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R. A. (N. S.) 314, I interpret to mean that the rule declared in Bunnell v. Stern will not be extended to cover cases not identical with it. In Pattison v. Hammerstein, 17 Misc. Rep. 375, 39 N. Y. Supp. 1039, it was held that the manager of a theater, in the absence of special agreement, was not liable for his patrons' property, though it consisted of apparel which is usually laid aside by them while attending the play, and is not responsible for the loss thereof while it is hanging on a hook in the box occupied by the patrons, unless he or his servants have been guilty of negligence or wrongful act. In that case Mr. Justice Bischoff said:

"A bailment implies the delivery of a chattel; and, to subject one to liability as a bailee, it is a constituent that he had voluntarily assumed or retained the custody of the chattel alleged to have been bailed. There was no invitation to the plaintiff, express or implied, held out by the defendant, that the former should yield his personal vigilance even for a moment. The hooks provided by the defendant were a means of enabling the occupants of the box to care for their apparel with greater ease and comfort to themselves; but an effort to imply from the mere presence of such hooks an assumption by the defendant of the custody of whatever the occupants of the box might place thereon tortures reason."

I think that the views herein expressed are further fortified by Wamser v. Browning, King & Co., 187 N. Y. 87, 79 N. E. 861, 10 L. R. A. (N. S.) 314, Harris v. Child's Unique Dairy Co. (Sup.) 84 N. Y. Supp. 260, Montgomery v. Ladjing, 30 Misc. Rep. 92, 61 N. Y. Supp. 840, and Duckworth v. Codington Co. (Sup.) 136 N. Y. Supp. 68.

The facts of this case, viewed in the light of the foregoing authorities, seem to me to establish that there was no actual bailment, because there was neither an actual nor a constructive delivery of the coat. That this is not a case of constructive bailment is apparent from the fact that the defendant never had the actual possession of the coat. It follows that there was neither an actual nor a constructive bailment, and, as there is no other ground, under the facts in this case, upon which the defendant's liability can be predicated, the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

RAFSKY v. FREDERICK A. SMITH CO., Inc., et al. (Supreme Court, Special Term, New York County. February 4, 1913.) BILLS AND NOTES (§ 497*)-BONA FIDE PURCHASER-BURDEN OF PROOF.

A purchaser for a valuable consideration of notes given by a buver for the price of goods, with knowledge of the terms of sale and of the seller's representations, must, to recover from the buyer, show that he acted in good faith and had no knowledge of the seller's fraud inducing the buyer to purchase.

[Ed. Note. For other cases, see Bills and Notes, Cent Dig. §§ 1448, 1675-1681, 1683-1687; Dec. Dig § 497.*]

Action by Irving Rafsky against the Frederick A. Smith Company, Incorporated, and another. Judgment for plaintiff.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Deutsch & Peyser, of New York City, for plaintiff. Wm. A. Schumacher, of New York City, for defendant Smith Co. J. Lester Fierman, of New York City, for defendant Motor Finance Co.

NEWBURGER, J. Plaintiff purchased from the defendant Smith Company an auto car truck for $1,100. The agreement provided that the plaintiff should pay the same as follows: Four hundred dollars in cash, and the balance of $700 in monthly installments of $100. The agreement further provided that all parts of the car were to be perfect and to carry at least one ton. After signing the agreement, Smith, the president of the company, stated to plaintiff that he could not finance the matter, and that he would have to call with him on the defendant Motor Finance Company to take care of the matter, to which the plaintiff replied:

"If it will help you, I will go. It makes no difference to whom I pay the notes."

Thereupon the parties called at the office of the Finance Company, informed Mr. Black, an officer of the company, of the agreement between plaintiff and the Smith Company, repeating the representation that Smith had made to the plaintiff, and showing Mr. Black the agreement. Subsequently all the parties met in the office of the Motor Finance Company, and the notes and the chattel mortgage were signed by the plaintiff. The plaintiff and his witnesses testified that the car was of a certain model, which is borne out by the chattel mortgage prepared by the Finance Company. It also appears that Smith paid the finance company a bonus of 10 per cent., and that the sum of $700, the amount of the notes, was paid by the Motor Finance Company to the Smith Company, and no part thereof to the plaintiff.

