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deprived of the use because of an unexpired term, it is for the loss of this use that he is entitled to compensation. It was held in Rickert v. Snyder, 9 Wend. 416, that the extent of the term and the annual value should be the measure of damages. This case has never been questioned, and I find no other decision directly in point in the reports of this state. It has been followed in other jurisdictions, and the rule stated more precisely. "Where the incumbrance is an unexpired term or lease, the general rule, at least in the absence of any special circumstances, is that the measure of damages will be the fair rental value of the land to the expiration of the term.” Fritz v. Pusey, 31 Minn. 368, 18 N. W. 94; Porter v. Bradley, 7 R. I. 538; Clark v. Fisher, 54 Kan. 403, 38 Pac. 493; Edwards v. Clark, 83 Mich. 246, 47 N. W. 112, 10 L. R. A. 659; 3 Sedg. Dam. § 969; Rawle, Cov. § 191. In addition to the rental value of the premises, the grantee may recover the fair and reasonable counsel fees incurred in defending the title conveyed. Charman v. Tatum, 54 App. Div. 61, 66 N. Y. Supp. 275, affirmed 166 N. Y. 605, 59 N. E. 1120; Cassidy v. Taylor Brewing & Malting Co., 79 App. Div. 242, 79 N. Y. Supp. 595. Where the grantee accepts the tenancy and receives the rent, the measure of damages would be the rental value of the premises leased, less the rent thereof reserved in the lease, for the unexpired term. But the grantee is not obliged to accept the rent in satisfaction of his damages. The effect of such rule would be that an outstanding lease, in which the rent reserved equaled the market value of the use, would be no incumbrance. This is not the law. The grantee may pay off the incumbrance, and recover from the warrantor the fair value of the incumbrance, not in excess of the price paid to extinguish the incumbrance. “Where the outstanding title or the incumbrance has been obtained or removed by purchase, it is considered that the plaintiff is entitled to recover the amount which he has fairly and reasonably paid for that purpose, the burden of proof being upon him to show what the outstanding title or incumbrance was really worth; the mere fact of payment being, in general, no evidence whatever of this, and, in the absence of such evidence it seems that only nominal damages can be recovered.” Rawle, Cov. § 192. In the present case the plaintiff paid the tenant to surrender the lease, and thereby extinguished the incumbrance. At the trial plaintiff submitted evidence that the term was for one year from May 1, 1900, at a rental of $80 a month, and that the sum he had to pay the tenant to secure possession was $160, being two months' rent remitted, and $850, being the sum in all of $1,010. The plaintiff was, by direction of the court, permitted to recover the amount paid the tenant. This was error. Such payment is not in itself evidence of the fair value of the unexpired term. But the rent reserved in the lease, in the absence of any proof of collusion or fraud, is some evidence of the value of the term. It is not conclusive, and plaintiff might have given evidence that the actual value of which he was deprived was more than the rent stipulated in the lease. As there was no proof that the fair value of the premises was more than the rent reserved, the rent reserved is, in this case, the only evidence of the actual value of the term, for the use of which plaintiff is entitled to recover. The plaintiff was entitled to the use on July 10, 1900, when and 120 New York State Reporter the premises were conveyed, and he is therefore entitled to recover the rental value from that date until the expiration of the term, May 1, 1901, being 8 months and 21 days, at $80 a month, or $774.19, with interest from date of payment; such sum not being in excess of the sum actually paid by him. The plaintiff has proved that the counsel fees paid in defending the title conveyed were a fair and reasonable charge for the services rendered. He is therefore entitled to the further sum of $125 for counsel fees, with interest thereon from the time the dispossession proceeding was commenced. A new trial will therefore be ordered, unless within 10 days plaintiff stipulates to enter an order reducing the verdict to the sum of $899.19, with interest as indicated, together with costs. The motion for an extra allowance is granted, provided such stipulation be made, and in that case defendant may have 30 days' stay and 30 days in which to make a "case.”

Ordered accordingly.


(42 Misc. Rep. 331.)


(Supreme Court, Special Term, Kings County. January, 1904.)


Where testator, after bequeathing a particular lot of land and certain money in trust for his son until he arrived at majority, failed to devise him the fee, but provided in another clause of his will that if his son died without lawful issue before majority all the property "which is hereby bequeathed to him" shall go to the trustee individually, or her heirs, there is an implied devise of the fee of the land to the son on his arriving at majority

Action by Mary Culhane against Mary Fitzgibbons and others for an admeasurement of dower. Judgment for plaintiff.

Mary Bond died seized of the land and leaving three children, Anne E., Thomas F. and John J. By the third, fourth and fifth clauses of her will she disposed of the said land and other property as follows:

"Third-I give and bequeath to my daughter Anne E. Bond, in trust for Thomas F. Bond until he shall have attained the age of twenty one years, a certain lot of land" (which is described).

