text:
    Maggie Lewis, App’lt, v. Ida M. Newcombe, as Executrix, etc., Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    Evidence—Documentary—Correspondence.
    Where many of the letters, constituting the correspondence between plaintiff and defendant’s testator relative to a certain matter, have been ■*-* introduced by plaintiff and defendant without objection, other letters, embraced in such correspondence, are properly admissible.
    Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial.
    Abram Kling, for app’lt ; William H. Hamilton, for resp’t.
   WILLIAMS, J.

—The appellant claims the court erroneously admitted in evidence four letters of various dates in 1890 and 1891. The bonds were deposited with defendant’s testate in 1883, but there was correspondence between the parties with reference to the matters in controversy daring the years 1889, 1890 and 1891. Many of the letters constituting the correspondence were put in evidence by the plaintiff and by the defendant without objection, and the letters objected to were properly received, as forming a part of the same correspondence, in order that the jury might have the whole correspondence before them. The court, in receiving the letters complained of, and by its charge upon the request of the plaintiff’s counsel, sufficiently protected the plaintiff as to the effect the letters should have upon the jury. The letters written by the testate were not evidence in defendant’s behalf, standing alone, of the facts stated therein, but might properly be considered by the jury in connection with the balance of the correspondence and* the conduct of the parties. We are unable to see, under the circumstances, how these letters could have worked any injury to the plaintiff on the trial.

Appellant'further complains of the instructions given by the court to the jury as to the burden of proof with reference to the defendant’s counterclaim. The court, in the course of the charge said, in effect, that the burden of proof upon the whole case was upon the plaintiff, and she must establish her claim by a preponderance of evidence, but if the jury should find that the defendant’s testate had acknowledged his liability at a certain time, for a definite amount, the plaintiff would be entitled to recover that amount, unless the defendant had overcome that state of facts by proof of an agreement (before referred to), or by proof of attorney’s services, etc., (being the counterclaim in question), or by proof of other credits by way of payments. At the close of the charge the plaintiff’s counsel requested the court to charge that the burden of proof was upon the defendant to etablish the counterclaim. The court replied that it had substantially so charged. Counsel said he did not think so, to which the court replied, “I decline to charge otherwise than I have already charged.” Plaintiff’s counsel later excepted to the charged that the burden of proof was upon the plaintiff upon the whole case. We are unable to see, looking at the whole charge, how there was any error committed by the court in respect to the burden of proof as to the counterclaim. The jury was instructed that such burden was upon the defendant.

We find no error in the record calling for a reversal of the j udgment.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: VANN, J.

license: Public Domain

text:
    Garrett Toole et al., Pl’ffs, v. Board of Supervisors of Oneida County, Def’t.

      (Supreme Court, Oneida Special Term,

      Filed November, 1895.)

    1. Pensions—Exemption.
    Section 1393 of the Code exempts from sale for nonpayment of taxes land purchased as a place of residence for the purchaser and his family with pension money.
    8, Same—Partial ownership.
    Where the pensioner’s wife has an interest in the property, as tenant by the entirety, by virtue of a deed running to them jointly, an assessment of the entire parcel of land for taxation in the name of the pensioner cannot be sustained. The assessment on her interest only should describe and identify it as her exclusive interest.
    _ Action by Garrett Toole and others against the board of supervisors of Oneida county to cancel an assessment for taxes on property owned by plaintiff in the city of Utica, and to set aside a tax sale thereunder as a cloud on their title.
    The plaintiff Garrett Toole, while serving as a soldier of the United States in the war of Rebellion, contracted a disease which so far disabled him that, 1885, he was allowed a pension, to commence from the 20th of November, 1862. Upon the allowance of his pension, the first payment received amounted, to $900, which he at once invested in the house and lot in question. The purchase price was $1,100, and the balance of $200 with interest he paid out of other pension moneys, as they were received from the government, so that the entire purchase price was paid with pension moneys. On the 23d of May, 1893, he conveyed the premises to an intermediary, who forthwith conveyed the same hack to Mr. Toole and his wife*. In 1893 the entire premises were assessed in the name of Garrett Tool, upon a valuation of $400, and subsequently, by proceedings usual in such cases, the property was sold to the defendant for nonpayment of the tax so assessed. The premises consist of house and lot that are occupied by Mr. Toole and his wife and child. There are no buildings-upon the property, except a small dwelling house and a henhouse which were there when Mr. Toole purchased the property. It does not appear that any improvements have since been made, or that the property has increased in value since the date of the purchase.
    George C. Carter, for pl’ffs ; George C. Moorehouse, for def’t.
   VANN, J.

—Both the national and state legislatures have been careful to protect soldiers in the enjoyment, not only of their pension money but also of. such property, bought with pension money, as can be clearly and definitely traced to that source. Th® federal statute upon the subject is as follows:

“No sum of money due or to become due to any pensioner shall be liable to attachment, levy or seizure by or under any legal or equitable process whatever, whether the same remains with the pension office or any officer or agent thereof, or is in course of transmission with the pensioner entitled thereto, but shall -inure wholly to the benefit of such pensioner.” Rev. St. U. S. § 4747.

The statute of this state applicable to the subject is part of the Code of Civil Procedure, occurring under the title of “Property Exempt from Levy and Sale,” and is as follows:

“The pay and bounty of a non-commissioned officer, musician, or private, in the military or naval service of the United States; a land warrant, pension, or other reward, heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem, or device of any kind, presented as a testimonial for services rendered in the military or naval service of the United States; and the uniform, arms, and equipments which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for non-payment of. taxes, or in other legal proceeding.”' Code Civ. Proc. § 1393.

This section received careful consideration in Yates County Nat. Bank v. Carpenter, 119 N. Y. 550; 30 St. Rep. 121, where it was held by the court of appeals, all the judges concurring, that when the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and maintenance of the pensioner and his family, such property is exempt from levy and sale on execution. In discussing the case, Chief Judge Huger used the following language:

“ The plain purpose of the act was to promote the comfort of the soldier, to secure to him the bounty of the government, free from the claims of creditors, and to insure him and his family a safe, though a modest, maintenance so long as their needs require it. * * * We entertain no doubt that, where the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and maintenance of the pensioner and his family, such property is exempt, Under the provisions of this statute. Where such moneys can be clearly identified, and are used in the purchase of necessary articles, or are loaned or invested for the purpose of increase-or safety, in such a form as to secure their available use for the benefit of the pensioner in time of need, we do not doubt but that they come within the meaning of the statute; but where they have been embarked in trade, commerce, or speculation, and become mingled with other funds so as to be incapable of identification or separation, we do not doubt but that the pensioner loses the benefit of the statutory exemption.”

As it appears that .the pensioner in question has no property, aside from his interest in this real estate, and the monthly pension allowed him by the government, this case and the language used in deciding it seem applicable to the case in hand. The statute of exemption makes no distinction between a levy and sale by virtue of an execution, which was that case, and the nonpayment of taxes which is this case. Considering the object of the statute, no reason is ajoparent for a distinction, as the soldier might lose his home, which it was the object of the statute to secure to him, by a sale for the nonpayment of taxes the same as by a sale for the nonpayment of debts. The legislature, grateful to the soldiers who so faithfully served the country in its time of need, clearly intended to provide a comfortable support to such as had been wounded or had become disabled by disease in the discharge of their duties, by allowing them the use of all pension moneys, free from any claim for debt or taxes. A -statute with such an object should be so construed as to carry that object into effect; and, without further discussion, it is therefore held that the section, under consideration, as construed by the court of appeals with reference to exemption from sale under execution, applies with equal force to exemption for nonpayment of taxes.

The defendant, however, claims that the wife has an interest in the property in question, as tenant by the entirety, by virtue of the deed running to the plaintiffs jointly, and the authorities sustain this position. Bertles v. Nunan, 92 N. Y. 152; Zorntlein v. Bram, 100 id. 12; Hiles v. Fisher, 144 id. 306; 63 St. Rep. 705. From this fact it is argued that the wife had an assessable interest in said land, which is probably correct. It is further argued that, as real property may be assessed either to the owner or occupant, this property was properly assessed in the name of the husband, and that the assessment in question, if it is held that his interest was not assessable, should be regarded as applicable to her interest only. An assessment upon her interest only, however, should in some way describe and identify it as her exclusive interest, as, otherwise, it would mislead purchasers, and place a cloud upon the title of the husband. This was not done in the assessment in question, which is upon “all that piece or parcel of land,” etc.’, and not upon any specific interest in it. The advertisement of sale'was in the same form, and the sale was, apparently, of the entire land, and all estate, title and interest therein. In form, at least, it included the interest of the husband only, for the name of the wife does not appear; nor is there any suggestion that any interest except that of the husband was assessed or offered for sale.

The defendant further claims that property bought with pension moneys does not continue to be exempt, even if occupied by the pensioner and his family, provided it so increases in value as "to be far beyond the needs of his family, for “a safe, but modest, maintenance.” It may be that this position is correct, and that, in as case where the property had largely increased in value, only a certain amount of the valuation would be exempt, and the remainder taxable. But the argument based upon this proposition—that, as the assessors had jurisdiction, it is to be presumed that their valuation of $400 was only for the excess properly assessable, owing to increase in value—I do not regard as sound, under the circumstances of this case. Without reference to the question as to which party the burden of proof rested upon, I think the evidence fairly warrants the inference that there has been no substantial increase in value since the date of the purchase, which was May 13, 1885. The consideration then paid was $1,100, and no substantial improvements have been since made. It is still occupied as a dwelling house, and not for business purposes. The fact that there is a henhouse upon the premises, consisting of a house and lot in a city, is not without significance upon the point under consideration. No other point Worthy of the expression of consideration has been made. No question was raised in the answer, or made upon the trial, as to misjoinder of parties plaintiff. Upon the whole case I think the plaintiffs entitled to judgment canceling the assessment and vacating the sale, with costs.

