2 terested parties, but this was strictly limited to cases where the whole design and object of the trust scheme had been practically accomplished, and all the interests created by it had become vested. Perry on Trusts (3d Ed.) § 920; Bowditch v. Andrew, 8 Allen, 341. Even then the assent of the trustee was essential to the exercise of jurisdiction." Whether the limited power of the court of chancery to dissolve a trust was taken away by the section of the Revised Statutes which declared the trust interests to be inalienable, it is not necessary to inquire. Here the trustee has not consented to the destruction of the trust. No such consent is given in the submission. The only stipulation on the part of the trustee is that, in the event of the court deciding that the trust has been terminated, judgment may be entered that the fund be paid over to the plaintiff. That is not a consent to the destruction of the trust. Such a consent should be express and unequivocal. We can draw no inferences, for in the submission of a controversy the action of the court is confined to facts agreed upon. Nothing can be inferred, nor can the court in any manner depart from or go beyond the statement presented. Fearing v. Irwin, 55 N. Y. 486. But even if the foregoing views respecting the retroactive effect of the statute are not correct, the trust created by the testator cannot be terminated, for the conditions do not exist which would authorize that being done. The policy of the law preventing the in-. alienability of property held in trust under such a trust as that contained in this will has been changed by the statute only in the one particular case specified therein. It is not the intention of this statute to destroy trusts which must be preserved in order to carry out the intention of a testator. Its purpose is merely to remove the shackle of a trustee's title and estate to and in property, the full and actual ownership of which vests in the beneficiary. In this case the beneficiary is not completely and absolutely entitled to the whole estate. Her right to the income is conditional. It is hers for life. or until she remarries. The intention of the testator is that she shall cease to be entitled to the income on her remarriage. That intention-lawful, enforceable, and subject to no limitation at the time the will was made-cannot be destroyed. If effect were given to the statute, and the fund were transferred to the widow, she might marry the next day, and thus defeat the plain testamentary intention of her husband. This view finds some support in the opinion of the court in Matter of United States Trust Co., 175 N. Y. 304, 67 N. E. 614. The statute is not one for the benefit of the remaindermen. They could sell and transfer their interests without its permission. It is a release of the life interest that the statute provides for. The widow does not own a life interest absolutely, but only conditionally. We think the proper construction of the statute is that, where the beneficiary's right to the income or to the remainder is conditional, the statute does not apply, for it is a self-operating statute, and, where it does apply, the estate of the trustee ceases by force of the statute itself. It has wrought great confusion, and great wrong may be done under its authority. Happily the Legislature and 118 New York State Reporter has recognized it to be of that character, and has wisely abolished it, restoring the law concerning the inalienability of the beneficiary's interest to the condition it was in under the Revised Statutes. Chapter 88, p. 239, Laws 1903. Judgment should be directed on the submission for the defendants, with costs. All concur, except LAUGHLIN, J., who dissents. LAUGHLIN, J. I dissent, and am of opinion that it is competent for the Legislature to regulate the dissolution of existing trusts in the manner provided by the act of 1897, which statute, I think, was designed to apply to existing as well as to future trusts. COHEN v. RIDGEWOOD SHIRT CO. (Supreme Court, Appellate Term. June 22, 1903.) 1. APPELLATE TERM-JURISDICTION-APPEALS FROM ORDERS. The jurisdiction of the Appellate Term over appeals from orders exists solely by force of statute. 2. MUNICIPAL COURTS-PRACTICE-SETTING ASIDE JUDGMENTS-TIME OF MOTION Municipal Court Act, § 254 (Laws 1902, p. 1563, c. 580), provides that a motion to vacate or modify a judgment rendered upon a trial by the court may be made on exceptions taken at the trial, or because the verdict is excessive, etc. Section 253, p. 1562, provides for the opening of a default. Section 255, p. 1563, provides for a new trial on the grounds of fraud or newly discovered evidence. Section 310, p. 1578, provides for an appeal to the Supreme Court from judgments rendered, or from final orders in summary proceedings, or from other orders theretofore provided. No other sections provide for appeals from orders of the Municipal Court. Held, that orders denying a motion to set aside a judgment of dismissal, and for costs to defendant, if embraced in any of the sections above set out, are within section 254, and hence the motion must have been made, as provided in said section, either at the time of trial, or within five days from the time the judgment was rendered. Appeal from Municipal Court, Borough of Manhattan. Action by Samuel Cohen against the Ridgewood Shirt Company. From orders refusing to set aside a judgment of dismissal, defendant appeals. Dismissed. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. A. D. Sugarman, for appellant. FREEDMAN, P. J. The action was in replevin. The summons therein was returnable February 9, 1903. The plaintiff made default in appearing, and thereupon the defendant moved to dismiss the complaint, with costs, which motion was granted. On the 24th of April, 1903, the defendant moved to set aside and vacate the judgment of dismissal and costs in favor of the defendant, for the purpose of being allowed to prove its damages for the detention of the property taken by the plaintiff under the requisition in this action. It appears from the moving papers that the marshal, under the replevin process, seized a number of sewing machines owned by and in use by the defendant; that several days elapsed between the taking of the machines by the marshal and the return of the same to the defendant; and by this motion the defendant sought to be allowed to open the judgment of dismissal, and to prove its damages for the detention of the property, etc., during the time it was in the hands of the marshal. The motion was denied, and after a reargument it was again denied, and the defendant appeals from the two orders denying said motions. The jurisdiction of the Appellate Term over appeals from orders exists solely by force of statute. Pascocello v. Brooklyn Heights R. Co., 26 Misc. Rep. 412, 56 N. Y. Supp. 177. Section 254 of the Municipal Court act (Laws 1902, p. 1563, c. 580) provides that a motion. to set aside a verdict of a jury, or to vacate, amend, or modify any judgment rendered upon a trial by the court without a jury, must be made upon exceptions taken on the trial, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law, provided said motion is made at the time of the trial, or within five days from the time the judgment was rendered. If by any construction of that section the appellant herein could be said to have had the right to the relief asked for, he failed to comply with the requirement therein contained that such relief should be applied for within five days; and that section, and sections 253, 255, and 310 (pages 1562, 1563, 1578), are the only other sections of the Municipal Court act that provide for appeals from orders made in the said court, and the orders appealed from in the case at bar do not come within the purview of either of these sections. Whatever power the court below may have had to either grant or refuse the relief asked for, it is clear that no appeal lies from the orders made by it Appeal dismissed, with costs. All concur. DICKER v. COHEN et al. (Supreme Court, Appellate Term. June 22, 1903.) 1. ATTORNEY AND CLIENT-FRAUD-EVIDENCE-SUFFICIENCY. In an action against attorneys for fraudulently representing to plaintiff that they had collected $200, instead of $300, on a claim placed in their hands, the defendants introduced in evidence the contract, by which plaintiff agreed to pay defendants 50 per cent. of any amount received by them on the claim, and also a receipt, signed by plaintiff, acknowledging payment by the debtor of $300 in full for his claim, and proved a payment of one-half thereof to plaintiff. Plaintiff testified that he could not read English, and that the contract was not read to him, and that he did not know its contents when he signed it. Defendants testified that the plaintiff was informed of its contents and of the payment to them of $300, and this latter testimony was not denied by plaintiff. It appeared that plaintiff could write many English words and understood figures in English, and the receipt contained the words "three hundred," both in writing and figures. Held, that a judgment for plaintiff, inasmuch as it involved moral turpitude and criminal responsibility, should be reversed MacLEAN, J., dissenting. Appeal from Municipal Court, Borough of Manhattan. Action by Harris Dicker against Moss Cohen and others. From a judgment for plaintiff, defendants appeal. Reversed. and 118 New York State Reporter Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. James H. Egins, for appellants. Samuel Silinsky, for respondent. FREEDMAN, P. J. This action was brought by the plaintiff to recover for the alleged false and fraudulent statements made by defendants, consisting in stating that his claim against a fire insurance company, which had been placed in the hands of defendants for adjustment and settlement, had been settled for $200, when in fact the defendants had received the sum of $300 in settlement of such claim. The defense was substantially an affirmative one, the defendants averring