that Porto Rico occupied a relation to the United States between that of being a foreign country absolutely and that of being a domestic territory absolutely, and because of that relation its product was subject to the duties imposed by the Dingley act. The whole discussion turned upon the condition of Porto Rico between the time of the ratification of the treaty of Paris and the legislation by Congress establishing a government for that island. When Congress established a civi! government for the island of Porto Rico under the control and authority of the United States, a territorial government was established under which Porto Rico became an organized territory of the United States. It ceased to be a foreign country or territory upon the ratification of the treaty of Paris between the United States and Spain. It became an organized territory of the United States when the United States established a form of government under which the island was to be governed, subject to the jurisdiction of Congress and officers appointed in pursuance of law establishing a territorial government.

I think, therefore, it became a territory, within the provisions of section 5278, Rev. St. U. S.; and it follows that the order appealed from should be affirmed.

MCLAUGHLIN and LAUGHLIN, JJ., concur.

PATTERSON, P. J. I concur in the views as expressed by Mr. Justice INGRAHAM, concerning the status of the island of Porto Rico as a territory of the United States; and while it is not expressly decided in De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 743, 45 L. Ed. 1041, and Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088, yet it seems to have been assumed, throughout the opinions written by the learned justices of the Supreme Court of the United States in those cases, that such island is a territory, although not a part of the United States within the revenue clause of the Constitution, I am inclined, however, to the view that it is not necessary to determine, on the appeal now pending before us, whether the island of Porto Rico. is an incorporated territory. It is an organized territory, with a government established by the Congress by a law which it was authorized to enact. "Until Congress shall see fit to incorporate territory ceded by treaty into the United States, we regard it as settled by that decision [Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088] that the territory is to be governed under the power existing in Congress to make laws for such territories," etc. Dorr v. United States, 195 U. S. 138-143, 24 Sup. Ct. 808, 49 L. Ed. 128.

It seems to me that the authority of the Congress to legislate for the return of fugitives from justice to the authorities of Porto Rico is to be found in the power last referred to. The question here is whether the governor of Porto Rico had the right to call upon the governor of the state of New York for the surrender of the relator, and whether the duty was incumbent upon the governor of the state of New York to comply with such a demand. The Congress of the United States established a complete governmental scheme for the island of Porto Rico, which included an executive head called the "Governor." By an ex

and 136 New York State Reporter

press provision of the law creating that governmental establishment, passed April 12, 1900 (31 Stat. 81, c. 191, § 17), and commonly called the "Foraker Act," it is required that the governor of Porto Rico shall at all times faithfully execute the laws and he shall in that behalf have all the powers of governors of the territories of the United States that are not locally inapplicable. By section 5278 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3597] it is enacted that: "Whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which such person has fled, * * it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand or to the agent of such authority appointed to receive the fugitive and to cause the fugitive to be delivered to such agent when he shall appear."

The governor of Porto Rico had the power to proceed under this section of the Revised Statutes by force of the terms of section 17 of the act of April 12, 1900.

It is charged against the present relator that he is the subject of a criminal prosecution by "the People of Porto Rico," and the governor of Porto Rico, being invested by the Congress with the authority of a governor of a territory of the United States, has, in the performance of the duty and obligation resting upon him to execute the laws of the island of Porto Rico, demanded the surrender or rendition of the relator to the proper authorities of that island. Unless it must be held that the provisions of section 5278 of the Revised Statutes of the United States are locally inapplicable to the island of Porto Rico, it seems to me that the clear authority for the demand and surrender of the relator is shown to exist by force of the act of the Congress passed in pursuance of its power to legislate. The provisions of section 5278 of the Revised Statutes of the United States are general and relate to all territories. They are just as applicable to one as to another. They cannot by any proper understanding of language be regarded as only locally applicable to a particular territory with a permitted particular form of organized or incorporated government.

LAUGHLIN and HOUGHTON, JJ., concur.

(117 App. Div. 559)

O'REILLY v. SKELLY et al.

(Supreme Court, Appellate Division, First Department. February 8, 1907.) PLEADING ORDER TO NUMBER CAUSES OF ACTION-COMPLIANCE.

An order, entered after the court has determined that a complaint sets up two causes of action, which directs plaintiff to serve an amended complaint, numbering the causes attempted to be pleaded, is complied with by plaintiff serving an amended complaint which avers that he for a single cause of action alleges, etc.; and plaintiff, on the refusal of defendant to accept the amended complaint, is justified in moving to compel him to receive it.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1194–

Appeal from Supreme Court, Special Term.

Action by Sarah A. O'Reilly, as executrix, against Patrick Skelly and others. From an order denying a motion to require the attorneys for defendant Skelly to accept and admit service of amended complaint, plaintiff appeals. Reversed and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.

Johnston & Johnston (Edward W. S. Johnston, of counsel), for appellant.

Clarke & Clarke (Richard H. Clarke, Jr., of counsel), for respondents.

CLARKE, J. The plaintiff served a complaint. The defendant Skelly, upon an affidavit in which he alleged that more than one cause of action was attempted to be pleaded in said complaint, and that he was unable to properly prepare his answer, unless the plaintiff served. an amended complaint, separately stating and numbering the two alleged causes of action herein described, made a motion at Special Term for an order to compel the plaintiff to serve an amended complaint, separately stating and numbering the alleged causes of action attempted to be pleaded in her complaint. The Special Term, by an order dated the 10th day of December, 1906, granted the motion, and ordered:

"That the plaintiff herein, within ten days after the service of a copy of this order with the notice of entry thereof on her attorneys, serve an amended complaint separately stating and numbering the causes of action attempted to be pleaded in said complaint."

