprehend the condition of his property, his relation to the objects of his bounty, and the scope and effect of his will.

Appeal from surrogate court, Putnam county.

Proceeding for the probate of the will of Stephen Townsend, deceased. Probate was contested by Coleman S. Townsend, Orville F. Townsend, and Freeman S. Townsend, and James J. Townsend, sons of testator. From a decree admitting the will to probate, contestants appeal. Affirmed.

Argued before PRATT, DYKMAN, and CULLEN, JJ.

Eugene B. Travis, for appellants.

Clayton Ryder and Geo. E. Anderson, for respondent.

PRATT, J. This is an appeal from a decree of the surrogate of Putnam county admitting to probate the will of Stephen Townsend, deceased. The appellants contested the probate of the will, claiming that the will was not testator's free act; that he was not capable of making a will, and was not of sound mind; and that the will was not executed as required by law. The proof of the due execution of the will was ample, and we see nothing to criticise cither in the admission or rejection of evidence by the surrogate. His rulings seem to us to have been correct.

The only questions remaining for our consideration are: First, was the testator unduly influenced to make the will? and, second, had he mental capacity to make the will? As to the first, it is sufficient to say that there was not only no proof of any influence, but positive evidence from the one who drew the will (the husband of decedent's granddaughter) that the deceased asked him to draw it, and stated that he had made advances to certain of his nine children, giving the amount advanced to each, and wished to divide his property among them so that each should be charged with what he or she had received, and so all share equally. Accordingly Parker drew the will, and explained to the testator how the different proportions were arrived at. There was no evidence to show what sums the testator had advanced to each of his children, and, in the absence of such evidence, and the testimony of Parker, it

may be presumed that the disposition of the testator's estate was not an unequal one. A more serious question is that of testator's capacity to make a will. He was a farmer, about 80 years old, working on his farm, and attending to its management. The testimony of the witnesses as to his mental condition was conflicting. They were before the surrogate, and we are not disposed to reverse his decision. It seems to us that the weight of evidence was decidedly in favor of the proponent. Upon the question of testamentary capacity the law is well settled, and in the leading case of Delafield v. Parish, 25 N. Y. 9, is stated as follows:

"It is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relation to the persons who were or should or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the statute of wills, a person of sound mind and memory, and is competent to dispose of his estate by will.”

The decree of the surrogate should be affirmed, with costs.

concur.

All

BUCHANAN v. WHITMAN.

(Supreme Court, General Term, Second Department. February 12, 1894.)

1. LEASE-WHEN TERM EXPIRES.

A lease dated April 8th, "to extend for one year from the date hereof," terminates at the expiration of April 7th, in the next year.

2. SAME-RENEWAL.

Where a lease to two tenants as partners provided for renewal at the end of the term, and the partnership was dissolved, and one partner alone remained in possession of the premises, the tenant in possession cannot compel the landlord to renew the lease to him alone.

Appeal from Orange county court.

Summary proceedings by James A. Buchanan against Stephen M. Whitman to recover possession of certain premises in the village of Port Jervis. Defendant entered under a lease dated April 8, 1892, "to extend for one year from the date hereof." From a judgment of the county court reversing a judgment of the justice of the peace in favor of plaintiff, plaintiff appeals. Reversed.

Argued before PRATT, DYKMAN, and CULLEN, JJ.

H. B. Fullerton, for appellant.
Lewis E. Carr, for respondent.

CULLEN, J. This is an appeal from a judgment of the county court which reversed a judgment for the plaintiff in summary proceedings to recover demised premises. We think that the lease included the 8th day of April, and terminated at the expiration of the 7th day of April the next year. The weight of authority in this state includes the day of the date of a lease in the demised prem

