Roads-Terminus at railroad station -Necessity for road-Width of road. A terminus of a public road may be at a railroad station. "Sixth. That the residents in the vicinity of said road have established a community bus line and no longer use the passenger service of said Pennsylvania railroad. "Seventh. That the average width of public roads in said Springettsbury width of the proposed public road is unTownship are not over 20 feet and the The decision of viewers appointed to view reasonable and to build and maintain a a proposed public road that there is neces-road of such width will be a burden on sity for a road is conclusive on exceptions to their report, unless plain error of judgment is established by testimony. A public road of a width of fifty feet is not unlawful, and exceptions to a road report on the ground that the road was laid out with a width of fifty feet were dismissed. the township. "Eighth. That to open and maintain cause all other sections of the township a public road of a width of 50 feet will to demand wider roads and such an ex "Ninth. That there is no law author Exceptions to the report of viewers pense will bankrupt the township. appointed by the Court of Quarter Sessions of York County, Pa., to view a pro-izing township supervisors to open and posed road in Springettsbury Township, maintain a public road of a width of 50 No. 3, January Session, 1922. Exceptions dismissed. A. W. Herrmann, for exceptions. Spencer D. Wareheim, contra. Ross, J., March 10th, 1924.-The Ross, J., March 10th, 1924.-The viewers were regularly appointed and made their report to this court. The following exceptions were filed to the report, which, after due consideration, we now answer: "First. That one terminus of said road is not in a public highway or place of public resort. feet. "Tenth. That to open said proposed road is only the beginning of a campaign to establish a number of such roads of a width of 50 feet for the benefit of the small community, known as the East York Tract, at the expense of a whole township." The petition for appointment of viewers recited that the viewers were appointed to view and lay out a public road or highway, to begin at a point in a certain state road, known as the Lincoln Highway, and extending thence to a point in the right of way of the Pennsyl"Second. That said terminus con-vania railroad, at a station known as nects with a railroad track at grade, "Rockburn" station, the said point of bewhich is against the policy of the Com-ginning being 987 feet eastwardly from monwealth of Pennsylvania. the centre of the first public road lead"Third. That there is no necessity ing northward from the Lincoln Highfor said road because there is not much way, east of the City of York, and the travel on the same. "Fourth. That there is such small travel only on one-half of said road leading from the Lincoln Highway as the one terminus thereof. "Fifth. That the other one-half of said road leading to and terminating at the right of way and tracks of the Pennsylvania railroad from York to Hellam, provides an outlet only for a private siding. said point of ending being 1326 feet eastwardly from the said public road leading northwardly from Lincoln Highway, all in the Township of Springettsbury. The viewers report that there is occasion for a public road to be opened and laid out between the termini described in the order of the court; that the same is necessary for a public road; that one of the termini named in the order of the court is in a public highway and the other terminus at a public station and public siding of the Pennsylvania Railroad Company; and that the said road is one necessary for public travel. ceptions are all dismissed, and the report of the viewers in this case is finally confirmed. That report is sufficient in law to sustain itself as to the legality of the ter- O. C. of mini. "It is a settled rule of the state that a public road must begin and end in a public highway or place of public resort": Miller's Road Case, 9 S. & R. 35; West Pikeland Road, 63 Pa. 47 "The 'necessary resort' of the statute may be taken to be a place of public resort where men are in the habit of meeting on their lawful business, or in pursuance of their proper duties": Schuylkill River Road, 19 Pa. Supr. Ct. 376, 377, 378. It cannot be successfully argued that a railroad station on the Pennsylvania railroad is not such a public resort as the law contemplates. The first and second exceptions are dismissed. The third, fourth and fifth exceptions are dismissed because the road viewers have decided and reported that the public road is necessary, and their decision is conclusive on this court unless plain error of judgment is established against them. This was not done, and there was no attempt to show that the road was not necessary. The sixth and seventh exceptions have no merit either in fact or law to control or sustain the locating or opening of a public road. The necessity of public roads is such as the general public require. These exceptions are therefore dismissed. The eighth and tenth exceptions are dismissed, because they are too problematic and cannot now be sustained by any process of reasoning. The ninth exception must be dismissed because it is a misstatement of the expressed law of the state. See act ap proved April 6, 1921, P. L. III. Wanner Estate Berks Co. Decedents' estates-Collateral inheritance tax on life estate. tate is payable by the trustee out of the principal of the fund, but must be restored to the fund out of the first income received. The collateral inheritance tax on a life es Exceptions to account. C. G. Derr, for the accountant. J. B. Stevens, for Harvey H. Rothermel, for exceptant. Schaeffer, P. J., Orphans' Court, specially presiding, October 27, 1923.