text:
    Ann Snell, App’lt, v. Abraham Tuttle, as Adm’r, etc., et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Wills—Provisions of—Vesting of property under.
    By certain provisions of the will of the testator, he devised real pr.-perty to l.is wife, to hold during her natural life, and directed his executor, upon her decease, to sell all his real property, and, by further provision, for that purpose gave all the avails of the sale or sales to his daughters. Held,that the interests of the daughters of the testator vested at his death, and that property devised so passed under the will of one of the devisees subsequently made.
    2. Same—Equitable conversion.
    When specific real estate is directed to be converted into money at a future day,' and the avails divided among legatees, the rules applicable to personal bequests are to control
    3. Same—Legacy—Satisfaction of, by gift in lieu of.
    In a conveyance of real property made by the testator to one of his daughters, it was stated, as part of the consideration, that the grantee released all claim as heir of the grantor. Held, that when a legatee, subsequent to the execution of the will, received property from the testator in . lieu of the legacy, the legacy is satisfied.
    4. Same—Legacy—Satisfied by conveyance in lieu of.

      Held, that the testamentary provision made in behalf of the grantee in the conveyance, being governed by the rules applicable to pecuniary legacies, was satisfied by the conveyance.
    Appeal from judgment entered upon decision of a special term, construing two wills.'

      P. J. Fisk, for app’lt; John E. Smith, for def’ts and resp’ts.
   Follett, J.

The rights of the parties being dependent upon the rights of the testators as expressed in their wills and codicils, it is important that the language of these instruments should be constantly borne in mind. It will be most convenient to first consider the will and codicil of Willard Cotton, which provides:

First I direct that my funeral charges, the expense of administrating my estate and all my debts be paid out of my personal estate.
Second. I give and devise to my son, Hamilton Cotton, his heirs and assigns all that tract or parcel of land of about five acres, more or less, of lot No. 6, North Mile Strip, situate in the town of Sullivan, Madison county, New York, together with all the hereditaments and appurtenances thereunto belonging, to have and to hold the said premises to said Hamilton Cotton, his heirs and assigns forever. I also direct that my executor hereinafter named pay to my said son, Hamilton Cotton, $100, all of which, together with the advance I have heretofore made to him will make him to have received an equitable share of my estate. Said $100 to be paid on the decease of my wife.
Third. I give, bequeath and devise to my beloved wife, Eliza Cotton, all of the residue of my real estate, consisting of about fifty acres, known as my homestead fa- m on Oak Hill in said town of Lenox aforesaid, also the undivided equal one-half of about twenty-four acres of land situated in the village of Canastota, in said town of Lenox, aforesaid jointly owned by me and my son-in law, Elijah French, to have and enjoy the occupancy of the said described premises during her natural life Also I give and devise to my said, wife, Eliza, the use and occupancy of all my personal estate of every name and nature, during her natural life.
Fourth. On the decease of my said wife, Eliza, Thereby direct and empower my executor, hereinafter named, to sell and dispose of all of my said real estate at public or private sale, at such time or times and upon such terms and in such manner as to him shall seem most advantageous, also to execute and deliver all necessary conveyances therefor.
Fifth. The avails of such sale or sales of said real estate, together with the avails of my personal estate, after paying and discharging all of the provisions-herein named, I hereby give and bequeath to my daughters, Eliza Tuke, Clarissa C. French and Ann Snell, to be divided equally between them share and share alike.
Sixth. In case any one or either of my said daughters shall die in my life-time, leaving issue or descendants, I direct that her share shall not lapse, but shall be-paid to her child or children.
Seventh. If in the opinion of my executor, hereinafter named, for any cause it shall in his judgment be advantageous and desirable to sell the whole or any part of said real estate before the decease of my said wife, Eliza Cotton, I do in such case hereby authorize and direct and empower my executor hereinafter named, to sell and dispose of said real estate as provided for in item 4th of this will, provided, however, that my said wife shall consent to such sale, such consent shall be in writing, duly acknowledged and filed in the office of the surrogate before such sale shall be consumated.
Lastly. I do hereby nominate and appoint Henry K. W. Bruce, of Lenox, aforesaid, to be executor of this, my last will and testament, hereby revoking all former wills by me made, in witness whereof I have hereunto set my hand' and seal this 1st day of December, 1868.
• WILLARD COTTON, [l. s ]

January 20,1872, the testator executed a codicil, of which-, the following is a copy:

This is a codicil to my last will and testament, bearing date December 1,1868
I, Willard Cotton, do hereby change the 4th item in my said will in manner following, viz.: That on and after the decease of my wife, Eliza Cotton, I direct that my daughter, Clarissa French, be allowed to have the use and occu pancy of my Oak Hill farm, also the use of all carpenter and blacksmith tools in my shop, during the term of her natural life, but upon the express terms and conditions hereinafter named, viz.:"
That she shall give to my daughter Eliza Tuke, a good and comfortable,support in her family, treating her with sisterly care and tenderness, and shall also pay to her annually in money, fifty dollars, to be paid to said Eliza in semi-annual payments of twenty-five dollars, on the first day of July and January of each year, so long as said Clarissa shall retain the use and occupancy of" said premises. Said Clarissa shall also pay to my daughter, Ann Snell, fifty dollars annually, to be paid her in semi-annnal payments of twenty-five dollars, on the first day of January and July of each year, so long as she shall retain the use and occupancy of said premises. Said Clarissa shall also keep said premises in as good a state of cultivation and care as when received by her. allowing no waste or unnecessary decrease in the value of the_ same. Neither shall she allow the cutting of wood or timber from said premises or any part of them to any person, but the same shall be exclusively occupied by said Clarissa, and her family, all of which conditions above named I request and require my said daughter Clarissa faithfully to keep and perform each and all the conditions above named, and a failure on her part to keep and perform any and all" the conditions herein contained shall cause the provisi ms made in this codicil for her benefit to lapse and be of no favor or virtue I also direct that in case any dispute or disagreement shall arise as to the construction or right of parties. under and by my last ■will and testament, also this codicil, that the above shall be submitted to the surrogate of Madison county for decision, and his judgment or direction of the matter shall be binding and conclusive on all persons, interested in my estate.

September 30, 1873, Willard Cotton executed a second codicil, but it does not relate to any of the rights or questions involved in this action. Willard Cotton and Eliza French owned the twenty-four acres mentioned in said will jointly. April 9, 1874, said Willard Cotton and Eliza his. wife, and Elijah French and Clarissa C. his wife, conveyed to Ann Snell three-fourths of an acre out of said twenty-four acres, upon the recited consideration of $1,000. It is stated in the deed that: “ The consideration of this deed is $500, a gift of the parties of the first part, and the other $500, the arrangement of the party of the second part, to relinquish all her right, title and interest prospective as heir at law of Willard Cotton and wife in the twenty-four acres of which said three-fourths acre is a part, so that the twenty-four acres shall be free and clear of her claim as heir as aforesaid. ” On the same day Ann Snell executed an instrument under seal, which was duly acknowledged May 28, 1874, by which she acknowledged the receipt of the aforesaid conveyance, and that the same was in release and satisfaction of all her present and' prospective interest in said twenty-four acres as heir at law of said Willard Cotton. September 1, 1874, said Willard Cotton died, leaving him surviving Eliza Cotton his widow, Hamilton Cotton a son, Ann Snell, Clarissa C. Cooper (formerly French), Eliza Tuke, daughters; Jeanette Wagner and Emma Campbell, granddaughters, the daughters of Harry Cotton, a deceased son, only heirs at law and next of kin of said Willard Cotton.

September 28, 1874, the aforesaid will and codicil was duly probated.

The testator’s widow, Eliza Cotton, used the personal estate, the fifty acres and the undivided half of the twenty-four acres (less the three-fourths of an acre conveyed to-Ann Snell) until March 30, 1880, when she died, leaving as her heirs at law and next of kin her children and grandchildren, above enumerated, as the heirs at law of Willarcl Cotton, deceased. After the death of Eliza Cotton, Clarissa C. French occupied said fifty acres and performed all of the conditions of said codicil until October 1, I860, when Eliza Tuke died, leaving a last will and testament, by which she devised and bequeathed all of her estate unto Clarissa C. French, which will was duly probated April 25, 1881. Said Clarissa C. French continued to occupy said fifty acres and performed the conditions of said codicil until April 1, 1885, when said Clarissa C. French intermarried with one Charles C. Cooper, removed from said premises and refused to longer perform the conditions of said codicil, that is, pay Ann Snell fifty dollars per annum.

The plaintiff brings this action, claiming (1), under said will and codicil the daughters, Clarissa, Eliza and Ann, did not acquire a vested interest in the estate of said testator until after the determination of the conditional -life estate devised to Clarissa, and that Clarissa took nothing by the will of Eliza; (2), that the power of sale in said will was revoked by the codicil, and demanded a judgment so construing said will and codicil, and restraining the administrator, with the will annexed, from selling the real estate.

The court at special term held:

First. That under the deed and agreement of April 9, 1874, said Ann Snell accepted of the conveyance of said three-fourths of an acre in satisfaction of all her interest in the devise of the undivided half of the twenty-four acres; which interest in said devise was thereby released, and went, under said will and codicil, to Clarissa C. Cooper and Eliza Tuke, and through the will of Eliza Tuke Clarissa C. ■Cooper became the sole owner of said undivided half of said twenty-four acres.

Second. That the three daughters took vested interests in the fifty acres under said will, subject to the power of sale vested in the executor, and that the third devised to Eliza Tuke was carried by her will to Clarissa C. Cooper.

Third. That the power of sale in said will was not revoked by said codicil.

The judgment directed that the fifty acres be sold, and out of the avails each party be paid a bill of costs, and one-third of the remainder be paid to Ann Snell, and two-thirds to Clarissa C. Cooper. Thus far the parties to this action are agreed; but the plaintiff insists that the interests devised to the daughters in the fifty acres did not vest at the testator’s death. Therefore Clarissa C. took nothing under the will of Eliza, and that Clarissa C. and Ann are each entitled to one-half of the avails arising from the sale of the fifty acres.. In support of this contention the plaintiff invokes the aid of the general rule, that when the payment of a legacy is charged upon land, and the legatee dies before the time for payment arrives, the legacy does not vest, but sinks into the land for the benefit of the heir unless it appears that the testator intended that the legacy should vest. This rule, with its limitations, is clearly stated by the following authorities: 1 Jar. Wills (Big. ed.) 834; Hawk. Wills (2 Am. ed), 234; Loder v. Hatfield, 71 N. Y., 102. When a will directs real estate to be converted into money and divided between legatees, it is to be treated as personal estate; and if the legacy is vested and legatee dies before the sale, the legacy goes to the next of kin instead of to the heir of the deceased legatee. 1 Jar. Wills (Big. ed.), 586; Will Ex. (6 Am. ed.), 729; Kane v. Gott, 24 Wend., 641.

In Elliott v. Fisher (12 Sim., 505), land was directed to be sold after the termination of a life estate, and the avails paid to a legatee who died before the termination of the life estate, and it was held that the legacy vested and went to the personal representative instead of the heir of the deceased legatee.

The sixth clause of this will, shows that the testator intended that the interests devised to his daughters should vest at his death. In this clause he provides that, if either daughter dies in his life-time, leaving issue, that the issue shall take the share, but he makes no provision as to what shall become of the interest of a daughter dying after his death, and before the termination of the life estate. There is nothing in this will or codicil evincing an intention that the avails of this' farm should not vest, but, on the contrary, the testator’s intention to make a complete disposition of the residuum of his estate is manifest throughout both instruments, and there is nothing in the language of either, indicating that the daughter’s interest should not vest at his death.

The appellant relies upon Vincent v. Newhouse (83 N. Y., 505) and Shipman v. Rollins (98 N. Y., 311). We do not think either case changes the well-established rule, that when specific real estate is directed to be converted into money at a future day, and the avails divided among legatees, that the rules applicable to personal bequests are to control. In In re Hart's Trusts (3 De Gex, 6 J., 195, 203), it was said: “I have not met with any case in which it has been held that the rules as to vesting, which apply to legacies charged on land, are to be applied to legacies given out of moneys to arise from the sale of land.” See, also, Elliot v. Fisher [supra).

In Vincent v. Newhouse, the will directed that, in case either of the legatees died without issue before the legacy was payable, that the share of the legatee so dying should be equally divided between the surviving legatees. This was a plain direction that the legacies should not vest until the time arrived for their payment. The legacies in the case last cited would not have vested, if they had been payable out of the personalty, instead of out of the realty. In Shipman v. Rollins (supra), the legacies over which the case arose were given to unincorporated societies which were incorporated after the testator’s death and before the time of payment. Thelegacies could not vest at the death of the testator, because the societies were not then incorporated and authorized to take; and the question arose, whether the testator intended that the legacies should vest at his death, or at the death of his widow, when they became payable. From the language of the will it appears that the testator knew that the societies were not then incorporated and in a condition to take; and it was held that his intention was to vest the legacies at the death of his widow. We find nothing in this case which militates against the rule, that where land is to be converted into money and distributed among legatees, that the bequest is to be governed by the rules applicable to pecuniary legacies. The interests of the three sisters in the fifty acres vested at the testator’s death, and Clarissa C., under the will of Eliza, acquired a two-thirds interest therein.

The codicil does not affect the individed one-half of the twenty-four acres, devised by the testator’s will, and the question, as to when the interests in that vested, need not be considered, because all of the parties agree that the sister’s interest in the twenty-four acres vested, not later than the death of the mother, at which time the three sisters were living, and Eliza’s interest was carried by her will to Clarissa C. The only question arising over this parcel is, whether the plaintiff, by the deed and release of April 9, 1874, satisfied and discharged the interest devised to her in this parcel by her father. That such was the intention of the parties to the deed is substantially found in the ninth finding, which the plaintiff has not challenged.

When a legatee, subsequent to the execution of the will, receives from the testator in lieu of the legacy, the legacy is satisfied. 2 Will. Ex. (6th Am. ed.), 1428; 2 Redf. Wills, 431; Pam. Eq. Juris.,, § 524; Beck v. McGillis, 9 Barb., 35, 56. The plaintiff’s legacy being governed by the rules applicable to pecuniary legacies, was satisfied by the conveyance. Burnham v. Comfort (37 Hun, 216), does not hold that a devise cannot be satisfied by a subsequent conveyance of land, but that a devise cannot be satisfied by a subsequent payment of money. Under the deed and release, the plaintiff parted with her interest in the twenty-four acres.

Eliza Cotton, at her death, left sixty acres of land and a will and codicil executed concurrently with the will and codicil of Willard Cotton. Their wills and codicils, so far as they relate to real estate, are exactly alike, except the husband devises his wife a life estate in his land; and the wife a life estate in her land, to her husband; and the same construction must be given to both wills.

The judgment of the special term is affirmed with costs against the appellant.

Hardest, P. J., and Boardman, J., concur.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    John W. Pratt, Resp’t v. Charles Peckham, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Contract for sai® of real property—Vendor is trustee of legal TITLE FOR VENDE.B.

      The plaintiff being the owner of the premises described in the complaint, entered into a cot ¡tract in writing with the defendant, whereby he agreed to sell and the defendant agreed to purchase the real estate described therein. Upon ííerms and conditions therein set forth, subsequent contracts modifying this were made between the parlies relative to the purchase and sale of the said real property. Held, That from the date of the first contract the plaintiff held the legal title of the property as trustee for the purchaser.
    3. Same—Election of remedies on breach of.

      Held, That upon a refusal by the defendant to perform his part of the contract, the plaintiff might elect whether to stand upon his legal title and maintain au actibn for recovery of the premises or to bring an action in equity for specific performance on the part of the defendant.
    3. Same—Specific performance—Action for—Prerequisites to right TO MAINTAIN.
    In event of an action for specific performance of such a contract, a tender of the deed simultaneously with the (lent.and for perfoimanee would be proper, while the absence of such tender night, nvt defeat *jie right of recovery. . x
    4 Same—Breach of by vendee in fossessiox,-—Has no right it ' ¡notice to QUIT.

      Held, That the defendant’s refusal to make payment of the -*tv,n£ohie upon the contract authorizeu., the brinvmj of an action of eqec-mcnt," he having assumed possession of frhe premises, the contract providing that in case of his delinquency he slioutd. not be entitled to any demand of possession or notice to quit.
    5. Same—3 R. S , 313, § 57 does not apply.
    The provisions of 3 R. S., 313, g 57, do not apply to a case of this nature. That statute cut off the remedy of a mortgagee theretofore existing by way of an action in ejectment to recover possession of the mortgaged premises.
    6. Evidence—Memorandum—Use of.
    The plaintiff had a written memorandum of items on a slip of paper, pinned to the contract, which he testified that he was unable to find. Held, That his reference to the items on that paper was not-such an error as called for an interference with the ruling allowing it.
    7. Same—Testing memory.of witness,
    The evidence of the witness showed that the paper was before the parties in one of their interviews and was looked over by them and used in connection with a settlement then had. Held, That it was not error to test the recollection of the witnesses to the items referred to in that settlement.
    8. Same—Questions to affect credibility of witness—Allowance of LARGELY DISCRETIONARY.
    The allowance of a question intended to affect or impair the credibility of a witness rests largely in the discretion of the court.
    9. Equitable defense—May be interposed to legal claims.
    An equitable defense may be interposed to a legal claim.
    Appeal from a judgment entered upon the report of a referee in Oswego county, declaring the title to the real estate described in the complaint to be in the plaintiff. Also declaring due to the plaintiff at ;thie date of the referee’s report $891.71 on the contract for sale of the property to the defendant, and awarding possession of the premises to the plaintiff, unless the defendant shall redeem the premises upon payment of the aforesaid -sum within forty days, with interest and costs, and requiring the plaintiff if such redemption shall take place, to execute and deliver to the defendant “such a deed of conveyance of said premises as provided for in said contract.” ;

      S. N. Dada, for app’lt; Howe & Bice, for resp’t.
   Hardin, P. J.

On the 31st day of March, 1858, the plaintiff being the owner of the premises described in the complaint, entered into a contract in writing with the defendant, whereby, the plaintiff agreed to sell and the defendant agreed to purchase the real estate described in the-contract for the sum of $700, the whole tobe paid in annual payments,^ the last payment to be four years from the 1st day of April, ,1859 Defendant went into possession under the. contract and was in'-nossession of the premises at the time of they commencement of this action.^ Prior to February, 1869:- plaintiff and defendant, “had numerous other business .transactions between them, arid the plaintiff kept an of said transactions together with an account of the payment made upon-said,/" contract, all together asoné account.” The parties theft “agreed to have a settlement and adjustment of their said accounts and business transactions and the balance due on said contract, and also-agreed to enter into a new contract for the sale of said premises.” They had sqch an accounting and adjustment, “ and found the balance due from defendant to plaintiff to be $732.62. They thereupon entered into a new contract for the sale of said premises by plaintiff to defendant, which is dated February 1st, 1869, containing substantially the same terms as the first contract, except that the said balance of $732.62, which it was agreed should be the consideration of the said new contract for the sale of said premises, was to be paid as follows: “ One year from the .date of said contract, with interest thereon from the date of said contract.” As a part of the adjustment parties canceled and waived the contract of 1858. The defendant continued in possession, after the execution of the new contract, of the premises under the same. About the 1st of May, 1878, “the said parties had another looking over of their account and business transactions, and an adjustment and settlement, and came to an agreement to execute a new contract for the sale by the plaintiff to the defendant of the said premises, and did then and there enter into such new contract unifier their hands and seals, whereby the plaintiff agreed to ¿sell and the defendant to purchase the said premises; said! contract was substantially the same as the former two contracts had been, in its terms, except that the consideration! for said contract as stated therein was agreed by the defendant to be paid to the plaintiff in five equal animad payments with interest on all sums unpaid.” ,, '

It is found bj\ íítie referee as a fact, viz.: “That upon such settlement aifid accounting it was found that the defendant was indebted- to the plaintiff in a balance of $711.33, and it wets then and there agreed between them that the said balanfce should constitute the consideration of the said contract eintered into that day, and it was entered in said contract as |fche consideration for said premises,” and they canceled the Second contract.

It is also found,? viz.: “That the said defendant occupied said premises under said contract of May _ 1st, 1872, up to the time of the ¡commencement' of the actic and the defendant made • ral payments upon the Ic-qf, named contract, and after applying all those* payments the sum stipulated in tli- ; contract, the re.feree finds ™--was due for principal and’ -interest at the ©r mmencement or j_--.— action the sum of

The referee has also found as a fa-; C'v iz,u ilThat imn».diately prior to the commencement^:? uhL acfcionpdlSy while the defendant was in default in his payments, the plaintiff took his accounts and papers pertaining to this matter to the defendant and demanded from the defendant a settlement and payment of the balance due on said contract, which the defendant refused to make.”

We are of the opinion that the findings of fact made by the referee accorded with the weight of the evidence, and must be accepted in determining the rights of the parties

From the date of the first contract in 1858, down to this time, the plaintiff ,has held “the legal title as trustee for the purchase.” Thompson v. Smith, 63 N. Y., 303.

By the terms of the contract of May 1, 1872, the defendant stipulated to make payment of the contract price in “five equal annual payments.” It was further stipulated in that contract between the parties, viz.: “And the said party of the first part on receiving such payment at the time and in the manner mentioned, shall at his own proper cost and expense execute and deliver to the said party of the second part, or his assigns, a deed of all his right, title and interest of, in and to the premises above described. ” It was further provided in that contract that “ in case of failure on the part of the said party of the second part to fulfil this contract or any part of the same, thle said party of the first part shall, immediately after any (such failure, have the right to declare the same void amM retain whatever may have been paid on said contract, anc| all improvements that may have been made on said premises.” j

When the plaintiff took his accounts to the defendant, “and demanded from the defendant al settlement and payment of the balance due on said contract, which the defendant refused to make,” we think the plaiíütxff had an election to stand upon his legal title and to maintain an action for the recovery of the possession of the premises in question, or to bring an action in equity for specific performance on the part of the defendant. In the event| that an action had "been brought in the latter aspect to corrápel a specific performance, a tender of the deed simultanfeously with the demand would have been proper, and in a|ccordance with the cases bearing upon that aspect of the rights of the parties.

While the o'osenee of the tender of the deed might not have defeated the right of recovery had| the complaint contained an i-ifer to convey, and while the) omission to tender the deed might haXTe been considered/ in the question of costs (Fruce v. Tilson, 25 N. Y., 194), we think the refusal r-ydefendant to make the payment of the amount due "In his contract authorized the briinging of this action in tment, and that /“such vendeqis not entitled to notice m^^Zemária d/L possession If he is in default in making any of the payments, ví úaf performing any of the conditions or covenants specified in the contract of sale. Pierce v. Tuttle, 53 Barb., 167.

We think there is no force in the suggestion made by the counsel for the appellant that the provisions of the 2d Revised Statutes, 312, § 57, should be applied to this case. That statute cut off. the remedy of a mortgage theretofore existing by way of an action in ejectment to recover possession of mortgaged premises. Murray v. Walker, 31 N. Y., 399; Wynehamer v. The People, 13 id., 485.

In the case of Carr v. Carr (52 N. Y., 251), cited by appellant, the sole title held by the plaintiff was such as he derived in virtue of the arrangement entered into with the purchaser of the land to advance and take title as security pp such advances, and it “ was but a mortgage.”

¿1 the case before us the legal title resided m the plaintiff. He has never parted with it. Besides, by the judgment entered, he is not allowed to recover until the defendant’s right of redemption has been foreclosed by the expiration of the time within which he is allowed to redeem. If that time shall be suffered to expire, the title of the plaintiff will be as absolute and unquestioned as though he was purchaser at foreclosure sale. Several close rulings were had in the progress of the trial in respect to the items of deal between the parties. After a careful inspection of the evidence, we are of the opinion that no ruling was had which was prejudicial to the rights of the appellant. The plaintiff had a written memorandum of some of the items on a slip of paper pinned to the contract, and he testified that he was unable to find it. His reference to the items on that paper in aid of his memory as to the items does not seem to be such an error as calls for an interference with the ruling allowing it. It appeared by the evidence of the witness that the paper or memorandum was before the parties when they had an interview in the settlement of February, 1869; that it was looked over by both parties and used in connection with the settlement then had. After it appeared that the paper had been lost, we do not think it was error to test the witness’ recollection of the items referred to in that settlement in the manner in which the referee permitted. We think the evidence does not fall within the rule which excludes “self serving declarations.” 3 How. (N. S.), 150; 27 Barb., 321.

At the close of a very long cross-examination of the plaintiff, the defendant’s counsel asked him if he was a partner in pool A, being a bucket shop arrangement for gambling at Oswego, in which his son Charles A. was one of the managers. The question was objected to on the ground it was immaterial, incompetent and improper. It is now claimed by the appellant that an error was committed by the referee in excluding the answer to the question. It is not apparent from the case that the question called for any evidence that was material to the issue between the parties. If the object of the question was to affect or impair the credibility of the witness, whether it should be answered or not, rested largely in the discretion of the court. Ross v. Ackerman, 46 N. Y., 211.

The question is somewhat involved and complex, and we think no error was committed in holding the question was improper.

We think the referee did not err in refusing to yield to the twenty-eighth request to find. The request is argu mentative, and asks that upon a certain state of facts being found, it shall be determined that a certain “strong presumption ” existed. We think the referee in the findings of fact made, sufficiently answered the matters involved in the request.

We have looked at requests 29, 30, 31, 32, 36 and 37, and the refusals of the referee to find in accordance therewith. Considering the requests in connection with the facts that are found in the body of the referee’s report, we are of the opinion that no error was committed which would lead to an interference with the decision of the referee. Upon a full consideration of the evidence before the referee, giving to his findings of fact such influence as we think they are entitled to, we are satisfied the referee has reached the proper conclusion

In the October term of 1884, we heard a former appeal in this case and in the opinion then delivered we said, viz.: It may be observed that the referee has not found as a fact, that any deed was tendered by the plaintiff before commencing this action. Nor any finding of a demand of judgment after a default of defendant, under the terms of contract before suit brought. Nor is there any finding of wrongful withholding of the premises. Defendant went-into possession by consent of plaintiff and continued in possession with plaintiff’s consent. Whether there was any usury in the contract was a question of fact much litigated at the trial, but we are not prepared to say that the ■ referee’s finding that there was no usury was against the preponderance of evidence. The referee after finding the amount due upon the contracts, or for the land, might have allowed the defendant a reasonable time within which to pay up and have a deed of the premises. It was competent for the defendant to rely upon an equitable defense. His answer set up a purchase of the land and possession under contract from plaintiff, and he was authorized to set up the same facts which would if he were plaintiff in another action against the vendor entitle him to a conveyance of the land. Traphagen v. Traphagen, 40 Barb., 537.

It has long been settled that an equitable defense may be interposed to a legal claim. Dobson v. Pierce, 2 Kern., 156; Crary v. Goodman, id., 266; Phillips v. Gorham, 17 N. Y., 275; Cuff v. Dorland, 55 Barb., 481.

Because the referee did not allow the defendant an opportunity to redeem the land upon payment of the balance found due with the costs of this action we think he did not give such effect to the features of the case presented by the pleadings and proofs as well as findings, as they were entitled to. Stoddard v. Whiting, 46 N. Y., 627.

We think the referee in the trial now before us has followed the tenor of the opinion delivered upon the former appeal;

Judgment affirmed, with costs.

Boardman and Follett, JJ., concur.


author: Follett, J.

text:
    Margaret Sullivan, as Adm’x, etc., Res’pt, v. The Tioga Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887).

    1. Administration—Not void ab initio by omission to give bond— Code Civ. Pro., § 2591
    Where a surrogate has jurisdiction to grant letters of administration upon a decedent’s estate, his omission to require-and the omission by the party applying for letters to give a bond, does not render the letters void ab i/utio, and an administrator so appointed is authorized to maintain an action as such, in which the letters cannot for the lack of a bond be questioned until reversed on appeal, or revoked by a proceeding brought for that purpose. Code Civ, Pro., §2591.
    9. Verdict—When will not be set aside.
    A question of fact having been fairly submitted to the jury, the court at general term cannot set aside a verdict as against the weight of evidence.
    3 Co-SERVANTS—PRESUMPTION IS THAT SERVANTS OF INDEPENDENT MASTERS ARE NOT
    The servants of two independent masters presumptively are not coservauts
    4. Same—Who are not—Responsibility for damages.
    The line of the defendant's railway terminated at Elmira, the yard there situated into which the tracks ran was owned and controlled by another company, under whose exclusive control the defendant’s servants were while within the yard. Held, that the plaintiff’s intestate, who was hired by the company controlling the yard to perform duties therein, was not a co servant with the employees of the defendant, and that the defendant was responsible for injuries suffered through the negligence of its employees.
    6 Custom—Evidence of, held competent.

      Held, that evidence as to the custom of giving warning on the entrance of a train into the yard was competent.
    6. Same—Right to rely upon.

      Held, that there was a presumption that the plaintiff’s intestate knew of the custom, and that he had a right to rely on the continued observance of the rale
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial, made at special term, on a case.

      Taylor & Bacon, for resp’t; David C. Robinson, for app’lt.
   Follett, J.

In the yard of the Erie Railroad, at Elmira, seventy feet south of the turn-table, there is an ash pit thirty feet long, four feet wide and two and one-half feet deep, sunk in the ground between the rails of a track leading from the main track to this turn-table, into which pit ashes are dumped from locomotives. For a year before December 5, 1883, Michael Sullivan was employed by the Erie Railroad to shovel ashes from this pit to a car standing beside the pit, for removal. Before beginning to shovel, water from a hydrant was turned on to the ashes to cool them, and enable the shoveler to handle them readily, which, on the occasion in question, developed so much steam that it was difficult, if not impossible, for Sullivan to see the approaching locomotive for any. considerable distance, or for the employees on the locomotive to see Sullivan until very near the pit. December 5, 1883, in the forenoon, Sullivan, while leaving the pit, was run over by one of defendant’s locomotives and injured, and twelve days thereafter he died.

This action is for the recovery of damages under sections 1902 to 1905 of the Code of Civil Procedure.

It is alleged in the complaint that the engineer in charge of the locomotive was negligent (1), in running the locomotive too fast as it approached the ash pit; (2), in not warning Sullivan of the approach of the locomotive, by ringing the bell or by sounding the whistle.

The defenses interposed are: (1) That plaintiff is not the legal administratrix of decedent’s estate, because of the surrogate’s omission to require, and of the omission of the plaintiff to give, a bond, pursuant to section 2667 of the Code of Civil Procedure; (2) that defendant’s employees in charge of its locomotive were not negligent; (3) that decedent negligently failed to discover the approach of the locomotive, and thereby contributed to his injury; (4) that decedent’s death resulted from his refusal to permit an immediate amputation of his leg; (5) that defendant’s employees, in control of its locomotive, and decedent, were co-employees.

The surrogate having jurisdiction to grant letters upon decedent’s estate, his omission to require, and the plaintiff ’s omission to give, a bond, does not render the letters void ab initio (Bloom v. Burdick, 1 Hill, 130; Lawrence v. Parsons, 27 How., 26), and by them the plaintiff is authorized to maintain this action, in which the letters cannot, for the lack of a bond, be questioned until reversed on appeal, or revoked by a proceeding brought for that purpose. Code Civ. Pro., § 2591; Carroll v. Carroll, 60 N. Y., 121; Sullivan v. Fosdick, 10 Hun, 173; Lawrence v. Parsons, supra, 1 Will. Ex. [6 Am. ed.], book 6, chap. 1. p. 550.

Were the employees in charge of the locomotive negligent ? Some of the witnesses testified that the locomotive approached the ash pit at the rate of six to ten miles per hour, and others at the rate of four to six miles per hour. A civil engineer called by defendant testified that a person in the ash pit could see a locomotive approaching from the south for 325 feet, and it would seem to follow that persons on the locomotive could see the ash pit for the same distance. The employees in charge of the locomotive, testified that they saw steam arising from the pit. It appears that ' it was the daily custom for these employees to run this locomotive over the ash pit to the . turn-table, reverse and return to the main track. When they saw the steam they knew that some person was at work in or about the pit.

The acting superintendent of the Erie railroad testified that, by the rales, employees on locomotives were required to ring their bells while moving in the yard. Several wit ■ nesses testified that it was the custom to ring the bells upon locomotives when approaching this ash pit. Several persons employed in the yard, and who were near to the scene of the accident, testified that they heard no bell or warning, and one, that he was looking at the locomotive, and that the bell did not ring. The employees on the locomotive testified that the bell was rung.

Under the evidence and circumstances it was for the jury, and not for the court, to determine whether the employees in charge of the locomotive negligently injured the decedent. And so, without calling special attention to the circumstances disclosed by the evidence, it was a question of fact whether decedent negligently failed to discover the approaching locomotive in time to escape.

At the close of the evidence the court ruled that it was for the jury to determine whether decedent was negligent in refusing to permit an immediate amputation of his leg, and whether his death was caused by the injury or by his refusal to permit an immediate amputation. Subsequently the jury were instructed in accordance with this ruling.

These questions being questions of fact, and having been fairly submitted to the jury, this court cannot, under its well settled rales, set aside the verdict as against* the weight of evidence, in the face of the decision of the experienced trial judge, who refused to do so upon a case.

Were defendant’s employees in charge of its locomotive, and decedent, employed by the Erie railroad, co-employees ? The defendant, at the close of the evidence, insisted that they were, and moved for a non-suit upon this and other grounds, which was refused. The defendant requested the court to charge that if the jury found that decedent and the employees in charge of the locomotive were, at the . time of the accident, under the control of the superintendent of the Erie railroad, they were co-employees and the plaintiff could not recover. This the court refused, and left it to be determined by the jury as a question of fact, whether they were co-employees, saying, if they were, the plaintiff could not recover.

Presumptively, the servants of two independent masters are not co-servants. The exact relations existing between the defendant and the Erie railroad are not disclosed by the evidence. It does appear, by undisputed evidence, that the defendant’s line terminated at Elmira. Also that the Erie railroad owned and controlled the yard, and that when defendant’s locomotives were in it, the servants employed on them were under the exclusive control of the officers of the Erie railroad, who directed how locomotives should be run, at what speed, what precautions should be used and signals given.

The cases cited may be conveniently divided into two classes: First, those in which the servants of a railroad corporation owning the structures and solely controlling the manner of moving the trains of both corporations, are negligently injured by the servant of a railroad corporation having the right to use the structures, under a contract.

In Warburton v. The Great Western Railway Company (L. R. 2 Exch. 30; S. C. 4 H. & C,, 695), the plaintiff was - employed by the L. N. W. Railway Company as a porter at its station. The defendant used this station under a con- • tract with the L. N. W. Railway Company, by which the latter company controlled the movement of defendant’s trains while at the station. The plaintiff was injured by the negligence of one of defendant’s engineers. It was held that the engineer and the porter were not co-employees, and that defendant was hable.

In Catawissa Railroad Company v. Armstrong (49 Pa. St., 186), the defendant (plaintiff in error) ran its trains for some miles over the track of the P. & E. R. R. Co., subject to the rules and regulations of the latter corporation. Plaintiff’s intestate was a brakeman, employed by the P. & E. R. R. Co., and was negligently killed by defendant’s conductor. It was held that the brakeman of the P. & -E. R. R. Co. and the defendant’s conductor were not co-employees, and a recovery was sustained. In 1868/ the rule in Pennsylvania was changed by the legislature. Mulherrin v. The D. L. & W. R. R. Co., 81 Pa. St., 366.

In Swainsun v. The Northeastern Railway Company (L. R., 3 Exch. Div., 341), the defendant’s station and that of the Great Northern Railway Company abutted upon each other, each corporation owning two tracks running by the stations. Trains entering into or departing from these stations were governed by signals and points, worked by signalmen, who were members of the “ joint station staff.” The members of this staff (including the plaintiff’s intes- . tate) were employed and paid by the Great Western Railway Company, and wore its uniform, but defendant paid to the Great Western Railway Co. one-half of the wages of the joint station staff. Plaintiff’s intestate, a signalman, and one of the joint staff, was killed by the negligence of an engineer of one of defendant’s trains. It was held that the signalman and the engineer were not co-employees, and the action could not be defeated on that ground.

The second class embraces cases in which the servants of a railroad corporation, which uses mider a contract the structures of another railroad corporation, are negligently injured by the servants of the corporation owning the structures and solely controlling the manner of moving the trains of both corporations.

In Smith v. New York and Harlem Railway Company (6 Duer, 225; aff’d 19 N. Y., 127), the plaintiff’s intestate was an engineer in the service of the New York and New Haven Railroad Company, which ran its trains over some miles of defendant’s track. By the negligence of defendant’s switchman, plaintiff’s intestate was killed. The defendant, by the contract between the corporations, was bound to care for the track, and the switchman was under its exclusive control. It does not appear whether the trains of the New York and New Haven Company were, while on defendant’s track, subject to its control, but such is so generally the custom that it may be safely assumed that they were. It was held that the engineer or the New York and New Haven Railroad Company and the defendant’s switchman were not co-employees, and a recovery was sustained. In Zeigler v. The Danbury and Norwalk Railroad Company (52 Conn., 543), defendant’s road and that of the S. corporation connected, and formed a continuous line.

A train owned and operated by S. ran daily over defendant’s track, subject to the control of defendant’s officers. The plaintiff, was a brakeman on this train, who was injured by the negligence of defendant’s conductor while on defendant’s track. It was held that defendant’s conductor and plaintiff were not co-employees, and a recovery was sustained. Sawyer v. Rutland and Burlington R. R. Co. (27 Vt., 370), is not distinguishable from Smith v. N. Y. and Harlem R. R. Co., either in facts or principles. Roach v. The Fort Orange Paper Co. (18 N. Y. Week. Dig., 124; affirmed, 95 N. Y., 660), is not within either class of cases, because neither master exercised control over both' servants at the time of the injury. In that case the injured servant was employed and solely controlled by the railroad corporation, and the negligent servant was employed and solely controlled by the defendant. So in Stevenson v. Atlantic Mail Steamship Co. (1 J. & S., 277; affirmed, 57 N. Y., 108), the servants were employed by and were serving different masters, and it does not appear that either master exercised, or had the right to exercise at any time, any control over both servants.

In Vose v. L. and Y. Ry. Co. (2 H. & N., 728), the recovery was had because the defendant negligently established defective rules, which was not the negligence of a servant, but of the principal.

The following cases (The P. W. & B. R. R. Co. v. State, 57 Md., 352; Snow v. The Housatonic R. R. Co., 8 Allen, 441; Graham v The N. E. Ry. Co., 18 C. B., N. S., 229) arose out of the neglect of the defendants to provide safe structures—master’s duties—whereby the servants of the corporation using the structures were injured. In Cruty v. Erie Ry. Co. (3 T. & C., 244), one of the judges expressed views not in accordance with the authorities above cited, which were not concurred in by the court, and a new trial was granted because the evidence did not show that defendant was negligent.

Under the authorities, the plaintiff’s intestate and defendant’s employees in charge of the locomotive, were not co-servants, and this action cannot be defeated on that ground. The text writers support this conclusion. Shearm. & Red. Neg., § 101; 2 Thomp. Neg., 1043; Whart. Neg., § 231; Pierce, R. R., 370; 3 Wood’s Ry. Law, 1496; Wood’s M. & S. (2d ed.), 435; 2 Rorer R. R., 1205.

It was not error to permit the plaintiff to show that it was the custom of the station yard for the bells of locomotives to be continuously rung while approaching the ash pit. It was shown that tho corporation owning the yard, by a rule established, required that the bells of locomotives moving in the yard should be rung. Presumptively the plaintiff’s intestate knew of the rule and its customary observance, and he had a right to rely upon the continuance of the observance of the rule. This evidence bore directly upon the question of whether decedent negligently contributed to his own in jury. It was competent, upon this issue, to permit the plaintiff to show that the locomotive, ' on this occasion, ran toward the ash pit at a greater than the usual rate of speed.

The judgment and the order are affirmed, with costs.

Hardin, P. J., and Boardman, J., concur.


text:
    John H. Bruen, Resp’t, v. Solomon L. Gillett, App’lt, impleaded with Francis G. Hall.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887.)

    Assignment—Liability of assignee for losses incurred through misconduct of co-assignee.
    The defendants in this action were assignees under a general assignment for the benefit of creditors. The appellant intrusted his co-trustee with an almost exclusive control of the property assigned, and through this fact seeks to avoid liability for losses incurred by the misappropriation of the funds by the party conducting the management of them. Held, that his acts in placing it within the power of his co-trustee to use the trust funds in his private business constituted gross negligence, and that the assignees wore liable for the losses so incurred.

      Appeal from a judgment entered upon the report of a referee.

      Youmans, Moss & Knipp, for resp’t; J. McGuire, for appl’t.
   Follett, J.

March 22, 1878, Henry W. Beadle made a general assignment for the benefit of creditors to the defendants, who immediately accepted the trust and entered upon the discharge of their duties.

This action was begun January 2, 1882, to compel defendants to distribute the assets among the creditors and close the trust. Previous to the commencement of the action the defendants had paid one dividend of $49,033.31, and after the commencement of the action, a second dividend of $16,018.20.

By an account, verified by both defendants January 12, 1883, they admit the receipt of $106,085.69, and charge the trust with $88,992.86, leaving a balance in their hands, at that date, of................................. $17,092 83

The referee charged to this balance, the following sums:

Interest collected prior to April, 1879, $332 90

Rents collected from June, 1880, to January, 1881................... 2,332 95

Collected on Snyder’s note.......... 128 47

Collected since January 12, 1883____ 1,254 00

Improperly paid Emma Fountain (Eleventh finding)............... 18 07

Improperly paid divers persons (Thirteenth finding).............. 332 35

Improperly charged as “Collection account”........................ 564 13 '

Commissions taken by assignees, September 18,1878 (Tenth finding), 6,000 00

Interest on moneys used (Ninth finding)......................... 11,401 65

--$22,364 52

Total balance ............................ $39,457 33

Cr.

By expenses since January 12, 1883, $873 25

Due Elmira Water Works (Fifthteenth finding).................. 97 05

Commissions on receipts, 5 per cent., 6,076 26

---$7,046 58

$32,410 7T

- The balance shown by the above statement exceeds, by fifty cents, the balance found by the referee.

• The appellant excepted to being charged with any of the items added to the balance of $17,092,83 by the referee, but in the brief presented in his behalf, the only item challenged is interest, $11,401.65, though the appellant also insists that he is not liable for principal or interest, because the fund was lost by the failure of his co-trustee, Hall.

The appellant seeks to avoid liability for any part of the balance found due, upon the ground that he intrusted his co-trustee, Hall, a man ,in good credit, with the management of the trust estate.

It appears that Hall was a banker at the city of Elmira at the time of the assignment, and continued in that business until July 22, 1884, when he was found insolvent and made a general assignment for the benefit of creditors. Hall managed the assigned estate substantially to the exclusion of Gillett, and he, Hall, testified that he used the trust funds in his private business.

He also testified; “I am only an individual banker; as such banker I kept an account with Hall and Gillett, as assignees; credited these moneys collected; was with Gillett’s knowledge.” Hall also testified that a large portion of the moneys was at first deposited to the credit of the assignees in the Chemung Canal Bank and in the Second National Bank, but it was shortly drawn out by the joint checks of the assignees and deposited with the defendant, Hall. By signiifg these checks, the appellant, Gillett, voluntarily placed this money in the sole custody of his coassignee. He knew that Hall was a banker, and must have known, from the course of business, that it was being-used by Hall individually; but if he did not know this, he did know that he was placing the money within the power of his co-assignee to so use it. This was gross negligence. The appellant was not examined in his own behalf before the referee, and made no attempt to show that he acted in good faith or diligently. Under the well-settled rules of law relating to the liability of trustees for their conduct, both defendants were properly held liable for the loss of this sum. Duffy v. Duncan, 32 Barb., 587; aff’d, 35 N. Y., 187; Berwick v. Halsey, 4 Redf., 18; 3 Will. Ex. [6 Am. ed.], 1827.

The rule measuring the liability of a trustee for the devastavit of a co-trustee in a continuing trust, is not quite applicable to this case. In contmuing trusts it may not, under some circumstances, be actionable negligence for a trustee to intrust his co-trustee with the securities of the estate, even though by such action loss accrues. The trust in question was an active one, and these assignees knew that it was their duty to speedily convert the estate into money, care for it with vigilance, and promptly distribute it among the creditors; and neither trustee can escape liability by intrusting the sole management of the estate to his co-trustee. No excuse is shown why this money was not promptly distributed, or for drawing it from banks and intrusting it to Hall.

This appellant took a sufficiently active interest in the management of this estate, to suppose himself to be entitled to a compensation of $3,000, which he paid himself September 18, 1878, less than six months after the date of the assignment.

These assignees were allowed by the referee the same commissions which the most vigilant trustees are allowed by law—$6,076.28, five per cent on the amount collected.

They might well have been charged with compound interest, but were only charged with simple interest. The defendants might well have been charged with the costs of this litigation, but, instead of that, they were charged against the fund These defendants have been most liberally treated by the court below; unless it should be held that such trusts are to be administered for the benefit of the assignees, instead of for the benefit of the creditors.

The judgment is affirmed, with costs, against the appellant personally.

Hardin, P„ J., and Boardman, J., concur.


text:
    Susan Schad et al., App’lts, v. Adam Schad, Resp’t.

      (Supreme Court, General Term, Fourth, Department,

      Filed April, 1887)

    1. Mortgage—Rights op subsequent holders.
    The defendant sold and conveyed to his brother all his interest in the premises described in the complaint in this action, and took a purchase-money mortgage. Subsequently he sold this mortgage and the bond which it was given to secure, and guaranteed the payment thereof The purchaser of the premises went inlo possession and occupied them till his death. He died intestate, leaving him surviving a widow and four children, the plaintiffs in this action, who thereupon assumed possession of the premises covered by the mortgage, and so continued until the foreclosure of the mortgage, with the exception of a part of the intervening period, during which the defendant had possession. By an agreement entered into between the plaintiffs and the defendant, he assumed the payment of the interest on the mortgage for a year, and the defendants undertook to pay a debt which they owed him, and to secure the payment thereof, and of the amount the payment of which was assumed by the defendant by a bond and mortgage. In pursuance of this agreement the plaintiffs executed and delivered to him a mortgage, which he thereafter commenced the foreclosure of, and subsequently they paid the whole amount secured thereby, including the amount, the payment of which the defendant bad assumed. The defendant made an arrangement with the plaintiffs whereby he was to have the use of the premises and pay to the plaintiffs certain sums failing due upon the mortgage After the making of this agreement the defendant went into possession and made default in the payment of such sums. Thereafter the holder of the mortgage and of the defendant’s guaranty commenced an action for its foreclosure, making the parties in this action defendants. In that action tlie defendant was adjudged liable on his guaranty for any deficiency. A judgment of foreclosure having been entered, the property was sold at auction, and there remained a deficiency for which judgment was entered against this defendant and which he subsequently paid. Held, that the rights and interests of the plaintiffs in the mortgaged premises were subsequent to and subordinate to the bond and mortgage and the guaranty thereof by the defendant
    2. Same—Liability of party assuming payment of.

      Held, that the land was the primary fraud for the payment of the mortgage, and the guaranty of the defendant was a secondary liability.
    3. Same—Payment of deficiency—Liability for rent.

      Held, that the payment of the deficiency by the defendant, whether in obed -.ence to the terms of his guaranty of payment or because of the decree in the action of foreclosure, or in virtue of the judgment entered upon, the decree declaring the deficiency operated as a discharge of his undertaking with the plaintiffs to pay the rent upon the mortgage
    Appeal from a judgment entered in Jefferson county on the report of a referee dismissing the plaintiff’s complaint, with costs.
    Plaintiff seeks to recover from defendant $728 for money had and received, and for rent of the farm described in the complaint.
    The defendant sets up payment, and an equitable defense arising out of circumstances connecting the defendant with the bond and mortgage and the guarranty thereof by defendant, the foreclosure of the mortgage and judgment for deficiency against the defendant, and the payment of such judgment of deficiency before the commencement of this action.

      Kilby & Kellogg, for app’lts; Anson Harder and D. Bearup, for resp’t.
   Hardin, P. J.

April 2, 1860, defendant sold and conveyed to his brother, John Schad, all his interest in a certain ninety-seven acres of land described in the complaint, and took back in security for the purchase price of the lands a bond and mortgage for $2,600, payable ten years from date. On the 19th of December, 1860, the defendant, then being the owner of the bond and mortgage, sold and assigned them to one Alonzo Kring, and guaranteed payment thereof. John Schad went into possession of the premises and occupied the same until the time of his death, which occurred April 17, 1865. He died intestate, leaving him surviving his widow, the plaintiff, and four children, the only heirs at law. No letters of administration have been issued on his estate. Upon the death of John Schac the plaintiffs assumed possession of the ninety-seven acres covered by the mortgage, and continued in possessioi thereof until the foreclosure of the mortgage in 1884, excep from March, 1880, to March, 1881, during which period tn< defendant had possession of the premises. The plaintiffs kept up the interest on the mortgage until April 1, 1877. In February, 1079, the plaintiffs and the defendant entered into an agreement by which the defendant assumed to pay $182 to Kring on the mortgage to satisfy the interest due April 1, 1878, and in connection with that agreement the plaintiffs undertook to pay a debt which they owed to the defendant, and to secure it by a bond and mortgage on their property, and included m said security the $182, thus to be advanced by the defendant upon the first named mortgage. In pursuance of that agreement the plaintiffs executed a mortgage of $1,100, and delivered the same to the defendant, which mortgage the defendant thereafter commenced a foreclosure upon, and the plaintiffs paid the whole amount thereof, including the $182 which the defendant had undertaken to pay to Kring.

In March, 1880, the defendant made an arrangement with the plaintiff’s whereby he was to take and have the use of the farm, and to pay therefor to the plaintiffs the sum of $182, due April 1, 1879, upon the mortgage, and $182, which would be due April 1, 1880, and $182, which would be due April 1, 1881, except fifty dollars thereof, which had been paid November 29, 1879. After this agreement was made defendant went into possession of the farm, and kept it the year, but did not pay prior to going into possession or while in possession, the sums which he had stipulated to pay.

In July, 1881, Kring, the holder of the mortgage, and the defendant’s guaranty thereon, commenced an action to foreclose the mortgage, making the parties to this action defendants in that foreclosure. In that action it was adjudicated that the defendant here “ was liable on his guaranty of the mortgage for any deficiency,” and a judgment to that effect was ordered and entered June 28, 1884. Under that judgment “the mortgaged property was sold at public auction” for $2,000, leaving a deficiency of $2,475.79, and the referee who made the sale “reported the said sale and deficiency, and his report was filed August 19, 1884, the sale having been on the 16th of August.

It is found as a fact that the clerk of Jefferson county docketed the judgment in his office for that amount against the said defendant, Adam Schad.

Also, “that the defendant, Adam Schad, under his said guaranty, the judgment of foreclosure, the report of deficiency and docketing of said deficiency as a judgment, paid said deficiency of $2,475.79,” on the 19th of August, 1884, wfiich was twelve days before the commencement of this action.

According to the evidence at the trial the $2,600 bond and mortgage became due on the 2d day of April, 1870. No evidence was offered during the trial, nor is there any finding that there has been any valid extension of the bond and mortgage. It does not appear, therefore, that the payment upon the mortgage of the sums which, according to the arrangement between the plaintiffs and the defendant, he was to pay as consideration for the use of the premises during the year that he occupied them, would have operated as a preventative of the foreclosure of the $2,600 bond and mortgage. There seems to he a suggestion or inference to that effect in the argument submitted. We have looked in vain for any. evidence or feature of the case which would warrant the conclusion that the payment by the defendant of the sums he undertook to pay for the use of the farm in March, 1880, would have operated to prevent a foreclosure- and sale by Kring. The defendant, under the arrangement that he made in respect to the use of the farm, became liable to pay upon the bond and mortgage the sums stipulated, and according to the arrangement the sums were payable upon the bond and mortgage prior to the commencement of the foreclosure proceedings by Kring.

If the defendant had made the payments of interest, to wit.: $182, due April 1, 1879; $182, clue April 1, 1880; $182, due April 1, 1881, for his rent, it may be surmised that Kring might not have commenced the foreclosure of the mortgage. But there is nothing in the case to show that-such payments would have worked a legal extension of the mortgage, or formed a legal barrier to-its foreclosure. Considering what damages the plaintiffs, have suffered, if any, by reason of the non-payment of the rent at the time stipulated in the undertaking between them and the defendant, it must be borne in mind that the mortgage was long overdue, and whether or no it should be foreclosed, rested in the option of Kring, the holder, as well as of the defendant in this action, who had guaranteed the payment thereof. The defendant in virtue of his guaranty had-become liable for the mortgage debt. He was entitled, therefore, to request Kring to foreclose the mortgage. He was likewise entitled to an assignment of the mortgage-upon paying the amount remaining unpaid upon it, and upon such resumption of the ownership of the mortgage, surely he would have been entitled to foreclose the same. Instead of foreclosing the same he had a right to acquiesce in the foreclosure by Kring. He:was made a party defendant, and his legal liability upon his guaranty of payment of the mortgage was established. by the judgment in that action conclusively as between himself and these plaintiffs, as well as between himself and Kring, the owner of the mortgage foreclosed. When the defendant paid the deficiency August 19, 1884, of $2,475.79, he paid a very much larger sum than the amount of rent which he had stipulated with the plaintiffs to pay for the use of the land. The sum which he paid was paid upon the same indebtedness which by a stipulation made in March, 1880, was to be paid by the rent for the use of the land during the year he was in possession. If there had been any legal extension of the mortgage, or any barrier against foreclosure, in case the in terest' was paid by defendant to satisfy the plaintiffs for the use of the property during the year 1880, it is probable the plaintiffs here, who were co-defendants with the defendants here in the foreclosure action, might have, and perhaps would have, set up in that action their equities, and the provision they had made for the payment of the interest, and ask the court to adjudicate thereon.

As between the plaintiffs and the defendants, the purchase money mortgage of $2,600 was a lien upon the premises covered by it, and equitably the rent or issues from the land were applicable to the payment of the interest accruing upon the mortgage. The rights and interests of the plaintiffs in the mortgaged premises were subsequent to and subordinate to the bond and mortgage, and the guaranty thereof by the defendant. The land was the primary fund for the payment of the bond and mortgage. The guaranty of the defendant was a secondary liability held by Kring, the owner of the mortgage. The primary fund has been applied in satisfaction of the mortgage debt as far as it would go, and the defendant in virtue of his liability assumed as guarantor, has been compelled to pay the deficiency. The payment of that deficiency, whether in obedience to the terms of his guaranty of payment, or because of the decree in the foreclosure action establishing his liability for the deficiency and declaring that he must pay any deficiency, or in virtue of the judgment entered upon the decree declaring the deficiency, operates as a discharge of his undertaking with the plaintiffs to pay the rent upon the mortgage.

If the defendant was seeking to enforce his rights against the plaintiffs so far as they were liable for property received from the decedent (Code, sec. 1843), he would be entitled to recover upon showing the execution of the bond and mortgage, his guaranty thereof, and the judgment directing a foreclosure, and the amount he had paid, upon the guaranty, presumptively, would be the measure of his right of recovery.

But against such right of recovery it would have been entirely, competent for the. plaintiffs to reply that the defendant had received the use of the lands of the deceased under- the circumstances disclosed by the agreement between the parties made in March, 1880, and to have had an allowance oi offset of the amount thuo realized

Lockwood v. Fawcett (17 Hun, 146), is not applicable to this ease. In that case Simpson, the owner of the mortgage, foreclosed, and, as the court held, “ was bound to take judgment in the foreclosure action for the deficiency, or bring an action to recover it after the sale by leave of the court. He did neither. ”

In the case before us the parties were all bound by the judgment of foreclosure in the Kring suit, and besides the defendant here became liable as guarantor upon the bond of the decedent, and because of that guaranty was obliged to pay.

We are of the opinion that defendant made out an equitable defense to the plaintiffs’ cause of action Smith v. Felton, 43 N. Y., 419; Littlefield v. The Albany County Bank, 97 id., 581; Rothschild v. Mack, 3 N. Y. State Rep., 471.

. The plaintiffs are in no worse plight than they would have been had the defendant kept the mortgage in his own hands, and while holding it as a consideration for a year’s use of the premises, made an agreement like the one Claimed, that he would indorse three or four years’ interest upon the mortgage, and then had failed to make the endorsement, and commenced an action for the foreclosure, sold the property, and applied the purchase price towards the discharge of the mortgage, and applied the rent which he had agreed to indorse, and sought to recover the balance of the estate of the mortgagor or his descendants.

If the plaintiffs had received the property from the decedent their liability would have followed by virtue of section 1843 of the Code of Civil Procedure, but upon the grounds already stated we are of the opinion that the conclusion of the referee upon the merits is correct.

Judgment affirmed, with costs.

Boardman and Follett, JJ., concur.


author: Hardin, P, J.

text:
    Dennis Burns, Resp’t, v. Henry Winchell, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887)

    1. Tenants in common—Agreement to raise crops.
    The parties to this action entered into an agreement, whereby the plain-' tiff undertook to plant, raise and cure a crop of tobacco on the defendant’s land, furnishing certain things necessary to be used in the process. In consideration of the faithful performance of his part of the contract, it was agreed that the plaintiff should have one-half of the tobacco. Held, that under the agreement, the parties became tenants in common of the crop of tobacco.

      % Same—Mat sever their portions of personal propertt in its nature DIVISIBLE. .

      Held, that owners in common of personal property, in its nature separable In respect to quantity or quality by weight or measure, might sever their portions of the common bulk at will.
    3. Same—Conversion—When refusal of tenant in common to deliver share is.

      Held, that the demand of the plaintiff for his shared the property, and defendant’s refusal to allow him to take possession thereof, constituted a conversion on the part of the defendant.
    4. Same—Chattel mortgage—Does not affect relative rights of tenants IN COMMON.

      Held, that notwithstanding the fact that the plaintiff, previous to the demand and refusal, had executed a chattel mortgage of the property which remained in force at that time, he owed the equity of redemption in the property, and had such an interest in it as against the defendant as entitled him to the possession of his share of the property.
    5. Same—conversion—Measure of damages. •

      Held, that the defendant, having sold the entire crop and made payment of the chattel mortgage resting upon plaintiff’s half of it, a verdict in the plaintiff’s favor for the difference between that sum and the plaintiff's half of the proceeds, was not excessive,
    Appeal from a judgment entered upon a verdict in the -county court of Onondaga county, and also from an order-denying motion for a new trial made upon the judges’ minutes. Upon a former appeal we granted a new trial, holding “ that plaintiff’s evidence should have been confined to the market value at the time of the conversion.”

      Hoyt, Beach & Hyne, for app’lt; Terry & Terry, for resp’t.
   Hardin, P, J.

On the first day of June, 1882, the parties entered into an agreement containing the following .stipulations, viz.: “That the said Burns agrees to plant about five acres of tobacco on the land of said Henry Winchell, in the town of Camillus, Onondaga county; said Burns is to do all the manual labor on said land, load all .the manure and spread the same, and what hen manure he (Winchell) has got, and the manure of two backhouses, and mix the same with leached ashes, and put the compost in the tobacco hills. He (Burns) is to do ad the work on said tobacco, cut and hang and sort and pack it in boxes, and furnish ad the plants, and find one-half of the lath for hanging, and one-half of the boxes. Said Burns agrees to do this work in a good and workmandke manner, and to do the same in season. When said Burns fails in doing the same he forfeits ad he has done, and it shall be lawful for said Winched to go and take charge of the same. Said Winched also agrees to furnish ad the team work that is required on said tobacco lot, and draw the tobacco away, and to furnish one-half of the lath and one-half of the boxes. And in consideration of the faithful performance of .such labor, said Burns is to have one-half of said tobacco.”

Undoubtedly under the agreement the parties became tenants in common of the crop of tobacco. Caswell v. Districh, 15 Wend., 379; Harris v. Frink, 49 N. Y., 24.

In the spring of 1883, the plaintiff stripped and sorted the tobacco ready for market and kept it locked up in the building where he sorted it. About the 20th of June, 1883, the plaintiff went to the building with his cases and put the tobacco in for the purpose of drawing it to market. He then found the defendant had pried off plaintiff’s lock from the door and put on another, so that the plaintiff could not get into the building, and the defendant refused to let the plaintiff have the tobacco or any part thereof, stating to the plaintiff that he had no tobacco there, and also stating to the plaintiff that he had not done his work properly, and for the first time found fault with the manner in which tne tobacco had been harvested and cured. Plaintiff testified, viz.: “ The last time I went back there I asked Winchell for my half of the tobacco there. He said I had no [tobacco there at all. He would not allow me to go in at all. I asked him to case the tobacco or divide it with me. He said I hadn’t no tobacco there at all. I said, well, I will go and see whether I can get it or not.”

We think the evidence entirely sufficient to establish a demand and a refusal, and that the conduct of the defend- I ant was such that he rendered himself liable for conversion I of plaintiff’s interest in the tobacco at the time of the de- I mand and refusal. Lobdell v. Stowell, 51 N. Y., 70.

The refusal of the defendant to allow the plaintiff to ob- I tain possession of the property, may be regarded as “ waiv- I ing the performance of any further acts ” by the plaintiff I as tenant in common. Fobes v. Shattuck, 22 Barb., 568.

In Stall v. Wilber (77 N. Y., 158), Earl, J., uses lan- 1 guage applicable to the question made in respect to the de- I mand under consideration. He says, viz.: “As to such 1 property, separable in respect to quantity and quality by 1 weight or measure, each tenant in common may demand 1 of his co-tenant, having possession of the whole, his share, ■ and upon refusal or a conversion by such co-tenant, may I sue in his own name, without joining all the other co- I tenants. Channon v. Lusk, 2 Lans., 211; Lobdell v. Stowell, 37 How., 88; S. C., 51 N. Y., 70.”

The doctrine just cited was followed in Thomas v. Williams (32 Hun, 260), where Smith, P. J., speaking for this court, said, viz.: “The parties were owners in common of the grain. It has been held in this state that owners in. common of grain, or other personal property, in its nature separable in respect to quantity and quality by weight or measure (as the grain in question here was shown to be), may sever their portions of the common bulk at will; and where one of them, having the entire property m his possession, appropriates the whole to his own use, and refuses on reasonable demand to let the other have his portion of it, he is liable for a conversion. ’’

We hold the evidence upon the trial, in the case before us, was sufficient to warrant the jury in finding a demand and refusal, and that the defendant, converted the whole of the plaintiff’s interest in the crop of tobacco It appeared upon the trial that the plaintiff, on the 4tn day of Decern - her, 1SS2, executed to John C. Monroe a chattel mortgage to secure sixty-five dollars, due in one day from date with use, “upon the undivided one-half of five acres of tobacco raised in 1SS2, which is now on the poles, and in the barn on the premises now occupied by Henry Winchell in the town of Camillus, and now remaining and being in his possession in said town.’’

Because of the execution of that mortgage the defendant, upon the trial, insisted that the plaintiff had no title or interest in the tobacco at the time of the demand and refusal. It appeared in the evidence that the mortgagee had never demanded the money on his mortgage, nor taken possession «of the mortgaged property.

Notwithstanding the execution of that mortgage by the plaintiff, he owned the equity of redemption in the property and had such an interest in it as against the defendant that he had a perfect right to the possession thereof at the time of the demand and refusal. Marsden v. Cornell, 62 N. Y., 215; Green v. Clarke, 12 id., 343.

Giving the chattel mortgage to Monroe in rko manner enhanced the defendant’s rights in the property, and defend - ant failed to connect himself with the title or interest of Monroe in the property, except by a subsequent arrangement made after the demand and refusal to the effect that when the property "was sold the mortgage would be paid out of the interest of the plaintiff in the proceeds. Such payment appears to have been made, and the recovery had in this case is only for such sum as is equivalent to the proceeds of plaintiff’s half' after paying therefrom the mortgage in question. . Monroe had entered into an arrangement that he would wait for the pay on his mortgage until Burns sold the tobacco, and after that arrangement Burns had bestowed considerable labor upon the property covered by the mortgage during the winter and in the spring in stripping, sorting and re-sorting the tobacco. In effect, there was an understanding between the plaintiff and the mortgagee that the mortgage should not be enforced until the tobacco was turned into money and the proceeds could be applied thereon.

Under such circumstances we are of the opinion that the plaintiff had an interest in the property, and as against the defendant the right to the possession thereof, and that the defendant’s conversion was wrongful. Bowen v. Fenner, 40 Barb., 383.

It appears by the evidence in the case that the defendant sold the whole crop as his own, and in his answer and upon the trial he sought to assert a claim to the whole crop, and insisted the plaintiff had forfeited his right to any part thereof under the contract. According to the evidence of Monroe the defendant never acquired any right to the prop erty in virtue of the mortgage. He did not take an assignment of the mortgage. He liad notice before he sold the tobacco to Skinner that Monroe held the mortgage All the parties acted upon the assumption that when the property was sold and turned into money, that out of Burn’s half of the proceeds the mortgage should be paid. Such payment was made, and, as before remarked, the verdict in this case is only equivalent to the balance of the proceeds.

In the course of the charge the trial judge submitted to the jury to find whether the plaintiff had failed to perform his duty as required by the agreement in respect to the tobacco, and whether the failure was such as was contemplated by the agreement under which the defendant would be warranted in taking possession of the tobacco in question. The verdict of the jury is adverse to the defendant on that question.

The trial judge observed, viz.: “ It is a question of fact. It is a question in determining which you will have to re-, view all of the evidence relating to the way this tobacco was cultivated and cured and handled down to that time. The defendant was protected by the agreement by the insertion of the clause which allowed him, whenever there was a failure, to take possession of the property, and before you find that he had a right to take possession of the property at the stage when it is said that he did take possession and convert it, you must find that Burns himself had failed in his duty.”

