and 121 New York State Reporter several other religious bodies in the United States have similar organizations for the same purposes. It appears from the extrinsic evidence that the testator had been for many years a member and ruling elder of the Irish Grove Presbyterian Church, one of the leading congregations of the Presbyterian Church in the United States of America, and that collections were annually taken up in that congregation for the various boards of that church, including the board of foreign and home missions, to which the testator was a contributor. Held, that there was a latent ambiguity respecting the object of the residuary gift, which could be removed by extrinsic evidence, and that the evidence introduced on this point, taken in connection with the other bequests in the will for the benefit of Presbyterian churches, showed that the testator, in making the residuary gift, had in his mind the board of foreign missions and home missions of the Presbyterian Church of the United States of America. In the case of Board of Missions v. Scovell, 3 Dem. Sur. 516, the bequest was of the residue, to be divided into four parts, “onefourth to the Home for the Friendless in the City of Lockport, also one-fourth to go to the Home for the Friendless in the City of Rochester; the other two-fourths to be divided equally between home and foreign missions." By the will the testatrix also gave $1,000 to the Presbyterian Church at Holley, and her house at that place for a parsonage, subject to the life estate of a niece. It appeared that the testatrix had been for a long time a member of the Presbyterian Church of Holley, N. Y., which she attended; that there were yearly collections in that church taken for the societies claiming the bequest-the "Board of Home Missions of the Presbyterian Church in the United States of America," and the "Board of Foreign Missions of the Presbyterian Church in the United States of America"; that she was in the habit of making contributions to these societies. It also appeared that there was a woman's auxiliary connected with the church, and that the testatrix was at one time solicited to make her contributions through this society, rather than through the regular church channels, but she refused so to do. It also appeared that the will was drawn by the testatrix, and that, shortly before her death, the will having been read to her, on being told that she should have designated the Presbyterian board, and that she could not then do it, she said to her executor: "You know that I am a Presbyterian and have given a thousand dollars to the Presbyterian Church at Holley, and my house for a parsonage after Fidelia is through with it, and I want you to see that it goes to the home and foreiga missions of the Presbyterian church." In both of these cases there were not only other bequests in the will indicating the society the testatrix had in mind, but there were also in each case societies connected with the church of the testatrix, having, as part of the corporate name, words used by the testatrix in the will. Nothing of the kind appears in the will under consideration, and the extrinsic evidence does not furnish any suggestion or hint that the executrix had in mind any society or corporation connected with her church which should take the legacy. It is therefore held that the bequest is void for indefiniteness. As to the other bequests in the will, the rules of law plainly indicate to whom they are payable, or the contingency in which a question would arise may never happen. Judgment accordingly. (42 Misc. Rep. 613.) LAROCQUE v. CONHEIM. (Supreme Court, Special Term, Oneida County. February, 1904.) 1. ABATEMENT-DEATH OF PARTY-SURVIVAL OF CAUSE OF ACTION. A cause of action for a breach of promise of marriage does not survive and pass to the personal representative of the woman; nor is the complaint therefor aided by an allegation that defendant made the marriage promise fraudulently, and did not intend to keep it, and that he seduced the woman and caused her to submit to a criminal operation. As an infant cannot maintain an action for seduction-that right belonging to the person-ordinarily the parent-who bore the relation to her of master, and she to him that of servant, the right of action does not survive her death. 3. DEATH BY WRONGFUL ACT-RIGHT OF ACTION. There can be no recovery under Code Civ. Proc. § 1902, for "wrongful act, neglect or default," of the defendant, "by reason of which the decedent's death was caused," for causing a woman to submit to a criminal operation, whereby she died, where the complaint does not allege that defendant bore such a relation to her as would give him an opportunity to coerce or overcome her will, but alleges that she submitted to his proposals for such an operation, so as to become guilty of a crime, under Pen. Code, § 295. Action by Leon Larocque, administrator of Harriet Larocque, deceased, against Abraham Conheim. Demurrer to complaint. Sustained. Fred C. Schraub, for plaintiff. H. B. Rutherford, for defendam. ROGERS, J. The plaintiff alleges that Harriet Larocque was his daughter; that