The representations made by Smith as to the car were undoubtedly false and untrue, and that the Motor Finance Company had knowledge that such representations were made and were false there can be no question. The mere fact that the Motor Company claims to have paid a valuable consideration for the notes is not sufficient. It must not only show it has acted in good faith, but that it had no knowledge of the fraud from the inception of the transaction. See Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402, 10 L. R. A. 676; Lawrence Bros. v. Heylman, 111 App. Div. 848, 98 N. Y. Supp. 121, affirmed 189 N. Y. 573, 82 N. E. 1128. I therefore find that the plaintiff was induced to purchase the car through the fraudulent representation of the defendant Smith Company, and that the Motor Finance Company had knowledge of said fraudulent representation.

Judgment for plaintiff. Findings signed. Submit decree.

139 N.Y.S.-69

OBERNDORF v. FARMERS' LOAN & TRUST CO. et al.

(Supreme Court, Special Term, New York County. February 4, 1913.) WILLS (§ 741*)-GIFT FOR BENEFIT OF LEGATEE'S FAMILY-RIGHTS OF WIFE. Where a testator bequeathed one-half of the income of his residuary estate to his son, for the benefit of himself and his family, the son's wife could not sue to impress a lien thereon in her favor, but must resort to a matrimonial action to enforce her right to support.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1896-1899; Dec. Dig. § 741.*]

Action by Minnie G. Oberndorf against the Farmers' Loan & Trust Company and others. On motion to dismiss complaint. Motion granted.

See, also, 148 App. Div. 227, 132 N. Y. Supp. 1004.

May & Jacobson, of New York City, for plaintiff.

Geller, Rolston & Horan, of New York City, for defendant Farmers' Loan & Trust Co.

Willis Bruce Dowd, of New York City, for defendant William D. Oberndorf.

NEWBURGER, J. Plaintiff and Willam D. Oberndorf were married on October 3, 1893. They separated in 1907. On October 21, 1896, Julius Oberndorf, the father of William D., died, leaving a will and codicil in which he provided that one-half of the income of the residuary estate should be paid to William D., for the benefit of himself and family. William D. and the plaintiff entered into an agreement on December 31, 1907, with one Bigger, as trustee, to live apart, and empowering the trustees under the will of the father to pay to Bigger for the benefit of the plaintiff the sum of $1,000 per year. Subsequently the Farmers' Loan & Trust Company was substituted as trustee under the will. The Trust Company refused to recognize the assignment of income, whereupon William D. Oberndorf executed a power of attorney to the plaintiff and Bigger, authorizing them to demand and receive from the estate $1,000 per year. The payments were made until November, 1909, when William D. Oberndorf revoked the power of attorney, and no payments have since been made. The plaintiff brought an action to construe the will of Julius Oberndorf, claiming that the provision for William D. Oberndorf and family included herself as the wife of said William D. The trial justice found for the plaintiff, but the Appellate Division reversed the judgment. See 148 App. Div. 227, at page 229, 132 N. Y. Supp. 1004, at page 1006. From a reading of the opinion it is clear that whatever right the wife has to support from her husband must be determined in a matrimonial action. This action, however, is brought to impress a lien in favor of plaintiff upon the income of the trust fund directed to be paid to William D., and the Appellate Division said:

"The trustees under the will were vested with no discretionary powers. They were not directed to apply the income in any way, nor to supervise its For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

distribution. They were ordered to pay the entire share of the income over to the son, and their powers and duties ended there. The wife was not named as a beneficiary, except in the event of her husband's death, when the trustees were instructed specifically what to do in the contingencies that might then arise. The cases cited by respondent are those wherein the trustees had duties to perform in respect to the fund and were charged with the responsibility of seeing that it was applied to certain designated purposes. That is not this case. Here the only direction to the trustees is to pay to the son. Nor is there any method by which it may be determined that the testator meant that any specified part of the income should go to his daughter-in-law. Whatever rights plaintiff may have to support from her husband must be determined in an appropriate action for separation, when the requisite facts to justify an allowance of alimony can be established. Under the will of Julius Oberndorf she took nothing directly. The trustees were to set apart no sum for her support, and she is without recourse against the estate. We are not now concerned with the question of what her husband's duties towards her may be, whether under the will or apart from it." The motion to dismiss the complaint must be granted. Findings passed upon.

In re BENJAMIN.

