text:
    In the Matter of the Application for the Probate of the Will of Volkert Hardenburg, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Will—Execution.
    Where a paper, apparently divided into a will and codicil, is really one paper, executed at one time, it will be taken together as one transaction.
    A Same.
    It is not necessary that both of the subscribing witnesses should state all the material facts required by the statute.
    ■S. Same.
    Any act of the testator in the presence of the witnesses, at the time of the execution of the will, that tends to show that he desires to publish the paper as his will, and that he wishes the witnesses to execute it, may be considered.

      4. Same—Probate—Power oe supreme court.
    Where, upon an appeal from a decree revoking probate of a will, there is no substantial conflict in the evidence as to the fact of the execution of the will, the general term should direct that the original probate of the will should be confirmed.
    Appeal from a decree revoking probate of the will.

      A. B. Ottaway, for app’lt; H. C. Kingsbury, for resp’t.
   Ward, J.

J.— Volkert Hardenburg, of the town of Westfield, in ■Chautauqua county, died on the 15th day of March, 1892, leaving a last will and testament, in which he made various bequests to his wife, three sons, and a daughter, Jane H. Munger, and other relatives. Before executing his will, and on the 22d of January, 1892, in the forenoon, he sent for Ralph A. Hall, a friend of his, and a banker, and stated to him that he desired him to prepare a will, and gave directions as to its contents, of which Mr. Hall made a memorandum. Hall drew the will as he understood the directions, and in the afternoon presented it to the deceased, read it ■over to him, and, when he reached the tenth clause of the will as written, which was as follows : “ All the rest of my estate, both real and personal, I desire to be divided among my children that may be living at the time of my death, share and share alike therein,”—the testator, who perfectly understood the paper, said that he desired to change that clause; that he meant to be understood to mean his living sons, instead of his living children. Hall made the desired change in the presence of the testator, but instead of changing it in the tenth clause, he appended what he called a “ codicil,” so that the paper, when it was ready for signatures, and when it was signed, appeared as follows :

“ In witness whereof, I have signed and sealed, published and declared, this instrument as my will, at Portland, Chautauqua county, N. Y., on this 22d day of January, one thousand eight hundred and ninety-two.
his
“ Volkert X Hardenburg. II. s.l mark
“Ralph A. Hall, Witness to Mark.
“ The said Volkert Hardenburg, at Portland, Chautauqua county, N. Y., on the 22d day of January, 1892, signed and sealed this instrument, and published and declared the same as his last will and testament, and we, at his request, and in his presence, and in the presence of each other, have hereunto written our names as subscribing witnesses.
“ Ralph A. Hall. Brocton, New York.
“ J. Frank Scott, Portland, New York.
“ Codicil: In the tenth section of this, may last will, I desire it should read : ‘ All of the residue of my estate, both real and personal, I desire to be divided among my living sons at the time of my death, anything in this will to the contrary notwithstanding.”
“ Dated at Portland, N. Y., January 22, 1892.
his
Volkert X Hardenburg. [l. s.J mark
“ Ralph A. Hall, Brocton, N. Y.
“ J. Frank Scott, Portland, N. Y.”

Before any of the signatures were attached, the scrivener asked the deceased whom he wished for the other witnesses to the will, and he said Mr. Frank J. Scott, who lived across the road from the deceased, and was well acquainted with him. Scott immediately came. Hall testified that the codicil was written in the presence of the testator, and, as he thinks, after Scott arrived. Scott testified that he thought Mr. Hall had just finished writing it after he had stepped into the room, but he heard Hall mention the word “ codicil” ; that Hall said he had drawn the will with a typewriter, and the deceased wanted to make a change, so he had added a codicil with a pen. The attesting clause was read over by the scrivener, in the presence of the deceased and Scott. Hall asked the deceased to sign the will, and he said he could not see-very well, end asked Hall to sign it for him, and witness it. Hall asked deceased, in the presence of Scott, if that (referring to the paper) was his last will and testament, and he said it was. He then asked the deceased the same question about the codicil. Hall testified :

“ I asked him (deceased) if the codicil as I read it to him, was as he wanted it; and he said it was. 1 asked him if he declared that to be his last will and testament. He said he did. We (Scott and I) witnessed it. He asked us to witness it for him, both instruments. I asked him in reference to both instruments. We both subscribed our names to both the will and 'the codicil, in his presence and in the presence of each other. At the time of the execution of this will and codicil, 1 considered him of sound mind and memory. He was upward of ninety. He did not appear to be under any restraint.”

The witness again says:

“ I asked him (the deceased) if it was his last will and testament ; also the codicil. I think I might have said: ‘ This instrument is your last will and testament; also the codicil. I signed it as a witness. Mr. Scott signed it as a witness, both in the body of the will and the codicil, at that time. Both instruments were executed in my presence and Mr. Scott’s, and in the presence of Mr. Hardenburg, and signed by both of us at that time. I say distinctly that I called his attention both to the will and codicil at the same time. They were both signed right along in connection.”

The witness Scott says:

“ I went in where deceased and Mr. Hall were. They had this paper there at this time. Mr. Hardenburg signed this paper there at this time, in my presence; that is, he signed the mark—the cross—in my presence, and in the presence of Mr. Hall. He signed the will there. Mr. Hall asked him if this instrument was his last will and testament, and he said it was. He asked me to sign as a witness. He also signed the codicil in my presence, and in the presence of Mr. Hall. Mr. Hall did not say anything about-that. Mr. Hall said he had written it with a typewriter, and he wanted to make a little change, and he added it with a pen, and Mr. Hall wrote his name in both places. Both signatures were made at the same time, if I remember right; and after that he declared it to be his last will and testament. * * * I signed in both places, same as Mr. Hardenburg did. That is my signature in both places. At the time, he appeared to be of sound mind and memory, and under no restraint.”

Ho other witnesses were examined except the subscribing witnesses, Hall and Scott. The three persons were alone in a room. The evidence showed that the testator fully understood, as did the witnesses, the whole transaction. While he was somewhat deaf, and it was difficult for him to see, he was made to understand, and did understand, all that occurred. He knew that the codicil simply carried out his instructions as to the change in the tenth clause,, and that that was the purpose of the codicil was fully understood by the witnesses. The will and codicil was admitted to probate by the surrogate, by the consent of all the parties interested in the will, on- the 11th of April, 1892. In July afterwards, the daughter, who had consented to the probate, filed a petition for the revocation of the probate of the will; and such proceedings were had thereon, that in June, 1893, the surrogate decreed that the probate ■of the codicil should be revoked, and that the probate of the other portion of the will sustained; so that the will, by his decree, is valid, all except the alteration of the codicil. The evidence above referred to was given upon the proceedings to revoke, and the surrogate based his own conclusion upon what he claimed a want of evidence to show a due publication of the codicil. In the findings which he makes, and that appear in the case before us (being numbers 11 to 15, inclusive), he finds that the deceased, in the presence of Hall and Scott, signed the will produced in evidence by making his mark; that in the same presence he signed the ■codicil of the will by making his mark; that -he told Hall that be could not see very well, and asked him to write his (the deceased’s) name; that Hall, in the presence of the deceased and Scott, signed the name of the deceased to the will and codicil, at the places where the deceased had made his mark to the will and codicil; that Hall, in the presence of Scott, asked the deceased if that was his last will and testament, and the deceased said it was ; that Hail wrote the codicil in the presence of the deceased ; that -deceased told Hall that he desired to change the tenth clause so that. it should read “the living sons,” instead of “the living children.” And he also found the facts as to preparing the will .and its being ■read over to the deceased as above stated. The surrogate refused to find that the deceased requested the witnesses to execute the ■codicil as witnesses, or that he declared the codicil to be his last will and testament, and for the want of this proof, as the surrogate claims, he rejected the codicil.

A-careful examination of the evidence taken before the surrogate, together with the findings which he makes, leaves it clearly established that the statutory requirements in the execution of the will were complied with in substance and effect. There was no evidence to show that the testator was under restraint or in any manner influenced in making the will, or but what he had sufficient mind to make a valid will. While the paper is apparently divided into a will and codicil, it was really all one paper, executed at the same time, and to be taken together as one transaction. The purpose of the codicil is undisputed. It was simply to correct the tenth clause of the will. This might have been done by interlining the change of “living sons” for “living children," and, if done before execution, would have been valid. In re Tennelle, 5 N. Y. Leg. Obs. 254. The scrivener, however, thought he must make this change in a separate instrument, which he did, and called it a “codicil.” It referred to the change made in the principal paper, and, but for the requirement of the statute that the testator should sign at the end of the will, would have been a valid portion thereof, same as if written in the tenth clause itself. It was not therefore, in a proper sense, a “codicil,” but the statutory objection was avoided by the testator’s and the witnesses signing at the end of this paper as the other, and the reading of the attestation clause in the presence of the witnesses. And the declaration of the deceased, after he had executed the paper by signing his name twice, that it was his last will and testament, and his request to the witnesses to sign it, was a declaration as to the whole instrument, and also a request as to the same, as it was all one transaction; and therefore it was unnecessary to make a special declaration as to each signature, although the testimony is that that was done. The failure of the witness Scott to remember as fully what was said in regard to the codicil by Hall, who drew the paper, does not disprove the fact testified to by him. Rugg v. Rugg, 83 N. Y. 592. And, while the Code (section 2618) requires that at least two of subscribing witnesses shall be produced and examined, yet it is not necessary that both witnesses should state all the material facts required by the statute. In re Grahams Will, 30 St. Rep. 292, and cases there cited. The fact that testator was fully apprised of the testamentary character of the instrument may be considered in aid of proofs tending to establish the publication. Gilbert v. Knox, 52 N. Y. 125. The testator not only understood this, but the witnesses did, at the time of the publication, and that the object of the codicil was to effect the change desired by the deceased in the instrument.