"Fourth-I give and bequeath to my said daughter Anne E. Bond, in trust for my said son Thomas F. Bond, until he shall have attained the age of twenty one years all the money which stands to my credit as trustee for said Thomas F. Bond, in Pass Book No. 155,540 of” [a bank which is named).

"Fifth-In case of the death of my said son Thomas F. Bond, without learing lawful issue before he attains the age of twenty one years, then I desire that all the property real and personal which is hereby bequeathed to him, shall go to my said daughter Anne E. Bond or her heirs for her or their sole use and benefit."

Thomas F. Bond was already of age when his mother, the testator, died. The will appointed Anne E. Bond executor, and as such she conveyed the said lot to him ; but no power of sale was given by the will.

Thomas F. Bond left the said lot to Anne E. Bond by will, and she conveyed it to Mary Culhane, who left it by will to Michael Culhane, the plaintiff's de. ceased husband.

The infant children of John J. Bond, now deceased and intestate, viz., the defendants Anne Bond and Matthew Bond, claim that one third of the said lot vested in fee in their said father on the death of the said testator Mary Bond for lack of a devise of the fee.

Elisha W. McGuire, for plaintiff.
Jacob Brenner, for adult defendants.
Albert R. Moore, guardian, for infant defendants.

GAYNOR, J. The question is whether by the will of Mary Bond the title to the lot became vested in fee in Thomas F. Bond, or whether, on the contrary, there was a failure to devise the fee, in which case it descended to the three children of the testator (Anne E., John J. and Thomas F.), in which case the two infant children of John J. Bond, who has died intestate, are the owners in fee of his undivided one third.

By the third clause the lot is devised to the daughter Anne E. Bond "in trust for Thomas F. Bond until he shall have attained the age of twenty one years;" by the fourth there is an identical bequest in trust of money; and by the fifth it is provided that “In case of the death of my said son Thomas F. Bond without having lawful issue before he attains the age of twenty one years, then I desire that all the property real and personal which is hereby bequeathed to him, shall go to my said daughter Anne E. Bond or her heirs for her or their sole use and benefit.”

There is here no devise or bequest in terms to Thomas F. Bond, but only to Anne E. Bond in trust for him until he comes twenty one. There is therefore no devise to him of the fee of the lot unless by implication. Such implication arises twice from the words of the fifth clause that if he die without issue before reaching twenty one, then all property real and personal, "which is hereby bequeathed to him" shall go to the daughter Anne.

Jarman lays it down that a devise in trust for A until he comes of age, and if he should die before, then over, is a devise in fee to A on coming

a twenty one (volume 1, C. 27, p. 515); and also that if a testator refer to a disposition as made in his will, which in fact is not in terms made, the intention to make such disposition will, as a rule, be sufficiently indicated to be effectual (Id. p. 493). And the phrase in the fifth clause, "which is hereby bequeathed to him," in respect of real and personal property, sufficiently indicates the testator's intention to have been to devise the lot in fee to Thomas F. Bond if he should live to be twenty one.

Let judgment be entered accordingly.


(42 Misc. Rep. 338.)


(Supreme Court, Special Term, Monroe County. January, 1904.) 1. MECHANIC's LIEN-BANKRUPTCY-EFFECT.

Where a mechanic's lien was not filed until after defendant bad been

adjudged a bankrupt, the complaint will be dismissed. 2. SAME_TRUSTEE IN BANKRUPTCY.

A trustee in bankruptcy takes title absolute, freed from all liens, except such as are expressly preserved by the bankrupt act of July 1, 1898, c. 511, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418).

11. See Bankruptcy, vol. 6, Cent. Dig. § 294.

and 120 New York State Reporter Action by the Crane Company against the Pneumatic Signal Company and others to foreclose a lien. Motion to dismiss complaint. Granted.

Horace McGuire, for plaintiff. Elbridge L. Adams, for Pneumatic Signal Company. John Van Voorhis & Sons (Eugene Van Voorhis, of counsel), for McDonald & Dumond.

Raines & Miller (Thomas Raines, of counsel), for Smyth, trustee, etc.

