the special instance and request of the defendant, of the value of $1,365.91, on which has been paid, as admitted by the plaintiff, the sum of $74.25, leaving a balance due of $1,291.66. The defendant denies these facts.

It appears from the facts herein that merchandise, consisting of automobile accessories, was delivered to the defendant by the plaintiff, and the defendant testified to the effect that, in consideration of the defendant procuring for the plaintiff an additional 10 per cent. discount off the purchase price of goods to be purchased from the defendant's principal, the Standard Welding Company, the plaintiff would furnish to the defendant all the accessories he desired for the use of his automobile. It appears, further, that the alleged arrangement was made for the benefit of plaintiff and the Standard Welding Company; that the said company paid for the expenses of its salesmen's cars, and that it agreed to the alleged concession of 10 per cent. to plaintiff in order to induce the plaintiff to furnish the defendant, which otherwise it, the Standard Welding Company, would have had to supply. The president of the plaintiff was one Mr. Nichols, with whom the defendant claimed that he had this arrangement, and Mr. Nichols denied that any such arrangement was made between the plaintiff and the defendant.

[1-3] The plaintiff now asks that the verdict of the jury in favor of the defendant should be set aside, first, upon the ground that the evidence was conflicting; and, second, that, the answer of the defendant being a general denial, the defendant was allowed to prove the making of the contract and agreement between him and the president of the plaintiff, and that the proof so offered was, as plaintiff contends, a payment, which could not be proven under a general denial. It was competent for the defendant to introduce any proof to show that there was no such agreement made as contended by the plaintiff. Thus, under the issues, the question of payment was not pleaded, nor was it necessary for the defendant to prove it. The burden was upon the plaintiff to prove the allegations of his complaint, and the burden of proof was never upon the defendant in this action.

The plaintiff further contends that the burden of proof was on the defendant when he introduced in evidence the contract between the plaintiff and the defendant, whereby the defendant was to get the accessories free. The burden of proof in this case always remained with the plaintiff. Farmers' L. & T. Co. v. Siefke, 144 N. Y. 354-358, 39 N. E. 358. The defendant was entitled to prove any fact that contradicted the evidence given by the plaintiff in support of its complaint. Under a general denial the defendant may controvert_by evidence anything which the plaintiff is bound to prove in the first instance to make out its cause of action, or anything that it is permitted to prove for that purpose under its complaint. Griffin v. L. I. R. R., 101 N. Y. 354, 4 N. E. 740; Wheeler v. Billings, 38 N. Y. 263; Schwarz v. Oppold, 74 N. Y. 307; Gilman v. Gilmån, 111 N. Y. 265, 270, 18 N. E. 849; Milbank v. Jones, 141 N. Y. 340, 345, 36 N. E. 388. A general denial is always the scientific and sufficient way to put in issue all that the plaintiff has necessarily pleaded and must

prove, though it seems to be growing very much out of mind in the profession. The defendant should never plead as a "defense" anything which is embraced within the general issue raised by the general denial. A defense can consist only of new matter, viz. matter outside of such general issue. Code of Civil Procedure, § 500; McManus v. Western Assurance Co., 43 App. Div. 550, 557, 48 N. Y. Supp. 820, 60 N. Y. Supp. 1143.

[4] The evidence of the parties hereto resulted in a question of fact, whether the jury believed the testimony of the president of the plaintiff and its witnesses or the testimony of the defendant in reference to the arrangement as to whether he was to receive the accessories to his automobile, being the agent of the Standard Welding Company, in consideration of the 10 per cent. which the plaintiff was benefited under its contract with the said Welding Company, and which was obtained for the benefit of said plaintiff through the agency of said defendant. This question of fact having been submitted to the jury for their deliberation, the court cannot at this late day set aside the results as found by the jury. It is the law, where there is a fair conflict in the evidence, where there are witnesses on either side whose credibility is to be determined, especially where witnesses are parties to or interested in the action, where there are documents, papers, letters, and circumstances sworn to by witnesses, the effect of which is to be determined, and the inferences from which are to be drawn, the questions of fact must be determined by the jury, and not by the court. These principles of law are so well settled that they are now elementary, and where the evidence in a case is so evenly balanced that reasonable men might differ as to the inference to be drawn therefrom, and it is fairly submitted to a jury, the court may not, in the exercise of its discretion, set aside the verdict rendered as against the weight of evidence. Messinger v. Antokolitz, 74 Misc. Rep. 588, 134 N. Y. Supp. 555; Layman v. John Anderson & Co., 4 App. Div. 124, 38 N. Y. Supp. 883; Von Der Born v. Schultz, 104 App. Div. 94, 93 N. Y. Supp. 547; Cox v. Halloran, 82 App. Div. 639, 640, 81 N. Y. Supp. 803.

