CORLETT, J. (dissenting).-Christiana Farthing made her will in June, 1871. She died in September, 1881. The will was admitted to probate. In 1888 the plaintiff brought an action for the construction of the will. The case was tried at special term, in July, 1889. The decision was in accordance with the respondent's contention, and the defendants moved for a new trial under § 1001 of the Code of Civil Procedure.

The provisions of the will in controversy are: "Second, I give and devise to my nephew, John N. Lester, for and during his natural life, but no longer, twenty (20) acres of land situate, lying and being in the town of West Seneca, and the southwest corner of Abbott road and Wells road, so called, to be divided and set off to him as soon after my death as the same can be done, in as nearly the form of a square as may be, or such other twenty (20) acres of any lands of which I may die seized as may be agreed upon by and between my said nephew and the executors of this my last will and testament; and I hereby will and direct that said executors shall make and execute at the expense of my estate, and deliver to said John N. Lester, a proper and sufficient instrument in writing under their hands and seals, by them duly acknowledged so as to entitle the same to be recorded, in and by which they shall designate and describe by metes and bounds the twenty (20) acres of land as set off and allotted to said John N. Lester.

"In case said John N. Lester shall die before I do, leaving no lawful issue or descendant him surviving, then and in such case I will and direct the said twenty (20) acres of land which he will take if living at the time of my death, under and by virtue hereof, shall be and be considered a part of my residuary estate, and shall be disposed of and pass as such under and by virtue of the fourth clause of this my last will and testament.

"In case said John N. Lester survives me, and dies without lawful issue him surviving, then and in such case I will and direct that said twenty acres of land upon his death shall be and be consid ered a part of my residuary estate, and, as such, shall be disposed of, and pass as such under and by virtue of the fourth clause of this my last will and testament.

"In case said John N. Lester shall die leaving lawful issue descendant or descendants him surviving, then and in such case I give and devise said twenty acres of land to his lawful issue, descendant or descendants, equally if there be more than one, share and share alike; but if there be but one, he or she shall have and take the whole of said twenty acres of land."

John B. Weber and William W. Lawson were appointed executors of the will. Lawson died in January, 1888, leaving Weber the sole executor. The twenty acres on the Abbott road were sold on the foreclosure of a mortgage about two years before the death of the testatrix, but she left other real estate. The question here is whether Lester can obtain the twenty acres out of the other lands owned by the testatrix at the time of her death.

The rule is familiar that where upon examination of a will as

a whole the intention of the testator appears clear, but its plain and definite purposes are endangered by inapt or incorrect modes of expression, the court may, and it is its duty to subordinate its language to the intention; it may reject words and limitations, supply or transpose them to get at the correct meaning. Phillips et al. v. Davies et al., 92 N. Y., 199; Wager v. Wager, 96 id., 164. The testatrix at the time of making her will owned considerable real estate and personal property, all of which she disposed of by will. It is obvious that she intended to give Lester the use of twenty acres of land during his lifetime. Her primary purpose was to devise to him the twenty acres on the Abbott road, but she authorized an equal amount to be agreed upon by her executors and him out of other lands of which she might die seized. There is no room for claim that the testatrix intended that Lester, in any event, should have the use of forty acres. Every clause in the will limits the amount to twenty. Under such circumstances, if for any reason the Abbott road land was not available, it was the express intention of the testatrix to substitute another twenty acres in its place. It is entirely immaterial whether at the time of her death she owned the Abbott road land or not. Power was given in the way directed to agree upon another twenty acres, which would involve an abandonment of the first; if she did not own the Abbott road land, then her purpose was to devise another twenty acres out of the lands of which she died seized. If he cannot insist upon an allotment of another twenty acres, then he gets nothing. It was obviously not her intention that in any contingency he should lose the use of twenty acres of land during his lifetime.

The suggestion of the special term that the executor could not be compelled to agree with Lester as to another twenty acres, must depend upon the construction of the will. If the use of twenty acres was devised by the testatrix, the court has inherent power to direct a conveyance. Williams v. Williams, 4 Seld., 524; Owens v. Mis. Society, 14 N. Y., 380-408.

