and 132 New York State Reporter Appeal from Kings County Court. Action by Max Weiss against Max Rubinson and another. From a judgment for plaintiff, and from an order denying a motion for new trial, defendants appeal. Reversed. Argued before WOODWARD, JENKS, HOOKER, and RICH, JJ. W. H. Burby, for appellants. M. Hallheimer, for respondent. PER CURIAM. The defendants, who owned two houses, hired the plaintiff as a broker to procure purchasers. The plaintiff brought Greenberg and Schiller as purchasers to the defendants. One of the defendants testifies that plaintiff then told him that they had seen the houses, and were ready to purchase them; that thereupon defendant asked him if they had seen mechanics and plumbers working on it, and a scaffold, and that Greenberg answered that he had examined it, and everything was all right. Greenberg then asked if he had any violations, and the witness answered "Yes," and showed a contract with a mechanic that was satisfactory to the department. Greenberg suggested that it be put in the contract, but the owner refused, saying that they would put in the contract with the mechanics for removing the violations. Thereupon the purchasers said that they "would do everything; we will take your word for it." The plaintiff then asked if they would take a deposit. The defendants refused, but finally accepted a deposit from each purchaser. Thereupon a receipt was given by the defendants, which provided that a contract should be made two days later (June 16th) at a certain place, title to be delivered on August 1st thereafter. When the parties met at the appointed time and place, an attorney for the purchaser insisted that the removal of the violations should be embodied in the contract. The defendants refused, saying that they had not agreed. At the same time they again exhibited the contract with the mechanics, and stated that they would see to it that the violations were removed before the deed was delivered. Thereupon the purchasers said that they did not want the premsies, but demanded their deposits, which were finally paid to them. Nothing further was done. Although the proposed purchasers were called to the stand after the defendants had given their testimony, neither of them contradicted the defendants. The broker now sues for his commissions. If the testimony of the defendants is to be credited, then the purchasers insisted upon more onerous terms in the contract than those which were verbally agreed upon between them, and the defendants were not bound to execute such contract. Under such circumstances, the plaintiff did not produce a purchaser willing to execute a contract upon the terms prescribed. Platt v. Kohler, 65 Hun, 559, 20 N. Y. Supp. 547: Pullich v. Casey, 43 App. Div. 112, 59 N. Y. Supp. 298. The judgment is reversed, and a new trial ordered; costs to abide the event. (112 App. Div. 437) SORONEN v. VON PUSTAU. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) 1. ANIMALS-INJURIES TO PERSONS-LIABILITY OF OWNER. The owner of a dog is charged with the knowledge of his brother, to whose custody the dog was committed, of its vicious character prior to personal injuries caused by it, though the knowledge was not communicated to the owner. [Ed. Note. For cases in point, see vol. 2, Cent. Dig. Animals, § 235.] 2. EVIDENCE-ADMISSIONS-ADMISSIBILITY. In an action for injuries from being bitten by a dog, evidence of statements by the defendant's brother, to whose custody the dog was intrusted, tending to show his knowledge of the vicious character of the dog, was competent. [Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Animals, § 266; vol. 20, Cent. Dig. Evidence, § 887.] Appeal from Municipal Court, Borough of Brooklyn, Second District. Action by Eina Soronen against William Von Pustau. From a judgment in favor of defendant, plaintiff appeals. Reversed. Argued before WOODWARD, JENKS, HOOKER, and RICH, JJ. Edo E. Mercelis, for appellant. Charles Oakes, for respondent. RICH, J. This is an appeal from a judgment dismissing the complaint at the close of the plaintiff's case. The action was brought to recover damages alleged to have been sustained by plaintiff as the result of her having been bitten by a vicious and dangerous dog, owned by the defendant, while she was in the employ of defendant's mother as a servant. Upon the trial the plaintiff endeavored to prove that information was given defendant's brother, to whom the care and custody of the dog was intrusted, of its dangerous and vicious character, and of statements made by him to third parties tending to establish that he had such knowledge. The trial court sustained objections made to the questions asked for this purpose, and excluded the evidence. To these rulings the plaintiff duly excepted. The defendant's liability rested upon his knowledge of the vicious character of his dog. If the brother had knowledge of the vicious character of the dog prior to the injury, the defendant was charged with that knowledge, although it may not have been communicated to him. Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695, 2 Am. St. Rep. 454; Niland v. Geer, 46 App. Div. 194, 61 N. Y. Supp. 696. Evidence of such knowledge was therefore competent, and its exclusion error, for which the judgment must be reversed. Judgment reversed, and new trial ordered; costs to abide the event. All concur. and 132 New York State Reporter SCHELLENBERG et al. v. MULLANEY. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) BANKRUPTCY-LIABILITIES-EXCEPTIONS GOODS USED BY FAMILY OF BANK BUPT. Under National Bankruptcy Act, § 17, as amended by Act Feb. 5, 1903, c. 487, § 5, 32 Stat. 798 [U. S. Comp. St. Supp. 1905, p. 684], excepting, among others, "liabilities for alimony due or to become due, or for maintenance or support of wife and child," from discharge does not refer to liabilities for goods purchased by the husband or parent, and used by wife or child, and a discharge in bankruptcy discharges a debt incurred for such goods. Appeal from Trial Term. Action by Nathan Schellenberg and another against Michael Mullaney. From a judgment for plaintiffs, defendant appeals. Reversed. The complaint is for goods sold and delivered to the defendant, and alleges that the goods were clothing which were used by the defendant's children, and that they were necessaries for the said children, and this was all admitted at the trial. Argued before HIRSCHBERG, P. J., and HOOKER, GAYNOR, RICH, and MILLER, JJ. William J. Courtney, for appellant. * GAYNOR, J. The defendant's subsequent discharge in bankruptcy was held by the justice not to discharge him from this debt. This was error. Section 17 of the national bankruptcy act as amended in 1903 (Act Feb. 5, 1903, c. 487, § 5, 32 Stat. 798 [U. S. Comp. St. Supp. 1905, p. 684]) excepts among others, "liabilities for alimony due or to become due, or for maintenance or support of wife and child," from discharge. This last clause refers only to the involuntary liability under the common law for support of wife and children, and to any one who relieves their want; and under bonds, or the like, given for such support by requirement of courts and magistrates. It does not refer to liabilities for goods purchased by a husband or parent, as in this case, and used by wife or child. This latter fact does not change the character of the debt. The purchaser was free to do what he liked with the goods. They were a matter of free bargain and sale (Collier on Bankruptcy, p. 199). The judgment should be reversed. Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur. (112 App. Div. 397) MATHERS v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) STREET RAILROADS-INJURY TO PEDESTRIAN-QUESTIONS FOR JURY-CONTRIBUTORY NEGLIGENCE. In an action against a street railway company for injuries to a pedestrian who was struck by a car as he was crossing the street, evidence held to authorize a submission to the jury of the question of plaintiff's contributory negligence. Appeal from Trial Term, Westchester County. Action by Joseph W. Mathers against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals. Re versed and remanded. Argued before HIRSCHBERG, P. J., and HOOKER, GAYNOR, RICH, and MILLER, JJ. Thomas J. O'Neill, for appellant. Anthony J. Ernest (Bayard H. Ames, on the brief), for respondent. GAYNOR, J. The jury could have found from the evidence that the plaintiff was crossing 3d avenue, Manhattan, at the lower crossing of 30th street from east to west at an ordinary walk; that as he left the curb he looked up and down 3d avenue, and saw a car up near 31st street coming down and another down at 29th street coming up (i. e., on the east track); that another car going uptown was at the time passing the crossing he was on; that no other cars were between 29th and 31st streets; that he walked across in the rear of the said uptown car that was passing at the time, and as he came out from behind it was hit by the downtown car. The plaintiff was nonsuited for not looking uptown again before going on the downtown track. This was error. When he looked ou leaving the curb the downtown car was that far away that it was at least a question of fact whether it was contributory negligence not to look again. I do not see it would be of any use to cite decisions. The judgment is reversed. Judgment reversed, and new trial granted; costs to abide the event. All (Supreme Court, Appellate Division, Second Department. April 20, 1906.) 