Supreme Court, February, 1899. [Vol. 26. was changed to "Hannah Krauth in trust for William G. Hennessy," March 11, 1885. On July 30, 1890, she surrendered the book containing this account to the bank, and received a new book, which was made out at her request to "Hannah Krauth in trust for Henry W. Jennings." The trust in favor of Hennessy, like the one previously made in favor of the Valentines, was voluntarily created by Mrs. Krauth, of her own money, and was revocable by her at will. Cunningham v. Davenport, 147 N. Y. 43. It was effectually revoked when she surrendered the bank-book and opened a new account designating a new beneficiary. But Mrs. Krauth in this instance did more than change the beneficiary. She delivered the bank-book containing the new account to Mr. Jennings as the person entitled to the fund. These acts constituted a valid trust in favor of Jennings, and, unexplained, operated to transfer to him the beneficial interest in the money deposited. Bishop v. Seamen's Bank for Savings, 33 App. Div. 181; Devlin v. Hinman, 34 id. 107; Willis v. Smyth, 91 N. Y. 297; Boone v. Citizens' Savings Bank, 84 id. 83; Mabie v. Bailey, 95 id. 206; Cunningham v. Davenport, supra. Mrs. Krauth boarded with the Jennings family at the time, and there were reasons for making this provision in their favor, particularly as she had deposited a like sum in the New York Savings Bank in trust for Hennessy, who subsequently received the money. The court should not disturb the disposition made by Mrs. Krauth, of her own money, except for some substantial reason. At the time of the transfer to Jennings, Mrs. Krauth was about eighty-two years of age, and the defendant claims that she was then of unsound mind, and incapable of legally making a change of beneficiaries. "Mere mental weakness, or inferiority of intellect, will not incapacitate a person from making a valid contract; nor is it easy to define the state of mind which will have this effect." 1 Pars. Cont. (6th ed.) 383. And it is elementary that any person may create a trust who is capable of making a valid disposition of property of any description. A trust once created can be attacked only by a preponderance of evidence proving facts rendering it invalid in law, the burden being on the assailant. Jones v. Jones, 137 N. Y. 610. Mrs. Krauth's mind was not so weak in 1890 as to disable her from business or prevent her from acting with apparent intelligence, particularly in money matters. The bank officials intelligently understood her, and there seems to be no legal reason why the intention she deliberately expressed to them should be defeated by awarding the fund contrary Misc.] Supreme Court, February, 1899. to her will. On November 10, 1894, Mrs. Krauth was judicially declared to be an incompetent person, and the finding declares that such incompetency dated back to 1892, about two years subsequent to the change of beneficiaries. She died September 11, 1897, and Hennessy thereafter qualified as her executor. The evidence offered, by which it was attempted to show the incompetency of Mrs. Krauth in 1890, is simply matter of opinion, founded on an examination made four years afterwards by Dr. Fitch, supplemented by what others had said as to her memory for some years preceding. It proves no condition uncommon to persons of her age, and fails to satisfy the judicial mind that reason had been dethroned prior to 1894. The legal presumption is that Mrs. Krauth was capable of doing what she did, and did precisely what she intended to do. Jones v. Jones, supra. Her age did not disqualify her. The law does not look to age, nor to debility of body, if sufficient intelligence remains. Failure to remember names or incidental and unimportant events may, perhaps, indicate decay of memory, but this failure may exist to a very great degree, and yet the "solid power of understanding" remain. Van Alst v. Hunter, 5 Johns. Ch., at p. 161. To affect a deed at common law, an entire loss of the understanding had to be shown, for no line has been drawn to show what degree of intelligence is necessary to uphold it, and such a distinction would be impracticable. Jackson v. King, 4 Cow. 207. To overcome the presumption that the creation of the trust in favor of Jennings was a competent and effective act on the part of Mrs. Krauth, it was necessary to show affirmatively that her mental condition at the time precluded the possibility of a just apprehension of the nature of her act, or of an intelligent assent to it (Story on Cont., § 35), or, in other words, "that she did not at the time understand what she was about." Id., § 37. The evidence falls short of this, and does not justify the finding required to sustain any such contention. Mrs. Krauth had been transferring bank accounts since 1879, and this is the first time her capacity to do so has been challenged. It does not appear that the Jennings family exercised any undue influence over Mrs. Krauth, or that her act was other than voluntary on her part, in gratitude for past kindnesses. There is no legal reason why the disposition she made of her worldly affairs should not be allowed to stand. Upon the entire case there must be judgment for the plaintiff. Judgment for plaintiff. Supreme Court, February, 1899. [Vol. 26. MICHAEL L. RODKINSON, Plaintiff, v. JOSEPH GANTZ, Defendant. (Supreme Court, New York Special Term, February, 1899.) Pleading - Where a demurrer is overruled, the defendant may plead anew by answer. After a demurrer to a complaint had been overruled and the defendant given leave to plead anew upon payment of costs, he served an answer and thereafter amended it within twenty days, as of course. Held, that the defendant had a right to change his line of defense from a demurrer to an answer and to amend the