Plaintiff cites and relies upon McDonald v. Metropolitan Ry., 167 N. Y. 66, 60 N. E. 282, and Ludeman v. Third Ave. Ry., 30 App. Div. 520, 52 N. Y. Supp. 310. These were cases wherein the verdicts were in favor of the plaintiff, and not in favor of the defendant on questions of fact, and from an examination of those cases it can be easily seen that, where the plaintiff has to sustain the burden of proof, the court was justified, there being insufficient evidence on behalf of the plaintiff to sustain the verdict, in setting it aside. As was said by McLaughlin, J., in Berkowitz v. Consolidated Gas Co., 134 App. Div. 389, 391, 119 N. Y. Supp. 100, 101, in setting aside a verdict in favor of the defendant:

"That an appellate court, if it were to pass upon the facts, might find in a way different from what the jury did, is no justification for setting aside their verdict on the ground that it is against the weight of evidence. When that is done, the court must be able to see that the verdict is the result of passion, prejudice, or corruption, or that the jury has made a mistake in considering and weighing all the evidence in the case."

The same conclusion was arrived at in Foreman v. N. Y. City Ry., 54 Misc. Rep. 557, 104 N. Y. Supp. 932, Horn v. Luntz (Sup.) 125 N. Y. Supp. 786, and Sater v. Salomon, 134 N. Y. Supp. 417, wherein the justice of the Appellate Term of the Supreme Court said, at page 418, as follows:

"The trial justice erred in setting the verdict aside. "Where the evidence is conflicting on material points, and where there is sufficient evidence to justify the findings of the jury, the setting aside of the jury's verdict by the court is an improper exercise of judicial discretion.' Metzler v. Farber (Sup.) 131 N. Y. Supp. 655; Kaplan v. J. C. Lyons Building & Operating Co. (Sup.) 119 N. Y. Supp. 264; Kingsley v. Finch, 54 Misc. Rep. 317, 105 N. Y. Supp. 968. There was nothing in this case to justify the inference that the jury were influenced in arriving at their verdict by passion or prejudice, but decided in favor of the plaintiff because, apparently, in their judgment, the evidence in his behalf was more worthy of credence than the evidence introduced in behalf of the defendant."

To the same effect see Wagner v. Herrmann Lumber Co. (Sup.) 121 N. Y. Supp. 607; August v. Fourth National Bank, 15 N. Y. St. Rep. 956, 958.

[5] A further question arose on the trial of this action to the effect that the defendant was guilty of a violation of section 439 of the Penal Law (Consol. Laws, c. 40), for accepting a gratuity. from the plaintiff without the knowledge or consent of his principal. Said section reads "without knowledge and consent," but the testimony herein was to the effect that such gratuity as the defendant received, the accessories to his automobile, was received with the knowledge and consent of his principal, the Standard Welding Company, and this section therefore does not apply to the issues in this case. Under the circumstances the verdict of the jury cannot be disturbed. Their verdict as rendered was without passion, prejudice, or corruption and rendered according to the evidence in the case. The motion for a new trial must therefore be denied. Submit order.

In re MOORE'S ESTATE.

(Surrogate's Court, New York County. December 18, 1916.)

1. WILLS 692--CONSTRUCTION-POWER OF APPOINTMENT.

Where a testator directed that during the life of his wife the income of his residuary estate should be paid to her and his children, and that on her death the estate be divided into three equal parts, and the income from each part paid to the individual in certain proportions, and gave each of the three children a power of appointment over a portion of the residue after the death of the wife, the respective powers of appointment vested at the death of the testator, and were not dependent upon their surviving the testator's widow; it being only the right of the appointees to take possession of the property that was deferred.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1654; Dec. Dig. ~~692.]

2. TAXATION 887-TRANSFER TAX-VESTED POWER OF APPOINTMENT-REMAINDER ON FAILURE TO EXERCISE POWER.

Where a will provided vested powers of appointment in testator's children, with right to possession deferred until death of widow, the transfer For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

tax on the property subject to the powers of appointment should be suspended until the death of the various donees, with provision for the taxation of the remainders in the event of the failure of the donees to exercise the powers.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 1709; Dec. Dig. 887.]