Any act of the testator in the presence of the witnesses at the time of the execution of the will that tends to show that he desires to publish the paper as his will, and that he wishes the witnesses to execute it, may be considered; and in Re Perego's Will, 24 St. Rep. 496, Judge Dwight says :

“A man is not to be denied the right to make a testamentary disposition of his property on account of defect of speech and hearing ; and a deaf and dumb man may make a will if only the formalities prescribed by the statute are observed in their spirit and intent in such manner as is practicable under the condition existing.”

And in Thompson v. Seastedt, 6 Thomp. & C. 80, affirmed in court of appeals (62 N. Y. 634), Judge Daniels says:

“Although she (testatrix) did not, according to the testimony which was given, in words declare the instrument to be her will, it is clear that she treated-it and designed the witnesses to understand it to be such. That was equivalent to such a declaration, and sufficient to satisfy the requirement of the statute upon the subject ; for that does not necessarily contemplate such a declaration in words, in order to render the instrument valid as a will.”

This doctrine is sustained in a long line of cases, under many different circumstances, some of which are as follows: Lane v. Lane, 95 N. Y. 494; Reeve v. Crosby, 3 Redf. Sur. 74; Inre Voorhis' Will, 125 N. Y. 765: Darling v. Arthur, 22 Hun, 84; In re Cottrell, 95 N. Y. 329; Rugg v. Rugg, supra; lnreBernsees Will, 141 N. Y. 389 ; 57 St. Rep. 601; Inre Hunt's Will, 110 N. Y. 278 ; 18 St. Rep. 118, and in that case, at page 281, 110 N. Y., the court says :

“This will must have been presented to the witnesses by the testator for them to sign, and such an act was equivalent to a communication by him that he intended to give effect to the paper as his will. If the paper was signed in the presence of the witnesses, the act was a sufficient compliance with the statute as to an acknowledgment of the subscription.”

The request to sign is sufficient if made by the person superintending the execution of the will in the hearing of the testator, and with his silent permission and approval. In re Nelson's Will, 141 N. Y. 157; 57 St. Rep. 678, and cases cited.

The effect of the surrogate’s action upon this will in striking out. the codicil is to defect the purpose and intention of the testator, establish a will not made by the testator, and it should not, under the-evidence, be permitted. The proof before the surrogate required him to admit this will to probate as an entirety ; and while the Code (section 2622) devolves upon the surrogate the duty of being “satisfied of the genuineness of the will, and the validity of its execution,” still he must be so satisfied when the proof taken together establishes what the statute requires; and this court has. the power, under section 2586, to decide the question of fact which the surrogate had before him. There being no substantial conflict in the evidence as to the fact of the execution of this will, this court should direct that the original probate of this will should be confirmed. In re Bapjolie’s Will, 50 St. Eep. 239 ; In re Hunt's Will, 110 N. Y. 278; 18 St. Eep. 118.

The decree of the surrogate of Chautauqua county appealed from should be reversed, and the original probate of the will and codicil confirmed, with costs to the appellant, payable out of the property of the deceased. All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    In the Matter of the Accounting of George Litzenberger, as Trustee, etc., of John Litzenberger, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Tbustee—Liability fob co-trustee.
    Where the trust funds are, hy the act of an executor or trustee, placed in the hands of the co-executor or co-trustee, without which the latter would not have had them, the former is responsible for the latter’s devastavit as to the funds so handed over to him.
    Appeal from a decree settling the accounts of the trustee.

      Hammond & Hammond, for app’lts; G. M. Wilcoxen, for resp’t.
   Bradley, J.

This proceeding was instituted on the petition of the appellants, who were beneficiaries of the income of a trust fund, pursuant to the will of the decedent, and they seek to charge-the surviving trustee with the amount of such fund. The testator died in April, 1882. By his will, which was admitted to probate, he named his sons, George and Levi Litzenberger, as executors and trustees.. Letters were issued to them, and they entered upon the execution of their trust Among other things, the will provided that his residuary estate should be equally divided among his children; that the shares of his two daughters, Sarah Ann and Mary Jane (the petitioners), should by the executors be invested, the interest be paid to them annually, and at their death the remainder go to their children; and that his son Levi, if he so elected, should become the purchaser of a certain farm (of which the testator died seised) at the price of $6,600, to be conveyed to him by the executors. In April, 1884, the farm was conveyed by George Litzenberger, as executor, to Levi. By the decree of the surrogate’s court, made on an accounting of the executors in April, 1884, the amount of the residuary estate for each of the children then was $1,995.26; and the executors were charged with and directed to invest such sum for each of those daughters, and pay the income of it to her annually during her life. A like sum as the share of Levi was taken as part of the purchase money of the farm so conveyed to him; and until his death, in 1890, he paid to the petitioners inter•est upon the funds which by the decree of 1884 the executors were directed to invest for them. In March, 1885, Levi made a mortgage upon the farm to one Willers, to secure the payment of $2,316.66, which remained unpaid at time of his death. After-wards George Litzenberger individually took an assignment of the mortgage, foreclosed it by action, and the sale resulted in a surplus of $2,245.65, which, less, $22.46, treasurer's fees, came into his hands as surviving trustee. That sum, a mortgage of $800, and .$248.25, interest received by him, constitute the trust fund for which he accounts, and from this he deducts $426, costs in an ac-. tian brought by him against the personal representatives, widow, widow, and children of Levi Litzenberger, who died insolvent, to recover the amount of the trust fund in the unpaid purchase money of the farm, and he deducted the amount paid by him to the petitioners after the death of Levi; thus reducing the trust fund for both of them in his hands to $1,599.84. This is the amount for which he was charged by the decree of the surrogate’s court, and he was directed to pay to his successor that amount, less $66.04, his commissions. The payments made by the surviving trustee to the petitioners, and which were applied in reduction of the fund in his hands, were annually made, in the amounts equal to the interest upon the trust funds, after the death of Levi, and up to April, 1893.

The questions presented are: (1) Was the surviving trustee entitled to credit for the deficiency, so far as it may be attributable to the consequences of the mortgage made by Levi on the farm ? (2) Was he entitled to have allowed to him, in reduction of the principal sum of the fund, the amount of the payments so made by him to the petitioners annually ?

Both of the trustees were by the decree of April, 1884, directed to make the investment, and such was their duty under the will. Ko investment was made. The fund was treated as in the consideration for the conveyance of the farm to Levi. For this he was personally liable, And, as evidence that the fund was in his hands, he, in March, 1885, delivered to his co-trustee the following memorandum:

“This is to certify that I have in my hands the balance of the trust funds belonging to Mary Jane Stahl and Sarah A. Deal from the estate of John Litzenberger, late of Varíele, deceased.
Levi Litzenbegeb.
“Dated March 28, 1885.

This, evidently, was not the investment contemplated by the testator. Nor was the purchase money of the farm secured, as it usually is when real property is sold on credit. If the sale had been, made by the executors to any other person, and collection of the purchase money had been defeated wholly or partially by an incumbrance created by him upon the property, it would seem clear that the executor’s would have been responsible for their failure to take security. But the case here was rendered somewhat different by the fact that the purchaser was one of the executors and trustees, and had by the will been given the option to make the purchase. But he could not accomplish it without the conveyance of the other executor. It was by the act of the latter that the title was vested in him. The trust fund in question existed only in the farm, and never was otherwise in the hands of Levi Litzenberger, and that was placed there by the conveyance made by the respondent.

No liability arises against one of two executors for passively permitting the other to collect or receive the funds and assets of the trust estate, although they are wasted by him, unless he has reason to apprehend such consequence and takes no measures to prevent it. Ormiston v. Olcott, 84 N. Y. 339; Wilmerding v. McKesson, 103 id. 329; 3 St. Rep. 108; Cocks v. Haviland, 124 N. Y. 426 ; 36 St. Rep. 408. It. is otherwise when the trust funds are by his act placed in the hands of his co-executor or trustee, and without which he would not have had them. Then he may be responsible for the devastavit of the latter as to the funds so handed over to him. Croft v. Williams, 88 N. Y. 384 ; Bruen. v. Gillet, 115 id. 10 ; 23 St. Rep. 780. It was the duty of the respondent, as well as of Levi, to see to it that the trust fund which was to furnish the income for the petitioners was invested so as to render the purpose of the testator effectual. This trust was to be continued during the lives of the beneficiaries of the income, and that might embrace a long period of time. The respondent, being advised of this, conveyed the property to Levi, and relied wholly upon his personal responsibility and ability for the time the trust might continue to pay the interest upon the fund, and finally to pay the principal sum of it, to the children of the petitioners. He knew that there was no investment of it as. contemplated by the testator, and, therefore, that the trust in that respect was not duly executed. It would have been only ordinary prudence to have secured the purchase money by mortgage on the farm, and thus an investment of the trust fund would have been created. It is difficult to see why he should not be responsible in the duty assumed by a trustee who undertakes the execution of a trust. The fact that he did not suppose that his grantee would impair the fund by mortgage, or that he did not, until after his death, learn that he had, does not exonerate him from the charge of negligence in giving him the opportunity to do it. This, under the circumstances, was nothing less than culpable negligence on his part, and by reason of it he should be held responsible for the-deficit so occasioned in the trust fund. Earl v. Earle. 93 N. Y. 104. It is very likely that the application of that proposition to the accounting of the respondent may remove the deficit from the trust funds of the petitioners. However that may be, no reason appears to justify the reduction of the principal of the trust funds by application of the payments made to the appellants by the respondent annually as of the interest upon the funds. The recipients understood the payments to be of interest, and received them as such, and the surviving trustee was so advised when he made them. As the terms of the will are represented by the record, the petitioners were entitled to none of the principle sums of the trust. The payments' so made by them to the respondent were not applicable to the reduction of the principal, and should not have been so applied. Nor should the costs in his action against the personal representatives of Levi and others be applied in reduction of the fund in question, to the prejudice of the petitioners. They were not parties to the action. Nothing was realized from the judgment other than the surplus money before mentioned, which had been deposited with the county treasurer.

