Third Department, March, 1922. [Vol. 200 not give you another cent without your submitting further medical proof. Claimant: If I was able to do work I'd do it. I'm still wearing a belt. * * * * * * * * * I'm a plasterer by trade. As long as I can get a light job it is all right. I can't work out a week doing my regular work." The claimant was then sent to the medical department for examination. The report of the medical examination was: "Examination of the abdomen shows a median scar above the umbilicus for the surgical repair of a hernia which has healed with excellent result from a surgical point of view. Claimant at this date calls my attention that he has pain along the spinal column and, therefore, is not able to do his usual laborious work. Examination of spinal column does not show remaining evidence of an injury nor do I find any sensitive area which is increased on pressure. The claimant is able to elevate both arms to a vertical line, bends completely forward and elevates either leg in an extended position without restriction. I, therefore, suggest that claimant make an attempt to resume his usual work for about two weeks. If not able to so continue, to be re-examined. Partial disability to continue." Claimant was then asked: "Did you do any work till March first? Yes; I went to work at twenty dollars a week January twelfth for Roger Peet." Referee Curtis then remarked: "We will pay you from January twelfth to March first, when you went back to do your regular work, at full, and claimant is to continue his work and if he has to stop, to come in for an examination." The record in the case does not make an impression entirely favorable to claimant. There was some evidence that, up to March first, the claimant was unable to do his regular work, but he could do other work and did some; the evidence does not show how much. Under such circumstances he is not entitled to an award for full compensation, at least until further proof is taken. (Workmen's Compensation Law, § 15, subds. 3, 4, as amd. by Laws of 1920, chaps. 532, 533, and Laws of 1917, chap. 705.) Under the authority of Matter of Jordan v. Decorative Co. (230 N. Y. 522) the award should be reversed and a rehearing ordered, with costs to abide the event. All concur. Award reversed and matter remitted to the State Industrial Board, with costs to the appellants to abide the event. App. Div. 287] Third Department, March, 1922. THE PEOPLE OF THE STATE OF NEW YORK ex rel. ESTATE OF FRANK W. WOOLWORTH, Deceased, Relator, v. STATE TAX CомMISSION OF THE STATE OF NEW YORK, Respondent. Third Department, March 8, 1922. Taxation - income tax - one residing in State from January 1, 1919, to April 8, 1919, date of his death, "resident" as defined by Tax Law, § 350, subd. 7. One who resided in this State from January 1, 1919, to April 8, 1919, upon which date he died, was a resident of this State during such period within the meaning of the word "resident" as defined in subdivision 7 of section 350 of the Tax Law, and his entire income from all sources up to the time of his death was subject to the taxing power of this State. There is no justification for so construing the term "resident," as defined in the statute, as to eliminate the case of a resident dying before July first of the calendar year. CERTIORARI issued out of the Supreme Court and attested on the 15th day of July, 1921, directed to the State Tax Commission, of the State of New York, commanding it to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had by its predecessor, the Comptroller of the State of New York, in adjusting an account for income taxes of the relator for the taxable year 1919 under article 16 of the Tax Law, and in revising said account. Breed, Abbott & Morgan and Douglas, Armitage & McCann [William S. Lare of counsel], for the relator. Charles D. Newton, Attorney-General [James S. Y. Ivins and Laurence Graves of counsel], for the respondent. HINMAN, J.: The relator, Frank W. Woolworth, was a resident of the State of New York on January 1, 1919, the date of the inception of the Income Tax Law, and he remained a resident until the time of his death, which occurred on April 8, 1919. The record does not show when he became a resident but apparently that is of no importance. In fixing an income tax on the income received by him for the period between January 1, 1919, and April 8, 1919, the Comptroller adopted the theory that the relator did not escape the income tax by death and that he was taxable as a "resident" notwithstanding the definition of that word as provided in the income tax provisions of the Tax Law (§ 350, added by Laws of 1919, chap. 627, as amd. by Laws of 1920, chap. 691). Subdivision 7 of section 350 provides as follows: 1 "The word 'resident' applies only to natural persons and Third Department, March, 1922. [Vol. 200 includes for the purpose of determining liability to the tax imposed by this article upon or with reference to the income of any taxable year, commencing with the year nineteen hundred and nineteen, any person who shall, at any time during the last six months of the calendar year, be a resident of the State." The relator's representatives have not denied that he was taxable for the period between January 1, 1919, and April 8, 1919, the date of his death, and it seems clear that there was liability to the tax upon the income received during the fraction of the calendar year preceding his death. An analogous situation under the Federal Income Tax Law of 1913 (38 U. S. Stat. at Large, 166, § 2) has been held to warrant the fixing of a tax. (Brady v. Anderson, 240 Fed. Rep. 665 [C. C. A. 2d Cir. 1917].) The sole question raised is whether the relator is taxable as a resident or as a non-resident. The claim of the relator's representatives is that he does not come within the statutory definition of "resident," in that he died before the "last six months of the calendar year," and that coming without that statutory classification, he must be taxed as a non-resident. The effect of adopting relator's contention would be to exclude from the computation of his tax the amount of his income from sources without the State, aggregating an additional tax plus interest of $9,064.67. . The elimination of such income would produce a tax of $28.41. In the absence of a statutory definition of a "non-resident " showing a legislative intent to classify as such any person not clearly embraced within the above definition of a "resident," the argument of the relator seems too arbitrary and unnatural for adoption. There is nothing in the record to show that the relator ever resided outside the State and if any presumption is to be indulged it would be that if he had lived he would have continued to be a resident. Nevertheless his representatives, who concede liability to the tax either as a resident or a non-resident, seek to classify him as a