that the sum of $300 was received by them in settlement of plaintiff's claim; that the same was so received with the full knowledge and consent of the plaintiff, and that, of such sum, plaintiff agreed to pay defendants 50 per cent. for their services, which he did; and that he gave a receipt for said sum to defendants. Upon the trial the defendants introduced in evidence a written contract, marked as "Exhibit A" on the trial, signed by the plaintiff, agreeing to give defendants 50 per cent. of any amount received from the insurance company by them for the plaintiff's claim against the company, and also a receipt, signed by plaintiff, acknowledging payment of $300 in full for his claim against such company. The effect of these instruments was sought to be evaded by the plaintiff, who testified that he was unable to read or write, except to write his own name; that he could not read English, and that Exhibit A was not read to him; and that he was not aware of its contents when he signed it. This was denied by defendants. As to the receipt given by him, the defendants both testified that the plaintiff was fully informed of its contents and of the payment to them of $300, and this testimony was not disputed by the plaintiff. It was also shown that the plaintiff could write many English words, and understood figures in English. The receipt contained the words "three hundred," both in writing and in figures. The charge against the defendants is a serious one, involving not only moral turpitude, but the liability of imprisonment, and a judgment founded upon uncertainty and doubt should not be permitted to stand. The circumstances under which plaintiff obtained the claim against the insurance company do not indicate that he would be unwilling to agree to pay a considerable portion of whatever he might realize therefrom for the services of defendants, and, if the plaintiff is right in his contention, a new trial will only cause a short delay. The interests of justice require that one should be had. Judgment reversed. New trial ordered, with costs to the appellants to abide the event. All concur, except MacLEAN, J., who dissents. JARVIS v. NEW YORK HOUSE WRECKING CO. (Supreme Court, Appellate Term. June 22, 1903.) 1. COUNTERCLAIM-FAILURE OF PROOF-DISMISSAL-RES JUDIcata. Where defendant failed to prove any damage under its counterclaim, and the court directed a verdict dismissing the counterclaim, there was merely a dismissal for failure of proof, not barring an action by defendant to recover for the cause of action stated in the counterclaim. 2. SAME REOPENING CASE. Where defendant failed to prove any damage under its counterclaim, the denial of a motion to reopen a case to present proof of damage after the testimony was closed was not an abuse of discretion. Appeal from City Court of New York. Action by Robert M. Jarvis against the New York House Wrecking Company. From a judgment for plaintiff, defendant appeals. Modified. Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ. Kellogg & Beckwith, for appellant. Kenneson, Crain, Emley & Rubino, for respondent. FREEDMAN, P. J. The plaintiff sued upon two causes of action-the first, for the value of certain goods sold and delivered, to the amount of $129.64, and this claim is admitted by the answer. The second is for the use of certain premises, on which certain material purchased by the defendant from plaintiff was stored, amounting to $150. This was denied by the defendant. The defendant, in addition to its denials, set up a counterclaim for breach of contract, in a refusal on the part of the plaintiff to deliver a quantity of lumber purchased by defendant of plaintiff. Upon the trial defendant offered some testimony in support of its counterclaim, but failed to prove any damage. After the testimony was closed on both sides, the defendant moved to reopen its case and present proof of damage. This was denied by the court, and plaintiff's attorney moved that the counterclaim be dismissed. This motion was granted, and no exception taken thereto. The court, in granting plaintiff's motion, said, “I direct a verdict for the plaintiff, dismissing the counterclaim." The effect of the foregoing is merely a dismissal of the defendant's counterclaim for failure of proof, and is not a bar to an action on the part of the defendant to recover therein; nor was, under the circumstances of this case, the court's refusal to reopen the case an abuse of his discretion. Upon the plaintiff's claim for the use of certain premises, the motion made by the defendant at the close of the plaintiff's case to dismiss that part of the plaintiff's cause of action should have been granted. There was no proof of an agreement between the parties making the defendant liable for the payment to the plaintiff of rent. The alleged agreement was made, if at all, with one Wolf, who was merely an employé of the defendant, with special, limited duties to perform; and it is clear that, assuming that the conversation between the plaintiff |