(Supreme Court, Appellate Division, First Department.

1. DEATH ($ 2*)-PRESUMPTION OF DEATH FROM ABSENCE.

February 7, 1913.)

An unmarried woman of 34, who in 1873 disappeared from her home without explanation or known cause, taking nothing with her, from whom nothing was afterwards heard, though diligent search was made, will be presumed to have been dead after 7 years from the date of her disappearance.

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 1-3; Dec. Dig. § 2.*]

2. EXECUTORS AND ADMINISTRATORS (§ 507*)-SETTLEMENT OF ACCOUNTSMATTERS DETERMINED-DEATH OF ONE OF NEXT OF KIN.

The fact of the death of one of the next of kin should be determined by the Surrogate's Court, when called upon to do so upon a judicial settlement of the account of an administrator, and not necessarily in a separate proceeding for that purpose.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 88 2004, 2005, 2178-2191; Dec. Dig. § 507.*]

3. DESCENT AND DISTRIBUTION (§ 21*)—Next of KIN-SISTER.

Where the death of a woman without issue has been judicially determined as of a certain date before the death of her sister intestate the share which she otherwise would have taken must be divided among the intestate's next of kin.

[Ed. Note. For other cases, see Descent and Distribution, Cent. Dig. $$ 57-62; Dec. Dig. § 21.*]

Appeal from Surrogate's Court, New York County.

In the matter of the judicial settlement of the account of Mary Benjamin, as administratrix of the goods, chattels, and credits which were of Anna Shannon, deceased. From final decree of the surrogate (77 Misc. Rep. 434, 137 N. Y. Supp. 758), directing deposit of one-fourth of surplus in the state treasury, the appeal is taken. Reversed, and proceeding remanded to Surrogate's Court for decree in accordance with opinion.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ARGUED before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

F. R. Minrath, of New York City, for appellants.
Robert P. Beyer, of New York City, for respondent.

DOWLING, J. This is an appeal from a decree of the Surrogate's Court adjudging that it has not been established by adequate proof or with sufficient particularity that Bridget Shannon is dead, or that she did not survive her sister, Anna Shannon, the intestate, and that the remaining one-fourth of the estate of Anna Shannon, reserved by the administratrix pursuant to a prior decree, which would have gone to Bridget Shannon, shall be paid by the administratrix into the treasury of the state for the benefit of the persons who may hereafter appear to be entitled thereto.

The question involved in this appeal is whether, upon the papers presented by the petitioners, it satisfactorily appears that Bridget Shannon had died before the death of the intestate, which occurred on November 12, 1910. This court has so recently laid down rules as to the presumption of death arising from long-continued and unexplained absence that no further discussion of that question is now required. See Matter of Wagener, 143 App. Div. 266, 128 N. Y. Supp. 164; Cerf v. Diener, 148 App. Div. 150, 132 N. Y. Supp. 1026.

[1] In this case it appears that Bridget Shannon arrived in America in 1863, being then about 24 years of age. She obtained employment at Belleville, N. J., in the home of Dr. Ward, where Margaret Fitzpatrick, another sister, was also employed. She remained with this family for 10 years, or until 1873, when, without a word to any one as to her purpose or intention, with no known or assignable cause, and with no suggestion of any reason therefor, she suddenly disappeared from the place of her employment, leaving behind her a trunk containing her clothes, and taking with her nothing save her then wearing apparel. She was then unmarried, and there is no suggestion that she married thereafter. From that time until the time of making the application herein, no letter or message of any kind had ever been received from her. She had not been seen by any of her family. They had never received any information as to any other person having seen or heard from her, and she disappeared effectually and completely from human vision. Were she living, she would now be about 73 years of age. At the time of her disappearance, her sister, Mary Benjamin, who came to this country with her, was employed and living in the city of Newark, N. J., and she has been in that vicinity ever since. Her sister, Margaret Fitzpatrick, with whom she worked at Dr. Ward's, visited the Ward household after leaving their employment, and at the time of Bridget's disappearance was living in Orange, N. J., where she lived until 1901, and where her family have ever since resided. Mrs. Ward, who is still living, has never heard of Bridget since. Effort has been made by search through the various bureaus of vital statistics, and in insane asylums, as well as by calls upon persons likely to know of her continued existence, to ascertain whether

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