In

ises, unless the instrument showed a contrary intention, or custom a different usage, though it must be confessed that there is no very clear adjudication on the question. Wilcox v. Wood, 9 Wend. 346; Deyo v. Bleakley, 24 Barb. 9; People v. Robertson, 39 Barb. 9. Mack v. Burt, 5 Hun, 28, the lessee was to have possession "from and after May 1st." This expression unquestionably excluded the 1st of May, but it is not an authority for this case. The lease gave the tenants a right of renewal. But the lease was made to two tenants, and the partnership between them had been dissolved prior to the expiration of the original term. It appears that Whitman alone remained in possession. He could not renew the lease without the consent of his cotenant, and the landlord was not bound to renew the lease to him alone. James v. Pope, 19 N. Y. 324. On the conceded facts, therefore, we think that the plaintiff was entitled to recover. The judgment of the county court should be reversed, and that of the justice affirmed, with costs. All concur.

(76 Hun, 24.)

WALSH v. BROOKLYN EL. R. CO. et al.

(Supreme Court, General Term, Second Department. February 12, 1894.) ELEVATED RAILROADS-APPROPRIATION OF EASEMENTS.

In an action against an elevated railroad company for injuries to abutting property, failure of the court to find that the easements of light, air, and access are in themselves only of nominal value is immaterial, where the court finds that the premises were worth $500 less than they would have been had the easements not been taken.

Appeal from special term, Kings county.

Action by Mary A. Walsh against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company to recover damages to the rental value of plaintiff's premises, No. 320 Myrtle avenue, and to restrain the operation of defendants' railroad in front of plaintiff's premises, or, in the alternative, to recover damages to the fee value. From a judgment restraining defendants from operating the railroad in front of said premises unless they pay plaintiff $500, defendants appeal. Affirmed. Argued before DYKMAN, PRATT, and CULLEN, JJ.

Hoadly, Lauterbach & Johnson, (Wm. N. Cohen, of counsel,) for appellants.

Stephen M. Hoye, (Francis Russell Whitney, of counsel,) for respondent.

CULLEN, J. This is an appeal from a judgment awarding plaintiff an injunction unless the defendants pay $500 for damages to the fee of plaintiff's property. Under the decisions of the court of appeals the trial court should have found that plaintiff's easements in the street, of light, air, and access, were, in themselves, only of nominal value. Bookman v. Railroad Co., 137 N. Y. 302, 33 N. E. 333. But the failure to so find nowise affected the judgment. The court found as a matter of fact that the abutting premises

were worth $500 less than they would have been had plaintiff's easements not been taken. This was the correct rule of damage. For that $500, judgment was given, and no award was made for the easements, in themselves. There was evidence that justified the finding, and it should not be disturbed. Judgment appealed from should be affirmed, with costs. All concur.

(75 Hun, 585.)

ROWLAND v. ROWLAND.

(Supreme Court, General Term, Second Department. February 12, 1894.) REFERENCE-ACTION AT LAW.

Where a complaint states a good cause of action at law, but erroneously prays judgment for an accounting, the action will be regarded as at law, and a reference may be granted if the examination of a long account is involved.

Appeal from special term, Kings county.

Action by Charles L. Rowland against Thomas F. Rowland for an accounting of the transactions of the Continental Works, in which name the complaint alleged that plaintiff and defendant were associated together, and were engaged in the business of general engineering and contracting, and iron construction. From an order referring the action for hearing and determination, on the ground that it involved the examination of a long account, defendant appeals. Affirmed.

The following is a copy of the complaint, omitting the caption:

(1) That between the 1st day of February, 1881, and the 12th day of July, 1887, the plaintiff and the defendant were associated together in the business of general engineering, contracting, and iron construction, under the name and style of the "Continental Works." (2) That said business was carried on under an agreement between the plaintiff and the defendant, in the nature of a general partnership or quasi partnership, whereby the plaintiff agreed to contribute his time, services, and skill to said business, and the defendant the capital, and the business theretofore owned by him, and it was agreed that the defendant should have the general management of said business. It was further agreed that the plaintiff should draw the sum of thirty dollars per week, and should be entitled to a percentage of the net profits in addition thereto. Plaintiff's percentage of profits for the first three years was agreed to be two per cent., the fourth year four per cent., and for the balance of the period five per cent., of the net profits. (3) That from time to time, during said periods, a provisional or partial statement of the profits of said business was made for the purpose, solely, of fixing an amount which plaintiff might safely draw from said business, under said agreement, in addition to said weekly drawings, and with such amounts, as was shown by such provisional or partial statements, plaintiff was credited; but that said statements, so made, were not intended by either party to be final, but were merely temporary, and made for the convenience of the parties. The last credit made to the plaintiff upon the books of the said Continental Works was, as plaintiff is informed and believes, on or about the first day of February, 1886, and made a total of credits upon the books of said concern upon the profit account of the plaintiff of $8,804.56, as plaintiff is informed and believes. (4) On or about the 12th day of July, 1887, the defendant stated to the plaintiff that the said Continental Works had made no profits since the last previous statement had been prepared and credit given to the plaintiff, but, on the contrary, had sustained heavy losses, sufficient to wipe out any balance of profits unaccounted for in previous statements, and that the sum

then standing upon the books of the Continental Works to plaintiff's credit was all that could, in any event, be due to plaintiff, and, at the same time, tendered plaintiff a check for the balance, as shown by said books; and the plaintiff, having no knowledge of the financial condition of the said Continental Works, and relying entirely upon the word of honor of the defendant, who had complete knowledge of the finances of said concern, and the possession, control, and oversight of all its papers, contracts, and books of account, accepted said check, and gave, as he believes, a receipt in full of all demands. (5) The plaintiff has since learned that it was not, in fact, true that the said Continental Works had made heavy losses, that no profits had been made, or that the previous undivided profits had been wiped out, as stated to plaintiff by defendant, but that, on the contrary, large profits had been made, and, as plaintiff is informed and believes, large sums had, by defendant, been charged to loss account, upon the books of the concern, which were not properly chargeable to said Continental Works or to plaintiff; and that, in fact, upon a proper accounting, a large sum will be shown to the credit of the plaintiff in addition to that already credited to him, but what amount plaintiff is unable to state, owing to the fact that the books of account of said Continental Works are in the hands of the defendant. (6) That the defendant well knew, as plaintiff is informed and believes, when he told plaintiff that there was nothing more due him, that such was not the fact, and said statement was made for the purpose of deceiving and defrauding the plaintiff, and inducing him to give a receipt in full; that the plaintiff relied upon said statement in accepting said check and giving said receipt, and was deceived thereby, and great loss and damage will come to plaintiff, as he is informed and believes, if the said payment and receipt shall be held to be a release and settlement. Wherefore the plaintiff prays that an accounting be had of the profits of the said Continental Works during the period aforesaid, and upon said accounting a statement of all the transactions of said concern be made, wherein proper debits and credits shall be made, from the books, contracts, and papers of said Continental Works; and that plaintiff may have judgment for such sum as he may appear, upon said accounting, to be entitled to; and that he may have such other and further relief, both by intermediate or final order and by interlocutory judgment or final decree, as may be just, and as to equity pertaineth, besides the costs and disbursements of this action.

Argued before DYKMAN, PRATT, and CULLEN, JJ.

Lockwood & Hill, (L. A. Lockwood, of counsel,) for appellant. Lyon & Smith, for respondent.

PRATT, J. The complaint states a good cause of action at law, and erroneously prays judgment for an accounting. The answer states that plaintiff was never a partner in defendant's business, but was an employe upon a salary, the amount of which was to be determined by the profits of the business. The answer is thus consistent with the allegations of the complaint. Both the complaint and answer show a proper case for a reference.

The defenses of

payment and release will not, in the ordinary course, be put in evidence until the plaintiff has established his cause of action, to do which he requires a trial before a referee. Order affirmed, with $10 costs to abide the event. All concur.