Findings and a decree may be prepared accordingly, and, if not assented to as to form, settled before me upon a .notice of two days.


author: TURNER, J.

text:
    St. Lawrence State Hospital, Pl’ff, v. Frederick Fowler, as Committee, etc., Def’t.

      (Court of Sessions, Lewis County,

      Filed December, 1895.)

    Pension—Exemption.
    Under section 1393 of the Code, pension moneys, which compose the entire property of a father, cannot be subjected to the maintenance of an insane son, who is being cared for at the expense of the state.

      Application by the St. Lawrence State Hospital, against Frederick Fowler, committee of the person and property of Christian Holsworth, for an order fixing the value of the support and maintenance of John Holsworth, and to direct the payment of the sum so determined.
    Mullin, Griffin & Walker, for application; T. M. Reed, opposed.
   TURNER, J.

This is an application for an order to fix the value of the support and main:'manee of John Holsworth, a patient in St. Lawrence State Hospital, and to direct Frederick Fowler, as the committee of the person and property of one Christian Holsworth, who is the father of the said John Hols-worth, to pay the sum so determined to the treasurer of said hospital.

John Holsworth became insane in 1881, was sent to the Utica asylum, and returned to the county house, at Lowville, in 1885, and remained there until Decomber, 1890, when he was taken to St. Lawrence State Hospital by order of the state commission in lunacy. He was never married, never had any property, and was admitted to the county house, at Lowville, as a pauper. Christian Holsworth, his father, a man about sixty-three years old, became insane in 1871 or 1872, and was sent from Lewis county to the Utica asylum, then having a wife and family dependent upon him, and having substantially no property. From the time he was first sent to the asylum, until 1889, he was supported by the county or town of which he was a resident, and during a portion of the time his family received support from the public authorities. In 1889 he received a pension from the United States government, and in 1890 he was removed from the county house in Lowville, and, being still insane, has ever since been cared for by his wife and son' at a private house at Lowville, the expense of such support and maintenance being paid by Frederick Fowler, who was duly appointed committee of his person and property by the county court of Lewis county in 1888. The pension, when received, in 1889, amounted to the sum of $12,979.90 for arrearages, and his committee draws, in addition thereto, the sum of $72 per month as monthly pension. The expense of the support and maintenance of Christian Holsworth for the year 1894 was the sum of $1,025.25, as shown by the filed report of the committee; and that sum is about the average amount which has been expended for Holsworth’s support and maintenance since the reception of his pension. The amount now in the hands of said com-1 mittee is the sum of $15,000, which is in mortgages, mainly, and a few notes, bearing annual interest at about five per cent., and yielding an annual income of from $1,200 to near $1,600, including the pension receipts of $72 per month. The said Christian Holsworth has no other property except this pension money, and none other, except pension money, belonging to him; has been received or is held by his committee.

It appears, from the evidence, that the committee has used the income from the investment as it accrued for the annual support and maintenance of Holsworth, together with so much of the quarterly receipts of pension as was necessary for that purpose, and has added the balance or surplus of such quarterly pension moneys to the principal in his hands, which is now invested, and which makes the fund of $15,000. It was conceded, on the trial, that the cost of supporting and maintaining the son,- John Hols-worth, at the St. Lawrence State Hospital was the weekly sum of $3.75. The state hospital contends that, under the provisions of sections 12 and 13 of chapter 446 of the Laws of 1874, it has the right to institute proceedings, under section 915 and following section of the Criminal Code, to compel Christian Holsworth, or his property through his committee, to provide for the support and maintenance of his son John at said hospital, and that, pursuant to section 7 of chapter 375 of the Laws of 1887, its treasurer was the proper person to make this application. It was conceded on the trial that a proper notice, as provided in section 915 of the Criminal Code, was duly served more than ten days prior to the commencement of the term of court at which this application was made.

Notwithstanding the argument of counsel for the hospital as to the liability, under present existing statutes, of every insane person who may be an inmate of said hospital for his own maintentenance and expense therein, counsel for the committee raises the objection, and contends, that such a liability for the support and maintenance of the son cannot be sustained or enforced against Christian Holsworth or his property, upon the ground and for the reason that the money in the hands of his committee is wholly pension money.

Section 4747 of the United States Eevised Statutes is as follows:

“No sum of money due or to become due to any pensioner shall be liable to attachment, levy or seizure, by or under any legal or equitable process whatever, whether the sam'e remains with the pension office or -any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto; but shall inure wholly to the benefit of such pensioner.”

The statute of this state on this subject is as follows:

“ The pay and bounty of a noncommissioned officer, musician or private in the military or naval service of the United States; a land warrant, pension or other reward heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem or device of any kind presented as a testimonial for services rendered in the military or naval service of the United States; and the uniform, arms and equipments which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for nonpayment of taxes, or in any other legal proceeding.” Code Civ. Proc. § 1393.

The object of these enactments, both federal and state, is obvious. It was to reward the persons entitled to the bounty, as well as the thanks of the people, of this republic, for past services in its military or naval branches at a time when disunion and disaster threatened the nation, and for disabilities incurred in the line of duty and resulting from such services. The research of ■counsel upon either side, and the labor of the court, have failed to find a reported case in the books in this state wherein the precise question in this matter has been passed upon by our courts. Hence; we must reason somewhat from analogy.

It must be conceded that, under the provisions of the federal statute, the pension money is only protected until it reaches the pensioner. The rule, however, in this state, is that pension money and property purchased therewith is exempt from levy and sale under an execution. Yates County Nat. Bank v. Carpenter, 119 N. Y. 550; 30 St. Rep. 121. The statutes of this state exempt from assessment and taxation property which is exempt from levy and sale under an execution. 1 Rev. St. p. 388; 2 Id. (8 th Ed.) p. 1083, § 4, subd. 9. It is held that real property which was purchased with pension money is exempt from taxation. People v. Williams, 6 Misc. Rep. 185; In re Murphy, 9 Id. 647; 62 St. Rep. 202. But a late case in the supreme court, and not yet officially reported (Toole v. Board, 37 N. Y. Supp. 9), wherein the action was brought to cancel an assessment of taxes upon property purchased with pension money, and to set aside a tax sale of the property, is more decisive on this point. The case was tried before Mr.- Justice Vann, who rendered judgment canceling the assessment and vacating the tax sale upon the ground that the property was exempt. In his opinion upon the case the learned justice uses this language:

“The legislature, grateful to the soldiers who so faithfully served the country in its time of need, clearly intended to provide a comfortable support to such as had been wounded, or had become disabled or diseased in the discharge of their duties, by allowing them the use of all pension moneys free from any claim for debt or taxes. A statute with such an object should be so construed as to carry that object into effect, and, without further discussion, it is held that the action of the court of appeals with reference to exemption from sale under execution applies with equal force to exemption from nonpayment of taxes.”

In the case at bar, it appears that all the moneys in the hands of the committee of Christian Holsworth are moneys derived from a United States pension, and which have never been mingled with other funds, and which represent, in the securities and in their entirety, only the pension which the United States paid to the pensioner, Holsworth, because of the physicai-and mental disabilities which came to him as the result of his services as a soldier. It must be held that none of the property now held by the committee for Holsworth can be reached under an execution, and that the same is exempt from assessment and taxation. The exemption from taxation affects the state, and deprives it of revenue therefrom. In other words, the property of Christian Holsworth, now in the hands of his committee, escapes its share of public taxation for the support of the state, and the protection of private property or individual rights, because of existing statutes. The cost of supporting and maintaining his son, John Holsworth, at St. Lawrence State Hospital, is now borne by the state, and the state now asks that said Christian Holsworth be compelled to pay that expense as the father of an insane and pauper son.

It is unquestionably true that the father has failed to relieve and maintain his son, and that he is of sufficient pecuniary ability to do so; but the father is, himself, an incompetent person, and all his property is such only as has been paid to him by the United States government as a pensioner for military services. Can he now be compelled to support and maintain this son, under the provisions of sections 915 and 916 of the Criminal Code? If so, the provisions of the Criminal Code, under those sections, must be held to annul or override section 1893 of the Code of Civil Procedure. It seems to me that it was the intent of the legislature to exemp't the property mentioned in that section of the Civil Code from levy or seizure in any legal proceeding, in order that the person entitled thereto might enjoy, for himself and those dependent upon him, the whole bounty of the government, as evidenced by his pension; and I not think sections 915 and 916 of the Criminal Code in any way negative that proposition. Without further discussion, it seems to me I must hold that the property of Christian Holsworth is exempt from liability in this matter, for the reason that the same is composed exclusively of pension moneys, or securities representing none but pension moneys, and that, as it appeal's that said Holsworth has no other property, this application must be denied, and the proceeding dismissed. An order may be entered accordingly, dismissing this matter or proceeding, but without costs.

Proceeding dismissed, without costs.


text:
    St. Lawrence State Hospital, Pl’ff, v. Frederick Fowler, as Committee, Def’t.

      (Lewis County Court,

      Filed December, 1895.)