Proceeding to assess a transfer tax on the estate of Harrison B. Moore, deceased. From an order of the appraiser, fixing the tax, the State Comptroller appeals. Order modified and affirmed.

Coombs & Wilson, of Brooklyn, for executors.

Lafayette B. Gleason, of New York City (Schuyler C. Carlton, of New York City, of counsel), for state comptroller.

FOWLER, S. The state comptroller appeals from the order fixing tax upon the ground that it did not impose a tax upon the remainders after certain life estates.

[1, 2] The testator directed that during the life of his wife the income from his residuary estate should be paid to her and to his children in certain proportions, and that upon her death the estate should be divided into three equal parts and the income from each of these parts paid to the individuals, and in the proportions mentioned in his will. He gave to his son Jonathan a power of appointment over one-third of the residuary after the death of his wife, to his daughter Marietta a power over one-third, and to his son Harrison B. Moore, Jr., a power over one-eighth. The respective powers of appointment given to the persons mentioned are not dependent upon their surviving the testator's widow. The right of each of the appointees to dispose by will of the respective parts of the residuary estate over which they were given a power of appointment vested in them upon the death of the testator; it was only the right of the appointees to take possession of the property that was deferred until the death of the widow. The powers of appointment, therefore, were absolute, and the appraiser was correct in reporting that taxation on the property subject to the powers of appointment should be suspended until the death of the respective donees. Matter of Howe, 86 App. Div. 286, 83 N. Y. Supp. 825, affirmed 176 N. Y. 570, 68 N. E. 1118; Matter of Burgess, 204 N. Y. 265, 97 N. E. 591.

The order entered upon the report should, however, be modified so as to provide for the taxation of the remainders over which the respective donees are given a power of appointment, in the event of the failure of the appointees to exercise the powers. In all other respects the order is confirmed. Settle order on notice.

In re NOCTON'S ESTATE.

(Surrogate's Court, New York County. January 20, 1916.)

1. EXECUTORS AND ADMINISTRATORS 29(1)-PROCEEDING TO OBTAIN LETTERS TERMINATION.

A proceeding in the Surrogate's Court to obtain letters of administration on a decedent's estate was terminated by the entry of the decree granting such letters.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 177; Dec. Dig. 29(1).]

2. ATTORNEY AND CLIENT 182(2)-LIEN-SERVICES IN ADMINISTRATION. The lien of an attorney for services rendered an administrator upon his application for letters of administration attaches to the decree granting such letters, but no lien for services rendered subsequently to issuance of the letters can attach to the decree granting the letters.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 401; Dec. Dig. 182(2).]

3. EXECUTORS AND ADMINISTRATORS 35(1)—REVOCATION OF LETTERS-FAILURE TO PAY ATTORNEY.

Failure of an administrator to pay his attorney's fees is not one of the exclusive statutory causes for which letters of administration may be revoked, so that the Surrogate's Court cannot enforce the attorney's lien for services by revoking the letters of administration.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 227; Dec. Dig. 35(1).]

4. ATTORNEY AND CLIENT

182(2)—LIEN-PROCEEDS OF DECREE.

A decree granting letters of administration, not determining the right of the petitioner to any part of the decedent's estate, but merely his right to act as administrator, has no proceeds to which the lien of the petitioner's attorney can attach.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 401; Dec. Dig. 182(2).]

5. EXECUTORS AND ADMINISTRATORS

111(1)—PAYMENT FOR LEGAL SERVICES.

An executor may pay for legal services out of the estate, and the surrogate, upon an accounting by the executor, may allow him for such payment, if reasonable in amount, and the services were necessary and proper in the administration of the estate.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 448, 449, 458, 459, 461; Dec. Dig.

6. EXECUTORS AND ADMINISTRATORS

ICES.

111(1).]

111(1)—LIABILITY FOR LEGAL SERV

An executor or administrator, who employs an attorney to advise him in the administration of an estate, incurs a personal liability for the value of the services performed by such attorney.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 448, 449, 458, 459, 461; Dec. Dig. ~111(1).]

7. EXECUTORS AND ADMINISTRATORS ~216(2)—ATTORNEY'S LIEN ON ESTATE IN ADMINISTRATION.

An attorney, who performs services for the executor or administrator of a decedent's estate, has no lien upon the general assets of the estate for the value of the services.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 757; Dec. Dig. 216(2).]

8. COURTS 202(1)—SURROGATE'S COURT-APPOINTMENT OF REFEREE.

The Surrogate's Court, on application by an attorney for an order determining and enforcing his alleged lien, could appoint a referee to take For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes