gers on the steps of an open car had uniformly, and for twenty years, passed in safety the car going in an opposite direction. The body of plaintiff must, with reference to the car, have been at a most extraordinary and unusual angle at the time of the accident in order that it should have occurred at all. The defendant was not bound to so construct its tracks that it would be impossible for a passenger to reach another car while he was standing on the outside of an open one. There was no negligence on the part of the conductor in failing to prevent the plaintiff from going on the step or in failing to warn him of any possible danger which might arise therefrom. We think the judgments of the courts below were erroneous and they should be reversed and a new trial ordered, with costs to abide the event. All concur. WILLIAM B. ROYCE et al., Resp'ts, v. JENNIE C. T. Adams, Appl't.' (Court of Appeals, Filed October 28, 1890.) 1. WILL-POWER OF SALE. A power of sale in a will conferred upon the executors, or "whoever shall execute this, my will," is not a personal trust or confidence, but can be exercised by any person lawfully appointed to execute the will, e. g., trustees appointed to succeed executors and trustees who have resigned. 2. SAME-CODE, § 2818. Although 2818 mentions only a sole testamentary trustee, it was the intention of the section to provide for a case where all the testamentary trustees died or resigned, and there was no purpose to confine it to the case of a sole testamentary trustee. APPEAL from judgment of the supreme court, general term, second department, rendering judgment in favor of plaintiff upon submission of controversy. Alton J. Vail, for app'lt; W. J. Groo, for resp'ts. EARL, J.-The testator, Henry R. Low, devised and bequeathed to his executors all his real and personal estate upon the trusts mentioned in his will, and authorized them to sell, lease or otherwise convey or dispose of any of his real or personal estate, and to give a good title thereto. Before the estate was completely settled all the executors and trustees named therein resigned. Thereafter by an order of the surrogate's court, and subsequently by an order of the supreme court, both properly made, these plaintiffs were appointed trustees under the will in the place of those who had resigned; and the question is whether they have authority to execute the power of sale contained in the will. While it is not expressly provided what shall be done with the proceeds of the sales of property, it is implied that they must be held and disposed of for the purposes of the will. Here the trust survived the resignation of the testamentary trustees, and hence the surrogate had authority to appoint the new trustees under § 2818 of the Code, which provides that when 'Affirming 32 N. Y. State Rep., 699. a sole testamentary trustee dies, or becomes a lunatic, or is by a decree of the surrogate's court removed or allowed to resign, and the trust has not been fully executed, the surrogate's court may appoint a successor, unless such appointment would contravene the express terms of the will. It is true that this provision mentions only a sole testamentary trustee, but the language of the whole section shows that it was the intention to provide for a case where all the testamentary trustees died or resigned, and that there was no purpose to confine it to the case of a sole testamentary trustee. Hence these plaintiffs could base their authority to act as trustees under the will, and to execute the power therein conferred upon the testamentary trustees, upon their appointment by the surrogate. But if that appointment was insufficient to clothe the plaintiff with a valid authority and the power of the testamentary trustees, it cannot be doubted that they received such authority under their appointment by the supreme court. It is familiar law that upon the death of an original trustee the trust devolves upon the supreme court, and it has jurisdiction to appoint new trustees to execute the trust. 1 R. S.. 730, § 71; 11, 731, § 72; Delaney v. Mc Cormack, 88 N. Y., 174; Farrar v. McCue, 89 id., 139; Mott v. Ackerman, 92 id., 539; Cooke v. Platt, 98 id., 35; Matter of Hawley, 104 id., 250; 5 N. Y. State Rep., 620; Greenland v. Waddell, 116 N. Y., 243; 26 N. Y. State Rep., 667. The power of sale is by the will conferred upon the executors, or "whoever shall execute this my will," and hence the power is not a personal trust or confidence, but it can be exercised by any person lawfully appointed to execute the will. The plaintiffs, therefore, have power to convey the real estate in question, and can give a good title thereto, and the judgment should, therefore, be affirmed, with costs. All concur. JAMES C. AIKIN et al., Resp'ts, v. ROBERT E. WESTCOTT, as President, etc., App'lt.' (Court of Appeals, Filed October 28, 1890.) 1. RAILROADS-BAGGAGE EXPRESS-LIABILITY OF. An employe and agent of plaintiffs checked a trunk from Detroit to New York, which reached the Grand Central depot twenty-four hours before he did, and was taken out of the baggage car by employes of the express company, and left at the incoming baggage room. On his way to New York, the next day, he gave his check on the train to an agent of defendant for the purpose of having his baggage delivered, but the latter could not find it in the New York baggage room. Afterwards it was seen at police headquarters, and a man was convicted for stealing it. Held, that it had not been delivered to defendant, and until a delivery was shown it could not be made responsible for its loss. 2. SAME. 1 Up to the time of the surrender of the check, and while the baggage was lying in the baggage room of the railroad company, although placed there by the defendant's employes when they took it out of the baggage car, it cannot be said to have passed out of the control and possession of the railroad company. 1 Reversing 16 N. Y. State Rep., 600. APPEAL from order of the New York common pleas, general term, reversing judgment of circuit for defendant and granting a new trial. Austen G. Fox, for app'lt; Wm. A. Abbott, for resp'ts. PECKHAM, J.-The only question in this case, as the plaintiffs concede, is whether there was any evidence to show that the express company actually received into its custody the trunk in controversy. Upon the undisputed evidence, we are of the opinion that no delivery of the trunk to the express company was shown. We may assume that the trunk reached the city of New York at the same time as the other one which was checked with it at Detroit for the same destination. They both reached the Grand Central depot in the city twenty-four hours earlier than did the person who had procured them to be checked and who was an employe and agent of the plaintiffs. He stopped over for a day in Buffalo. It cannot be disputed that when baggage is transported by rail, and inside a baggage car, and arrives under the roof of this building in the city of New York, it is still in the custody and control of the railroad company which is transporting it. These trunks were taken out of the Central-Hudson baggage car upon its arrival at the Grand Central station by employes of the express company, but such trunks were not by that act taken out of the custody and control of the railroad company. On the contrary, they were left at the Grand Central depot, at the incoming baggage room, where all baggage is delivered, and although they were taken out of the car by employes of the defendant, they were left under the control and in the possession of the railroad company, in its own baggage room in the depot. There they would ordinarily remain like other baggage until called for by some one who had checks for them. When the trunks were thus taken out of the car at New York the plaintiffs' agent, who had procured them to be checked at Detroit, still had those checks with him at Buffalo, where he was remaining for the day, and it cannot be pretended from the evidence that the defendant, at that time, had any right to their possession whatever. The next day the plaintiffs' agent left Buffalo on the CentralHudson Railroad for New York, and at Poughkeepsie an agent of the defendant boarded the train, and as the train was going around Peekskill curve, which would be about ten minutes past eight in the evening, he received the checks from plaintiffs' agent for the purpose of thereby obtaining the baggage and delivering it at plaintiffs' place, in Maiden lane, the next day. The agent of the defendant, after he received the checks, went to the baggage car to find the trunks, and not finding them, went back and told the plaintiffs agent of that fact, and was informed by him that they had preceded him twenty-four hours. About seven minutes after the arrival of the train at the depot in New York, the express messenger made search for this trunk, and there was a thorough search made at that time, and the trunk could not be found, and was not found thereafter by the defendant or its employes, so far as appears. It was seen some time subsequently at police headquarters, and a man was convicted in New York for stealing it. There is no evidence positively identifying this trunk as ever having been found in the baggage car at New York, or taken out of it and placed in the baggage room, but I think both facts might be inferred from the evidence by a jury, and I have assumed them. The only evidence which looks towards proof of a delivery of the baggage to the defendant is that of the witness Delaney, and that falls far short of proving that fact. He was an employe of the defendant, it is true, and he and other of its employes assisted in taking all the baggage which came in the depot from incoming trains and put a tab on it. But after this was done, the baggage was taken to the railroad baggage room, and whoever brought a check was given the baggage to which its corresponding check was attached. It might be the owner personally who came; it might be his private servant, or it might be the express messenger, and in any event the baggage was delivered to the one having the corresponding check. Up to the time of the surrender of the check and while the baggage was lying in the baggage room of the railroad company, although placed there by the defendant's employes when they took it out of the baggage car, the baggage cannot be said to have passed out of the control and possession of the railroad company or to have been delivered into that of the defendant. When the checks were delivered to the defendant's messenger he was thereby clothed with the right to obtain possession from the railroad company of the trunks they represented, but up to the time that such checks were presented, the trunks, upon the facts in this case, remained in the possession of the railroad company. The defendant received the check representing the trunk in question, and within seven minutes of the time when the train arrived made a thorough but unsuccessful search for it, and it never was received by the defendant. During the twenty-four hours which succeeded the arrival of the trunk in New York and which immediately preceded the search, the trunk was not and had not been in the possession of defendant; it had not been delivered to it, and until a delivery is shown, it cannot be made responsible for its loss. The order of the general term, reversing judgment of circuit on the verdict for defendant and granting a new trial, should be reversed and the judgment of circuit affirmed, with costs in all courts to defendant. All concur. CHARLES H. PHELPS, Resp't, v. THE CABLE RAILWAY Co., App'lt.' (Court of Appeals, Second Division, Filed October 21, 1890.) 1. BROKERS-CONTRACT TO SELL-CONSTRUCTION OF-COMPENSATION. Defendant employed plaintiff at the outset to procure a purchaser of the 1 Reversing 14 N. Y. State Rep., 936. N. Y. STATE REP., VOL. XXXIII. 79 626 right to run cable cars, in a certain territory, under its letters patent, at [Ct. App. the sum of $400,000, assured the monopoly, promising to spend $100,000, if necessary, in defending it, and to pay plaintiff twenty per cent. on the purchase price. Plaintif made the sale to one Shinn on a written contract providing that in case Shinn failed to make the payment of any instalment therein specified, the rights intended to be sold to him should revert to and become the absolute property of said defendant, except that Shinn in such emergency might sell said rights to a corporation to be formed for dealing therein with a capital of $2,500,000, divided into shares of fifty dollars each, he to receive 35,000 of its stock, and which in excess of 26,000 shares were to be placed in escrow with S. & Co., to be delivered on certain payments being made by Shinn, but unless they were made he was to forfeit all the payments made. Another contract was made by which plaintiff was to receive thirteen and one-third per cent. of any kind of consideration received by Shinn or his assigns, "except in case of forfeiture." Plaintiff claimed that Shinn had fulfilled his contract by paying a certain sum and the balance in stocks of the company, being compelled to do so because defendants did not prosecute the infringers, so that the stock sold slowly, and demanded commissions of thirteen and one-third per cent on $400,000. Leld, that the contract contemplated the payment of $400,000 in money for the patented rights; that the "forfeiture referred to the payment in money; that the taking of the stock under the alternative provision was not intended as a payment: that Shinn was not prevented from proceeding by any act or default of the defendant. NEW YORK STATE REPORTER, VOL. 33. 2. SAME. That upon a fair interpretation of the contract it did not require the defendant to prosecute for alleged infringements outside of the territory, within its provisions, except as therein specified. whether the defendant failed to do what was required of it by way of That the question performance of the Shinn contract was primarily a matter between the parties to that contract, and any default of the defendant in that respect was not available to the plaintiff unless it prevented or caused its failure to make the payments of the purchase money provided by it. (HAIGHT and BROWN, JJ., dissent.) APPEAL from the judgment of the general term of the first department, affirming a judgment rendered upon a trial before a judge, without a jury, in favor of the plaintiff. Julien T. Davies, for app'lt; Noah Davis, for resp't. POTTER, J.-This action is brought to recover a balance alleged to be due to plaintiff from defendant, for services as a broker or middleman in negotiating the sale of certain patent rights belonging to the defendant for cable traction of cars upon street rail ways. The complaint alleges that the defendant is a corporation organized under the laws of the state of California, and that prior to and on the 2nd day of July, 1883, the defendant owned the right secured by various letters patent issued by the United States for cable traction, and which virtually gave the defendant the exclusive right and monopoly to a mode of moving street cars by cable, and that the defendant being desirous of selling said rights in all the territory of the United States lying east of the 106th meridian of west longitude, for the sum of $400,000, employed the plaintiff to procure a purchaser of the same for that sum, with the defen lant's assurance of such monopoly and its promise to expend $100,000, if needs be, in maintaining and defending such monopoly: that the defendant agreed. in the event of said sale by plaintiff, to pay him twenty per cent upon the purchase price, or |