    Parent and chikd—Support—Insanity.
    Where no order has been made by the court of sessions charging the father with the son’s support, he will not be ordered to pay for the support of an. adult son, as a pauper, at a state institution.
    Application by the St. Lawrence State Hospital for an order against Frederick Fowler, as committee of Christian Holsworth, insane.
    • Mullin, Griffin & Walker, for the application; T. M. Eeed, opposed.
   TURNER, J.

—The facts in this matter are the same as in the ( proceeding instituted by "the St. Lawrence State Hospital against Fowler as the committee of Christian Holsworth, in the court of sessions in this county, to compel the committee to pay the sum of $3.75 per week to said hospital for the support and maintenance of John Holsworth, a pauper son of Christian Holsworth, at said state institution. The petitioner is the treasurer of said hospital, and the application herein is for an order directing the committee to pay to said hospital the sum of $245.29 for the care and maintenance of John Holsworth at said institution from .October 1, 1893, to the 1st day of January, 1895.

The committee, by his counsel, interposes these objections, to wit: (1) That the court has no ¡rower to bind either Christian Holsworth or his committee, Frederick Fowler, to the payment of his claim, as there is no evidence showing that any order has ever been obtained in the court of sessions requiring the said John Holsworth to be supported by his father, or by the committee of his father. (2) That until an order has been obtained in the court of sessions determing the liability of the father, and the amount thereof, for the support of the said John Holsworth, the county court has no jurisdiction to grant the order the petitioner herein requests, inasmuch as John Holsworth is not a minor, but is over twenty-one years of age. (3) That all the property of said Christian Holsworth, and all moneys and securities now in the hands of his said committee, are United States pension moneys, or derived wholly from a United States pension heretofore granted to the said Christain Holsworth.

After due consideration, it seems to me the objections in behalf of said Holsworth and his committee must b’e sustained. An order may be entered denying this application in behalf of St. Lawrence State.Hospital, but without costs.

Application denied, without costs.


author: ROSS, J.

text:
    Lizzie E. Freeborn, App’lt, v. Coburn Badgley, Resp’t.

      (Onondaga County Court,

      Filed December, 1895.)

    Justice op the peace—Adjournment.
    A judgment cannot be entered on the day at which a cause is adjourned by consent without waiting one hour after the time appointed, unless the . parties agree to waive the practice of waiting one hour.
    Appeal to the county court from a judgment of nonsuit rendered in a justice’s court
    William Gilbert, for app’lt ; Levi S. Chapman, for resp’t.
   ROSS, J.

—Appeal from a judgment of nonsuit and costs, $16.-17, rendered in favor of the defendant by F. L. Maine, justice of the peace, May 31, 18951 The return made by the justice in relation to the adjournment is as follows: “Adjourned by consent to» May 31, 1895, at 9 o’clock a. m.” At which time judgment was-rendered as above, without waiting one hour, which is claimed by the plaintiff and appellant to have been error.

An order for a new trial which had been made in this case places the parties in exactly the same position as upon the return of a summons:' It brings them into court, and “thereupon the like proceedings must be had in the action as upon the return of a summons personally served.” Code Civ. Proc. § 3065. If the parties made an agreement upon the return day that the ordinary practice of waiting an hour before moving the case should not apply, it should either have been reduced to writing and made part of the justice’s return, or it should have been made to appear in the return itself. There is nothing - in the return above, as -quoted, to indicate other than the ordinary adjournment. This is also true as to any proceedings which took place before the justice -on the return day which the respondent argues upon this appeal. "The simple fact that appears before me is the record of an adjournment, and of a default taken without waiting one hour. No case has been cited sustaining this practice, and I am unable to find -any; and, on the contrary, the decisions seem unmistakably to require the justice to wait ope hour upon the adjourned, as well as upon the return, day. Clark v. Garrison, 3 Barb. 372 ; Sherwood v. Railroad Co., 15 Barb. 650 ; Nichols v. Place, 1 Misc. Rep. 497. The right to appear before a justice of the peace within •one hour subsequent to which a case is adjourned is something more than a technical right,—a right protected by statute and sanctioned by the authorities; a right which has existed for,many years,—and for the violation of this right the judgment must be -reversed.


text:
    H. Walter Frost, Resp’t, v. Helen F. Frost, App’lt.

      (Onondaga County Court,

      Filed December, 1895.)

    I. Justice’s coubt—Infants—Judgment.
    A judgment, rendered against an infant in a justice’s court without first appointing a guardian ad litem, will he reversed though no suggestion of the fact of infancy was made by the defendant or her attorney when they appeared before the justice.
    :2. Same—Objection on appeal.
    Such objection may be raised on appeal from the judgment.
    Appeal to the county court from a judgment of the justice’s court in favor of plaintiff.
    William Gilbert, for app’lt ; James E. Newell, for resp’t.
   ROSS, J.

—Appeal from a judgment rendered on the 2 day of ■October, 1895, in favor of the plaintiff and against the defendant by J. J. Ken nelly, justice of the peace. The defendant appeared on the return day before the justice, and joined issue, but did not appear on the day to which the case was adjourned, and the plaintiff made proof, and the justice rendered the judgment as above. The defendant and appellant alleges as errors in fact that the defendant was at the time of the trial, and -is, an infant; and as no guardian ad litem was appointed in the court below, the judgment is irregular, and for this reason must be reversed. It appears from the affidavits used on behalf of the defendant that her contention as to her age is correct, although the plaintiff acted in this respect in good faith. No suggestion of the fact of infancy was made by the defendant or her attorney when they appeared before the justice. The failure to appoint a guardian ad litem for the infant defendant was an irregularity'for which the judgment should be reversed. It is termed in some cases to be more than an irregularity,—to be an error, in fact,—but the better law seems to be that it is an irregularity for which the judgment must be reversed if properly and timely presented. McMurray v. McMurray, 66 N. Y. 175 ; Crouter v. Crouter, 133 id. 56, 63 ; 44 St. Rep. 315 ; McMurray v. McMurray, 60 Barb. 121, 124; Harvey v. Large, 51 id. 222; Fairweather v. Satterly, 7 Rob. (N. Y.) 546 ; Mockey v. Grey, 2 Johns. 192 ; Alderman v. Tirrell, 8 id. 418 ; De Witt v. Post, 11 id. 460 ; Arnold v. Sanford, 14 id. 147.

It is a question of some difficulty whether the defendant is in a position to raise the question upon appeal until she has obtained the appointment of the guardian ad litem to represent her in this court. In Kellog v. Klock, 2 Code Rep. 29, an action in a court of record, the defendant procured the appointment of a special guardian before applying to set the judgment aside. In Fairweather v. Satterly, 7 Rob. (N. Y.) 547, also an action in a court of-record, a guardian ad litem was appointed subsequent to the judgment; but in all the other cases I have examined wherein error was alleged in obtaining judgment without the appointment of the guardian ad litem, the appeal or other method of review 'seems to have been directly presented by the infant. I know of no provision relative to appeals from justices’ judgments authorizing the appointment of a guardian ad litem subsequent to judgment. Certainly there are no provisions in justice’s court, and there the appeal must be taken before the county court would have any authority to act. It would also seem to be analogous to the case of one improperly served with process as being inveigled into the jurisdiction of the court, or otherwise improperly brought into court, appearing to set aside the summons. The appellant says, as emphatically as possible, “ I am improperly in court, and I am trying to get out as speedily as possible. It doesn’t lie with you who brought me into court "to say that I am not here at least for the purpose of setting this judgment aside.” It also seems that an appeal is the only remedy presented. See Jessurun v. Mackie, 24 Hun, 624. And the fact, if conceded, that the judgment is void, does not prevent an appeal. Striker v. Mott, 6 Wend. 465.

The hardship in this case upon the plaintiff is manifest. Without fault on his part, the defendant, who was in possession of the facts relative to her age, remained silent, and so conducted herself as to practically entrap the plaintiff into the position where he now finds himself. But the injustice and hardship caused by the conduct of the defendant here is not' as great as in the case of Gosling v. Acker, 2 Hill, 391, 396. The courts must sustain the provisions relative to the protection of infants, however great a hardship in a special case; otherwise we might as well wipe out entire statutory protection for these wards of the court.

Judgrhent must be reversed.


text:
    William Duffus, App’lt, v. Howard Furnace Company, Resp’t.

      (Onondaga County Court,

      Filed December, 1895.)

    1. Sat.e—Conditional—Fixtures.
    The title to fixtures, placed on the premises under contract of conditional sale, passes to the mortgagee of the premises, where the contract of sale is not filed.
    2. Same—Bona side mortgagee.
    A person is not a mortgagee in good faith, within' the meaning of section-1, chapter 315 of 1884, whose mortgage was given for a pre-existing debt without any new consideration, or with actual notice of the vendor's claim.
    Appeal from a judgment in favor of defendant.
    Walter S. MacGregor, for app’lt; Ceylon H. Lewis, for resp’t.
   ROSS, J.

—Action brought by the plaintiff and appellant for the conversion of what is known as a portable furnace. The defendant, on October 8, 1891, sold one Schafer the furnace in question, specifying in the contract of sale, with other things, that the furnace, together with all the material furnished by the first party, shall remain the property of the first part until the contract price below named is fully paid. The furnace in question was placed upon the premises of Schafer on the 8th and set up on the 9th of December, 1891. Schafer and wife executed to plaintiff a mortgage upon the premises in question on December 7, 1891, and a subsequent mortgage on May 6, 1892, and the plaintiff became the purchaser of the premises upon the foreclosure of the mortgages in evidenceand, the defendant having removed the furnace before the foreclosure sale, the plaintiff brings this action upon the théory that .the furnace was a part of the realty, and not a chattel which the defendant had the right to remove.