in January, 1902, the defendant wrongfully seduced and carnally knew her; that she was then aged 19 years, and was previously chaste and of good reputation; that said seduction was accomplished under a promise of marriage, which the defendant did not intend to keep, but the same was made for the purpose of subjecting her to his lusts and debauching her; that by reason of such intercourse and cohabitation she became pregnant about the month of April, 1902; that at that time the defendant wrongfully "caused her to submit to a criminal operation, and aided and assisted in procuring an abortion to be produced on her," from the effects of which she was rendered dangerously ill and continued sick down to the 25th day of April thereafter, when "from the effects of said criminal operation and abortion she died"; that from the time of said operation down to her death the said Harriet, by reason thereof, suffered great pain of body and 1. See Abatement and Revival, vol. 1, Cent. Dig. § 252. 87 N.Y.S.-40 and 121 New York State Reporter agony of mind, to her loss and damage. Then follows a statement that she left next of kin who suffered damage by reason of the death in the sum of $20,000; that she died intestate; that letters of administration were duly issued by the surrogate of the county of Lewis to the plaintiff, who has qualified and is acting as such; and judgment is demanded for $20,000. To this complaint the defendant demurs upon the ground that it does not state facts sufficient to constitute a cause of action. The complaint, in alleging the promise of marriage, a seduction thereunder, and a subsequent breach of the promise, states a cause of action which might have been prosecuted by her, had she lived-her cause of action being for the breach, with the seduction as an incident, which might be shown in aggravation of damages; but this is not an action that survives and passes to her personal representatives. Wade v. Kalbfleisch, 58 N. Y. 282, 17 Am. Rep. 250; Hegerich v. Keddie, 99 N. Y. 258, I N. E. 787, 52 Am. Rep. 25. Nor is it aided by the fact that the defendant was guilty of a fraud in making and procuring, and that he had no intent to keep, the marriage promise. Price v. Price, 75 N. Y. 244, 31 Am. Rep. 463. The portion of the complaint, therefore, which remains to be considered, is that wherein it is charged that the defendant procured the deceased to "submit to a criminal operation, * * * from the effects of" which she subsequently died. There was no right of action at common law for causing the death of another. Green v. Hudson River R. R. Co., 2 Abb. Dec. 277; Whitford v. Panama R. R. Co., 23 N. Y. 465; Lucas v. N. Y. C. R. R. Co., 21 Barb. 245. The only authority in this state for its maintenance is in the statute: "The executor or administrator of a decedent, who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued." Code Civ. Proc. § 1902. Eliminating from the complaint the allegation as to the narriage promise, does it state a "wrongful act, neglect or default" of the defendant, causing the death, for which the deceased might have maintained an action if living? She could not have maintained the action as for a seduction. That right belongs to the person-ordinarily the parent or one standing in loco parentis-who bore to her the relation of master, and she to him that of servant. Addison on Torts (Banks' Ed.) 1094; White v. Nellis, 31 N. Y. 405, 88 Am. Dec. 282; Hamilton v. Lomax, 26 Barb. 615; 25 Am. & Eng. Encyc. of Law (2d Ed.) 197; Lawyer v. Fritcher, 130 N. Y. 239, 29 N. E. 267, 14 L. R. A. 700. 27 Am. St. Rep. 521, and cases cited; Disler v. McCauley, 66 App. Div. 42, 73 N. Y. Supp. 270. Besides, the seduction was not the proximate cause of death. Death resulted from said "criminal operation.' Nor could she have maintained an action for the criminal operation producing the abortion. It is not alleged that the defendant bore such relation to the deceased, by blood or in law, as gave him special opportunity to coerce or overcome her will, as was held where the seducer was guardian of the female, and seduced his ward. Graham v. Wallace, 50 App. Div. 101, 63 N. Y. Supp. 372. They stood on equal ground, except the disparity in years, and the fact, if that be an inequality, that she was a woman and he a man. While he solicited, and was guilty of a most serious crime (Pen. Code, § 295), she gave assent participated in the unlawful act. She was so persuaded as, in the language of the complaint, "to submit." In that she was herself guilty of a crime. Pen. Code, § 295; People v. Meyers, 5 N. Y. Cr. R. 120; People v. McGonegal, 136 N. Y. 62, 32 N. E. 616. This, it seems to me, would have precluded her from maintaining an action for the "criminal operation," within the principle that courts will not grant relief to one who bases his claim upon his own illegal act, or a transaction in which he was an unlawful participant. The authorities are many and uniform: "He who by his pleadings, in any court of justice, avows that he has been engaged with others in an unlawful action, or has concerted with them in an unlawful enterprise, and