NASH, J. The complaint alleges that the mechanic's lien sought to be foreclosed was filed after the adjudication in bankruptcy. It was held in the case of Matter of Dey, 3 Nat. Bankr. R. 305, Fed. Cas. No. 3870, that any lien to be recognized by the bankruptcy court as a valid lien on property, which passes from the bankrupt to the assignee in bankruptcy by virtue of the proceedings in bankruptcy, must be a lien at the time of the commencement of the proceedings in bankruptcy. This decision was rendered under the provisions of the former bankrupt law (Act March 2, 1867, C. 176, 14 Stat. 517), but the principle is as applicable under the present (Act July 1, 1898, c. 541, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418]) as under the former bankrupt act. Matter of Dey was reversed (9 Blatchf. 285, Fed. Cas. No. 3,871), but without questioning the rule that the lien must exist at the time of the commencement of the proceedings in bankruptcy. It was held by the Circuit Court that, under the mechanic's lien law of New Jersey, the lien attached as of the time the labor was performed, and therefore it existed at the time of the commencement of the proceedings in bankruptcy. It was held by the Circuit Court of Appeals (Matter of Roeber, 9 Am. Bankr. R. 303, 121 Fed. 449, 57 C. C. A. 565), as in Matter of Dey, 3 Nat. Bankr. R. 305, Fed. Cas. No. 3870, that the trustee in bankruptcy takes title free from a lien for material furnished for a building, where the notice of lien was filed pursuant to and in accordance with the lien law of New York, but after the contractor had filed his petition in bankruptcy. Wallace, J., after stating that, until the materialman has filed his notice, he is a creditor at large, and, if he does not choose to avail himself of the benefit of the statute, he occupies no better position than other creditors of the contractor, refers to the case of Armstrong v. Borden's Condensed Milk Co., 65 App. Div. 503, 72 N. Y. Supp. 1014, afterward reversed by the Court of Appeals. But Judge Wallace announces the rule upon principle and for reasons which he states, as does Gildersleeve, J., in Lazzari v. Havens, 39 Misc. Rep. 255, 79 N. Y. Supp. 395, cited in the note.

In the case of John P. Kane Co. v. Kinney, 174 N. Y. 69, 66 N. E. 619, relied upon as holding a contrary doctrine, it was held: That, under a general assignment for the benefit of creditors made by a general contractor, who has furnished material for a building, for which moneys are due or are to become due, the assignee takes title to such moneys subject to liens filed by laborers, mechanics, and materialmen subsequent to the assignment, but within the 90 days prescribed by statute. The lien is held to be an inchoate right, which exists during the running of the 90 days, as against the general assignee of the contractor, which may be made absolute by filing the notice within the time prescribed by the statute. That such an assignee takes the property of his assignor subject to all equities and liens that might have been enforced before the assignment. The reason of the rule there held is stated by Judge O'Brien as follows:

"We are not now dealing with a case where the fund has been assigned for a valuable consideration, or with a case where a vigilant creditor has secured in some way a specific lien upon the fund prior to the time of filing the plaintiff's notice of lien. We are dealing with a case of an assignee for the benefit of creditors, who stands in the place of his assignor, with no other or greater rights, and who takes the property subject to every equity and claim that might have been asserted by third parties."

The trustee in bankruptcy takes title absolute, freed from all liens except such as are expressly preserved by the provisions of the bankrupt act.

The difference between the legal position of a bankrupt after adjudication, and that of an assignor for the benefit of creditors, is pointed out, and the reasons for the rule here contended for by the defendants are well stated, by Holt, referee, in Matter of Huston, 7 Am. Bankr. Rep. 92, although the referee there felt constrained to follow the decision of Judge Thomas in another case, in which no opinion appears to have been filed.

Motion to dismiss the complaint should be granted. Motion granted.

(42 Misc. Rep. 355.)

PEOPLE ex rel. HILLMAN V. SCHOLERS et al., Coroners.

(Supreme Court, Trial Term, New York County. January, 1904.)


The chief clerk of the coroner of the borough of Manhattan, though not subject to competitive examination, and though his position is in the classified municipal service, is a "regular clerk," within the charter of the city of New York, $ 1543, and cannot be removed, where his duties are not con

fidential, except on the service of charges and a hearing. Application by the people on the relation of William S. Hillman, for writ of mandamus to Gustav Scholers and others, coroners of the borough of Manhattan, city of New York. Writ granted.

Crandall & Hunter (C. E. Hunter, of counsel), for relator,

George L. Rives, Corp. Counsel (John F. O'Brien, Asst. Corp. Counsel), for respondents.

CLARKE, J. Trial of the issues raised by an alternative writ of mandamus and the return thereto by the court without a jury. On January 1, 1902, relator was appointed chief clerk in the coroner's office of the borough of Manhattan. On November 14, 1902, he was removed therefrom. No charges were served upon him, nor was he given an opportunity to make an explanation. He sues out the writ to compel his reinstatement. He is not a veteran, nor is he an exempt fireman. He was not the "head of a bureau.” And while his position was in the classified municipal civil service, it was not “subject to competitive examination.” Therefore his sole ground for the relief de

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