1. WILLS-CONSTRUCTION-VESTING OF REMAINder. Testator devised one-fifth of his estate in trust during the life of his brother to pay the net income to his brother semiannually for life, and on his death to transfer the corpus and income then remaining to the brother's children in equal proportions and to the child or children of any dead, and if the brother should die leaving neither children nor grandchildren, the trust res should be given to the children of his sisters; the child or children of each to take an equal portion thereof. Held, that the remainder to the children of testator's sisters did not vest in them until the time for distribution. 98 N.Y.S.-28 and 132 New York State Reporter 2. SAME--DEVISE TO CLASSES. Where testator gave one-fifth of his estate in trust for his brother, with a provision that on the brother's death the property should be divided among the brother's children or grandchildren, but, if he left neither, then to the children of testator's sisters, the child or children of each to take an equal portion thereof, the gift in remainder was to the children of each sister as a class by representation. 3. SAME-INCOME-ACCUMULATION. Where a will created a trust, and provided for semiannual payments of income to the life tenant without any provision that it should not be paid oftener, the income vested in the life tenant as it was paid in, so that the income which had accrued at the time of the life tenant's death passed to his personal representative. Appeal from Surrogate's Court, Westchester County. Judicial accounting of Martin J. Keogh, as sole surviving trustee of the last will of David Jones, deceased. From a surrogate's decree (95 N. Y. Supp. 191) construing the will, certain legatees appeal. Modified and affirmed. Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, RICH, and MILLER, JJ. Charles M. Cannon, for appellant Julia D. Haviland. Walter R. Beach, for appellants Griffith. David McClure, for appellant Walter D. Starr. John M. Digney, for appellant Chandler D. Starr. Shilund, Shoemaker & Hedges, for appellant William T. Dannat. Wilfrid N. O'Niel, for appellants Cannon and another, as administrators of David J. Dannat. Henry A. Monfort, for respondents Thayer. John P. Elder, in pro. per., as executor of John J. Jones. MILLER, J. The testator the construction of whose will is involved in this appeal died January 17, 1881, leaving as his only surviving next of kin John J. Jones, a brother, and Mary J. Griffith, Susan J. Dannat, Jane J. Thayer, and Margaret A. Jones, sisters. The particular paragraph of the will to be construed is as follows: "Sixth: I give, devise and bequeath to the said Wilson G. Hunt, Hamilton Blydenburg, Alexander Thayer and John J. Jones, Executors and Trustees as aforesaid, the remaining one equal fifth part of all my estate, real and personal (after payment of debts and funeral expenses as aforesaid). To have and to hold the same to them and the survivors and survivor of them for and during the life of my brother John J. Jones, in trust, nevertheless, to take possession of the real estate, keep the same in suitable and proper repair, keep the buildings thereon well insured and to let or lease the same from time to time and for such terms of time within the lifetime of my said brother as to them may seem best and for the best rent that can be obtained therefor, to keep the personal estate safely and securely invested and to collect the rents and profits of the real estate and the interest, dividends and income of the personal estate and after paying all taxes, assessments, expenses of repairs, insurance and all other legal and necessary charges and expenses pay over the residue or net proceeds of said remaining fifth part of my estate so given to them in trust as last aforesaid to my said brother John J. Jones semiannually during his life, and immediately upon his death the said trustees, the survivors and survivor of them shall grant, convey, transfer and deliver over the said remaining one-fifth part of my estate so given to them in trust as last aforesaid and any income thereof remaining in their hands to the |