For these reasons, the decree of the surrogate’s court settling the accounts of the respondent as surviving trustee should be reversed, and a new accounting be had by him in that court, with costs to the appellants.

All concur.


author: Ward J.

text:
    Abram Shaver, App’lt and Resp’t, v. Nelson V. Eldred, App’lt and Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Costs—Appeal—County court.
    Under section 3073 of the Code, only the trial fee of twenty dollars, provided for in that section, can be taxed on an appeal to the county court.
    2. Same—Increased.
    Section 3258 of the Code does not authorize increased costs upon an appeal to the county court.
    Appeal from an order, modifying and settling defendant’s bill of costs as taxed by the clerk of the county.

      Hull Greenfield, for pl’ff; Charles H. Baker, for def’t.
   Ward J.

This action was commenced in a justice’s court of Cayuga county in 1883. A new trial was taken in the county court, which resulted in a judgment for the plaintiff. Defendant appealed to the general term of this court, and judgment was affirmed. 38 Hun, 632. Defendant then appealed to the court of appeals, where the judgment was reversed, with costs to abide event, and a new trial granted in the county court. Upon the new trial the plaintiff again recovered a judgment. Defendant appealed from this judgment to the general term, and this judgment was reversed, and a new trial ordered in the county court, witli costs to abide event. Upon a new trial in the county court, the plaintiff’s complaint was dismissed, with costs. The county judge before whom the cause was tried made a certificate, as provided by section 3248 of the Code of Civil Procedure, that defendant was entitled to increased costs, under section 3258 of the Code, for the reason that on the trial it appeared that the action was brought against the defendant by reason of acts done in aid or assistance of the superintendent of public works of the state of New York affecting the duties of his office. Final judgment was rendered in favor of the defendant in the county court in the summer of 1894, and the clerk taxed the defendant’s bill of costs at the sum of $945.75. Several objections were taken by the plaintiff’s attorney upon the taxation, all of which were overruled. Those important to be considered were as follows: Two items in bill of $30, each for trials in the county court, lasting more than two days; for making and serving case in court of appeals, $30; for increased costs, under section 3256, $247.50; for copies of stenographer’s minutes of the two trials in the county court, aggregating $23.16. Defendant moved for a review of this taxation before the county court, which was had, and that court made an order reducing the two items of $30 each for trial fees to $20 each, striking out the item of $30 for making and serving case in ■court of appeals, deducting $15 from the item of increased costs ■on account thereof, and striking out $87.50, being the amount charged for increased costs for proceedings in the county court. These deductions left the bill taxed at $793.25, and the clerk was directed to correct it accordingly. Both parties appealed from that order, and the questions are here for review.

The reductions of the trial fees in the county court from $30 to $20 must be sustained. Section 3073 regulates the costs of appeals in county courts, and fixes $20 as the trial fee. The stenographer’s fees, being in the aggregate $23.16, are not taxable as a necessary disbursement in the cause. This was held by the general term of the fourth department in Pfandler Barm, etc., Apparatus Co. v. Sargent, 43 Hun, 154; 5 St. Rep. 413 ; Judge Haight pronouncing the opinion, concurred in by Judges Bradley, Angle, and Ohilds. Section 3256 of the Code of Civil Procedure, prior to 1892, did not in terms specify stenographers’ fees for minutes of testimony as a disbursement; but chapter 185 of the Laws of that year amended that section, and included, as a proper disbursement, “ stenographers’ fees for minutes of testimony before a court, judge, or referee,” and provided that that act should take effect September 1, 1892. It was passed on March 24, 1892. On the 14th of May following, the legislature again amended this section by chapter 592, by simply omitting the provision as to stenographers’ fees, and providing that that should take effect on the 1st day of September, 1892. Chapter 185, therefore, in fact never went into operation, as the legislature, by the subsequent act, in effect repealed it, and indicated as the final judgment of the legislature that stenographers’ fees were not taxable disbursements. Section 3251 of the Code, which provides for amount of costs generally, gives the successful party for making and serving a case $20, and $10 in addition if the case contains more than fifty folios. - By subdivision 5 of that section, the successful party upon an appeal to the court of appeals is to recover before argument $30, for argument $60; and the section plainly contemplates that this is all the costs that shall be allowed except term fees. The bill, as taxed, allowed the defendant these two items in addition to the items complained of, and the county court was right in striking it out.

The plaintiff contends there should be no allowance for increased costs that have accrued upon any of the appeals in which the defendant was appellant, and he relies upon several decisions under the Revised Statutes giving additional costs to public officers, among which are Wheelock v. Hotchkiss, 18 How. Pr. 468, and Dockstader v. Sammons, 4 Hill, 546. The Revised Statutes (volume 2, pt. 3, p. 617, § 24) provided :

“In the following action, if judgment is rendered for the defendant upon verdict, demurrer, nonsuit, non pros, discontinuance of the plaintiff or otherwise in any action, certiorari, writ of error or other proceedings, such defendant shall recover the amount of his taxed costs, and one-half thereof in adition."

This statute has been repealed, and section 3258 of the Code substituted. By that section a defendant in whose favor a final judgment is rendered, upon receiving a proper certificate, is entitled to recover the costs prescribed in section 3251, and, in addition thereto, one-half thereof. The latter section fixes the costs which the successful party is entitled to under section 3228, and other sections of the Code, whether defendant, appellant, or respondent, and the additional allowance is based upon it. Porter v. Cobb, 25 Hun, 184, Burkle v. Luce, 1 N. Y. 239.

The serious question upon this appeal is whetner the county court was right in refusing the defendant the sum of $87.50, for increased costs in the county court. In Porter v. Cobb, supra, the general term of the third department held that such increased costs should be allowed, for the reason that section 3347 embraced county courts within the scope of section 3258. The position of the county court was that, as to appeals and the costs of trials on appeals to the county court, they were regulated and controlled by section 3073, which provides a bill of costs in the county court for such trials, and are therefore excepted from the operation of section 3251. And, as increased costs are only given where costs have accrued under section 3251, they cannot be recovered with relation to said county court trials.' All of the provisions of the Code bearing upon this subject should be considered in determining this question. Section 3258 predicates the additional costs upon the costs recoverable under section 3251. The costs of appeals in county courts are controlled exclusively by section 3073, which provides for all proceedings before notice of trial, $15; for all subsequent proceedings before trial, $10; for new trial of an issue at law, $15 ; for new trial of an issue of fact, $20; for argument for motion for new trial, $15 and term fees. There is no provision in this section for increased costs, and the section is entirely independent of section 3251. Authority must be found in the statute for the imposition of costs. Such authority will not be inferred, and certainly none is contained in the statute cited for imposing additional costs upon the plaintiff in proceedings in county court. The defendant cites Porter v Cobb, as authority for this extra allowance. That court held that such increased costs should be allowed, for the reason that section 3258 came under the second title of chapter 21 of the Code; and as subdivision 13 of section 3347 restricts the application of this second title to the actions in one of the courts specified in subdivision 4 of section 3347, and as the county court is one of the courts enumerated in subdivision 4, therefore, the section giving the increased costs applies to county courts. With all due respect, this reasoning seems more specious than sound. The purpose of subdivision 13 was to restrict the general application of the second title of chapter 21 to certain courts, being the most important courts and courts of record, and should not be construed as doing away with the obvious purpose of the other sections of the Code bearing directly upon the question.

Section 3261, which is a part of the article embracing sections 3251 and 3258, provides: “This article does not affect any provision contained elsewhere in this act or in any other statute remaining unrepealed * * * whereby the amount of costs is specially fixed in a particular case, otherwise than as prescribed in this article.”

Section 3073, providing for costs upon appeal to county courts, is not part of the article embracing sections 3251 and 3258, and, therefore, comes within the restrictive provision of section 3261, above quoted.

The attention of the court in Porter v. Cobb, does not seem to have been called to section 3261, or to the exceptions to the operations of section 3247, stated at the very commencement of that section, and we are unable to concur in this respect with the learned court in Porter v. Cobb.

It is said that no reason exists why the county court should be exempted from the operation of section 3258. The answer is that that suggestion should be addressed to the lawmaking power. There must be some statute authorizing costs before they can be imposed. Equitable Life Assurance Society v. Hughes, 125 N. Y. 108 ; 34 St. Rep. 591.

The order of the county court should be modified by striking out the stenographer’s fees of ° $23.16, and, as modified, affirmed, without costs to either party.

All concur.


text:
    Maria Brinkerhoff, App’lt, v. Amarilla B. Sartwell, as Executrix, etc., et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Sale—Rescission.
    A sale of shares of stock will not be rescinded for false representations, made by the, purchaser to the vendor’s agent, where such agent had better knowledge of the condition of the business of the corporation than the purchaser, and such knowledge was present in his mind at the time of the transaction.
    2. Same.
    The evidence was held to sustain a' finding that the agent had better knowledge than the buyer of the condition of the corporation and acted with such knowledge.

      Appeal from a judgment, dismissing, the complaint on the merits.