W e think that the question was presented sufficiently favorable for the defendant to the jury. Their verdict is adverse to the defendant upon that question as well as upon all other questions of fact in the case. We see no error in the progress of the trial which should lead us to disturb the verdict. Judgment and order affirmed, with costs.

Boardman and Follett, JJ., concur.


author: Follett, J,

text:
    William Church, as Overseer of the Poor of the Town of Burlington, App’lt, v. John Fanning, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed April, 1887 )

    1. Overseer of the poor—Party becoming a charge upon the town may assign chose in action to, by way of indemnity.
    A parly who has become a charge upon the town may assign to an over seer of the poor a those in action to indemnify him in liis official capacity for such expenses as may be incurred by him in her behalf.
    2 Same—May sde claim assigned.
    The officer to whom the claim is so assigned has power to bring an action thereon

      11. M. Townsend, for app’lt; L. S. Henry, for resp’t.
   Follett, J,

This is an appeal from a judgment of the supreme court dismissing the complaint, with costs, entered upon the report of a referee.

During four years prior to March, 1885, Bridget Rice had been employed by defendant at weekly wages as a domestic in defendant’s family in the town of Burlington. In this month she was taken very sick, of which sickness she died April 13, 1885. She was without property, except the amount due her from defendant, who neither paid nor properly cared for her in her sickness, and she became a legal charge upon the town of Burlington. The plaintiff, as overseer, _ legally and necessarily expended fifty-seven dollars and eighteen cents ($57.18), in caring for her during her last sickness, and in her burial. After she became chargeable to the town, she assigned to the overseer of the poor the amount due her from'defendant for the purpose of indemnifying the plaintiff, in his official capacity, so far as she could, for such expense as he might be put to in her behalf. These facts are found by the referee, and he also found that defendant was justly indebted to Bridget Rice, March 26, 1885, in the sum of $180.50, but held that the plaintiff, in his official capacity, acquired no title to the cause of action, and had not legal capacity to maintain an action for the recovery of said demand. This position cannot be maintained. It is not against public policy for a poor person suddenly taken sick and chargeable upon the public, to indemnify, so far as she is able, the public authorities from expenses incurred on her account. It is not only not against public policy, but is a meritorious transaction, to be commended, and not condemned. Had this poor person come in possession of a sum of money, or an article of property, while being cared for by the overseer, can it be doubted that if she had voluntarily transferred the money or property to the overseer for the purpose of indemnifying him, that he would have acquired title to the money or property in his official capacity, and would have been liable to account for it to his town? Had this debt been evidenced by the defendant’s note, and Bridget Rice had voluntarily, without fraud or undue influence, transferred it to the overseer for the purpose of indemnity, we think he could have maintained an action thereon; and so in this case, the plaintiff acquired a good title as against the defendant to this debt.

As a general rule, all public officers (though not expressly authorized by statute), have capacity to sue commensurate with their public trusts and duties. Supervisors v. Stimson, 4 Hill, 136; Looney v. Hughes, 26 N. Y., 516; People v. Supervisors, 32 id., 477.

We have no doubt that it was the duty of this officer to accept from Bridget Rice indemnification for the expenses incurred in her care, in so far as it could be fairly and justly done, and that at common law hé has a right to recover by action, a chose in action so received.

The judgment is reversed and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Boardman, J,, concur.


text:
    Archelus M. Conrad, as Adm’r, etc., Resp’t, v. Genett Archer, App’lt.

      (Supreme, Court, General Term, Fourth Department,

      Filed April, 1887.)

    1. Appeal—Where record does not present evidence on which trial court acted its determination cannot be reviewed.
    The record on appeal not showing all the evidence on which the trial court acted in refusing an application to postpone a trial, held, that this question could not be reviewed, that the court liad no means of determining whether the trial court had abused its discretion and that it must be presumed that it did not.
    3. Executors and administrators—-What acts done before appointment NOT VALIDATED BY THEIR RECEPTION OF LETTERS—3 R S , 71, §16.
    Where one of the joint makers of a note payable to a decedent sold merchandise to a person who was subsecpiently appointed as executrix. Held, that the subsequent reception of letters testamentary did not relate back and cover and validate the act. 3 R. S., 71, § 16
    3. Same—What does not constitute counterclaim in action against.

      Held, that the amount due on such sale was properly disallowed as a counterclaim in an action brought on the note against one of the makers by the legal representatives of the payee.
    4. Same—What acts done before appointment are validated by the reception of letters.

      Held, that a payment made by one of the makers of the note to a person subsequently appointed as the executrix of the payee was validated by her appointment as such and withdrew the note fmm the operation of the statute of limitations.
    September 4, 1872, Alanson Bates and Genett Archer, by their joint and several promissory note, agreed to pay, one year after date, Daniel Lee or bearer $1,000, with interest. The interest was paid to Daniel Lee annually up to and including September 4, 1877. In January, 1878, Lee died, leaving a will, in which his daughter Diana L. Mattison was nominated as executrix. January 21, 1878, Mrs. Mattison left the note with William Austin, an attorney, for collection, who, April 26, 1878, received fifty dollars on it from the bands of Genett Archer, which was endorsed thereon. Austin expended between thirty-two and thirty-three dollars in paying the taxes assessed on decedent’s land and for digging his grave, and the remainder was spent in the litigations of the estate. It appears that litigations arose shortly after the death of Lee, and that about September 5, 1878, a temporary administrator was appointed, to whom the attorney delivered the note March 27, 1878. Decedent's will was probated July 15, 1879, and July 18,1879, letters testamentary were issued thereon to Diana L. Mattison, which were revoked November 25, 1879, and letters of administration, with the will annexed, were issued January 30, 1884, to the plaintiff. The summons in this action was served on Archer March 28, 1884, but has not been served on Bates.
    The facts above stated are conceded, or testified to by defendant’s witnesses, and are not disputed.
    This action is defended upon two grounds: (1), That Archer did not knowingly make the fifty dollar payment of April 26, 1878, and that this action is barred by the Statute of Limitations; (2), That Bates, in 1878, sold and delivered to Diana L. Mattison merchandise which she agreed to apply as a payment on the note, which demand is set up as a counter-claim.
    The trial judge ruled that the claim for goods sold was not a legal counter-claim, and submitted to the jury the question as to whether Archer handed the fifty dollars to Austin as a payment on the note.
    The jury found for the plaintiff.
    A motion for a new trial upon a case was denied at special term, a judgment entered, and the defendant appeals from the order and the judgment.

      Smith & Robertson, for pl’ff-resp’t; William Austin, for def’t-app’lt.
   Follett, J.

The appellant urges that the trial court erred in refusing his application to put the case over the term at which it was tried. The affidavit upon which the motion was made appears in the case, but the respondent’s counter-proofs do not, it being recited: “ Whereupon plaintiff’s attorney made counter-statements, to which no objection was made on the grounds that they were not sworn to, and were received by consent in lieu of affidavits, and upon the affidavit and statements made, and upon all the facts appearing, his application was denied by the court. ”

The evidence upon which the trial court made its decision not being before this court, it is apparent that the refusal to postpone the trial of the case cannot be here reviewed.

Without the evidence upon which the trial court acted this court has no means of determining whether the trial court abused its discretion, and it must be presumed that it did not.

We are asked to grant a new trial upon the ground that the verdict is contrary to the evidence. It does not appear that the case contains all of the evidence, or all bearing upon the disputed payment, and this court is consequently without the means of reviewing this question. Hunt v. Bloomer, 13 N. Y., 341, 343; Cox v. James, 45 id., 557; Porter v. Smith, 35 Hun, 118; Spence v. Chambers, 39 Hun, 193.

By the verdict it is settled that the appellant paid the fifty dollars with intent that it should be applied as a payment on the note.

The court rightly rejected the alleged counter-claim arising from a sale of merchandise by one of the makers of the note to Diana L. Mattison before the will was probated. Her subsequent reception of letters did not cover and validate, by relating back, this act. 2 R. S., 71, § 16; Humbert v. Wurster, 22 Hun, 405.

The appellant took no exceptions to the charge of the court, and the exceptions taken by the appellant to the rulings upon the admission and exclusion of evidence are quite unimportant and do not require consideration.

When the plaintiff first rested the defendant moved for a non-suit, which was denied, but the motion was not renewed at the close of the evidence.

Whether Austin had sufficient authority to receive the payment and so prevent the statute of limitations from running against this action, does not seem to have been distinctly raised in the trial court; but assuming it to be presented by the appellant’s very general motion fór a non-suit, we think, under the evidence, that the question must be answered to the affirmative. Lewis Mattison swears: “I told him (Archer) that Mr. Bates (his co-maker) sent: me down there to see if I could not get fifty dollars to pay our taxes with on this Bates and Archer note; * * * I told him it was in Mr. Austin’s hands, and he said he would pay fifty dollars on it if Mr. Austin would give him a receipt against the administrator.”

This was in April, and on the twenty-sixth of the same month the fifty dollars was paid by Archer to Austin, who paid from it $28.13 taxes, and $4.00 or $4.50 for digging decedent’s grave. A portion of the money was applied for-the benefit of the estate, and as the defendant understood it was to be applied. Subsequently Diana L, Mattisou received letters testamentary and acted as executrix. This reception of this payment was such a necessary act for the protection of the estate as was covered and validated by her subsequently becoming the executrix of the estate. Bellinger v. Ford, 21 Barb., 311, 314 and cases there cited; Priest v. Watkins, 2 Hill, 225, Matter of Faulkner, 7 id., 181.

The judgment is affirmed, with costs.

Hardin, P. J., and Boardman, J., concur.