The purpose of the testatrix cannot be defeated by a refusal on the part of the executor to agree with Lester as to the particular twenty acres which should be set off or assigned to him. If necessary the court will compel him to agree. If not, it could adjudge an allotment without his intervention and against his protest, either of the land or its proceeds, in event of a sale.

It is the duty of the court to give full effect to the intent of the testatrix. The respondent's contention and the decision at special term would utterly defeat such intention. The decision at special term should be set aside and a decree entered in accordance with the views stated.

Motion for new trial denied and interlocutory judgment affirmed.

HUGH O'NEILL, App'lt, v. EPHRAIM HOWE, Resp't.

(New York Common Pleas, General Term, Filed May 5, 1890.)

1. MASTER AND SERVANT-COMMISSIONS ON SALES.

The mere fact that a person employed to sell goods on commission or

iginally made sales to certain customers, and that after his employment terminated they bought more goods of his former employer, does not entitle him to a commission on the later purchases in the absence of proof of a contract to that effect.

2. CONTRACT-STATUTE OF FRAUDS.

Defendant counterclaimed for goods sold to plaintiff, which were charged on his books to one Dugan. It appeared that plaintiff ordered the goods, said he owned the Dugan business, and wanted the goods sent in that name. Held, that the statute of frauds did not apply, as the original credit was given to plaintiff.

3. EVIDENCE-LEADING QUESTIONS.

No exception will lie to the allowance by a referee of a leading question. 4. SAME.

A direction to proceed with the examination of a witness in the absence of a book of the opposite party, which is claimed to be necessary therefor, is not reversible error; notice to produce should have been given and the witness recalled.

5. REFERENCE-NOTICE TO TERMINATE.

Notice to terminate a reference for failure to file the report in time must be served before the report is filed or delivered.

APPEAL from judgment of the general term of the city court of New York, affirming judgment entered on referee's report, and from certain orders of the general term of said court affirming orders of special term.

Thomas Bracken, for app'lt; J. Woolsey Sheppard, for resp't.

LARREMORE, Ch. J.-No error appears for which we can grant a reversal. There was some evidence to support the referee's finding reducing plaintiff's claim, and on an appeal from the city court this court has no power to reverse a judgment because we might deem that the weight of evidence was against the referee's decision. Farley v. Lyddy, 8 Daly, 514.

The facts to support defendant's counterclaim were not controverted and we think the referee correctly held that they made out a good cause of action. The statute of frauds does not apply; the original credit was given not to Dugan but to plaintiff.

The notice of plaintiff's election to end the reference was nugatory, because, although more than sixty days had expired since the cause was submitted, said notice was not served until after the report had been actually delivered. Code, § 1019; Gregory v. Cryder, 10 Abb., N. S., 289.

The judgment appealed from should be affirmed, with costs.

DALY, J.-The plaintiff claimed for work, labor and services, in the sale of defendant's goods on commission, at request of defendant, from March 1, 1886, to May 23, 1887. Upon the trial before the referee it appeared that he had been selling to certain customers of defendant for several years before that period, and the claim now made seems to be based upon the theory that he is entitled to commissions upon all subsequent sales by defendant to those customers, whether he can or cannot prove that such subsequent sales were, in any instance, made by him. This is apparent from the fact that the plaintiff is not able to N. Y. STATE REP., VOL. XXXI.

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give testimony as to any sale during the period specified in his complaint, but bases his right upon the fact that sales to such persons during said period appear upon defendant's books; thus in his direct examination, he says, in answer to the question, "Look at the bill of particulars shown you and state when, giving the date as near as you can, you sold Mrs. Agnew?" he answers, "Mrs. Agnew was my customer and all that she bought I claim," and afterwards says that he cannot state how much goods he sold her; that he knows he sold to her by defendant's books. In respect to sales to Mr. Bulger, he says: "He was my customer, and I claim all sales." So with respect to Mr. Bach, he says, in answer to the question: "You say you sold Mr. Bach $7,432.97 during the year 1886?" A. "According to your books; yes;" but in answer to the further question whether the books show anything more than a bill of goods from defendant to Bach, he answers: "Not that I know of." With respect to sales to Carberry, he says: "I don't recollect any particular transaction that I sold him goods during the year 1886; that applies to all my testimony given upon the transactions in regard to sales." He afterwards swore that there might be a few parties from whom he brought orders during the period covered by his complaint; that he did not negotiate a sale to Bach (whose account on the books was, as before stated, $7,432.97); that he ceased to be in the employ of defendant in the latter part of 1885 or the spring of 1886; that he previously kept a book in which he entered his sales but ceased to enter for 1886, because he was working in W. Macy's and sent postal cards whenever he got an order. The defendant rendered him an account of his sales, including the period in question, and offered to pay him the amount of commission computed thereon. He was allowed a recovery for this amount (which was admitted by the answer), but for nothing further.