      S. E. Payne, for app’lt; W. E. Hughitt, for resp’ts.
   Bradley, J.

The plaintiff was the owner of twenty-five shares, and her son, Frederick D. Brinkerhoff, of two shares, of the stock of the Empire Wringer Company, at the par value of $100 each, and on the 31st day of December, 1878, through Jacob Brinkerhoff, the husband of the plaintiff, those twenty-seven shares were sold to Henry J. Sartwell at the price of $31.50 per share. The plaintiff, having taken an assignment of the alleged claim of her son, seeks a rescission of the sale and transfer of the twenty-seven shares of stock, and recovery of the amount of dividends paid upon them since the transfer, on tire alleged ground that the sale of the stock to him was procured by the fraud of Sartwell. The Empire Wringer Company, as a partnership formed in 1873, composed of Jacob Brinkerhoff -and others, continued until January 1, 1877, when it was succeeded by' the company as a corporation, and its capital consisted of patents, material, manufactured goods, machinery, belting, tools, patterns, sheds, fixtures and unexpired insurance, estimated at $62,278.97, transferred by the partnership to the corporation with the good will of the business of the partnership, estimated at $1,121.03, making together $64,000, which constituted the capital of the company. The corporation thereupon issued 640 shares of its capital stock, of the par value of $100 each, of which 134 shares were issued to Jacob Brinkerhoff, and twenty-five shares, by his direction, to the plaintiff, his wife, and the residue to others; and it entered upon the business of manufacturing clothes wringers, barbed fence, cot beds and wash benches. The manufacture and sale of the wringer proved to be a profitable business, which from and after 1878 was productive of dividends to the stockholders. The barb-fence branch of the business was a burden, and had resulted in "a loss of about $45,000 to the company at the time of the sale of the stock. The alleged fraud is predicated upon representations made by Sartwell to Jacob Brinkerhoff, who acted as the agent of his wife and son in making the sale. If the referee had adopted the testimony of Brinkerhoff as correctly representing the transaction of the sale, it is very likely that the conclusion would have followed that Sartwell was chargeable with misleading Brinkerhoff by false and deceptive representations in making the purchase. But the referee has not found, and has refused to find, the facts in accordance with such testimony, which, in view of the relation of Brinkerhoff to the transaction and to the plaintiff, the referee was permitted to do. In the outset Brinkerhoff applied to Sartwell for a loan upon the security of the stock, which was declined, with the remark that he would purchase it at its value. Shortly after Brinkerhoff advised Sartwell that his wife and son had concluded to sell the stock, and the referee found that thereupon Sartwell stated (as he had proposed in the first interview) that he had Investigated the business; that it was in bad shape ; was hardly paying expenses; that the wringer business had fallen off; that the fence business had absorbed a large amount of the assets ; that he did not care whether he bought or not; that it would be a good deal like buying a cat in a bag; that he would pay $31.50 per share for the twenty-seven shares, which, in his opinion, was all it was worth. His propositan was accepted, and the transfer of the certificates made. The referee further found that Sartwell made the statements, not from actual knowledge, but from the conclusion he drew from the investigation of the books, and from conversations with the officers of the corporation, that he had reason to believe that the representations made by him were true, and that they were so nearly as he could ascertain; that they were not made with intent to deceive or to induce the sale of the stock for less than its value; that the agent Brinlcerhoff, by reason of his relation to the corporation as one of its organizers, stockholders, trustees, and its general sales agent, had a better knowledge than Sartwell of the condition of its property, business, and affairs; aud that “ this knowledge was present to' his mind when he sold these twenty-seven shares of stock.” And the referee added that, in view of the situation as it appeared at the time of the sale, the shares of the stock were not fairly worth to exceed $31.50 per share. The view which the referee was permitted to take of the evidence as a whole enabled him to find the facts as he did find them. Sartwell’s death has deprived the defense of his evidence. And as the transaction occurred more than ten years before the trial, and eight years before the action was commenced, the referee may be deemed to have been justified ih subjecting to his careful scrutiny the testimony of witnesses who seemed to have some interest in the question. His findings upon the subject of the statements made by Sartwell in the negotiations which resulted in the sale of the stock, and relating to the inducements for making it to him, were fairly permitted by the evidence, and on this review are treated as supported by it. As it turned out, the stock was at the time of the sale worth much more than the price paid for it, as for several years thereafter is was productive annually of a very respectable dividend. But, shutting out from view the subsequent events, the value of the stock at the time of the transfer was quite uncertain. It was dependent solely upon the success of the business. Ho dividend had then been made since the creation of the corporation. As part of the capital on its organization consisted of patents estimated at $25,000, reduced in 1878 to $19,269.51, some of which would expire in a . few years, the branch known as the “ barb-fence business ” had been carried on at a loss of about $45,000, and there was then apparently an increasing competition in the wringer business. The sales of the wringer had in 1878 fallen considerably below those of each of the years 1875, 1876, 1877, and such decrease in the number was from 26,524 in 1875, to 18,256 in 1876, to 15,526 in 1877, and to 13,435 in 1878. The company had concluded to close out or dispose of the barb-fence branch of the business, which was done the next spring. And while the wringer branch had been productive, and would have yielded dividends in the years 1877-78, if the corporation had not been burdened with the losses in the

barb-fence department, the result of the business in the then future was a matter of speculation and uncertainty. The opportunity of Brinkerhoff to have and entertain an opinion founded on his judgment was no less than that of Sartwell. Brinkerhoff was one of the organizers of the business' of the partnership as well as the corporation. He seems to have given the barb fence branch his preference, and sought patronage more especially for that on his trips as sales agent; but he was at the place of business of the company a considerable portion of the time, and in 1878 he attended seven of the ten meetings of the trustees that year. The finding of the referee that Brinkerhoff had better knowledge than Sartwell of the condition of the business of the corporatien, and that such knowledge was present in his mind at the time of the transaction in question, was warranted by the evidence. And the conclusion properly followed that the plaintiff and her assignor were chargeable with the knowledge which their agent Brinkerhoff had of the property, business, and prospects of the corporation at the time of the sale of the stock, Constant v. University of Rochester, 111 N. Y. 604; 20 St. Rep. 211. This proposition, however, has but little significance in the present case, since the question of fact on the main issue was determined by the findings of the referee adversely to the plaintiff. There was no error in the exclusion of the evidence of the plaintiff offered to prove what her husband told her Sartwell had said to him in regard to the stock. In that transaction Brinkerhoff was and acted as the agent of the plaintiff, and in no sense represented the purchaser. The judgment should be affirmed.

All concur.


author: Van Brunt, P. J.

text:
    John A. Holmes, Resp’t, v. Andrew Little, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Fraudulent conveyances—Proof.
    A finding, in an action to set aside a deed for fraud, that it was signed', sealed and acknowledged and caused to be recorded by the grantor, and that the grantee was ignorant of the existence of the deed until five years after it was recorded, is insufficient to support a judgment against the grantee, in the absence of a finding that the deed was delivered to him.
    2. Same—Subsequent creditors.
    Tiie intent of the grantor is immaterial as to a creditor whose debt accrued afterwards, unless lie then expects him to be a creditor and executes and delivers the deed with the intent of defrauding subsequent creditors.
    3. Bankruptcy—Action to set aside deed.
    After the appointment of an assignee in bankruptcy, a creditor cannot maintain an action to set aside a deed made by the bankrupt, but the assignee alone can sue.
    Appeal from an interlocutory and final judgments in favor of plaintiff.