non-resident. The statement of the contention is sufficient to make manifest its absurdity. Nothing but a clear statutory definition of "nonresident" to that effect would induce one to believe that the Legislature could have had in mind any such intent as the relator suggests when it defined "resident" to include " any person who shall, at any time during the last six months of the calendar year, be a resident of the State." Before adopting the unnatural and strained contention of the relator the court should determine whether the language used is capable of any reasonable interpretation that would cover the relator's case and permit him to be taxed as a " resident." App. Div. 287] Third Department, March, 1922. The question hinges upon whether the language used in the definition of "resident," when it provided that it "includes " certain prescribed cases, shall be deemed to be language of limitation, confining the application to the cases enumerated or whether "includes" was used as a word of enlargement or as indicating the reverse of a restrictive intention, specifying particular cases inserted out of abundant caution. "Includes" has two shades of meaning. It may apply where that which is affected is the only thing included, and it is also used to express the idea that the thing in question constitutes a part only of the contents of some other thing. It sometimes happens that, in a statute, the language of which may fairly comprehend many different cases, some only are expressly mentioned by way of example merely or to render certain what might be doubtful, and not as excluding others of a similar nature. In determining which shade of meaning to give to the word "includes " as used in subdivision 7 of section 350 of the Tax Law, the court must be guided by the intention of the Legislature as gleaned from the context and from the statute as a whole, and reach that interpretation which is consonant with reason and sound discretion. The very absurdity of the relator's application of the definition of "resident" to his case, requiring the court to agree with him only on the basis of adopting as the other alternative that the relator shall be deemed a non-resident when he has not been shown to have ever been such in fact, should be sufficient answer. In the absence of clear warrant of the statute, no such interpretation is reasonable. The statute does not compel it by so defining a non-resident. The relator adopts that classification only by necessity. He is taxable and having read himself out of the class described as "resident" he thinks he must be a "non-resident," notwithstanding the apparent incongruity of the grouping. The Legislature could not have intended anything so unfit and inappropriate. The only conclusion to reach is that it specified the particular case covered by the definition out of abundant caution, to render certain what might have been doubtful in so many cases where residents of this State actually become nonresidents and actual non-residents become residents during the calendar year, subjecting them to the possible injustice of double taxation. It is our interpretation that Mr. Woolworth was up to the time of his death a resident and subject to the complete jurisdiction of this State; that his entire income from all sources was subject to the taxing power of the State; that there is no justification for so construing the term "resident," as defined in Third Department, March, 1922. [Vol. 200 the statute, as to eliminate the case of a resident dying before July first of the calendar year, and that the determination of the Comptroller was correct and should be affirmed. Determination unanimously confirmed, with fifty dollars costs and disbursements. MARY BARBER and Others, Respondents, v. WILLIAM H. ROWE, JR., and Others, Appellants, Impleaded with JOHN HAYES and ELMER E. BELDEN, as Trustee, Defendants. Third Department, March 8, 1922. Appeal order overruling demurrer not mentioned in notice of appeal from judgment not reviewable on appeal denial of motion at trial to dismiss complaint on same grounds as raised by demurrer cannot indirectly allow such review - order overruling demurrer not reviewed stands as law of case order not reviewed conclusive as if reviewed and affirmed - pleadings - complaint in action to have legacy made lien on farm sufficient - such action may be brought without prior demand for payment - records - vendor and purchaser - purchaser, at his peril, must examine all deeds or wills referred to upon which title is based although same may not be regularly recorded - executors and administrators - son, sole surviving next of kin, may bring action to enforce interest descended from mother without intervention of her administrator where all claims against mother's estate barred wills omission of testator to mention children of legatee does not affect descendible quality of bequest. Under the Code of Civil Procedure an order overruling a demurrer cannot be reviewed upon appeal from the judgment entered in the action where it was not appealed from and the notice of appeal does not specify that the appellants intend to review it upon the appeal. The fact that a motion was made at the trial to dismiss the complaint on certain of the grounds covered by the demurrer, which motion was denied, cannot indirectly permit the review of the order overruling the demurrer. Such order, since it cannot be reviewed, stands as the law of the case on all questions which might have been litigated, for an order is as conclusive when not reviewed as if reviewed and affirmed. The complaint in an action to have a legacy declared a lien upon the farm of a testator, whose will provided that such legacy should be a charge upon the farm, should be liberally construed, and where it seems to allege the testator's title at the time of his death, and the defendants are not in a position to dispute such title, as their title came to them under his will, it is sufficient on that point. Under the rule of liberal construction, the complaint sufficiently alleges nonpayment of the legacy where non-payment may be implied from the facts set forth. An action to enforce the lien of a legacy upon a farm may be brought without prior demand for payment from any person as no person is liable for the payment of the legacy, it being payable out of the farm. Owners of record of a farm, who trace their title through a purchaser at a sale upon the foreclosure of a mortgage given by a son of a testator, who, by his will, made a legacy a charge upon the farm, which will was expressly referred to in the mortgage as the source of the mortgagor's title, come within the rule that all deeds or wills referred to upon which title is based must be examined as to any facts they may contain, and a failure to do so is at the purchaser's peril, for he is charged with constructive notice of their contents. The fact |