Opinion by Smith, J. refused, and the defendants excepted. new trial granted, costs to abide The Court ordered a verdict for the event. plaintiff, for the amount of the draft, to which, also, the defendants excepted. C. E. Stephens, for applts. Held, That as the draft was addressed to the drawee at a particular place in the city where he resided, and was thus accepted by him, the particular place thus designated was the place of payment, and a due presentment and demand of payment at that place was necessary in order to charge the indorsers. The certificate of the notary stated merely that the draft was presented and payment demanded "at the place of business" of the acceptor, without specifying the place. It appeared that the acceptor had two places of business in St. Louis. Held, That the certificate furnished no evidence whatever that the presentment and demand were at the place where the draft was payable. The proof was fatally defective, and the motion for a nonsuit should have been granted. The respondent's counsel proposed to supply the defect on the argument at banc by the production of a fresh certificate of the notary showing that the draft was presented at No. 114 So. Main St. CONTRACT. N. Y. SUPREME COURT. GENERAL Decided June, 1877. A party injured by a breach of contract must make reasonable exertions to render the injury as light as possible; but he is not required, in a case of breach of contract of employment, to change his residence or leave his family, or accept employment in another locality at an inconvenient and unreasonable distance from his residence, nor to accept employment for which he is unfitted or to which he is not accustomed, in order to lessen the injury. Appeal from a judgment on a verdict rendered at the Monroe Circuit, held by Mr. Justice Dwight, in March, 1876. Action upon an agreement by defendant to employ plaintiff during the winter of 1873-74. The answer was a general denial and payment. At the trial the plaintiff gave evidence tending to show that in July, 1873, the defendant employed the plaintiff to work for the defendant, at the business of manufacturing laminated pipe at the defendant's shop in Rochester, from that time on during the then coming winter, at $3.50 a day, and that he commenced said work and continued at it until some time in November, 1873, when the defendant discharged him. The defendant's counsel claimed that the evidence showed that the plaintiff, after he was discharged, might have had employment elsewhere and reJudgment and order reversed, and fused it, and that for the time when Held, The new certificate offered cannot be received at bar to conclude the defendants; if it is to be used against them, they are entitled to an opportunity to meet it at the trial. Also held, That the evidence required the submission of the question of usury to the jury. he might have been so employed, he could not recover. The only questions in the case arise upon exceptions to the charge of the judge, and to his refusals to charge on that branch of the case. The jury found a verdict for the plaintiff for $328. J. C. Chumasero, for applt. Held, That the law imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible; and if the injured party, through negligence or wilfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls on him. Hamilton v. McPherson, 28 N. Y., 77; Dillon v. Anderson, 43 Id., 232; Howard v. Daly, 61 Id., 373. The only evidence tending to show that the plaintiff could have had employment elsewhere is that of the president of the company, who testified that in November he told plaintiff that he had asked one Leighton if he could give Macy employment, and that Leighton said "have Macy come up and see me,” and that plaintiff declined on account of the distance, and said he would have to change his residence if he went to Leighton's to work. It appeared that Leighton's works were three miles from plaintiff's residence. Held, That the duty resting upon the plaintiff, of making reasonable exertions to render the injury as light as possible, did not require him to change his residence or remove from his family, or accept employment in another locality at an inconvenient and unreasonable distance from his residence. There was no evidence that if the plaintiff had applied to Leighton he could have obtained employment suited to his circumstances and his skill. Held, That the plaintiff was entitled to have employment of the same general character as that which the defendant had agreed to give him, and he was not required to accept work of another and different kind, to which he was not accustomed or fitted, in order to save the defendant from injury. Also held, That the statement made by the judge in his charge that there is no proof in the case that the plaintiff could have found suitable employment elsewhere, and that therefore no defence was made out on that ground, was entirely correct. Judgment affirmed. Opinion by