      A. C Thomas, for app’lt; T. J. Keighurn, for resp’t.
   Van Brunt, P. J.

From the findings made by the court upon the trial of this action, it appears that on the 1st of November; 1873, one James Boyle was seized in fee simple of certain lands and premises known as “ Ros. 22 and 24 Mangin Street,” in the city of Rew York; and that on or about said 1st Rovernber, 1873, said James Boyle and Margaret, his wife, signed, sealed, and acknowledged a deed of said land and premises purporting to convey the same to one Andrew Little, the defendant. The consideration expressed in said deed was the sum of $16,000, and the assumption of mortgages upon said property, amounting to the sum of $4,900. The paper so signed, sealed, and acknowledged was caused to be recorded on said 1st of Rovernber, 1873, by said Boyle. At no time prior to the recording of said deed did the defendant authorize or sanction the placing of the same upon record ; and the defendant was ignorant of the existence of the same until about the month of January or February,1878, when the same was handed to him, and he objected to the same, and returned the same to said Boyle or his attorney, and left the same with said Boyle’s attorney, to have the same corrected or exchanged. The defendant never afterwards got said deed from said Boyle or said Boyle’s attorney. The consideration of $16,000 expressed in the deed was never paid, and the grantee never paid or agreed to pay for said property the sum of $16,000, and never agreed to assume or pay the mortgages upon said property. From the day said paper was signed, Rovernber 1, 1873, down to the time of his death, on the 26th of January, 1881, James Boyle remained in possesion and control of the premises, and he never paid to the defendant, Little, the grantee in said deed named, and the said defendant never asked, demanded, or received from said Boyle, any rent for the same. The court further found that said alleged deed was signed, sealed, and acknowledged by said James Boyle with the intent and for the purpose of hindering; delaying, and defrauding his creditors, and not with the intent of conveying said property to the pretended grantee, the defendant herein ; and that during the year 1874, and down to and after the year 1879, the said Boyle was indebted to the firm of W. & A. Holmes &Co., hereinafter mentioned, and was during a part of that period engaged in creating or incurring the debt for which the judgment found in the first finding herein was rendered and given. During the year 1878, James Boyle was adjudicated a bankrupt, on his own petition, in the district court of the United States for the Southern district of Rew York, and the court refused to grant him a discharge from his debts. On the 26th of October, 1880, the plaintiff, John A. Holmes, and his copartners, doing business under the said firm name of W. & A. Holmes & Co., recovered a judgment against Boyle in the supreme court of the state of Rew York for the sum of $9,637.30. Subsequently, the plaintiff became the sole owner of said judgment. From the year 1883 to the 6th day of January, 1891, the defendant has received from said premises, as rent for the same, sums varying from $700 to $800 each and every year, the exact amount of- which is unknown. The assignee appointed in bankruptcy died before the commencement of this action, and he never took or instituted any legal proceedings to have the alleged deed, which was signed, sealed, and acknowledged by said James Boyle and wife on the 1st of November, 1873, to the defendant, declared void, or to compel the said defendant to account for the proceeds of said property. On the 1st of November,. 1873, James Boyle was not indebted to the firm of W. & A. Holmes & Co., nor were said firm nor its members then creditors of said Boyle. The claims for which the judgment of the firm of W. & A Holmes & Co. against Boyle was obtained were upon three notes,—one dated September 8, 1875; one dated October. 16, 1877; and the other dated December 15, 1877. On the 19th of January, 1891, the defendant sold and conveyed to one John Nealy the premises in question, for the consideration of $16,000. 'The defendant received from said Nealy $5,000 of said purchase money, and now holds a mortgage for $11,000 on said premises, upon which interest has been paid by Nealy to the defendant. Prior to the 16th of Januazy, 1893, the plaintiff duly instituted and took legal proceedings to obtain leave to issue an •execution upon said judgment against Boyle to enforce and ■collect the same out of said real estate; and on the 8th day of May, 1891, the surrogate’s court duly made and entered a decree granting the plaintiff leave to issue said execution. On the 16th of January, 1893, such execution was duly issued, and the same was levied upon the real estate in question ; and such real estate was sold for the sum of $12,165.75, leaving a balance remaining uncollected of said judgment of $4,656.15. Upon this ■state of facts the court found, as conclusions of law, that the alleged deed, signed, sealed and acknowledged by said James Boyle on the 1st of November, 1873, was signed, sealed, acknowledged and recorded by him with the intent and for the purpose of hindering, delaying, or defrauding the creditors of said Boyle; that said alleged deed was never delivered to or accepted by the defendant prior to January or February, 1878 ; that ever since the 126th of October, 1880, said judgment, recovered by Holmes & Co., has been and continued to be a lien on said land and premises •down to and including the 18th of Maz’ch, 1893, the day upon which the sheriff sold the same under said execution; that the plaintiff is entitled to judgznent in this action, against the defendant, declaring said alleged deed of said premises fraudulent and void as to the plaintiff; that thez-e was due to said plaintiff on said judgment the sum of $1,656.15; and that the plaintiff was entitled to judgment against said defendant for an accounting of the rents and profits of such land and premises received by him; and a refez'ee was appointed to take and state the account. This interlocutory judgment was subsequently aznended by requiring the defendant to accozint for the rents which said defendant might or could have received during all the time he claimed to have held possession of said pz’operty. An accounting being had before the referee, the referee refused to allow the defendant the taxes and assessments paid upon the property, besides the interest paid upon the taxes, and chaz'ged the defendant with a yearly rental, .amounting to about $800, as the rental which he might or could have received from said premises between the 1st of Novembez-, 1873, and the 1st of September, 1882, when he first began to col-lect the rents. Upon the coming in of this report, a final judgment was entered, and from said interlocutory and final judgment this appeal is taken.

Upon an examination of the foregoing facts, it seems to us that they are fatally defective, in the first place, in not finding that there was ever any execution of the deed in question by delivery to the defendant; and, in the next place, the question as to what • was the intent of James Boyle in the signing, sealing and acknowleding of the deed on the 1st of November, 1873, seems to be entirely immaterial as far as this plaintiff was concerned. He was-not a creditor of Boyle at that time. It is not found that he expected to be a creditor, or that Boyle expected him to be a creditor, nor that Boyle signed, sealed, acknowledged and delivered the-deed in question with any intent of defrauding subsequent creditors. The claims upon which the judgment is obtained which is-the foundation of this suit, seem to have accrued in 1877, and, therefore, the conveyance by Boyle in 1873 does not seem to have done much harm to this plaintiff. If it be said that Boyle remained in possession of the premises to the time of his death, and. was in possession thereof at the time of the contracting of this debt, our attention has not been called to any evidence or to any finding that any portion of this debt was contracted upon the faith or knowledge or the assumption of knowledge of ownership in Boyle in the premises in question. It is expressly found that the defendant .never accepted the deed, and consequently there never was a complete execution of fhe deed, it never having been delivered to and accepted by him. It is true that from 1883 down to the time of the sale to Nealy the defendant collected the rents of the premises in question, and from such action it might be inferred that the defendant had from that date accepted the conveyance, and gone into possession of the premises. But how, under such circumstances, he can be charged with the value of the use and occupation of these premises from the 1st of November, 1873, down to the time when he commenced to take the rents, it is difficult to imagine.

Further, it is found that during the year 1878, James Boyle was adjudicated a bankrupt on his own petition, and it would appear that an assignee in bankruptcy was appointed, because it is found that the assignee appointed in the bankruptcy proceeding died before the commencement of this action, having taken no proceeding to set aside the deed in question. Now, it is a well-settled rule of law that, upon the appointment of an assignee in bankruptcy, all the property of the bankrupt becomes vested in the assignee by virtue of the adjudication of bankruptcy and the appointment of such assignee, and all property conveyed by the bankrupt in fraud of his creditors is expressly included therein. The title to the rents and profits which are claimed in this action by the plaintiff was vested, therefore, in the assignee in bankruptcy, and, he having died, belonged to his successor, when such successor shall be appointed. Even if it be assumed that the creditor, where assignee refuses to bring an action for the purpose of recovering property belonging to the estate, may bring such action making the assignee a party, the fruits of such action, however, must be brought in court for the benefit of the creditors of the bankrupt, to be administered in due course of proceedings in bankruptcy. Such an action is an aid to the bankruptcy proceeding, and of the application of the property fraudulently disposed of by the bankrupt to the payment of his creditors generally. In such a proceeding no creditor can procure a preference by reason of the bringing of such an action. In the case at bar the plaintiff seeks to seize upon this asset, without regard to the rights conferred by the bankruptcy proceeding, and without regard to the rights of any other of the creditors of James Boyle who may be entitled to participate therein. In other words, the plaintiff seeks to have this court to administer the estate of the bankrupt, the title to which has been divested by the proceedings in bankruptcy, and not represented before the court.

It seems to us that the judgments must be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concur.


text:
    John Van Voorhis, Resp’t, v. Hawley E. Webster et al., Def’ts. Charles E. Bostwick, as Receiver, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Partnership—Firm propery.
    A partnership agreement, which requires one of the members to furnish for the use of the firm, during its continuance, all necessary teams, in conducting the business, does not render the teams, owned and supplied by him, firm property.
    Appeal from an order, denying a motion to vacate a warrant of attachment.

      Arthur Sutherland, for app’lt; John Van Voorhis, for resp’t.
   Bradley, J.

The defendant Hawley E. Webster, by means of false representations, obtained of the plaintiff $500, on the credit of his firm of H. E. Webster & Co. Afterwards, on September 27, 1894, this action was commenced, and the warrant of attachment issued therein was levied upon partnership property of the defendants, composing such firm. On the following day, in an action for the dissolution of the firm, etc., Charles E. Bostwick was appointed receiver of the partnership assets, and his motion to vacate the attachment was shortly thereafter made. The grounds recited in it are that the defendants have disposed of and are about disposing of their property with intent to defraud their creditors, and that they are secreting themselves, and keeping themselves concealed to avoid the service of a summons. The motion to vacate the attachment was made, not only upon the papers on which it was allowed, but also upon other affidavits and papers. The latter ground so recited in the attachment was unsupported by the affidavits. The defendants did not seek to keep themselves concealed, and there was nothing in the affidavits tending to indicate that any of ■defendants other than Hawley E. Webster sought to do so, Bogart v. Dart, 25 Hun, 395; and as to him the charge is not well sustained.

The question is whether or not the attachment is supported on the ground that the defendants had assigned or disposed of their property with intent to defraud their creditors, were about to do so with such intent. The defendant H. E. Webster, having the office of postmaster at Brockport, N. Y, had appropriated to his own use government funds derived from the business of the post office to the amount of about $2,000. He was unable to pay it. The persons who were his sureties paid the amount. Thereupon he and his wife, Ella A. Webster, individually, and as members ■of the firm of H. E. Webster & Co., sold and transferred to them nil their right, title, and interest in the partnership, together with their interest in the accounts, notes, claims, and demands belonging to the partnership, including the lease of the coal yard. They also conveyed to the same persons a farm of sixty acres. Mrs. Webster conveyed to them the premises on which the coal yard was located, and the lot on which she and her husband resided, and Mr. Webster transferred to them his horses, wagons, harnesses, etc. Those conveyances, sales, and transfers were made to secure and indemnify those persons on account of the liability they had assumed as sureties in the execution of Webster’s official bond as postmaster. The support of the attachment is dependent upon the fact that such sales and transfers were to some extent as against the creditors of the firm. The articles import a limited partnership, of which the defendant Brown was a special partner. The case, as presented here, does not show that all was done which was requisite to constitute her a special partner, within the statute. 1 Rev. St. pp. 764, 765. But, by the articles of copartnership, it was provided that she should, as a special partner, furnish $6,000; that Ella A Webster should contribute to the capital stock of the firm the use of the coal yard, office, and appurtenances ; and that Mr. Webster should “furnish for the use of the copartnership, during its continuance, all necessary teams, wagons, sleighs, and tools necessary to use in conducting the business; the teams, wagons, etc., owned by said Hawley E. Webster being estimated to be worth $1,200.” The prescribed time of its continuance was until April 30, 1896. The title to the premises constituting the coal yard was in Mrs. Webster, and the title to the teams, wagons, sleighs, and tools seems to have remained in Mr. Webster while they were in the use and service of the firm. By transferring her right as lessor in the lease given to the firm and the coal-yard premises, Mrs. Webster transferred only her individual property ; and by transferring the horses, wagons, etc., Mr. E. Webster sold no partnership property. And the assignment of their interest in the firm and in its assets by Mr. and Mrs. Webster was neces-. sarily subject to all its debts, and could result in nothing unless a surplus remained after all such debts were paid. Hayes v. Reese, 34 Barb. 151; Mowbray v. Lawrence, 22 How. Pr. 107.