A copy of the said order was served upon the plaintiff's attorney on December 11th, and within the time there limited, to wit, on the 12th day of December, 1906, plaintiff served an amended complaint on the attorneys for the respondent. Said complaint commenced with the following language:

"The above-named plaintiff complains of the above-named defendants, and for a single cause of action by this her amended complaint alleges as follows."

There is no doubt that the pleader has intended to set up but one cause of action. In her affidavit the plaintiff asserts that the amended complaint states but one cause of action, and that she has but one cause of action. On the same day the attorneys for the respondent returned said amended complaint to the plaintiff's attorneys, with a notice that it was returned because it did not comply with the order of the Special Term of the 10th day of December, "inasmuch as said alleged amended complaint does not separately state and number the alleged causes of action attempted to be pleaded in the original complaint, as required by the terms of the said order." Thereupon the plaintiff made a motion to require the attorneys for the respondent to accept and admit service of the amended complaint as of the day upon which it had been served. The Special Term having denied said motion by an order made on the 27th day of December, the plaintiff appeals.

The court, having determined that the original complaint set up two causes of action, ordered an amended complaint to be served. The

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order did not mean, nor could the court have intended that it should mean, that the plaintiff was compelled, nolens volens, to serve an amended complaint containing two causes of action. It was not the purpose of the order, and could not have been the intention of the court, to compel a livigant to assert a cause of action which it did not possess and could not support. The order provided that the plaintiff should "serve an amended complaint, stating and numbering the causes of action attempted to be pleaded in said complaint." The words "said complaint" plainly refer to the amended complaint to be served, and the order required that in said amended complaint, if there were two or more causes of action, they should be separately stated and numbered. In obedience to that order the plaintiff served an amended complaint, and in that complaint the causes of action attempted therein to be pleaded are separately stated and numbered, to wit: It is asserted that the plaintiff "complains of the above-named defendants, and for a single cause of action this her amended complaint alleges." The plaintiff having complied with the order of December 10th, the respondent improperly returned the amended complaint served, and the plaintiff was justified in moving to compel its receipt as of the day when served, and the denial of said motion was error. The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

(117 App. Div. 562)

O'REILLY v. SKELLY et al.

(Supreme Court, Appellate Division, First Department. February 8, 1907.) Appeal from Special Term, New York County.

Action by Sarah A. O'Reilly, as executrix, against Patrick Skelly and others. From an order directing plaintiff to serve an amended complaint, separately stating and numbering the causes of action attempted to be alleged in the complaint, plaintiff appeals. Affirmed.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.

Johnston & Johnston (Edward W. S. Johnston, of counsel), for appellant.

Clarke & Clarke (Richard H. Clarke, Jr., of counsel), for respondents.

PER CURIAM. This is an appeal from an order requiring the service of an amended complaint, and the matters relating thereto have been considered in the memorandum on the appeal from the order of December 27, 1906, handed down herewith. 102 N. Y. Supp. 884. The order appealed from should be affirmed, without costs.

(53 Misc. Rep. 222)

In rẻ ALLISON.

(Surrogate's Court, Steuben County. February 12, 1907.)

WILLS-REMAINDERS-WHEN REMAINDER VESTS.

Testator bequeathed to his son, C., and to W., the son of C., the interest on certain mortgages, one-fifth to C. and four-fifths to W., and directed that on the death of C. the whole of the interest should be paid to W., and on his death the principal be paid to the children of W., in case he had any, and, if not, "it shall be paid to F. or her heirs." F. was the daughter of a deceased daughter of testator. C., W., and F. survived testator; but F. died before W., who died childless. F. was survived by her father, her sole heir at law, who died before W., and by her husband, and to the latter F. bequeathed all her property. The will was drawn by a layman, and at the time it was drawn W. was about 12 years of age, and the will gave F. one-half of testator's property absolutely. Held that, F. having survived testator, the remainder in which W. had the life interest vested immediately and absolutely in her, and passed to her husband by her will; contentions that the remainder vested at the time of testator's death in F., subject to be divested from her in case she failed to survive W., and that on the death of F. the remainder vested in her father, and that the remainder did not vest on the death of testator, but vested at the death of W. in C., who was the then surviving heir of F., being without merit.

Action by Charles S. Allison, as administrator of the estate of Eli Allison, deceased, as trustee under the will of William Lazear, deceased, for the judicial settlement of the account of plaintiff as administrator of Eli Allison, deceased, as trustee, and for the distribution of the funds of the estate of William Lazear held by Eli Allison as trustee. Decree ordered providing for distribution.

John F. Little, for Charles S. Allison.

James McCall and William H. Nichols, for Minor E. Swarthout. Henry C. Harpending, for Cornelius G. Lazear, Nellie Lazear, and Marvin Price.

WHEELER, S. This is a proceeding commenced by Charles S. Allison, as administrator of the goods, chattels, and credits of Eli Allison, deceased, as trustee under the last will and testament of William J. Lazear, deceased, for the judicial settlement of the account of said Charles S. Allison, as administrator, etc., of Eli Allison, as such trustee, and for the distribution of the funds of said estate of William J. Lazear, deceased, which were held by said Eli Allison as trustee under said will. There is no question as to the correctness of the account of said administrator, or of the said trustee. The only question is as to who owns the principal of the trust funds, when and to whom the same shall be paid, and whether the trust mentioned in the will of William J. Lazear still continues as to the whole of said principal fund during the lifetime of Cornelius G. Lazear, or whether one-fifth of the principal of said fund continues to be held in trust during the lifetime of said Cornelius G. Lazear. The answers to those questions involve the construction of the last will of said William J. Lazear, deceased.

William J. Lazear died in the town of Wayne, Steuben county, N. Y., on the 29th day of January, 1883, leaving his last will and testament, dated and executed on the 24th day of January, 1883. This was