Smith, J. DENCE. DAMAGES. N. Y. COURT OF APPEALS. Hoffman et al., respts., v. The Union Ferry Co., of B'klyn, applt. Decided Feb. 13, 1877. In actions for injuries resulting from marine collisions, the question is one of negligence on the part of those in charge of the respective vessels, and that question is one for the jury. A mere omission to comply with a statutory regulation will not bar an action by the injured vessel, where it appears that such omission did not contribute to the injury directly or indirectly, but that it was caused solely by the negligence or want of proper care or caution in the management of either of the vessels. Evidence that other vessels plying the same waters carried the same lights as the injured vessel and different from those prescribed by statute is competent for the purpose of bringing home to those in charge of the other vessel actual notice of the true position of the injured vessel, the direction of her course and the service she was in. It is for the jury to determine whether the master of the injured vessel exercised due care in proceeding through a dense fog. It is no defence to such an action that the injured vessel had no lights, although such omission was in violation of law, where such vessel could be seen without them. In an action for injuries, resulting from a marine collision, the expenses incurred in each other to request the other by two Held, That whether the B. did assent to pass to the left, or whether, retaining the crew after the collision and in after hearing the whistles and seeing the O. continuing on her course, she neglected all means of avoiding a col attempting to save the cargo are proper items of damage. that whether this or any other departure of the injured vessel from, or disregard of the statute laws, or the usages and customary laws of the sea, caused or contributed to the injury was, upon plaintiff's evidence, a question of fact. 59 N. Y., 292. This was an action to recover dam-lision, were questions for the jury; ages for injuries to a canal boat belonging to plaintiffs, in tow of the steam tug O., received in a collision with the defendant's steam ferry-boat B. The complaint was dismissed on a former trial, and on appeal to the Court of Appeals, the judgment was reversed and a new trial ordered (47 N. Y., 176), on the ground that the evidence tended to prove a state of facts, which, if proved to the satisfaction of the jury, would have entitled plaintiffs to recover, i.e., that the negligence of the master and those in charge of defendant's vessel directly and solely caused the injury. Plaintiffs' evidence on this trial was the same as that given before, except that when defendant's vessel was seen from the O., the latter, instead of putting her helm to port, to pass to the right, did not shift her helm, but gave two blasts of her whistle, calling to the B. to go to the left. There was some evidence that after the two whistles from the O., two whistles were heard coming from the direction of the B., and which were supposed to come from that vessel. It was also proved that it was allowable by usage and custom for one of two vessels approaching In actions for injuries resulting from the collision of vessels navigating upon public waters, the question is one of negligence on the part of those in charge of the respective vessels, and the omission of either or both to conform to legislative enactments is but one of the circumstances to be considered in ascertaining the proximate cause of the injury. If it appears that the injury was caused solely by the negligence or want of proper care and caution in the management of either of the vessels, and that the disregard of the statutory regulations did not contribute to the injury directly or indirectly, the mere omission to comply with the statute will not bar an action by the injured vessel, if otherwise free from fault, against one by whom the injury was caused. Evidence was given, which was excepted to, that tow boats, plying the Held, That the absence of the light was not material, whether in violation of law or not; that lights were only necessary that the boat might be seen, and if seen without them their object was accomplished. waters where the collision occurred, boat in time to have avoided the colcarried lights as exhibited by the O. lision. and different from those prescribed by the Act of Congress, for the purpose of bringing home to those in charge of and navigating the B. actual notice of the true position of the O., the direction in which she was moving and the service in which she was employed. Held, competent. Defendant claimed that the attempt of the O. to proceed on her course through the harbor of New York in the dense fog, which prevailed at the time, was of itself an act of negligence contributing to the collision and barred an action for the injuries sustained. The evidence was conflicting as to the state of the weather and atmosphere