It is urged on the part of the plaintiff that the sale by Hawley ,E. Webster of the horses, wagons, sleighs, and harnesses in the use of the firm was a sale of the partnership property. The fair construction of the terms of the articles of copartnership does not seem to characterize that as firm property. Webster did not agree to furnish any particular horses, wagons, etc., for the use of the firm, although he contemplated applying those he had on hand to such use. He merely undertook to furnish, for the use of the firm, all teams, wagons, sleighs, and tools necessary to use in conducting the business. This was his contract. It was a mere matter of undertaking on his part. He might at his pleasure, without breach, take any of those things out of the business, and put in others suitable for the service. The title remained in - him. He might also perform his undertaking by furnishing to such use teams and tools belonging to others, and hired by him for the service. In transferring the horses, etc., Webster sold no property belonging to the firm.

It is urged on the part of the plaintiff that the'use of the firm name in making transfer of the partnership property was unnecessary, and that the sale by Mr. and Mrs. Webster, who were the general partners, of their interest in the partnership property, apparently carried the title to the property of the firm. That proposition is not deemed sound. Treating this as a limited partnership, and the defendant Brown as a special, and not a general, partner (which,cannot well be done as against creditors), the partnership business could properly be conducted by the general partners only; and although the special partner could not, without becoming a general partner, participate in the conduct of the business she had an interest in the partnership property and business; and for that purpose, and to compel the general partners to account, she had, as between them, the same rights they had. 1 Rev. St. p. 766, § 18; Fifth Avenue Bank v. Colgate, 120 N. Y. 881; 81 St. Rep. 431; Continental National Bank v. Strauss, 137 N. Y. 148; 50 St. Rep. 208. They, by the articles of copartnership, adopted the firm name of H. E. Webster & Co., that by which the partnership contracts could be made in the business by one or more and less than all of the partners. As has been suggested, the defendant Brown had a due proportionate interest with the others in the partnership property. The transfer made by the other members did not purport to, nor did it, include anything more that their interest in it. Those two could do no more than that without using the firm name in making a transfer. National Bank of Salem v. Thomas, 47 N. Y. 15, 19. It is not seen that Mr. and Mrs. Webster attempted to dispose of the property of the partnership for the purpose of securing or discharging his individual liability. But it does appear that there was a consideration for the transfer which he made, and procured his wife to make in his behalf. There is no reasonable opportunity for imputation that in its purpose it was done with intent to defraud the creditors of the firm. And, as they disposed of no partnership property for his individual purposes, there seems to be no support for the attachment.

The order appealed from should be reversed, and the motion granted.

All concur.


text:
    Frank J. Bissing, App’lt, v. Lewis L. Smith et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Adverse possession—Proof.
    A party, who claims title by adverse possession, must prove entry and actual possession of the premises under his claim of title.
    2. Same—Color of title.
    When entry is made under claim of title, the possession will he deemed adverse, though the supposed title is groundless.
    3. Appeal—Directing verdict.
    Where the defendant does not request the submission of any question to the jury, but, by his motion for a nonsuit, treats the case as presenting-questions of law only, and the court directs a verdict for the plaintiff at his request, the questions of fact must be deemed to have been disposed of by the court adversely to the defendant.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Edward D. Strebel, Edwin C. Robbins, and Geo. Clinton, for pl’ff; John A. Ronayne and Stephen Lockwood, for def’ts.
   Bradley, J.

The action is ejectment to recover the possession of a parcel of land, within what is know as the “Buffalo Greek Reservation,” in the county of Erie. The main question is whether the evidence was sufficient to establish title in the plaintiff to the premises. It appears that on the 12th day of September, 1810, Wilhem Willink and others constituting the Holland Land Company to their attorney, Paul Busti, conveyed to.David A. Ogden about 200,000 acres of land lying west of the Genesee river, and within what was known as the “ Cattaraugus Reservation," “ Tuscarora or Seneca Reservation,” “Buffalo Greek Reservation,” “Allegheny Reservation,” “ Caneadea Reservation,” and the “ Tonawanda Reservation.” The beneficiaries of that purchase and conveyance were Ogden and his associates, and the trusts upon which the title was taken and held were declared in the subsequent deed, of date February 8,1821, covering the same property, made between David A. Ogden and wife, of the first part, Paul Busti, of the second part, Joshua Waddington and others, of the third part, and Robert Troup, Thomas Ludlow Ogden, and Benjamin Woolsey Rogers, of the fourth part, by which conveyance was made to the parties of the fourth part upon the trusts that they and the survivors or survivor of them should have the premises surveyed into lots, for the purpose of division into twenty shares, and make partition between the associates in the manner mentioned, so far as, in their judgment, the lands are susceptible of such division, and that they sell at public auction and convey such of the lands as they might deem not susceptible of such division; and they were given full power and direction to treat with the Seneca Nation of Indians for the purchase or extinguishment of the native claim to all or any part of the lands. The parties of third part were the beneficiaries and associates, and constituted what wag known as«the “ Ogden Land Company.” The next deed was that of date December 19, 1829, made between Robert Troup, Thomas Ludlow Ogden, and Benjamin W. Rogers of the first part, Joseph Fellows and Charles G. Troup, of the second part, and Thomas Ludlow Ogden, Joseph Fellows, and Charles G. Troup, of the third, part. In it is recited the prior deed of February 8, 1821, and its purpose; the progress made in treating with the Indians; and that certain portions of the premises have been, partitioned and allotted to the associates, etc. Then it proceeds to describe the lands still held by the parties of the fourth part in the deed of February 8, 1821, and adds that, Robert Troup and Benjamin Woolsey Rogers having at a meeting •of the associates signified their desire to be released from the further execution of the trusts, “it was resolved by the associates so convened that all the residue and remainder of the said trust estates should be vested for the like purpose and upon the like trusts •in the said ” parties of the third part, in pursuance of such resolution. And conveyance was accordingly made to Joseph Fellows and Charles G. Troup upon such trusts, to be held by them and the survivors or survivor of them. In a deed made July 16,1840, between Benjamin W. Rogers and others of the first part, and Thomas Ludlow Ogden and Joseph Fellows of the second part, is recited the deed of December 19, 1829, the death of Charles G. Troup, the progress which had been made in the execution of the trusts, and the shares of the parties of the first part (which constituted twelve-twentieths of the entire interests). The deed then proceeds to grant the estate to 'the parties of the second part, repeats the trusts, and grants to them power, in the events and for the purposes mentioned, to sell lands by public auction or private contracts. And in the deed of date September 21,1871, made between Joseph Fellows, of the first part, and George.R. Babcock and Charles Edgar Appleby, of the second part, after reciting the deed of December 19, 1829, and the death since then of Thomas Ludlow Ogden and Charles Troup, it was further recited that, Joseph Fellows having signified his desire to be relieved from the further execution of the trust, at a meeting of the associates or proprietors of the trust property convened in the city of New York, it was resolved by them that the residue and remainder of the trust estate be vested in George R. Babcock and Charles E. Appleby, as trustees, to hold for the like purposes and upon the like trusts as the same had hitherto been held by Fellows, and grant was made to them accordingly. Babcock died in September, 1876; and after-wards, November 1, 1892, Charles E. Appleby, describing himself therein as the sole surviving trustee of the estate and interests commonly called the “Ogden Land Company,” executed and delivered to the plaintiff a deed purporting to convey the land in question to him. The compact entered into between the states of New York and Massachusetts in 1786 whereby the sovereignty and jurisdiction over the disputed territory in the western part of this state were ceded and surrendered to the state of New York, and the right of pre-emption in the land to the state of Massachusetts, the conveyance by the state of Massachusetts of the western part of that territory, subject to the native right of the Indians, to Robert Morris, and his conveyance of a considerable portion of it the Holland Land Company, are matters of public history in this state.

The objection to the introduction in evidence of the first deed above mentioned, on the sole ground that no title was shown in the Holland Land Company, is deemed not well taken. As the defendants did not on the trial raise the question of power of Paul Busti, as attorney for that company, to execute the deed, it is not available on this review. The .fact, it may be, would have been supplied if the objection had been taken.