—The account is before the court on petition of Harvey H. Rothermel, the cestui que trust, citation, answer and the order of the court, directing the trustee to file the account. It contains the principal fund and income. In the distribution, these funds will be kept separate. Exceptions to the account have been filed by the cestui que trust, alleging that the accountant erred in the payment of the collateral inheritance tax, amounting to $74.47, out of the principal fund, and that the credits taken for the costs of fil ing the account are improper and cannot be allowed. It appears that on February 27, 1906, the sum of $1943.62 was distributed to the trustee, subject to the collateral inheritance tax, and the said amount was paid to the trustee accordingly. Subsequently, on August 9, 1906, the value of the said cestui que trust's life estate, for collateral inheritance tax purposes, was fixed at $1489.35, and the said trustee paid the collateral tax thereon, amounting to $74.47. This tax was paid out of the said principal of $1943.62. Thereafter, the trustee paid to the cestui que trust the semi-annual interest on And now, March 10th, 1924, the ex-the diminished principal, that is, on the said sum of $1943.62 less the amount testing, and also in the absence of any paid for collateral inheritance tax. The complaint by those who will eventually cestui que trust received the income reg- get the fund. ularly, together with statements showing the administration of the fund, up to 1922, when the cestui que trust complained to the trustee about the payment of the collateral tax out of the principal fund instead of deducting it from the in come. The trustee, thereupon, discontinued to pay the said interest to the cestui que trust, retaining the same for replace ment of the amount so to be paid for the collateral inheritance tax. He who seeks equity must do equity, and it would be inequitable, to say the least, to punish the trustee for paying the debt of the cestui que trust, and for acting in good faith and with a purpose to help and assist him. If the cestui que trust insists that the $74.47 be restored to the principal fund, it must be done out of his income. He had the use of the money, and, consequently, should pay it back if he feels the fund should be restored to its original amount. The matter stood thus for a short That the trustee could pay the tax out time, when, at a meeting between the of the principal fund, and reimburse itcestui que trust, his counsel and the trus- self out of the first income received, is tee, it was agreed that the trustee should well recognized, for, in the estate of S. deduct from each semi-annual interest J. Christian, 18 Phila. 32, it was decided installment the sum of $5.00, by way of by Judge Ashman that "When an estate restoring to the principal fund the has been left to a collateral relative or a amount of the tax, which arrangement stranger for life, with remainder over, would make the restoration complete in the inheritance tax on the life interest is about seven and a half years; and that payable primarily out of the corpus, but the trustee should at once pay to the ces-must be refunded out of the first income tui que trust the interest accrued and received." which had been retained as aforesaid, deducting the sum of $5.00, first installment in pursuance of said agreement. After the trustee paid the collateral tax out of the principal fund, he should have withheld the first income and added This adjustment was apparently satis-it to the fund. He, however, paid the factory to both sides, and it was not un-income to the cestui que trust, who thus til March, 1923, when the cestui que received the benefit of it, and now comtrust again objected to the settlement, plains because it was paid to him. If the and came into court and asked for a ci- principal is to be restored at this time, tation on the trustee to file an account, it must be done out of the cestui que so that the dispute could be legally de- trust's income. "Where moneys have termined. been paid to beneficiaries, as income which was really principal, the future. accruing income will be withheld until tate:" Est. of William Richardson, 12 the over payments are repaid to the esPhila. 32. The complaint now is that the trustee should have withheld the tax out of the income, instead of paying it out of the principal. There can be no doubt that the tax was paid out of the principal and not replaced immediately from the first income, in order to accommodate the cestui que trust, and why he should now complain, we fail to see. In other words, he finds fault with the conduct of the trustee for having been generous with him, in not appropriating the income for the payment of the tax. This, indeed, is very unusual, in view of the fact that he accepted the income of the reduced principal for almost seven years without pro Again, the arrangement made between the parties that the sum of $5.00 should be deducted from every semi-annual instalment of interest and added to the principal, was made in good faith and with a full understanding of all the facts in controversy, and, therefore, will be upheld. On the basis of this understanding of the parties, which was not denied at the hearing and which was acted upon, as shown by the items of credit for the first and second instalments of $5.00 each, this controversy was settled, and hence there was no occasion for citing the trustee to file an ac count. The exceptions to the credits for costs and fees must, therefore, also be dismissed, because the trustee was not at fault here, and, under the Fiduciaries Act of June 7, 1917, P. L. 447, Sec. 46, it has the right to file its account triennially from the date of its appointment, and to have the same audited and confirmed to date by the court. In filing such account, costs and fees necessarily accrue and must be paid, either out of the principal or income. The exceptions are dismissed, and the account is confirmed. Distribution of the principal sum will be to the trustee, for the continued administration of the trust. The income, subject to the deduction of any agreed-upon instalments which may be due of collateral inheritance tax, which as aforesaid has been paid out of the principal fund, will be distributed to the cestui que trust. C. P. of Allegheny Co. Hulsman v Brookline District No. 506, Etc. Shafer, P. J., January 10, 1924.—The action is founded upon a contract of employment of the plaintiff by the defendant, at a weekly salary, and is evidenced by a written contract. The affidavit of defense elaborately sets out a parole contemporaneous agreement alleged to have been made at the time the contract was signed, modifying it so that no action would lie upon it at this time. The affidavit further shows that the plaintiff herein brought an action against the defendant herein at No. A-1132 of 1921, in the County Court of Allegheny County, for some of the wages now claimed under this contract, and that judgment was rendered therein for the defendant, and it is alleged that the action was in substance the same cause of action as is involved in this suit and the record of the county court is made part of the affidavit of defense. We do not deem it necessary to enter upon a discussion of the alleged parole agreement, which was the principal matter argued, for the reason that this part of the affidavit of defense which alleges an adjudication of the matter in the county court is, as it stands, a sufficient answer to the plaintiff's claim. The plaintiff has cited in his brief a number of cases as to the effect of judgments in suit for installments of salary. These are Allen v. The Collery Company, 196 Pa., 512; Allen v. International Text Res adjudicata-Salary-Payments-Book Co., 201 Pa., 579, and Stradley v Separate actions-Conclusive as to sub- The Cement Co., 228 Pa., 108. These cases all hold that if one who is hired at sequent installments. a salary payable in installments, brings a A rule for judgment for want of a suffici-suit for installments as they fall due and ent affidavit of defense was discharged, where the action was based on an agreement to pay a salary in installments and it apstallment had been decided in favor of defendant. This was conclusive as to subsequent installments and barred plaintiff's recovery. peared that a previous action on another in Sur rule for judgment for want of a sufficient affidavit of defense. Discharged. W. G. Negley, for plaintiff. Before Shafer, P. J., Ford and lass, JJ. recovers a judgment, this does not preclude him from bringing a suit for the installments which fall due later, but, on the contrary, establishes his right to recover the subsequent installments, unless something new should appear. In none of them, however, was the suit brought on the earlier installments ended by judgment in favor of the defendant, and that judgment is just as conclusive for the defendant as to subsequent installments as one for the plaintiff would have Doug-been for him. The rule is therefore discharged. Supr. C. of Pa. that year the name of the York Metal & Alloy Company was changed to the Al North v. York Metal Alloys Co. loys Corporation, and on September 1, (No. 2) 1920, by deed the Alloys Corporation conveyed to the York Metal & Alloys Employer and employee-Sale of asCompany all its plant, land, building, sets and assumption of contracts-Sim-business assets and property. The Almachinery and equipment, and all its ilarity of names. loys Company, on September 1, absorbed Where a company having a contract for two other companies, and took possession the employment of one for a fixed time and of all their business. It was agreed be at a definite salary, transferred its business and assets to another corporation of a simi-tween the companies that the last named, lar name, which agreed to assume the lia-the appellant, would assume all the formbilities, obligations and contracts of the first corporation, including the contract with the er's liabilities, obligations and contracts, employee mentioned, and the employee, un- including the agreement with the plainacquainted with the transfer, continued his tiff. On October 20, 1920, plaintiff rework with the second company which for some time accepted his services, a verdict ceived a written communication informfor the employee and judgment thereon ing him defendant desired to change the against the latter company for damages for his dismissal before the expiration of the agreement so that, instead of one year's notice to quit be given to him, three Questions of the indentity of parties, turn-months notice thereafter would suffice. ing on similarity of names, and the same officers of corporations, when the testimony Plaintiff declined to agree to this change and on December 31, 1920, a notice in term of employment was sustained. is conflicting, must be left to the jury. Appeal to the Supreme Court of Penn-writing was given stating his services sylvania by the defendant in H. B. North would cease on March 15, 1921. All rev. York Metal & Alloys Company, No. lations between the parties having ended, 65, January Term, 1924, from the judg-plaintiff sued for the unpaid salary for ment entered in the Court of Common the balance of the term, recovering a Pleas of York County, in No. 106, April judgment. Term, 1922. 177. Jacob E. Weaver, Donald H. Yost and Cochran, Williams & Kain for appellants. Appellant contends that as this was a The opinion of Ross, J., dismissing contract for personal services of a highmotion for a new trial and for judgmenty skilled nature, the new company could n. o. v. is reported in 36 York L. R., not compel appellee to render such personal services without his consent: it Affirmed. follows appellant was not compelled to retain appellee longer. That appellee's services formed no part of the assets conveyed to the appellant in consideration of which appellant assumed to be bound by the selling corporation's written obligation to plaintiff. Appellee being a stranger to the contract between the buying and selling companies, there is no right of action against appellant. Niles & Neff for appellee. Kephart, J., July 8, 1924.-Plaintiff's statement avers a contract, partly oral and partly written, whereby plaintiff, in 1917, was employed to take charge of a chemical and research laboratory at a The difficulty with these propositions salary of $5,000 a year, to serve for one is that Dr. North was not acquainted year, and thereafter until notice was giv- with the transfer between the two comen at least one year in advance that the panies, and continued his work with the services were no longer desired. In second company as theretofore. If ap1918, the York Metal & Alloy Company, pellant desired to sever relations with the other party to the contract, notified him, as now stated, and could lawfully plaintiff that thereafter this salary would do so, notice was bound to be given of be increased to $6,000 a year; no other its reluctance to continue him in employchange was made or suggested in the ment. Having accepted his employment terms of the employment. Dr. North after the sale was affected, and recognizcontinued in service until 1920. During ed the contract even to changing its |