This conversation between Edwards and the defendant clearly referred to the arrangement made with Thorne, for no arrangement had been made with Kelly to pay the captain in fruit for his protection. The captain, by his answer, assented to the statement that he had sent a man to arrange to take fruit for protection. This conversation, assuming that it was had, which was a question for the jury, could have referred to no arrangement but the one made with Thorne, and both the defendant and Edwards must have so understood it. The defendant did not inquire: "What arrangement? With whom was it made?"

From De

From May 5, 1877, to December 23, 1884, the defendant served as a patrolman and roundsman, at an annual salary of $1,200. During this period his pay amounted to $8,050. From January 23, 1884, to December 23, 1887, he served as sergeant, at an annual salary of $1.600. During this period his pay amounted to $6,066. cember 23, 1887, to September 6, 1894, he served as captain, at an annual salary of $2,750. During this period his pay amounted to over $18,600. During his service of 17 years and 4 months he received in salary more than $32,700; worth when appointed, $500; received from his wife's estate, $1,500,-$34,700. By his cross-examination it was shown that he had the following property: A mortgage for $3,000; a farm, for which he paid $4,100; a city lot, in the name of his wife, for which he paid $2,000; an interest in a house, above the mortgages, $2,100,-$11,200. His interest in the house was subject to mortgages amounting to $18,900. On his redirect examination he testified that he was not worth to exceed $10,000. His testimony did not tend to show ill-gotten gains. On the contrary, the inference to be drawn therefrom was that he had not acquired property by blackmail or by bribery. The subjects on which a witness may be cross-examined for the purpose of determining his credibility, as well as the extent of such cross-examination, are largely in the discretion of the trial court, and dependent upon the facts of each case, and when it appears that the credibility of a witness was strengthened rather than impaired by a cross-examination, even on immaterial subjects, it is not a legal error for which a new trial will be granted. The court, in its instruction to the jury, made no allusion to these facts, and it is not asserted that the prosecuting officer did, and these facts might and may have been urged with great force by the defendant's counsel to show that the defendant had not been the recipient of bribes or of blackmail. I am unable to see how the defendant could have been injured by this cross-examination.

It is charged in the indictment that, September 15, 1891, the defendant received from Edwards four baskets of peaches as a bribe for not performing his duty in respect to the sidewalk in front of Edwards' store. Whether he received the peaches was the crucial issue of fact. Edwards and Whispell swore that he did, and that they were delivered through the American Express Company. The defendant denied it. His wife denied it. A waybill, of which the following is a copy, was introduced in evidence:

Pd Maggie Robinson.

1

William F. Herger testified that, September 15, 1891, he was a driver for the American Express, and on that day received the waybill, and delivered four baskets of peaches at the defendant's residence, No. 2074 Washington avenue. In corroboration of his testimony, the delivery sheet on the preceding page was read in evidence. The fact that defendant's name in the waybill was misspelled "Stevenson," and that No. 2082, instead of 2074, Washington avenue was erroneously inserted by Herger in the delivery sheet, are matters of slight importance, and not sufficient to discredit the documentary evidence and the testimony of three witnesses. Under the circumstances of this case, it is impossible to believe that Edwards, Whispell, and the employés of the express company, in September, 1891, more than three years before this indictment was found, entered into a conspiracy to manufacture these documents. They had no motive. The defendant and his wife testified that the peaches were not received. The wife swore that the signature in the delivery sheet was not hers. The defendant swore that the signature did not resemble the handwriting of his wife, and also that it might look a little like it. Upon this conflicting evidence, the conflicting testimony of the defendant and Edwards in respect to their interview at the station house, and evidence in regard to the prosecution of Edwards for violating the ordinance relating to sidewalks, and the discontinuance of some of those prosecutions after the last interview at the station house, and other evidence which need not be referred to, this case was submitted to the jury, under instructions which were eminently fair, and not unfavorable to the defendant, and he was convicted. I am unable to find any error calling for a reversal of the judg ment.

Code Cr. Proc. § 542. "After hearing the appeal the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties." The judgment should be affirmed.

WHITCOMB v. WHITCOMB (two cases).

(Supreme Court, General Term, Fifth Department. December 28, 1895.) 1. ACTION ON CONTRACT-PERSONS NOT PARTIES.

A wife, who was prosecuting an action for divorce, her husband, and his father made an agreement by which she was to continue the action and was to have custody of her children, who were infants, the husband was to make certain provisions for her and the children, and further than that she was to make no demand on him, and the husband's father was by will to leave a certain amount to the children. Held that, for failure of the promisor to make such provision in his will, action could be maintained against his executor by the children.

2. AGREEMENT-PERFORMANCE.

An agreement between a wife, who was prosecuting an action for divorce, her husband, and his father, by which she was to proceed with the action, the husband and father were to make certain provisions for her and her children, and she was to make no further demands on the husband, is not violated by the wife's commencing another action, and obtaining divorce under it, instead of under the action pending at the time

of the agreement, or by her obtaining judgment for alimony, she having undertaken, after entry thereof, not to enforce it if the husband complied with his obligations under the contract.

3. COSTS-AGAINST EXECUTORS.

Costs on reference of a claim against a decedent's estate, under Code Civ. Proc. § 2718, being, as therein declared, regulated by sections 1835. 1836, providing that costs shall not be awarded against an executor unless it appears that payment of the claim was unreasonably resisted or neglected, and declaring that the facts must be certified by the referee, cannot be recovered against the executor, in the absence of the referee's certificate to such resistance or neglect of payment.

Appeal from judgment on report of referee.

Claims by Charles S. Whitcomb and by Ida S. Whitcomb, respectively, against Flynn Whitcomb, as executor of Samuel Whitcomb, deceased. The claims were disputed by the executor, and were referred under the statute. The referee found in favor of claimant in each case, and defendant appeals. Modified.

Argued before LEWIS, BRADLEY, and WARD, JJ.

George A. Benton, for appellant.
W. H. Whiting, for respondent.

BRADLEY, J. The plaintiffs in the two actions were the children of Truman H. Whitcomb and Eleanor J. Whitcomb, his wife. and the defendant's testator, Samuel Whitcomb, was the grandfather of the plaintiffs. This action was brought upon an agreement in writing entered into in 1879, between Truman H. Whitcomb, of the first part, Eleanor Whitcomb, of the second part, and the defendant's testator, of the third part, whereby the latter agreed at his death to pay or cause to be paid to each of those grandchildren the sum of $1,000, and to provide by his last will and testament for the payment thereof; but, in case $2,000 should exceed one-half of his estate at the time of his death, one-half only of the amount of his estate should be paid to them. By the agreement it was also provided that Eleanor, the wife, should have the custody of the two children, who were minors, and that certain provisions should be made by Truman H. Whitcomb to her and for the children. The defendant's testator, by his will, gave nothing to those grandchildren.

It is urged on the part of the defendant that the testator, by his agreement to do so, assumed no legal obligation to make in his will any provision for them, because there was no personal liability of the mother to them. She, by the agreement, having the custody of the plaintiffs, then infants, assumed to take care of them, and such agreement of the testator may be deemed to have been one of the considerations for her undertaking. In view of the relation of Mrs. Whitcomb to the children, her duty to them arising from it, and of the fact that she proceeded in its performance on the faith of the provisions of the agreement, the promise of the testator would seem to come within the doctrine of Lawrence v. Fox, 20 N. Y. 268, and kindred cases. This is not inconsistent with the legal proposition that a promise to pay an existing obligation of another is not effectual to charge the promisor where there is no liability of the