out objection and without contradiction, it seems clear that the plaintiff has failed to establish his case by the weight of evidence. The week is the unit of compensation agreed upon. It appears to have been the term of employment prevalent in that establishment when the work was not done by the piece. The business appears to have been dependent upon seasons to a considerable extent, and to rely upon orders which might or might not materialize, and it is hardly probable that the defendant, who had conducted his business generally upon the basis of weekly employment, would have entered into a contract of several months duration with a stranger after two days trial. It may be that the plaintiff did say to the defendant that he was a married man, and that he must have steady employment, and the defendant may have acquiesced in the general proposition; but that does not constitute a contract unless the defendant agreed that he would afford such steady employment for some definite time. The latter says that he made no such contract, and in this he is corroborated by his wife and another witness, though it must be admitted that the testimony of the operative was somewhat weakened by her admission that she did not hear all of the conversation. But, taking all of the probabilities into consideration, in connection with the positive testimony of the defendant and his wife, I am convinced that the weight of evidence is against the plaintiff, and that the judgment should be reversed. The defendant ought not to be called upon to pay for services which he has never had, unless it clearly appears that he made the contract which the plaintiff alleges. The defendant's version is entirely reasonable. It appears to be in harmony with the system of doing business in the establishment, and the burden of proving the contract, in violation of the established custom, is fairly upon the plaintiff, who stands uncorroborated either by direct or circumstantial evidence. The defendant had the plaintiff's services, and paid him in harmony with the terms of the contract as he alleges it to have been, and the plaintiff's theory is not supported by sufficient evidence to warrant this court in upholding the judgment. The judgment appealed from should be reversed, and a new trial ordered; costs to abide the event. All concur. (112 App. Div. 853) SCHLESINGER v. KLINGER. (Supreme Court, Appellate Division, First Department. April 20, 1906.) 1. DIVORCE-DECREE-VALIDITY-COLLUSION-PUBLIC POLICY. A wife brought suit for a limited divorce for alleged cruel and inhuman treatment. The parties consented to a separation, but the husband insisted that the decree should be entered on the ground of norsupport. A stipulation was presented to the court, executed by the husband and wife, by which the former acknowledged that the wife had a good cause of action on the ground of nonsupport, and that he consented in open court to the entry of judgment for separation on that ground, requiring him to pay $40 a week alimony, counsel fees, etc., to be secured by bond with surety, on consideration of which the wife agreed to execute a release of dower. The court, before acting, personally and searchingly interrogated the wife as to the nature of her action against her husband, and her knowledge of the stipulation and its effect, and, satisfactory answers being obtained, entered the decree. Held, that such decree was neither fraudulent, collusive, nor contrary to public policy. 98 N.Y.S.-35 and 132 New York State Reporter 2. DOWER-RELEASE-VALIDITY. Real Property Law 1896, § 186, Laws 1896, p. 587, c. 547, declares that a woman who is divorced from her husband may release to him, by an instrument in writing sufficient to pass title to real estate, her inchoate right of dower in any specific real property, either then owned or that might subsequently be acquired by him. Held that, where a wife, pursuant to a valid divorce decree, executed for a sufficient consideration a valid release of her dower in all her husband's land that he then owned or that he might thereafter acquire, she was estopped thereafter to claim any dower interest in his land, so that a deed to land by the husband accompanied by such release vested the full title to the property conveyed in the grantee. Submission of controversy on agreed statement of facts between Adolf Schlesinger and Louis Klinger. Judgment for plaintiff. Argued before O'BRIEN, P. J., and PATTERSON, INGRAHAM, LAUGHLIN, and CLARKË, JJ. M. Harold Hochdorf, for plaintiff. PATTERSON, J. By the agreed statement of facts upon which the controversy between the parties to this record was submitted, it appears that the plaintiff contracted to sell and the defendant to buy a parcel of real estate situate in the borough of Manhattan, in the city of New York, and at the time named in the agreement for the completion of the transaction the plaintiff tendered a deed executed by himself alone, and a release of dower made to him by his wife. The defendant refused to take title, claiming that, notwithstanding the release, the premises were still incumbered by an inchoate right of dower. The release tendered was executed by Celia Schlesinger, the plaintiff's wife, on May 18, 1905, and by its terms she "Remised, granted, released, and forever quitclaimed unto the said Adolph Schlesinger [the plaintiff), his heirs and assigns forever, all the dower and thirds, right and title of dower and thirds, and all and every right, title, interest, property, claim, and demand whatsoever, in law or equity, of me, the said Celia Schlesinger, of, in, and to all and every messuages, lands, tenements, and real estate and real property whereof the said Adolph Schlesinger is now seized or possessed, or may hereafter be seized or possessed or acquire, so that I, said Celia Schlesinger, my heirs, executors, administrators, or assigns, nor any other person or persons for me, them, or any of them, have, claim, challenge, or remand any dower or thirds, or any other right, title, claim, or demand in and to every and all real property which the said Adolph Schlesinger ever had, now has, or may hereafter have, acquire, or possess." This release was under seal. Celia Schlesinger on the 16th day of May, 1905, in an action theretofore brought by her against her husband for a limited divorce, procured a decree of separation in the Supreme. Court of the state of New York. Two days after the entry of the decree she executed the release above mentioned. The property which the plaintiff agreed to sell to the defendant was acquired by him after the entry of the decree and the execution and delivery to him of the release of dower. It is provided by section 186 of the real property law of 1896 (Laws 1896, p. 587, c. 547), that: "A woman who is divorced from her husband, whether such divorce be absolute or limited or granted in his or her favor by any court of competent jurisdiction, may release to him by an instrument in writing sufficient to pass title to real estate her inchoate right of dower in any specific real property theretofore owned by him or generally in all such property and such as he shall thereafter acquire." The terms of this statute being so clear and unambiguous, there can be no doubt that the tender of a deed to the defendant, with a release of his wife's inchoate right of dower, reciting the facts authorizing her to give such a release, would have been sufficient to pass the whole title to the property, the subject of the contract, to the defendant. It is urged, however, that other facts and circumstances appearing in the agreed statement upon which this cause was submitted, impeach the validity of the release. They are contained in an extract from the record of the trial of the action for a limited divorce between the plaintiff and his wife. The pleadings in the case are not before us, nor does it distinctly appear that the whole record of the trial has been presented to us. It is shown, however, that, when the cause was called for trial, it was stated that the ground upon which the separation was demanded by Mrs. Schlesinger was cruel and inhuman treatment, and that the parties had consented to a decree of separation; but the husband insisted that such a decree should be entered on the ground of nonsupport, not wishing to consent to a charge of cruelty. A stipulation was presented to the court, executed by the husband and wife, by which the former acknowledged that his wife had a good and meritorious, and substantial cause of action upon the ground of nonsupport, and he would consent in open court to the entry of a judgment of separation pursuant to law upon the ground of nonsupport, and to a provision directing and requiring him to pay $10 a week alimony, certain debts of the wife, and an amount to her counsel as compensation for his services, and that the alimony should be secured by the husband's bond, with a sufficient surety; and in the stipulation the wife agreed that upon the granting of the decree to her she would execute a release of dower. When this stipulation was presented to the learned justice sitting at Special Term, he declared that he would have to satisfy himself that the wife understood the nature of the agreement, and thereupon he proceeded to interrogate her by a series of direct and searching questions relating to the nature of the action she brought against her husband, her demand for a separation, the consequences of such separation, her knowledge of the contents of the stipulation, and her understanding thereof in all its details, and the effect thereof, and particularly as to the import and effect of that part of the stipulation which related to her release of dower, and it was upon her satisfactory answers to all the questions put to her by the court of its own motion that the decree was entered; the terms of the stipulation being embodied therein. There is nothing whatever to show nor to give rise to a suspicion that the suit for separation was collusive. The defendant therein admitted in open court the plaintiff's right to a decree of limited divorce, but desired to save himself from the odium attaching to a charge of cruelty. The release the wife stipulated to give was not without consideration. The consent to the entry of a decree was not fraudulent, and it was not collusive. It was made in open court, subjected to rigid judicial and 132 New York State Reporter scrutiny, and cannot be said to be against public policy. The wife being entitled to her decree, and having after its procurement executed the release, that instrument cannot be invalidated simply because of its having been executed in accordance with the previous stipulation embodied in the decree as one of its terms. By that decree the wife secured the fruits of her litigation. She had provided for her an income which was secured to her by a bond with a surety, and upon which she could realize by compulsory process if her husband neglected to pay her. We think there can be no question that Mrs. Schlesinger would be estopped from denying the validity of this release, and that it with the deed from the plaintiff would be sufficient to vest full title in the defendant. The specific questions propounded are answered in the affirmative, and judgment for the plaintiff must be entered as prayed for by him, without costs to either party as against the other. All concur. (112 App. Div. 456) REES V. NEW YORK HERALD CO. (Supreme Court, Appellate Division, First Department. April 20, 1906.) 1. LIBEL-NEWSPAPER PUBLICATIONS-LIBELOUS PER SE. A newspaper published what purported to be a special dispatch from San Francisco, reciting that plaintiff's brother had arrived from New York, and announced in "Judge Morgan's Court that he was prepared to see that his brother returned to New York. The judge thereupon ordered [plaintiff] released." Held, that such publication was not libelous per se, as impliedly stating that plaintiff was under arrest for some offense in San Francisco. [Ed. Note. For cases in point, see vol. 32, Cent. Dig. Libel and Slander, § 22.] 2. PLEADING-COMPLAINt-DemurreR-LEAVE TO AMEND. Where a demurrer was sustained to a complaint for libel because it did not plead a publication which was libelous per se, plaintiff should have been granted leave to serve an amended complaint. [Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 575-582.] 3. APPEAL-RULINGS APPEALABLE-DECISIONS SUSTAINING DEMURRER. A decision sustaining a demurrer to a complaint, as distinguished from the interlocutory judgment entered thereon, is not appealable. Laughlin, J., dissenting. Appeal from Special Term, New York County. Action by Richard L. Rees against the New York Herald Company. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Modified and affirmed. Argued before O'BRIEN, P. J., and PATTERSON, INGRAHAM, LAUGHLIN, and CLARKE, JJ. Robert Goeller, for appellant. Robert W. Candler, for respondent. INGRAHAM, J. The action is for libel. The demurrer to the complaint was sustained upon the ground that the publication was not libelous per se. The article complained of was what purported to be a special despatch to the New York Herald, headed "R. L. Rees is released," dated "San Francisco, Cal., Thursday," as follows: "Howard Caradoc Reese, brother of R. Llewelyn Reese, arrived from New York to-day, and announced in Judge Morgan's court that he was prepared to see that his brother returned to New York. The judge thereupon ordered Reese released." The complaint, by way of innuendo, attempted to extend this libel to a charge that the plaintiff had been imprisoned for a crime, or was insane, but it was conceded that these innuendoes were much beyond anything that could properly be inferred from the words used, and it is claimed by the plaintiff that they should be disregarded and the complaint held good, upon the ground that the publication was libelous per se. Considering this publication, without an innuendo, it seems to me quite clear that it was not libelous. There is no charge, but only an inference, that the plaintiff was under any restraint. The statement that the plaintiff's brother had arrived from New York, and had announced in a court that he was prepared to see that his brother returned to New York, and that thereupon the judge ordered the plaintiff released, was quite inconsistent with the fact that he was in custody charged with the commission of a crime; for a person charged with a crime is not released because it is stated that he intends to return to New York. Just why it was necessary that the judge should order his release is not stated, nor was there anything said from which an inference could be drawn that the plaintiff had been guilty of any crime or other disgraceful or dishonest act. No leave was awarded to the plaintiff to withdraw the demurrer and serve an amended complaint, but I think he should have that right. The judgment appealed from should therefore be modified by sustaining the demurrer, with costs in the court below, and allowing the plaintiff to serve an amended complaint within 20 days after the service of a copy of this order, upon the payment of such costs, and the judgment, as so modified, affirmed, without costs of this appeal. The plaintiff in his notice of appeal also appeals from the decision of the court sustaining the demurrer. As no such appeal is allowed oy the Code of Civil Procedure, the appeal from the decision should be dismissed, with costs. Spies v. Munroe, 35 App. Div. 527, 54 N. Y. S. 916. O'BRIEN, P. J., and PATTERSON and CLARKE, JJ., concur. LAUGHLIN, J. I dissent, on the ground that the article is libelous per se. (112 App. Div. 511) SAUL v. SWARTZ et al. (Supreme Court, Appellate Division, First Department. April 20, 1906.) WILLS-CONSTRUCTION-AMOUNT OF BEQUEST-SHARES OF LEGATEES. Testator gave to each of his children $5,000, “in addition to other provisions for their benefit." He then created a trust for the life of his wife,subject to the provisions made for the benefit of his children, and directed that on the wife's death the trust estate should be divided equally among the children; the daughters' shares to be in trust for their lives, |