The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-06-15
THE COURTS.
important Decision by the
Court Of Appeals.
DEFINING APPEALABLE ORDERS.
Judge Van Worst SuStainS Lawyer Powers
Benevolent Gifts.
Mr.. MAlERS UNRESTRAlNED TRUMPET

The Court OF Appeals has just rendered an mpor-
tant opinion in the case OF William r. Martin va.
The Windsor Hotel Company, which WAS brought by
the piaintin who Ia lawyer, to some $780, 900
for professional rendered to The hotel
pany during an extended period. The case was
brought before the Court Of Appeals appeal
from decision OF the General Term refusing order
q reference, which asked for the ground that
the involved the examination of long ac-
count. The text Of the decision in the
Court below was given In the HERALD at the
time, and It will be remembered that Chief Justice
Davis, who wrote the opinion OF the Court. animal
verified at large upon the evils attendant upon referring
OF this description brother lawyers The opn
Ion OF the Court OF Appeals, which 10 written by Chief
Justice Church, Is as foows:-"It Is conceded that
The 10 rcferabe under the STATUTE and whether
should DO referred not discretionary with the
Court below and the order therefore appealable
TO this The point insisted upon Is that the order
was not appealable the General Term. Section $40
Sf the Code provides. amoug other things, that an
Srder is appeaable from the SPECIAL TO the
General Term .whcn 1t involves the merits
II the action part thereof or
Affects substantial right The question TO- whether
yhis order affects substantial ight 1t 1t claimed
that substantial right within tho meaning Of the
code Is An absolute legal rignt and that matter
which 10 discretionary not substantial right, aud
hence applicable to the General Term. There are
judicial expressions made during the earlier period Of
the Code which this view. but It Is
and il has been settled that the General
Term may orders that affect substantial rights,
although discretionary. DEMO- j., In 20 n Y, 41s In
defining substantial right distinguished II from
merely formal matter or right. II Is only
necessary that the order to be appeal
. matter Of Substance and not Of mere
form. and It may DO such order and yet be discre
siouary The Code in section IL, sub. 4, recognizes
That an order affecting SUBSTANTIAL right
may be discretionary by providing that an appeal Will
lie 10 the Court Of Appeals certain cases from or
der affecting substantial right mot involving any
question OF discretion. IL has been urged that tho
Court Of Appeals will not discretionary order
the third sub OF the eleventh section providing Tor en-
appeal 10 that from final order IN special pro-
seeding, affecting substantial right without the
Qualifying words employedi 10 sub 4, above quoted The
General Term has therefore power to review dscre
tionary order under section 349 where the
used The this that the Court OF Appeals
refrain from receiving such orders, when discretion
AIRY, not from any prohibition implied by the words
Substantial right, but from the constitution and
functions Of The court as an appellate tribunal re-
etrictcd review OF questions OF law only while the
General and Special Terms OF the Supreme Court are
but different parts OF the same court OF equal original
Jurisdiction, ana the former review and correct
orders nude by the latter whether discretionary or
not provided they Affect matters OF substance (How
ell W.. Mills IS N. Y, 322) The question involved
whether the parties should have the controversy de-
termired by tribunal or the other was matter of
Court had power, in the exercise OF It's
discretion order either mode OF trial The substitu
sion OF the tribunal, the modc OF trial. the effect OF
the verdict and tho mode and grounds Of review
entirely unlike ana affect substantial interests OF the
parties TO the action. The constitution has protected
The rights OF trial by jury IN certain class VI cases
and, others, the statute permits reference.
reference absolute right in any Whether
the Court will exercise the power conferred OF refer
ring any action which the statute authorizes TO be re-
ierred depends all the circumstances OF the case
and exercise Of The power in given clearly
The appeal TO this court must therefore, be
A LAWYERS BENEVOLENT WILL.
John H. Power formerly lawyer Of this city, died,
leaving behind him a considerable estate. BY hts will
he devised onehrd Of the residue Of this estate to his
wife onethird his nephew, Peter Rice, and dis
posed Of the remainder in these words Tho balance
give 10 my executors, to be divided by Thorn among
such Roman Catholic charities, institutions, schools
or churches in the city OF New York a majority of
my executrx and shall decide, and such
proportions they may thirk proper" This provis-
ION was contested being void Tor ndenntcness, and
in suit brought by the widow AS executrx, against
the two executors TO test that question, which was
tried before Judge Van Worst Supreme Court, spe-
cial Term, a decision rendered yesterday. The
claim OF the plaintiff was that, assuming this clause
ii the will TO be void and imperative in law, the por.
Aon OF the estate therein attempted TO DO gwen was
undisposed Of In his opinion Judge Van Worst says
"Aiter careful consideration see norhina really
vague or uncertain In the disposition made by tho
tator There 10 no uncertainty with respect TO
tho trustees, for they are named and have
power to act. Nor, IN true sense, IS
there uncertainty to the particular OBJ
iect of the testaors trusts He was Roman Catholic
aud his desire that schools and institutions of
charity connected with his Church should snaretn
definite portion OF his estate. II Is evident that the
teaching and work OF charity IN which his Church was
engaged and that not universal sense, but with
inst,tulion tho city OF New York, particular
agencies through when the testaor would accomplish
his religious aud benevolent purposes There Is moth
Ing vague, indefinite or uncertain with regard
agencies class. They are distinct ana readily
be separated from the large number oil religious anu
charitable organizations oil New York maintained bv
other Christi IN or benevolent bodies Tney in fact
constitute limited and well defined GLASS; have each
distinct organization and arc todes corporate The.
duty OF designating the particular institutions from
the general class Is dcvolved upon tho executrix
and executors who arc also 10 determine the amount
each should Ana when that has been the
action would have the effect though the mes
Of the particular institutions and charities wero
written In the Will, and court OF equity would
have difficulty In enforcing the trust ny its judg-
There could be no DOUBT that II, instead OF de-
volving upon his executors the duty of selecting from
limited Of charitable societies those share in
his bounty, the testator had made the selection him.
sell and written the OF the Donehciaries in the
viii The qift would have been legal IL appears 10
az Office which he could have himself pcrormed-that
Is making OF the seecLon-to the decision Of tho
trustees appo ed by him, he designating the SPECIAL
class from when selection was 10 be made such
decision, when made, exhauss Tie power OF the
tees on that subject, ana having been made and the
benencares designated being parties to this action,
together with all others Interested IN tho estate there
Is the least difficulty the part OF the Court
IN making just, complete aud protective Judgment by
which the whole estate may be justly and according
tue will OF the testator finally distributed. l do not
tnink the benevoent OF the testator should
n. HAle I'm n tntup
Appreciated obstacles when the case Is presented
form IN which all Just ground Of difficulty uncer-
tainty IL removed ana IN manner IN which tho
tcstat0r contemplated and expressly directed. Nor Is
The fact II u be so, that some Of the Roman Catholic
Institutions IN the city OF New YORK at the death
oil the tesator unincorporsted any obectio to the
validity Of the gift IN question. II Is enough that
there were schools and institutions answering the
description OF those named the viii, INCORPORATED
and competent TO take. by a refusal or onls-
son act with them tine exccutors after notice she
the executrixl could not defeat tho will Tho
nnnion concludes I'll oil the oplnion that tho