I do not see how the finding of the referce can be disturbed by us. The mere fact that the plaintiff had originally made sales to certain customers, and that after he left the plaintiff's employ they bought more goods, does not make out a case for commissions upon such later purchases. If it did, then he would be entitled to commissions upon sales by defendant to such persons as long as defendant continued in business, irrespective of any efforts of his own to induce such sales. No such continuing liability of defendant could be enforced without some proof of a contract to that effect. Ordinarily, the leaving of defendant's employ would terminate the contract for a commission on sales and any claim for commissions where, as in this case, the claim is based upon work, labor and services in the sale of goods at defendant's request.

It is true that some of the customers called by plaintiff as witnesses swear that all they bought they bought through plaintiff, but this testimony is very loose and general; it is a conclusion of the witness rather than a statement of fact; but further, it is not shown that the sales to those persons entitle plaintiff to more than he received. It is also true that the accounts of the customers in defendant's books (upon which

accounts plaintiff demands these commissions) are marked with the name or the initials of plaintiff in order to designate them as his customers; but these marks were originally made upon old accounts while plaintiff was in defendant's employ, and were continued on the subsequent accounts by the bookkeepers, but such designation so made does not prove that such later sales were made by plaintiff; besides, the marks were put there by bookkeepers of defendant for their own convenience in making up the plaintiff's accounts, and not by order of the defendant. There was a conflict of testimony as to whether the agreement between plaintiff and defendant was for a commission upon sales or upon collections made by him, and the referee found it was the latter. The evidence is ample to sustain the finding.

The counterclaim was proved. It was shown that the sales made by defendant to Dugan were really made to plaintiff. Conklin swears that plaintiff told him that he owned the Dugan business, and that he wanted the goods sent in Dugan's name.

The exceptions were not well taken. The motion to strike out the stipulation as to stenographer's fees was denied upon the question of fact. Appellant, in his brief, states that it was inserted without his knowledge, but this ground was not stated in the motion to strike out.

The

There is no exception at folio 59. The question at folio 113 as to statements made by plaintiff to a third party was not competent evidence for plaintiff, and was properly ruled out. written or printed contents of a card not produced, as to which a question was asked at folio 116, was properly ruled out. No exception will lie to the allowance of a leading question; leading questions are in the discretion of the referee. The appellant refers to a number of other exceptions as valid without arguing them upon his brief. An examination of the record discloses no error in the rulings excepted to.

The exception at folios 186 and 187 to the direction that plaintiff proceed with his examination in the absence of one of defendant's ledgers which he desired to use, is not ground for reversal. The plaintiff should have given notice to produce the ledger and then recalled the witness. As to the exception at folio 256, no question was disallowed; the cross-examination of defendant upon his books was fully permitted. The evidence disallowed at folios 270 and 272 seems to be immaterial. There is no exception at folio 272. The other rulings complained of do not show error on the part of the referee.

There can be no question as to the filing of the referee's report. The Code expressly states that the notice to terminate the reference (when a report is not filed or delivered within sixty days), may be served before the report is filed or delivered. This was not done in this case. The report was filed before the notice was given. The case of Little v. Lynch, 99 N. Y., 112, relied upon by appellant was a case in which the notice was given before the report was delivered or filed.

The stipulation to pay referee's fees at the rate agreed upon, which stipulation is manifested by an entry in the minutes, is