The power of Appleby, as trustee for the Ogden Land Company, to make the conveyance to the plaintiff, is. questioned, and excep- • tian was taken to the introduction of the deed in evidence. The purpose of the deed of February 8, 1821, was to declare the trusts upon which title had been taken by Ogden from the Holland Land Company, and to convey the land to the persons named as trustees for the execution of the trusts. The purpose of the deed of December 19, 1829, was to substitute Fellows and Charles G. Troup in place of those who then retired, and, by grant, place them in such relation to the lands remaining subject to it as to enable them to execute the trust. This, as appears by recitals in the deed, was pursuant to the consent and resolution to that effect of the beneficiaries of the trust; and the retirement of Fellows as the sole surviving trustee, and the substitution of Babcock and Appleby as trustees, were accomplished by the deed of September 21,1871, pursuant to the like consent and resolution of the beneficial proprietors, as is also recited in the deed. Those recitals are0 evidence only against the parties to the deeds and their privies in estate and blood. Hardenburgh v. Larkin, 47 N. Y. 109. When those deeds-were put in evidence, it did not appear on what the defendants” alleged claim, of title was founded, and it could not then be assumed that their claim of title was paramount to that conveyed by the Holland Land Company to Ogden. It afterwards appeared that the defendant Lewis L. Smith was in possession of the land for some time prior to March 24, 1875; that an action had been commenced against him by Babcock and Appleby to recover the possession of it, and on that day the action was, pursuant to arrangement between the parties to it, discontinued; that Smith, upon a consideration expressed of $250, executed and delivered to George B. Babcock, as trustee, a deed of conveyance of the said premises to him, which deed was recorded the same day, and they joined in the execution of a lease made by Babcock, as such trustee, to Lewis L. Smith, for the term of one year. Holding over after the expiration of the year, Smith, by summary proceedings under the statute, instituted by Babcock in April, 1876, was removed from the possession of the premises. The surrender and conveyance of them to Babcock as trustee, and taking from him, as such trustee, the lease, placed Smith in such relation to the title conveyed to Ogden and to the trusts in behalf of the proprietors as to render the recitals in the deeds evidence against him. Babcocik and Appleby were apparently clothed with power to execute the trusts, and assumed to-do so. The land in question was part of that conveyed to Ogden. The conveyance by Smith to Babcock, as trustee, inured to thetvast. On the death of Babcock, the powers of the trustor powers in trust devolved upon Appleby, as the survivor. And, as among the powers of the trustees was that of sale, it will be presumed that the sale and conveyance were effectually made to the plaintiff, notwithstanding the conditions in that respect in the grant of the power. Minuse v. Cox, 5 Johns. Ch. 441; Marshall v. Stephens, 8 Humph. 159; Schenck v. Ellingwood, 3 Edw. Ch. 175.

It appears that the next year after he was removed from the premises, and in 1877, Lewis L. Smith again went into possession of them. So far as appears, he did so without any right or permission. In 1891 he executed and delivered to his son, the defendant Louis John Smith, a quitclaim deed of the premises. This grantee alleges that he then entered under a claim of title, founded, upon such conveyance, and exclusive of any other right; and it, is urged in his behalf that the deed of conveyance made by Appleby, as trustee, to the plaintiff in 1892, was champertous and void, by force of the statute which provides that “every grant of lands shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor." 1 Rev. St. p. 739, § 147. This question could not arise if the defendant Lewis L. Smith had continued in possession from the end of the term of the demise to him, as then no grant could within twenty years of such continued possession have been made by or taken from him other than in subordination to the title of his landlord. Whiting v. Edmunds, 94 N. Y. 309; Bedlow v. Dry Dock Co., 112 id. 265; 20 St. Rep. 707; Church v. Schoonmaker, 115 N. Y. 570; 26 St. Rep. 779. But on his eviction from the possession, and surrender of it to his landlord, his relation of tenant was terminated, and he was enabled, on returning to the possession, to assume to occupy in hostility to the owner. His possession, however, will be deemed to have been in subordination to the legal title, unless held adversely to it for twenty years. Code Civ. Proc. § 368. Yet a person taking a deed of conveyance from him, and entering under it, might be deemed in possession, claiming under a specific title, adverse to that of the grantor of any conveyance made to another while such actual possession continued. Crary v. Goodman, 22 N. Y. 170; Sands v. Hughes, 53 id. 287; American Bank Note Co. v. New York El. R. Co., 129 id. 252; 41 St. Rep. 531.

The burden was with the defendant Louis J. Smith to prove that he entered into and was in the actual possession of the premises under such deed to him, and holding adversely to the title of the plaintiff’s grantor, at the time the deed was made to the plaintiff. He has the benefit of no inference in support of such facts. Howard v. Howard, 17 Barb. 663. As a general rule when entry is made under color of title, the possession will be deemed adverse, although the supposed title is groundless. La Frombois v. Jackson, 8 Cow. 589. And the grantee, so entering under color of title, is not 'required to inquire into the nature of the title of his grantor, nor is he chargeable with constructive notice of its defects. Sands v. Hughes, 53 N. Y. 287. It is not the policy of the law in this country to give this rule of the common law, embraced in the ■champerty statute, a construction and effect more liberal than its terms necessarily require. It has been held that to constitute possession adverse, so as to render a deed subsequently made void, the party asserting it must rely upon his title, and believe it to be good, although it may be otherwise. Livingston v. Iron Co., 9 Wend. 511. This doctrine, however, has been questioned in later cases, and it may be that the question of good faith in that respect on his part is not one for consideration. Sands v. Hughes, 53 N. Y. 296, 297; Munro v. Merchant, 26 Barb. 402. But whether or not he is in the actual possession, holding adversely, under a claim of a specific title, at the time the subsequent.deed is made, is usually a question of fact for the jury. In La Frombois v. Jackson, 8 Cow. 579, Chancellor Jones said: “ The fact of possession and its character, or the quo anima of the possessor, are the testand added that in that case the continued possession was conclusively shown, and the quo anima was apparent from the uniform claim of title and continued acts of ownership. See, also, Livingston v. Iron Co., 9 Wend. 518 ; Pownal v. Taylor, 10 Leigh, 172; Machlot v. Dubreuil, 9 Mo. 477; Beverly v. Burke, 9 Ga. 440.

Iu the present case the defendant Louis J. Smith testified that he took possession of the premises about the time the deed was made to him; that he has ever since held possession of them under the quitclaim deed from his father, and has used the premises for farming and gardening purposes; that he built a barn and house there; and that he has never recognized any outstanding title in any one to the premises. He also testified that his place of residence was in the city of Buffalo, and he cultivated part of the land himself, and- a portion of it was worked by his tenant; and it appears that during that time his father continued to reside on the premises. The difficulty in treating the facts testified to by the defendant as established as matter of law is in his relation of party to the action, and his interest as such in the controversy. The credibility of his testimony was a..question for the jury. Honegger v. Wettstein, 94 N. Y. 252 ; Milier v. Boyer, 79 Hun, 131; 61 St. Rep. 378. And since the defendants did not request the submission of any question to the jury, but, by their motion for nonsuit, treated the case as presenting questions of law only, and as the court directed a verdict for the plaintiff at his request, the ■questions of fact must be deemed to have been disposed of by the court adversely to the defendants. Winchell v. Hicks, 18 N. Y. 558; Ormes v. Dauchy, 82 id. 443; Dillon v. Cockcroft, 90 id. 649.

So far as related to the defendant Lewis L. Smith, it may be added that he had no defense under the statute. He had, sixteen years before the execution of the deed to the other defendant, conveyed to Babcock, as trustee, whatever claim of title he may then have had; and his possession, taken in 1877, continued for a period less than twenty years, could give him no defense against the rightful 'owner, nor could be, by his deed to the defendant Louis J. Smith, create, through the adverse possession of the latter, a claim of a specific title, under which to shield his own possession against a conveyance thereafter made by the owner to another.

The motion for a new trial should be denied.

All concur.


author: O’Brien, J.

text:
    The People ex rel. Augustus Clason, Resp’t, v. Nassau Ferry Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Corporation—Inspection on books—Mandamus.
    A stockholder, before he has applied to the treasurer of the corporation for a written statement of the company’s affairs, is not entitled to a writ of mandamus to enforce his right to inspect the corporate books.

      % Same.
    The refusal to allow such inspection is not excused by the fact that the stockholder proposes to have the assistance of his attorney.
    Appeal from an order, directing a peremptory writ of mandamus to issue.

      S. Hanford, for app’lts ; L. Laflin Kellogg, for resp’t.
   O’Brien, J.

The relator, as owner of thirty-three and a-half shares of the capital stock of the Nassau Ferry Company, in company with his attorney, demanded the right to be allowed during business hours to examine the records, books of account, and stock books of the company, which demand was refused by the treasurer, except that the latter offered to allow the relator himself to examine the stock book. The judge at special term held that the relator was entitled to the writ, and granted an order directing it to issue, which required that he be allowed, with the aid of his attorney or other necessary assistant, to inspect and examine all the books of the company mentioned. It appears by the relator’s affidavit that the stock of the company, as fixed by its certificate, was the sum of §15,000, divided into 150 shares of §100 each ; that the stock which came to the relator was not acquired by purchase, but was received by him pursuant to the provisions of the will of his deceased grandfather ; that the purpose for which the examination was sought was to ascertain the value of the stock, sales of which had not taken place in the open market; and that, in relator’s view, the only mode of finding out what was the value of the stock owned by him was to obtain the names of the stockholders, and confer with them, and, in addition, to obtain a knowledge as to the financial condition of the company, and the management and conduct of its affairs.