The case seems to have been tried upon the theory that, in a, proper case, trover will lie by the owner of real property, against one who has wrongfully severed a portion thereof. This is probably correct, but upon the theory that the plaintiff may waive a portion or all of the tort,- and also that the defendant will be estopped from saying that what die has treated as personal property is real property. Riley v. Power Co., 11 Cush. 11 ; Wadleigh v. Janvrin, 41 N. H. 503, 520. It was contended by the plaintiff, and I think correctly, that in a proper case á mortgagee who purchases upon a foreclosure sale of the mortgaged premises, can maintain an action for fixtures wrongfully removed while lie was in possession of the premises. Laflin v. Griffiths, 35 Barb. 58. The recent decision of .the general term in this department in Pratt v. Baker, 36 N. Y. Supp. 928, determines that a furnace in all respects similar to the one in suit is, in the absence of an special circumstances, except those arising from the nature of the property, its purpose, and method of annexation to the freehold, as between vendor and vendee, mortgagor and mortgagee, a part of the realty. In this case the clause in the contract for the purchase of the furnace in question, whereby it was provided that the title to the furnace remained in the defendant until paid for, is invoked on the part of the defendant as showing conclusively that the intention of the party making the annexation was that the furnance should remain personal property. It is contended by the plaintiff that the contract of sale, not having been filed as provided by chapter 315 of the Laws of 1884, and the acts amendatory thereto, is absolutely void as to the plaintiff. The provisions of the act in question are subitantially the same as the provisions in reference to filing chattel mortgages (compare section 1, c. 279, Laws 1833, with section 1, c. 315, Laws 1884), except that the provisions of the latter act does not extend to the creditors of the mortgagor. The effect of the act of 1884 was to change the rule existing prior thereto as to the title to personal property delivered upon a conditional sale to the vendee remaining in the vendor until the happening of the condition unless the contract was filed as therein provided; and I think that by the omission to file the contract in question, as against a mortgagee or purchaser in good faith, the title to the furnance did not remain in the vendor. Rodney Hunt Machine Co. v. Stewart, 57 Hun, 545, 551, 552; 33 St. Rep. 189. And if, the plaintiff was a mortgagee in good faith, he took a good title to the furnace in question. Fryatt v. Sullivan Co., 5 Hill, 116 ; affirmed, 7 Id. 529. The bill of sale was, however, properly admitted in evidence, not as substantive evidence of property, but-to show actual transaction between the original parties, subject, however, to be stricken out if the plaintiff was not connected with it either by showing that his mortgages were taken for pre-existing debts without any new consideration, or that he had actual notice of the defendant’s claim. A person is not a mortgagee in good faith, within the meaning of the act in question, whose mortgage was given for a pre-existing debt without any new consideration. Jones v. Graham, 77 N. Y. 628 ; Thompson v. Van Vechten, 27 Id 568, 580 ; De Lancey v. Stearns, 66 Id. 157, Ashner v. Deyoe, 76 Hun, 533; 60 St. Rep. 268.

I think the evidence shows that the plaintiff was a purchaser for value, but the question still remains whether he had actual notice of the defendant’s claim. Gregory v. Thomas, 20 Wend. 19,—in which the court, Cowcn, J., says:

. “The object of the statute here is that of all the other registry acts, to prevent imposition upon subsequent purchasers and mortgagees * * * When everything is actually explained to them, they have the best kind of notice.” Sanger v. Eastwood, 19 Wend. 514; Hill v. Beebe, 13 N. Y. 565. The evidence upon the duestion of actual notice is meager. It appears from the evidence of the plaintiff that in the fall of 1891 he knew that the defendant was putting a furnauce in the cellar of the house in question; that he saw it a dozen times after he got possession of the house; that he asked Schafer if if had been paid for (the answer of Schafer does not appear); that he saw it directly after it was put in. If I am not mistaken, the foregoing is all the evidence upon the subject of notice to plaintiff, and amounts, in brief, that lie saw the famanee in the house, and knew that it was put in by the defendant. I think this is insufficient to justify a finding of knowledge. I am more inclined to hold that the evidence is insufficient to show actual notice from the fact that, in the opinion of Judge Cady, before whom the case was tried, it appears he did not consider this branch of this complicated case, but, on the contrary, seems to have rendered judgment solely upon' the question of the intent of the defendant in making the annexation. The cases of Tyson v. Post, 108 N. Y. 217 ; 13 St. Rep. 503, and McFadden v. Allen, 134 N. Y. 489; 48 St. Rep. 324, cited by the repondent’s attorney, recognize the right of the owner of premises to impress upon a chattel the character of personal property, with the limitation that it does not interfere with the rights of the creditors of third persons. The question in this case is not as to the right of the defendant to impress the character of personal property upon the furnance in question, but whether by a valid agreement it has succeeded in so doing. In the case of Tifft v. Horton, 53 N. Y. 377, there was an express ’agreement that the chattels in question should remain personal property, notwithstanding the manner of annexation to the freehold, and also a valid chattel mortgage to secure the purchaser price. In the case the defendant claims under an instrument that is absolutely void for all purposes, as to the plaintiff, if he comes within the protection of the statute. The only facts that remain, after striking out the instrument in question, are the fact of annexation, and the nature and purpose of the chattel. Judgment must reversed.


author: •BOTTY, J.

text:
    Amos R. Woodruff, Resp’t, v. William Austin, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Appeal—What considered. -
    Upon an appeal from an order denying a motion to set aside service of the summons, on the ground that the court did not have jurisdiction of defendant’s person, the point that the defendant appeared generally in the action after the appeal was taken, cannot be raised on the argument of the appeal, but such question should be presented by a motion to dismiss the appeal.

      2. Process—Service—Privilege oe witness.
    The service of a summons will not be set aside, on the ground that the defendant was served while within jurisdiction of the court as a witness in a pending Action, where his delay in returning home on the day of service • was unnecessarily prolonged and, at or about the time of the service of the. process, he was attending to business of a private nature.

      Appeal from an order, denying a motion to set aside the service of a summons made on defendant in the city of New York, on the ground that, plaintiff being a resident of New Jersey and defendant a resident of Massachusetts, the court was without jurisdiction of the parties, and on the ground that defendant, at the time of service, was within the city of New York for the purpose of giving his testimony as a witness in an action pending in the supreme-court and was privileged.
    Root & Marsh, for app’ll; A. Edward Woodruff, for resp’t.
   •BOTTY, J.

—In determining the questions arising on this appeal we must be guided solely by the printed record as made up-for that purpose. The contention made by the respondent, upon the argument of this appeal, that the defendant appeared generally in this action since the taking of the appeal cannot be considered here. To bring this question before the court, the respondent should have removed for a dismissal of the appeal, on notice to the appellant. The record shows that the plaintiff, practicing lawyer at the time of the commencement of this action, resided in the city of Bah way, N. J., and had an office for the transaction-of his business in person within the city of New York. The fact that plaintiff had such an office within thé city of New York was sufficient to give the court jurisdiction, as, under the provision of section 3160 of the Code of Civil Procedure, he is deemed a. resident of that city.

It also appears from the record that the defendant is a resident of Boston, Mass. He came to New York on the morning of November 7,1895, for the purpose of attending as a witness in behalf of the plaintiff in the trial of the action of Chrimes against Squier pending in the New York supreme court. On that day said cause appeared on the day calendar, and was marked “ Beady,” but at the request of the attorney for the defendant the same was passed for the day. The case did not again appear on the day calendar until November 18th, although the same was marked “Beady,”' and was liable to be called up at any time. On the morning of November 14tb, the witness was informed by counsel for the plaintiff that his attendance at court was not required on that day and that he might go back to Boston, and return on November 18th. The witness, however, remained in the city, and on the afternoon of November 14th, between the hours of 4 and 5 o’clock, he called at the office of Mr. Woodruff, the plaintiff in this action- and was thereafter, and on the same day, served with the summons herein, the service of which he now seeks to set aside.

It seems that the witness’ delay in returning home on the day in question was unnecessarily prolonged, and that, at or about the time of the service of the process, he was attending to business of a private nature. By reason of the premises he forfeited his privilege of exemption from service of process. The motion to set aside the summons was, therefore, properly denied.

Order of November 27, 1895, and the order of resettlement of November 29, .1895, appealed from, affirmed, with costs.


author: BOTTY, J.

text:
    Fuchs & Lang Manufacturing Company, Resp’t, v. Springer & Welty Company, App’lt.
    (Two cases.)

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Judgment—Opening default—Reasonable condition.
    Requiring defendant to deposit money with the clerk as a condition for opening a default is a reasonable exercise of the court’s discretionary power where, to grant the defendant’s motion without requiring security of some sort to satisfy the plaintiff’s claims, costs, disbursements, etc., would, in effect, defeat him in the collection of his claim and give other execution creditors a preference over him.
    8. Same—Denting eight to appeal as condition.
    But, requiring the defendant, as a condition of opening a judgment by default, to stipulate that the verdict shall be'conclusive and no appeal taken therefrom, is unreasonable and will not be sustained.
    Appeal from a condition order, made in each case, opening the judgment obtained by default, and allowing defendant to come in and defend the action, and from a final order denying defendant’s motion to open the default, because of its failure to comply with the conditions imposed upon it by the first order.
    Boothby & Warren, for app’lt; J. E. Ludden, for resp’t.
   BOTTY, J.

—The facts disclosed by the affidavits used on the motion to open the judgment taken by default against the defendant show that the defendant was unable to meet its debts and that its property was sold by the sheriff under and by virtue of several executions issued upon judgments recovered by plaintiff and other creditors.

To grant the defendant’s motion to open the default without requiring it to furnish security of some sum to satisfy the plaintiff’s claims, costs, disbursements, etc., would in effect defeat the plaintiff in the collection of its claim and give other execution creditors a preference over plaintiff.

Under the circumstances the requirement of the deposit with the clerk of this court of the sum mentioned in the order to secure the plaintiff’s claim, costs, disbursements and expenses of sale, as a condition of opening the default and setting aside the judgment and execution, was not unreasonable, but the same was a fair exercise of the courts discretionary power in the premises, and the same should be sustained.

The other condition imposed upon the defendant by the terms of said order, viz., that it consent that the verdict of the jury upon the trial of the action should be final and no appeal taken therefrom for any reason, effects a substantial right of which no litigant should be deprived.'

We are, therefore, unable to sustain that part of the order.

Order of September 27, 1895, appealed from, affirmed, without costs, except as to that part thereof which requires the defendant to consent that the verdict of the jury shall be final and no appeal taken therefrom for any reason.

Let the defendant appellant have ten days from the date of the service of the order on this appeal within which to comply with the conditions of said order opening the default, and let the trial of the actions be set down for Monday, February 17, 1896.

The conditional order of September 27, 1895, having been affirmed in part only, it follows that the final order of October 8, 1895, must be reversed. The same is accordingly reversed, without costs.

McOAETHY, J., concurs.

Conditional order affirmed in part and final order reversed.


text:
    Henry E. Walton, Resp’t, v. Margaret Mather, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Trial—Mistrial.
    A ruling as to the admission or exclusion of evidence during the course of a mistrial is of no binding force and effect upon either party.
    Dittenhoefer, Gerber & James, for app’lt; Nathan Lewis (Samuel G. Adams, of counsel), for resp’t.
   BOTTY, J.

—This action was brought by the plaintiff for damages for breach of a contract of hiring, in discharging the plaintiff, without cause, before the termination of such contract. On a,_ former trial of this action, upon facts somewhat similar to those" adduced upon the last trial, now before us for review, the plaintiff was nonsuited, and an appeal taken to the general term of this court from the judgment entered in favor of the defendant upon such nonsuit. The court, after an elaborate and careful review of the facts before it, reversed the said judgment, and granted a new trial. Walton v. Mather, 4 Misc. Rep. 261 ; 53 St. Rep. 716. It was there held that the memorandum relied on by the plaintiff, bearing date the 12th day of June, 1890, standing alone, was not a contract, because, by its terms, it was subject to conditions and regulations to be thereafter agreed upon by the parties; that those conditions and regulations could be waived or agreed upon by the parties orally; that the proofs in regard to the authority of Mr. Willoughby to act as the agent of the defendant, and in regard to the question of the waiver of the conditions and regulations on the part of the defendant prescribed in said memorandum, together with the other questions in the case, were sufficient for submission to the jury; and that it was error to nonsuit the plaintiff. We see no reason for dissenting from the view then entertained by the appellate branch of this court. ,

The question of res ad judicata, raised by the defendant on this appeal — viz., that on the second trial of this action the trial justice excluded proof offered by the plaintiff of an alleged conversation or interview claimed by the plaintiff to have been had with the defendant in August, 1890, whereby the plaintiff sought to establish the fact that the defendant had waived the conditions and regulations prescribed in the memorandum of June 12, 1890, and accepted the remaining part of said memorandum as the original contract between the parties — cannot avail the appellant in this instance, because of the fact that the trial justice, after making such ruling, allowed a juror to be withdrawn, with leave to plaintiff to apply to special term to amend his complaint. This, therefore, was but a mistrial, and any ruling as to the admission or exclusion of evidence during the course of such trial is of no binding force and effect upon either party. By the reason of the withdrawal of the juror, the case was left in the same condition in which it stood before the commencement of said trial. The questions of law and fact, as presented by the record on this appeal (with the above exception), being almost identical with those presented on the former appeal, we therefore think that the case was properly submitted to the jury, and that the verdict, rendered, should not be disturbed.

Judgment and order appealed from affirmed, with costs.


author: CONLAN, J.

text:
    Guy C. Dempsey, Resp’t, v. Henry De Forrest Baldwin, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Pleading—Answer—Supplementary.
    Leave to serve a supplementary answer setting up a former judgment, in an action on a lease, will not lie denied on the ground that the answer does not clearly state whether the defendant relied upon a breach of the-covenant to give possession or upon eviction after possession.
    Appeal from „an order denying a motion for leave to serve a supplementary answer.
    Henry De F. Baldwin, in pro per.; John McCrone, for resp’t.
   CONLAN, J.

—This is an appeal from an order denying a motion for leave to serve a supplemental answer setting up a former judgment. The judge at special term denied the motion on the-ground that the answer did not clearly state whether the defendant relied on a breach of the covenant to give possession or upon an eviction after possession. The answer is open to criticism on that point, bnt we think it is defendant’s right to be allowed to plead recovery of a former judgment for what it may be worth on the trial of a second action. The pleadings on the first trial are only referred to on this appeal, and from the record we are unable-to say what was litigated or passed upon at that trial. The competency of the matters sought to be interposed will be passed upon by the trial judge.

For the reasons above stated, the order appealed from will be reversed, and the parties remitted back to the special term, where the amendment will be allowed on such terms as may there be imposed. As the terms are left with the special term, there will be no costs of this appeal. Ordered accordingly.


text:
    Herbert A. Jackson, Resp’t, v. Royal Benefit Society, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Insubancb—Life—Yorfeitubb.
    Where a policy has been forfeited for nonpayment of premiums, the mere payment of such premiums, after the death of the insured, to a person who is a mere collector of the company and not authorized to receive the money or waive the forfeiture, as provided by the terms of the policy, does not revive the policy.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial
    Whale & Stone, for app’lt ; Max Altmeyer, for resp’t.
   BOTTY, J.

—This action was brought to recover the sum of $250, alleged to be due and owing the plaintiff as the beneficiary of Agnes Cavanaugh, his common-law wife, under a certificate or policy of insurance issued to her by the defendant. On the application of one Agnes Cavanaugh, the defendant, a domestic corporation engaged (among other things) in the insurance of lives, on Monday, the 14th day of May, 1894, issued to her a certificate or policy of insurance upon her life, by an instrument in writing, bearing date on that day in consideration of the sum of twenty-five cents to it in hand paid, and a like amount to be paid on Monday of each week, or four weekly payments for one month, at its home office, and of the warranties and statements made in or on the application for membership, together with the provisions and conditions therein stipulated or indorsed thereon, whereby the defendant constituted the said Agnes Cavanaugh a member of Cosmopolitan Assembly, No. 3, of the Royal Benefit Society, and stipulated and agreed (among other things) to pay, upon the death of such member, a sum not exceeding the sum of $500 out of the benefit fund of the mortuary class of said society, which, at the option of the company, might be paid by it to the beneficiary mentioned in the application, or to any relatives by blood or connection by marriage of the member, or to any other person appearing to said society to be entitled equitably to the same by reason of having incurred expense on behalf of the member for his or her burial. The certificate or policy provides: ,

“That in case of the death of the member within six months of the date thereof, but one-half of the amount otherwise payable shall be due thereunder, the certificate being in full force and binding after six months of completed membership.”

It also provides:

“If, for any reason, payments are not collected by the represent- , ative of the society when due, it shall be the duty of the member, before the payment shall be in arrears four weeks, to bring or send said payments to the home office, or to the superintendent’s office; and in the event of the failure to perform this duty, the society may cancel his certificate without notice to any person or persons interested therein. No payments on this certificate will he recognized by the society as binding unless made to a duly-authorized collector, and by such collector entered at the time of the payment on the receipt card belonging with the certificate.”

It also contains the following provision :

“ Agents and collectors are not authorized to make, alter, oP discharge eon tracts, or waive forfeitures, or receive payments on certificates in arrears beyond the time allowed by the regulations of the society, which in no case shall exceed four weeks.”

The receipt card or book contained the following printed notices, viz.:

“ Failure to pay dues over four weeks will avoid the policy.” “Failure of collector 4o call does not excuse you, as payments may be made at the office.” “No payments must be entered on the card, if the certificate is more than four weeks in arrears, unless reinstated in accordance with the rules of the society.”

In the application for membership the insured is described d,s “ married,” and the beneficiary designated therein is one “Alfred Jackson, cousin.” Under date of September 6, 1894, an indorsement was made by defendant upon the said policy of insurance in words following, to wit:

“The name of the holder of this certificate has been changed, by marriage, to Agnes Jackson. J. C. Hurley, Secretary.

The books of the company were made to'correspond with such change of name. Agnes Cavanaugh *pr Jackson), the insured, paid all weekly premiums which accrued under the policy up to the 10th day of September, 1894, after which time she neglected and refused to pay more premiums. On October 9 1894, the said Agnes Cavanaugh (or Jackson) died, and on October 13, 1894, proof of her death was duly furnished by plaintiff to the defendant.

To entitle the plaintiff to recover it was incumbent upon him to prove by a preponderance of evidence — First, that the deceased was insured by the defendant; second, that the weekly premiums which accrued under the policy were duly paid; third, the time of death of the deceased; fourth, that the policy was in full force at the time of her death; fifth, that the plaintiff was the beneficiary or person entitled to receive the amount due under the policy; sixth, that plaintiff furnished the defendant with satisfactory proofs of her death; seventh, that payment of the amount claim eel to be due him was demanded of the defendant; eighth, that defendant refused to pay same. All other questions of fact having been duly established by competent evidence, the main questions at issue in this case, and which must be considered on this appeal, áre the following: First, was the plaintiff the beneficiary or person entitled to receive the amount which might be due under said policy ? Second, had the policy lapsed by reason of the nonpayment of the weekly premiums required to be paid by the terms of the policy? And, if so, was the forfeiture waived by the defendant ?

The plaintiff, to establish the first proposition or question under consideration, to wit, whether he was the person who was entitled to receive the amount due, if any, under the policy, testified that he wás the common-law husband of the deceased, and' that he cohabited with her as snch for a period of about two years prior to her death. It will here be noted that the béneficiary named in the application for membership is one “ Alfred Jackson, cousin ” of the deceased. But, in furtherance of his claim, he testified that one Manasha, who was a collector of the defendant, had a conversation with him and the insured, and, as a result of this conversation, Manasha caused the marital name of the insured, viz. Agnes Jackson, to be indorsed on the policy by defendant, and that he returned the policy, so indorsed, to the insured, and at the same time informed the plaintiff that his- name was entered on the books of the company as the beneficiary under the policy. No proof, however, was adduced on the part of the plaintiff showing that there was an actual change in the name or description of the beneficiary, either on the application for membership, policy of insurance, or the books of the company. It is evident, however, that, although plaintiff was not a “ cousin ” of the deceased, he was the person intended as the beneficiary under the policy; but, aside from this, the claim that plaintiff was the husband of the deceased would entitle him to receive the amount which might be due under the policy, and defendant would be protected in making such payment. This question was, therefore properly submitted as a question of fact to the jury for its determination.

To establish the second proposition or question, to wit, that the policy had not lapsed by reason of the nonpayment of the weekly ( premiums due under the policy, and, if so, that the forfeiture was waived by the defendant, the plaintiff testified as follows: That

on the morning of the 13th day of October, 1894, four days after the death of the insured, he paid or caused to be paid to one Philip Fisher, one of defendant’s collectors, three weeks’ premiums, amounting to seventy-five cents, which tvere then due under the policy, and for which he receipted on the pay card. This receipt shows that the amount was so paid to Fisher on October 13th. The plaintiff further testified that, before making such payment, he informed Mr. Fisher that his wife, Agnes Jackson, was dead, and that he (plaintiff) supposed that the policy had lapsed by reason of the nonpayment of the four weeks’ premium which had accrued under the policy prior to the death of said insured, but that said Fisher then informed hirh that he (Fisher) had advanced or paid the premiums to the defendant in order to prevent a lapse of the policy, and that, relying on said representation he thereupon paid the sum of seventy-five cents. The defendant’s counsel moved to strike out that part of the plaintiff’s testimony , wherein he said “ that the agent took the money, and said he had made payments, so that the policy would not lapse.” The learned trial justice ruled that he would allow that testimony to stand, provided Fisher was put on the stand to prove it, to which ruling the defendant excepted. The plaintiff also testified that, shortly after the making of the payment to the collector, and on the same day, lie went to the company, and obtained blanks for the proofs of death, which he filed, out and handed in to the company. He was sold to call on the following Monday, which he did, and he was then told that the policy had lapsed, and that the company would not pay the amount of the policy.

Mr. Fisher was thereafter called as a witness on behalf of the plaintiff, but an examination of his testimony does not in any wise bear out the plainiiff’s assertions, except as to the fact that he received or collected from him, on October 13, 1894, three weeks’ premiums, amounting to the sum of seventy-five cents, for which he receipted. On cross-examination, this witness testified as follows:

“ When I called, plaintiff showed me the book or card, and asked, ‘How much does my -wife owe you? I looked at my book, and said, ‘ There are about five weeks due,’ and plaintiff said, ‘ I haven’t got more than seventy-five cents.’ I took it and said, ‘Maybe it will be all right.’ I received it. on the 13th for the three weeks before, and put down the date wdien I received the money. Plaintiff, after this, followed me into the hall, and said, ‘ She is dead.’ I asked him, 1 Who is dead?’ And he said, ‘ My wife; she is buried.’ And I said, 1 My God'I If she is dead and buried, you cannot give me seventy-five cents. If any one is buried, the policy may be canceled or lapsed.’ I offered Mr. Jackson to take the money back. I tendered him the money. He said, ‘ You can keep the money. We will see what we can do. Maybe we will do something for you good.’ I made a report to the company of this transaction. I saw Mr. Fodor, one of the officers (general manager) of the company, and said something to him about the seventy-five cents after I made my account. Mr. Fodor refused to take the seventy-five .cents from me. He ordered me to give them back to,Mr. Jackson. The company never got the seventy-five cents. I have it in my possession. I went to see Mr. Jackson the same day, but it was locked,—nobody was át home.”

Another witness, one Albert Bennett, who was called on behalf of the plaintiff, testified in substantially the same vein as did the plaintiff, and corroborated him as to the conversation which took place between the plaintiff and Fisher, and also as to the fact of the presentation of the proofs of death of plaintiff’s wife to defendant on October 13th, and that there was nothing said at that time about the policy having lapsed. The receipt card (plaintiff’s Exhibit B) shows that the last payment of premiums accruing under the policy prior to the death of the insured was made on August 28, 1894, for the week ending September 18, 1894, and that four ■ weekly payments, from September 10th to October 8th, had accrued on October.9th. Ho evidence as to the actual payment by Fisher to defendant, on behalf of the insured, of the premium, or any part thereof, which accrued between the period of time from September 10th to October 8th, in order that the policy should not lapse, was adduced on the part of the plaintiff; but plaintiff’s sole reliance, to establish said payment, is based on Mr. Fisher’s alleged statement to him that he had paid same to the defendant. This testimony, however, is not borne out by Fisher, who, under cross-examination, flatly contradicts the plaintiff on all material points as to the nature of the alleged interview had between himself and the plaintiff at the time he collected the seventy-five cents on October 13th. The mere alleged declaration of Mr. Fisher, if actually made, “ that he paid such premiums to the defendant, so that the policy should not lapse,” was not competent evidence of payment having been made, and is of no binding force as against the defendant. There is absolutely no proof that such payment was in fact made by him, on behalf of the plaintiff, nor was any evidence offered on that point. Furthermore, the uncontradicted testimony of the witness Fisher, as well as the uncontradicted testimony of the witnesses called on behalf of the defendant, shows that the premium paid by plaintiff to Fisher, defendant’s collector, on October 13th, was never received or accepted by the defendant; but, to the contrary, the defendant refused to accept the same.

At the close of the plaintiff’s case, and again at the close of the whole case, and before its submission to the jury, the defendant duly moved to dismiss the complaint, because the plaintiff had failed to establish his cause of action. These motions were denied, and the defendant duly excepted thereto. I am of the opinion that, owing to the fact that the four weeks’ premiums which accrued under the policy of insurance remained nnpaid at the time of the death of the insured, the defendant’s subsequent refusal to accept the same caused a lapse or forfeiture of the policy and all the rights of the plaintiff tlierennder. The mere payment of such premiums, after the death of the insured, to Mr. Fisher, who was a mere collector of the defendant, and not authorized to receive the money, or waive the forfeiture, as provided by the terms of the policy, did not revive the policy. In view of the evidence adduced, and the law applicable to this case, it was error to deny the defendant’s motion for a dismissal of the complaint, and it was likewise error to submit the case to the jury, under the circumstances.

The jury having rendered a verdict in favor of the plaintiff, the defendant promptly moved for a new trial upon the exceptions taken at the trial, and upon the ground that the verdict was contrary to the evidence and contrary to law, which motion was denied, and exception duly taken thereto, and an order duly entered denying said motion. The verdict being against the evidence and against the law, it was error to deny the defendant’s motion for a new trial. The judgment and order appealed from must therefore be reversed, and a new trial granted, with costs to appellant to abide the event.

Judgment and order appealed from reversed, and new trial granted, with costs to appellant to abide the event.


author: DAVIE, J.

text:
    In the Matter of the Application for Leave to Sell Real Estate of John Plopper, Deceased, for Payment of Debts.

      (Surrogate's Court, Cattaraugus County,

      Filed December, 1895.)

    1. Subrogation—Payment op note by widow.
    Where tne widow of the maker of a note, before her appointment as administratrix, pays the note, and it is thereupon delivered to her by the holder, she will be subrogated to the rights of the holder, and permitted to recover, from the proceeds of the sale of the real estate, the amount advanced by her upon the note of the intestate.
    2. Executors—Sale op decedent’s land.
    To justify a surrogate’s decree, directing the sale of real estate of whicn the intestate died seized for the payment of his debts, it must be made to appear that all the personal property of the decedent which could have been applied to the payment of his debts and funeral expenses has been so applied, or that the administrator has proceeded with reasonable diligence in converting the same into money and applying it in such payments, and that it is insufficient for the payment of the same.
    3. Same.
    The judicial settlement of the accounts of the administrator is not a jurisdictional requirement before instituting such proceeding; but where no such settlement has been had, the administrator assumes the burden of showing affirmatively, as a part of the case, the facts required by § 2789 of the Code.
    4. Same.
    The evidence, on the application for the sale of decedent’s land to pay his debts, was held, in this case, sufficient to show that decedent owned no personalty at the time of his death.
    Application for leave to sell the real estate óf John Plopper, deceased for the payment of debts.
    E. A. Nash, for petitioner; John Mosher, for contestants.
   DAVIE, J.

—John Plopper died intestate, at the town of Leon, July 24, 1891, leaving, him surviving, his widow, but no descendants. He was the owner of the real estate described in the petition, consisting of a dwelling and small tract of land, of the value óf $600. The widow was appointed administratrix on the 4th day of February, 1895, and thereafter filed her petition for a disposition of such real estate for the payment of the debts of the intestate. The funeral expenses, including the amount expended for a tombstone, were the sum of $140. He was indebted, at the time of his decease, for medical attendance, to the amount of $40 ; also upon a promissory note, given by him to one Snyder to secure a portion of the purchase price of the premises described in the petition. The widow made a small payment upon such note shortly prior to the death of the intestate, and after his death, and before her appointment as administratrix, paid the balance to Snyder; and the note was- thereupon transferred to, and is now held by her, and she seeks to have the amount thereof established as an indebtedness of the intestate in her favor. The contestants object to the making of a decree.for the disposition of such real estate, asserting that the proof fails to show insufficiency of personal estate to satisfy such indebtedness, and that, the widow having voluntarily intervened and paid the indebtedness to Snyder, she is not'a creditor of the estate, within the meaning and purview of the statute.

The evidence fails to show the particular circumstances under which the various payments were made by the widow to Snyder upon this note, nor is there any direct proof that such payment made prior to the death of the intestate was at his request; but it does satisfactorily appear that she paid the entire amount of such note from her individual property, and that, upon such payments being completed, Snyder delivered the note to her, and she presents the same, with proper proof of its execution by the intestate, as evidence of her demand against the estate. Had Snyder continued to hold such note there could, of course, have been no question of his right to have maintained this proceeding to enforce its collection from the real estate, in case of insufficiency of personal assets, nor could the right of the widow to resort to the same remedy have been questioned had the proof distinctly shown that she had purchased the note of Snyder; but, having paid the note prior to her appointment as administratrix, it is claimed that such payment was entirely voluntary, and that she is not subrogated to the rights and-remedies of the original creditor.

It is undoubtedly true that the doctrine’of subrogation should only be applied when justice will be promoted thereby, and that one who is a mere volunteer may not invoke its aid. Acer v. Hotchkiss, 97 N. Y. 395. One who pays a debt for which he is not personally bound, and which is not a charge upon his property, is not entitled to be subrogated to a lien which the creditor had upon the estate of the debtor. Wilkes v. Harper, 1 N. Y. 586. But the case at bar hardly calls for an application of the principle enunciated in the authorities cited. It is of but little consequence that the widow paid this indebtedness to Snyder before her appointment as administratrix, inasmuch as she was subsequently appointed, and seeks to maintain this proceeding in that capacity. The situation is simply this; The husband, in his lifetime, purchased the real estate in question, and gave a note to Snyder as part payment of the purchase price. The widow paid this note to Snyder. The contestants, who are distant and collateral relatives of the intestate,'insist that she is not entitled to reimbursement out of the land, but that they, as the heirs at law of the intestate, are entitled to hold this real estate discharged from all obligations to make sueh reimbursement. The equitable features of such claim are not very apparent. It would result in great injustice to the widow to hold that she was to lose, and the contestants to gain, the benefit of this payment made by her. Iti the case of Ball v. Miller, 17 How. Prac. 300, it was held that where, upon the judicial settlement of the accounts of an administrator, a balance was found due to the representative from the estate, such balance, so far as it consisted of, or was caused by, the application of the moneys of the estate to the payment of debts existing against the intestate in his lifetime, should be satisfiecl out of the proceeds of the sale of the real estate. Justice Hogeboom, in the opinion in this case, says:

“So far as the excess in Mrs. Casey’s expenditures as administratrix over her receipts is caused by the application of the moneys of the estate to the payment of debts existing against the intestate in his lifetime. I think she ought to be regarded as the ■equitable assignee of those claims, and to be subrogated to-the rights of those creditors. This is a familiar principle in equity jurisprudence, and the surrogate’s court partakes strongly of the characteristics of an equity tribunal. In equity, the payment of a claim does not always and necessarily extinguish it, but is deemed merged, extinguished, and satisfied, or kept alive, according as equity and justice require. In this case there was no obligation ■on the part of the administratrix to make payments beyond the personal assets in his hands; and, if she^made them, it must be deemed to have been done for the convenience of the creditor or for the benefit of the estate, and not to her own prejudice. To the extent that she has applied her own moneys or those of the •estate upon the claims of creditors of the deceased, I think she must be regarded as the equitable assignee of those demands, and ■entitled to satisfy them, out of the proceeds of the real estate, in the same manner as the original creditors; and such, I think, is the fair effect of the authorities.”

See opinion, page 305. And in this connection the court cites Livingston v. Newkirk, 3 Johns. Ch. 312, 318 ; Evertson v. Tappen, 5 id. 497, 514 ; Gilchrist v. Rea, 9 Paige, 66 ; Collinson v. Owens, 6 Gill. & J. 4. The case of Ball v. Miller is cited and recognized as authority in Duntz v. Duntz, 44 Barb. 461.

The only satisfactory conclusion which can be arrived at from a careful review of all the authorities, taking into consideration the obvious equities of the widow’s claim, is that she should be permitted to recover, from the proceeds of the sale of the real estate, not only the funeral expenses paid by her, but also the amount advanced by her to Snyder upon the note of the intestate.

In regard to the remaining proposition, that the evidence fails to show insufficient personal estate for the payment of these debts. The title to the real estate, upon the death of the owner intestate, vests immediately in his heirs ; and it can be taken for the payment of debts only by virtue of the statute, and the statutory provision must be strictly followed. To justify a surrogate’s decree directing the sale of real estate of which the intestate died seised for the payment of his debts, it must be made to appear that all the personal property of the decedent which could have been applied to the payment of the decedent’s debts and funeral expenses has been so applied, or that the administrator has proceeded with reasonable diligence in converting the same into money, and applying it in such payments, and that it is insufficient for the payment of the same. Kingsland v. Murray, 133 N. Y. 170 ; 44 St. Rep. 515. The judicial settlement of the accounts of the administrator was not a jurisdictional requirement before instituting this proceeding; but where no such settlement has been had, the administrator assumes the burden of showing affirmatively, as a part of her case, the facts required by section 2759 of the Code. In re Howard’s Estate, 11 Misc. Rep. 230; 66 St. Rep. 552. Then the question arises, does the evidence in this case satisfactorily show such insufficiency of personal assets ? The petition alleges that the intestate owned no personal property at the time of his ■death. It appears from the evidence that, for many years prior to his death, the intestate and the petitioner had resided upon a farm in the town of Hew Albion, and that such personal property as was upon the farm had been produced and raised upon or paid for out of the avails of the farm; that intestate, originally contracted in his own name for the purchase of the farm, but being unable to meet the payments, the contract was foreclosed, and upon the sale under such foreclosure the petitioner became the purchaser; and that for many years the title to such land was in the name of the petitioner. On the examination of the petitioner as a witness on her own behalf, she was asked the following question ; 11 Did he (the intestate) own any personal property ? ” to which she replied, “I calculated we owned it together. He bought the mowing machine, rake, and tools, and such things as were there.” But, upon her further being interrogated as to the circumstances, it quite clearly appeared that such reply did not represent the actual situation. The intestate had no interest in the farm, nor does it appear that he had any interest in the avails thereof. He had for many years been lame, and to some extent unable to work. Hone of his individual funds had been invested in the purchase of the stock or tools upon the farm. In fact, the petitipner held the legal title to all the personal estate upon the farm. There is no pretense that the intestate was possessed of any personal estate aside from such personal property as was upon the farm at the time of his death, and I am clearly of the opinion that the evidence discloses that all of this property belonged absolutely to the petitioner individually. This being the case, it must be held that the petitioner has satisfactorily established all the requisite facts to entitle her to a decree in this matter. Appraisers will, accordingly be appointed, and upon the filing of their report a decree will be made for such disposition of the real estate as such report shows to he advisable.

Decreed accordingly.


author: PER CURIAM.

text:
    Henry P. Rogers et al., as Executors, etc., Resp’ts, v. Frank I. McGuire et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    L Witness—Section 829 op tite Code.
    Under the provision of § 829 of the Code, prohibiting a party to an action from testifying in his own behalf against the executor or administrator of a deceased person as to a personal transaction or communication with the deceased, except when the executor or administrator has testified in his own behalf in reference thereto, the exception is confined strictly to the transaction testified to by the personal representative, and the party cannot be permitted to testify to another and independent personal transaction for the purpose of explaining, impairing or contradicting the testimony so given.