latter, as of course, within twenty days of the service. MOTION by defendant that the amended answer stand as the answer in the case. Facts appear in the opinion. Wilcox & Brodek, for motion. Rudolph Marks, opposed. SCOTT, J. The defendant demurred to the complaint. His demurrer was overruled, with leave to plead anew on payment of costs. He paid the costs and served an answer. Within twenty days thereafter he served an amended answer, which was promptly returned by the plaintiff on the ground that it was "not authorized by law, as section 542 of the Code of Civil Procedure authorizes amendment of causes only in the regular order of pleading." Defendant now moves that the amended answer stand as the answer in the case. The plaintiff misapprehends the scheme of pleading prescribed by the Code of Civil Procedure. When a complaint has been served the defendant has open before him two lines of defense from which he must make a choice. He may demur, and thus raise only issues of law, or he may answer, and thus raise issues of fact. He cannot both answer and demur to the same cause of action, and having made his election he must stand by it unless relieved by the court, for even under the broad power of amendment given by section 542 he cannot, as matter of right, substitute an answer for a demurrer, or a demurrer for an answer. Cashman v. Reynolds, 123 N. Y. 138. In the present case the defendant elected to present an issue of law, and served a demurrer. Misc.] Supreme Court, February, 1899. Upon this issue he was beaten, and the action was decided adversely to him. This would have been an end of the case had it not been for the exercise by the court of the power conferred by section 497, which provides that upon the decision of a demurrer the court may, in its discretion, allow the party in fault to plead anew, or amend upon such terms as are just. It is important to observe just what the court may permit to be done by a party who has elected to defend by means of a demurrer, and whose pleading has been overruled. He may "plead anew;" that is, he may go back to the beginning, and adopt that line of defense which involves tendering an issue of fact, and is evidenced by the service of an answer. Having obtained that permission, and complied with the terms prescribed as a condition, the defendant started along his second line of defense precisely as if he had selected it in the first instance, and with the same rights he would have had if his first pleading had been an answer. The demurrer was out of the case, and the position of the parties towards each other was as if no demurrer had ever been interposed. Wheelock v. Lee, 74 N. Y. 495. The defendant being in the position described, and having pleaded anew by serving an answer, was entitled to avail himself of the right conferred by section 542 of serving an amended answer within twenty days after the service of his original answer. motion must, therefore, be granted, with $10 costs. Motion granted, with $10 costs. His EDWARD C. SHEEHY, Plaintiff, v. GEORGE C. CLAUSEN et al., Commissioners of Public Parks of the city of New York, Defendants. (Supreme Court, New York Special Term, February, 1899.) Taxpayer's action - Consent to stringing wires in parks of New York city - Knowledge that they are being strung-Waste of city property. A taxpayer's action to prevent a waste of the property of the city of New York cannot be supported upon allegations that the defendant park commissioners have illegally granted a permit to a gas and electric company to erect poles and string wires along avenues in a public park of said city, as the park commissioners, jointly with the com Supreme Court, February, 1899. [Vol. 26. missioner of the department of public buildings, have power to issue such a permit. The consent of both is necessary to such a permit. Such an action cannot be supported against the commissioner of the department of public buildings upon mere allegations and proof that he and his predecessors had knowledge that the gas and electric company was wrongfully erecting poles and stringing wires in a public park, where it was within the discretion of the commissioner to grant or withhold a permit. Such an action must fail, however wrongful may be the acts complained of, unless it is shown that such acts have or will result in injury to or waste of the property of the city. TAXPAYER'S action to restrain certain public officers of the city of New York from the commission of alleged illegal acts, which, if committed, it is claimed would be a waste of the property of said city. Joseph I. Green, for plaintiff. Atwater & Cruikshank, for defendants. MATTICE, J. The plaintiff, as a taxpayer, brings this action to restrain certain public officers of the city of New York, from the commission of alleged illegal acts, which, if committed, it is claimed would be a waste of the property of the city. The action was commenced before the Greater New York charter went into effect, and was aimed at the commissioners of the department of public parks and the board of electrical control, and the Bronx Gas & Electric Company. It sought to prevent the lastnamed company from erecting poles and stringing wires along the highways and avenues in Pelham Bay park, without first obtaining a permit from the board of electrical control. A temporary injunction order was granted which was reversed on appeal, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. Sheehy v. McMillan, 26 App. Div. 140. Thereafter, the plaintiff obtained an order permitting him to amend his complaint. The amended complaint brings in as party defendants, the commissioners of public parks, appointed under the new charter, and also the commissioner of public buildings, lighting and supplies, likewise appointed. |