As to the stock of the company, we think that the relator’s right is accorded by the general corporation law (Laws 1892, c. 687, § 29), which, with respect to corporations like the ferry company, among other things, provides: “ The stock book of every such corporation shall be open daily during business hours for the inspection of its stockholders and judgment creditors, who may make extracts therefrom. ”

This brings us to the second question, as to the relator’s right to an examination of the books of account"of the company. By section 52 of the stock corporation law, already referred to, the relator, being the owner of more than a sufficient amount of the capital stock of the company, could have made a written request to the treasurer “ for a statement of its affairs under oath, embracing a particular account of all its assets and liabilities,” and the treasurer would have been required to deliver the same within thirty days. If the relator had availed himself of this provision of law, lie would have obtained practically all the information which he states that he desires; and we think that, before invoking the aid of the court, he should have exhausted the remedy given to him by statute, which, if it had been resorted to, might have obviated the necessity of'this application. It may be that, the supreme court, independently of statute, by virtue of its supervisory powers, has the right to order an inspection of the books of account of a corporation by a stockholder upon a proper showing being made, particularly in the absence of any statutory restriction of such power. It is not, however, necessary for us to determine that question, for the reason that in this case no sufficient showing was made to entitle the relator to the relief sought, and no explanation afforded why he did not take the remedy given by statute, and demand a verified statement from the treasurer;. nor is there, anything to show that such a statement, so furnished, would not have given him all the information he desired.

The excuse that the officers were justified in refusing to permit, the relator to examine the books merely because his counsel was present, we think, was an unreasonable one, as it was entirely proper for one situated as the relator, who was not familiar with^ corporate affairs, to take with him his attorney or other persons having the requisite knowledge to obtain for him the information to which he was entitled.

We think that so much of the order as directed an inspection of the stock books should be affirmed, and in other respects it. should be reversed, without costs to either party upon this All concur.


text:
    Henry C. Valentine, App’lt, v. Warren M. Healey et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895)

    1. Tenants in common—Liability.
    Where a tenant in common is in exclusive possession of the common, property by virtue of his own title, unless he actually excludes his cotenant, he is not liable to such cotenant even for use and occupation.
    3. Same.
    But, where he has gone into possession under a lease of the whole premises, including his share and that of his cotenant and holds over, he is in possession under the lease and not because of his own title, and the holding over continues the tenancy for another year.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Wm. A. Butler, for pl’ff; B. Thorne, for def’ts.
   Van Brunt, P. J.

The plaintiff and the defendant Healey are the owners of premises situated in West Forty-Third street, in the city of Hew York as tenants in common; the plaintiff being the owner of three undivided fourths thereof, and the defendant Healey being the owner of one undivided fourth. In May, 1891, the defendants Healey and Zabriskie were copartners in business, under the firm name of Healey & Co., in a limited partnership; the said defendants being the general jjartners, and one Williams the special partner. In said month the plaintiff and the defendant Healey, as partners of the first part, leased the premises in question to said firm of Healey & Co., by an indenture of lease under seal for the term of one year from the 1st of May, 1891, at the yearly rent of §8,500, payable quarterly, as follows, namely: To the plaintiff $1,593.75, and to the defendant Healey $531.25, with privilege of renewal for two years at $7,000 per year. The lease contained the usual covenant that at the expiration thereof the lessees would quit and surrender the premises in good order. Healey & Co. went into possession under said lease, but did not quit the premises on the 1st of May, 1892 ; nor was the lease renewed, but they held over, and remained in possession for some time thereafter.

This action was subsequently brought to recover a quarter's rent as falling due on the 1st of August, 1892 ; the plaintiff claiming that, by such holding over, the defendants had elected to continue their tenancy for another year. Upon the trial the court held that, the defendant Healey being a part owner of the premises, it was to be presumed that he remained in' possession with his partner as owner, and not as lessee, and that, therefore, the remaining in possession did not entitle the plaintiff to treat the lease as renewed for another year, and dismissed the complaint This .ruling of the court is claimed to be supported by the cases of Mumford v. Brown, 1 Wend. 53; MoKay v. Mumford, 10 id., 351; Dresser v. Dresser, 40 Barb. 300; and Wilcox v. Wilcox, 48 id., 329. The tenor of these cases seems to be that where a tenant in common is in exclusive possession of the common property by virtue of his own title, unless he actually excludes his co-tenant, he is not liable to such cotenant, even for use and occupation. Thus, where a tenant in common had accepted a lease from his cotenant of such co-tenant’s interest in the property, and held possession of the whole property after the expiration of the lease, he is to be deemed in possession by virtue of his own title, rather than to be in possession as holding over under the lease. A different rule seems to have been established in England. Leigh v. Dickeson, 12 Q. B. Div. 194. In that case and the cases therein cite 1 it seems to be expressly held that a tenant in common may maintain an action for use and occupation against his cotenant where the obligation to pay rent has been created by a lease. We think, however, that the authorities cited from this state are opposed to this rule, and they, of course, must be followed. Ho case, however, has been cited where a party has gone into possession under a lease of the whole of the premises, including his share and that of his cotenant, and he has held over, which fiecides that he is to be deemed to be in possession because of his own title, and not under the lease. The lease in quéstion in the case at bar was of the whole of the premises, executed by both tenants to a firm; and such firm, including the tenant in common, admit that they went into possession under that lease, and held possession under that lease. There was no claim or pretense of going into possession because of any title except that derived from the lease. How, it being conceded and admitted by the pleadings that the possession was of this character, where is there any room for an assumption, when the tenants hold over, that they are in possession because of any other title than that of lessees ? There is no pretense that any other title has been acquired since the execution of the lease, or that any other rights have devolved upon the defendants, or either of them. It would seem, under such circumstances, that the ordinary rule in reference to holding over must necessarily apply. It would have been entirely different if Healey or his firm had accepted a lease of only the plaintiff’s interest in this real estate, and if Healey had been in possession of the real estate because of his own title, and had not entered under the lease. In the case at bar, however, it would seem that possession was acquired under the lease, and the premises were held under the lease, and "no part of the same was claimed by the defendant Healey because of his ownership. We think that this fact calls for the application of the ordinary rule obtaining in those cases where a tenant holds over, and that the distinction to which attention has been called between the case at bar and the cases cited to support the ruling of the court below is substantial, and should not be overlooked.

We think, therefore, that the exceptions should be sustained, . and a new trial granted, with costs to the plaintiff to abide the event.

All concur.


author: Parker, J.

text:
    Louis Ullman et al., App’lts, v. Solomon Jacobs, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Tbial—Findings.
    Findings as to matter, not within the issues presented by the pleadings, will not be made, though evidence thereon was given upon the trial.
    2. Pleading—Amendment.
    Where the complaint alleges that due notice of protest was given but the testimony only tends to show a waiver of notice, a motion to conform the pleadings to the proof and to make it ■ an action against the surety, is not equivalent to a request for leave to amend by alleging waiver of notice of protest.
    Appeal from a judgment, dismissing the complaint after a trial without a jury, and a motion for new trial.

      George M. Pinney, Jr., for app’lts; Herman Aaron, for resp’t.
   Parker, J.

The complaint alleged the making and delivery by one Brodsky of a promissory note payable to himself, its subsequent indorsement before maturity by the defendant, Solomon Jacobs, for a valuable consideration, and delivery to those plaintiffs, who thereupon became, and still are, the lawful owners and holders thereof; presentatation and demand of payment at maturity at the place where the same was made payable; refusal of payment, and protest, with due notice thereof to the defendant. The answer, among other things, put in issue the allegations of the complaint relating to notice of demand of payment, and the giving of notice of protest or dishonor to the defendant. Upon the trial, the plaintiffs attempted to establish the allegations of the complaint in such respect, but the trial court held that notice of protest was not given to the defendant until five days after the maturity of the note. The case was tried before the court without a jury, a jury being waived, and the evidence fully justified the finding made. One of the plaintiffs was called as a witness, with the view of establishing by his testimony that due notice of dishonor was given to the defendant; and, in the course of his evidence, he related a conversation had with the defendant a few days prior to the maturity of the note which, if true, would have supported a finding that the defendant had waived notice of protest. This testimony was not contradicted by the defendant, and subsequently the plaintiffs requested the fact to be found, as plaintiff had testified, and as a conclusion of law, that notice of protest or dishonor was duly waived, which was refused, and plaintiffs insist upon this appeal that such refusals constituted error, entitling them to a reversal of the judgment.

The difficulty with this contention is that, while this testimony . was brought out upon the examination of one of the plaintiffs, an effort was then being made to show by the witness that the defendant had received due notice of protest in conformity to the pleading, which alleged that notice of dishonor was duly given to the defendant, and not that the defendant had waived notice thereof. No motion was at that time made, or afterwards, to amend the complaint by substituting an allegation of waiver of protest in the place of the one alleging that due notice of protest had been given to the defendant. After the evidence was closed, and the plaintiffs’ motion for judgment on the evidence had been denied by the court, plaintiffs’ counsel addressed to the court the following motion : “I make "a motion to conform the pleadings to the proof, and to make this an action against the surety.” It is urged that both the court and defendant’s counsel were informed by the motion that the plaintiffs relied upon the testimony bearing upon an alleged waiver of protest by the defendant, and, that being so, that this court should consider whether, under all the circumstances, the discretion of the court was properly exercised in denying the motion. But the form of the motion suggests that the counsel had a different proposition in mind than the one which he now urge; stliat having failed to persuade the court to direct a judgment in his favor, and having obtained an exception to the ruling, he conceived the idea that, if the defendant could not be held as indorser, he might be as surety, and so he moved the court to conform the pleadings to the proof, and to make this an action against the surety. It is not even claimed now that, if the motion had had been granted, there could have been any recovery against the defendant as surety ; and the motion as made presented that question to the court, nothing more. Having denied that motion, judgment was ordered for the defendant, after which the plaintiffs presented requests to find, both of fact and law, and among them were the requests to which we have referred, relating to the alleged waiver of protest. The court refused to find them, and in so doing did not err, because the facts requested to be found in regard to the alleged waiver of protest were‘not within the issues presented by the pleadings, and which both court and counsel supposed were on trial.

The judgment should be affirmed, with costs.

All concur.