when the O., left her dock. Held, as there is no positive rule of law, or unbending usage which required the O. to lay to, or come to anchor during the existence of the fog, whether it was more prudent, being caught in the fog, to proceed cautiously and with circumspection, or to lay to, was to be determined by the master at the time, and it was for the jury to say whether the master exercised reasonable care and prudence in adopting the course he pursued. Negligence would not readily, or except upon a clear showing, be imputed to a ferry-boat in endeavoring to make her trips in the dark or through a fog, but she is not exempt from any of the positive rules applicable to all other vessels except when especially exempted by statute. There was no light upon plaintiffs' boat, but it was proved that she was in sight from the deck of defendants' The expenses to which plaintiffs were subjected in retaining their crew after the collision, and in attempting to save the cargo were proper items of damage, and evidence as to them was properly received. Judgment of General Termi, affirming judgment on verdict for plaintiffs, affirmed. Opinion by Allen, J. All concur, except Rapallo, J., not voting. WILLS. PARTIES. N. Y. SUPREME COURT. GENERAL Decided June, 1877. A legatee cannot maintain an action for the sole purpose of obtaining a construction of a will. In an action to obtain a construction of a will, all persons having an interest must be made parties. Controversy submitted without action. The case submitted states that the defendant's testator executed a will dated the 24th of September, 1870, and died soon after, which will contained the following, among other bequests, to wit: "After all my lawful debts are paid and discharged, I give and bequeath to my nephew, James M. Fair, the sum of one thousand dollars, to be placed on interest by my executor, and paid, both principal and interest, to the said James M. Fair, when he becomes of the age of twenty-one years;" that on the 29th of April, 1876, said James M. Fair died, at the age of fifteen years and eight months, leaving a half-sister, the daughter of the plaintiff, his next of kin; that the plaintiff has been appointed administrator of the goods, &c., of said Fair, and as such has demanded of the defendant payment of said legacy; that defendant, as executor of said will, has invested and kept at interest the sum of $1,000 bequeathed to said Fair, and that he is ready and willing to pay the same to the plaintiff, if the will, legally interpreted, permits him to do so. The will gave the residue of the estate to the testator's brothers and sisters living, and the children of such as were dead. The questions submitted are: first, Is the legacy to Fair a vested legacy, which passes, at his decease, to his next of kin? and second, If vested, is it payable in presenti to his administrator; or must the defendant retain it and its accumulations until such time as James M. Fair would, if living, have arrived at the age of twenty-one years? H. C. Kingsbury, for plff. Austin Smith, for deft. Held, No judgment can be rendered other than for the defendant, without prejudice to an action by the plaintiff for the legacy under the statute, on filing a bond as therein required. 2 R. S., 114, §§ 9, 10, 11. A legatee cannot maintain an action for the sole purpose of obtaining a construction of a will. He may sue for the legacy, and the suit may involve construction, but if he sues at law, it must be in the mode prescribed by statute. A legatee may, in a proper case, resort to a court of equity, or the executor may bring an action to obtain a construction of the will, but if either of the last two remedies be pursued, all persons having an interest, as, in this case, the residuary legatees, must be made parties. See Hobart College v. Fitzhugh, 27 N. Y., 130; op. of Marvin, J., pp. 133, 134. Proceeding dismissed without judgment, and without costs to either party. Opinion by Smith, J. TERM. FOURTH DEPT. Ellen Gleason, respt., v. John F. Pease et al., applts. Decided June, 1877. An action for damages for breach of contract of indenture, to cancel the indenture and for the imposition of the fine prescribed in such cases by statute, is within the provisions of 306 of the Code, and costs may be awarded to the plaintiff in the discretion of the Court, although the damages recovered are less than fifty dollars. Appeal from an order made at the Onondaga Circuit, allowing costs of the action to the plaintiff against the defendants. The complaint alleged that Thomas Gleason, a minor son of the plaintiff, was indentured, in writing, with her consent, to the defendants, who are co-partners, to learn the trade of a tinsmith; that the defendants broke the conditions of the indenture and neglected to teach him the art of such trade, whereby the plaintiff was damaged in the sum of $500, and the plaintiff asked judgment that the indenture be delivered up and can |