that, in arranging for or carrying it out, he has been unfairly treated by his associates, or has suffered an injustice which they should redress, will be met by the refusal of the court to look any further than his complaint, which it will at once order dismissed." Cooley, Torts, 149. "Since the business of courts is to enforce obedience to the law, they cannot lawfully assist a suitor in any effort to break it." Bishop, Noncont. Law, § 54. "In just legal principle, the true view is believed to be that where one is seeking the help of the court in doing a wrongful act, or compensation for having done one, or redress for another's having participated in it, or when in any other manner compliance with his prayer would involve an affirmance of his wrong, as though it were a right, his suit will be rejected. For, should the court grant what he asks, it would thereby, in effect, join with him in breaking the law which it was established to maintain." Id. § 59. "A party cannot be heard to allege his own unlawful act, and, if such an act be one of a series of facts necessary to support the plaintiff's claim, then that claim must fail. A party who seeks redress in a court of justice must come with clean hands. An action which requires for its support the aid of an illegal act cannot be maintained." Gregg v. Wyman, 4 Cush. 322. It is a maxim of the law that "that to which a person assents is not esteemed in law an injury." Broom, Leg. Max. *201. To the same effect is Addison, Torts (Banks' Ed.) 1093; Bartley v. Richtmyer, 4 N. Y. 38, 43, 53 Am. Dec. 338; Hilton v. Fonda, 86 N. Y. 339, 352; Travis v. Barger, 24 Barb. 614. The conclusion results that the plaintiff, as administrator, has no cause of action for the matters set out in the complaint. Whether in his individual capacity as father (i. e., master) he has a right of action for loss of services, with punitive damages (Lawyer v. Fritcher, 130 N. Y. 239, 29 N. E. 267, 14 L. R. A. 700, 27 Am. St. Rep. 521), is not now before the court for decision. The demurrer must be sustained, with costs. Demurrer sustained, with costs. (42 Misc. Rep. 581.) and 121 New York State Reporter In re ROCHESTER TRUST & SAFE DEPOSIT CO. In re FIDELITY TRUST CO. In re UNION TRUST CO. (Supreme Court, Special Term, Monroe County. February, 1904.) 1. TRUST COMPANIES-LOCAL TAXATION. Chapter 132, p. 316, Laws 1901, amends the general tax law by providing for franchise tax on trust companies and for time of payment of the same, and amends section 202 of the tax law (Laws 1896, p. 867, c. 908) by providing for exemption of trust companies from all other taxes except the reorganization tax, if the taxes due and payable under this act are paid. Laws 1901, p. 1319, c. 535, provides for the amendment of chapter 132, and for a franchise tax on trust companies, but omits the exception clause contained in chapter 132. Laws 1902, p. 461, c. 172, provides for the revival of the sections of chapter 132, p. 316, Laws 1901, inadvertently repealed by chapter 535, p. 1319, Laws 1901, and re-enacts Tax Law, § 189, subd. 7 (Laws 1901, p. 316, c. 132), providing for reports by trust companies, and section 202 of the tax law, in regard to exemptions from other taxes. Held, that chapter 172, p. 461, Laws 1902, exempted the property of trust companies from local taxation. 2. TAXATION-EXEMPTIONS-POWER OF LEGISLATURE. The Legislature has the power to exempt certain classes of property from taxation, even retrospectively. In the matters of supplementary proceedings for the collection of taxes from the Rochester Trust & Safe Deposit Company, from the Fidelity Trust Company, and from the Union Trust Company. Motions for the dismissal of the proceedings. Granted. John P. Morse, for John B. Hamilton, county treasurer. RICH, J. These are motions in behalf of delinquent tax debtors to dismiss supplementary proceedings to collect an unpaid county tax for the year 1901, which proceedings were instituted under section 259 of the tax law (Laws 1896, p. 885, c. 908). The motions for the dismissal of the proceedings are made on the ground that the taxes levied against said trust companies under which the proceedings were instituted are illegal and void, and also that section 259 of the tax law, under which the proceedings are instituted, is unconstitutional, in that it does not provide for equal process of law. Chapter 132, p. 316, of the Laws of 1901, amends the general tax law of the state by adding a new section to be section 187a, which section provides for the franchise tax on trust companies payable to the state. Section 2 of this act amends. section 189 of the tax law by adding thereto a subdivision, to be subdivision 7 thereof, which provides for the reports by trust companies to the State Comptroller. Section 3 amends section 194 of the tax law by providing the time of payment of the tax upon trust companies. Section 4 of this act amends section 202 of the tax law by providing for the exemption of trust companies from assessment and taxes for state and all other purposes except the organization tax, 12. See Taxation, vol. 45, Cent. Dig. §§ 307, 316. |