      2. Will—Construction—Advancement.
    Where a will contains the following provision: " I direct that no deduction shall be marie from the share of any of my children by reason of any sums which I have heretofore given or advanced to, or for account of, cither of them,” such provision was held to apply only to gifts or advancements made before the execution of the will.
    3. Payment—Presumption.
    The fact that a son, who is sought to be charged with an indebtedness to the estate of his deceased father, has in his possession the note which was given for such indebtedness, does not raise a presumtion of payment as against the father’s personal representative.
    Appeal from a judgment in favor of plaintiff.
    The opinion of Mr. Justice Lawrence at special term is as follows :
    This action is brought by three of the executors of the will of Nathaniel P. Rogers, deceased, against the defendants, composing the firm of McGuire & Eogers; the defendant Nathaniel P. Eogers being also an executor of the will of his father, Nathaniel P. Eogers, deceased. It is alleged in the complaint that the testator, Nathaniel P. Eogers, at sundry times loaned to the defendants, as copartners, divers sums of money, aggregating $50,000 which said several sums of money the defendants promised and agreed to repay to the testator; that such sums had not been paid at the time of the death of the testator, nor since; and that the same are now wholly due and owing from them. Nathaniel P. Rogers died on the 22d day of April, 1892, and his will, bearing date the 26th day of December, 1885, was admitted to probate May 24, 1892. The answer of the defendant Nathaniel P. Rogers admits that Nathaniel P. Eogers, the testator, indorsed for the firm of McGuire & Rogers, a note for $3,000, which was discounted by the Poughkeepsie National Bank; that when said note' became due and payable it was renewed by another note for the same amount, indorsed by the said Nathaniel P. Eogers which was also discounted at the said bank; that when the fast-mentioned note became due and payable it was taken up by the said Nathaniel P. Eogers, deceased, and held by him. He further alleges that, to secure the payment of said note, the defendants, McGuire & Eogers, assigned to the said Nathaniel P. Eogers, deceased, a bond for $2,971 and interest, made by Robert I. Marston to them, secured by & mortgage on lands situate in the state of Iowa; that said bond and mortgage are still held by the estate of the said Nathaniel P. Eogers, déeeased, and are, as defendant is informed and believes, more than an adequate security for the payment of the said note. He denies that the said Nathaniel P. Rogers loaned to the said firm di'vers sums of money, amounting to $50,-000, or any other sum, except temporary loans, which were repaid, or that they ever promised or agreed to pay to the testator said sum, or any other sum, except what may be implied from the payment of the aforesaid note for them. For a second defense, the defendant Nathaniel P. Eogers sets out the will of his father, Nathaniel P. Eogers, in extenso, and claims that under the thirteenth clause thereof the testator released him of and from all claims of every kind and nature whatsoever, and that he is indebted to the said estate in no respect whatever. By the thirteenth clause o£ his will the said testator provided as follows: “I direct that no deduction shall be made from the share of any of my children by reason of any sums which I have heretofore given or advanced to, or for account of, either of them.” And by the fourteenth clause of his will he constituted and appointed his sons, Henry P. Rogers, Nathaniel P. Rogers, Jr., (the defendant), John Bard Rogers, and his son-in-law, Charles D. Fuller, to be executors of his will. In other portions of his will he had constituted them trustees of his estate, both real and personal, during the joint lives of his daughter, Elizabeth M. Rogers, and his grandson, John Shillito Rogers, with power to lease, etc., and to pay the rents, issues, and profits of his real estate, from time to time, to his five children, in equal shares, naming them, etc. For a third defense, the defendant Rogers pleads the statute of limitations as to such of the alleged loans as were made before April 22, 1886. The answer of the defendant McGuire admits that the testator, Nathaniel P. Rogers, did advance to the defendants in this action, as copartners under the firm name and style of McGuire & Rogers, sums of money aggregating $12,971, and alleges that payment of $2,971 of the $12,971 so advanced was secured to said Nathaniel P. Rogers by a mortgage upon certain lands in the state of Iowa; that as to the remaining $10,000 advanced by Nathaniel P. Rogers, the testator, the said claim was subsequently transferred and delivered to the defendant Nathaniel P. Rogers as a gift from the testator to hirii; and he avers that the defendant Nathaniel P. Rogers claims to be owner thereof, and has given notice to the defendant McGuire to that effect Upon the trial it appeared that all of the amounts claimed by the plaintiffs were barred by the statute of limitations, save and except the sum of $1,000, claimed to have been loaned on the 12th of May, 1889; $3,000 claimed to have been loaned on the 25th of May, 1889; $4,000, claimed to have been loaned on the 19th of December, 1890; and $6,000, on the 20th of January, 1891. All of these alleged loans were made after the date of the will. It further appeared from the evidence that McGuire & Rogers delivered to the testator a bond and mortgage of one Mars ton as security for the first two loans; that McGuire took out a policy of insurance upon his own life in the Equitable Life Assurance Society, and assigned the same to the testator as security for the note given for the last two loans, and all other sums were therefore excluded from consideration.
    On the trial, testimony was received from the defendant Nathaniel P. Rogers, subject to the plaintiff’s objection, to 'the effect that the deceased delivered to him the $10,000 note of McGuire, and the policy on McGuire’s life, and told him that they were a gift to him, the said defendant. I am of the opinion that such evidence should not be received, and it is therefore stricken out and disregarded. It was claimed by the defendants that this testimony was admissible, because the plaintiffs had themselves opened the door for its admission—First, by certain testimony of the plaintiff Henry P. Rogers, one of the executors; and, secondly, by the testimony of the defendant McGuire. I do not think that this position is tenable. The rale is that under the provision of Code piv. Proc. § 829, prohibiting a party to an action from testifying in his own behalf against the executor or administrator of a deceased person as to a personal transaction or communication with the deceased, except when the executor or administrator has testified in his-own behalf in reference thereto, the exception is confined strictly to the transaction testified to by the personal representative, and that a party cannot be permitted to testify to another and independent personal transaction for the purpose of explaining, of contradicting the testimony so given. Martin v. Hillen, 142 N. Y. 140; 53 St. Rep. 617; Clift v. Moses, 112 N. Y. 426; 21 St. Rep. 777; DeYerry v. Schuyler, 28 St. Rep. 233. Henry P. Rogers, the executor, was not examined as to the giving of the notes in question, nor as to the alleged gift by the testator to the defendant Nathaniel P. Rogers of the $10,000 note, and the policy of insurance upon the life of McGuire. He was asked the general question, “Do you know whether your father, in his lifetime, made loans to the firm of McGuire & Rogers ? ”■ And he answered, “I do.” He was not asked, except as to one item, as to the time when such loans were made, nor does he seem to have testified as to any one of the items mentioned in the bill of particulars, excepting the item of $3,000, of May 31, 1886; and wben it was discovered that he was not speaking, as to that item, of his personal knowledge, the court struck out his testimony. The testimony having been stricken out and being disregarded, it cannot now be claimed as having opened the door for testimony by the defendant Rogers in respect to a personal gift from his father to him of the $10,000 note, and of the policy on the life of McGuire. It is obvious, also, that the testimony of the defendant Rogers, proposed to be admitted, did not relate to the same transaction as that in regard to which his brother, the plaintiff executor, had been interrogated. Nor do I think that the plaintiff, in placing McGuire upon the stand elicited from him such evidence-as entitled the defendant Rogers to testify as to the personal transaction between him and his father in respect to the alleged gift of the $10,000 note, and the policy of insurance. That was a subsequent personal transaction between the testator and the defendant Rogers, in respect to which McGuire was not examined ; and under the case of Martin v. Hillen, supra, the defendant Rogers-was prohibited from testifying thereto.
    If these views are correct, the result follows that in respect to-the items of $1,000, $3,000, $4,000, and $6,000, the testator held a valid claim against the firm of McGuire & Rogers, and against Rogers individually, at the time of his decease, unless the provision of the will above set forth released the defendant Rogers from liability therefor. The general rule is, of course, that a will speaks from the date of the death of testator, and not from its date, unless its language, by fair construction, indicates a contrary intention. It is contended by the plaintiffs that it is apparent from the will in this case that the testator, when directing that the sums which he had given or advanced to his children should not be deducted from the share of any of them, referred to gifts or advancements existing at the date of the will, and that he did not intend that such provision should relate to any gifts or advances thereafter made. The cases of Wetmore v. Parker, 52 N. Y. 450, and Van Alstyne v„ Van Alstyne, 28 id. 375, are relied upon by plaintiffs in support of this interpretation of the will. In this contention I think the plaintiffs are correct. The language of the will is that “ no deduction shall be made from the share of any of my children by reason of any sums which I have heretofore1 given, or advances to or for account of, either of them.” In Van Alstyne v. Van Alstyne, supra, the action was brought by the executors of the testator, against one of his sons, to recover upon two promissory notes, and the language of the will was that the' testator release his children from “ any charge I have made against them, or either of them.” In that case there was a will and a codicil; the will being dated in 1850 and the codicil in 1855. The notes were dated, respectively, November 1, 1854, and April 1, 1856; and the latter note had an indorsement thereon, dated April 6,1857, showing the payment of interest. The court held that the codicil amounted to a republication of the will, and must be held to speak, in regard to the release of charges, as of the time of the execution of the codicil. This would have exempted the defendant from liability upon the first note, but not upon the second ; but the court also held in that case that the words “ any charge” could not be held applicable to promissory notes. Judge SELDEN, delivering the opinion of the court, says: “Words of present tense have often, though not uniformly, been held thus to limit the subject of the gift. 1 Jarm. Wills, 278, 279. My interpretation of the present will is that the words, 6 from any charge I have made,’ show an intention on the part of the testator to limit the release to charges existing at the time when the will was executed.” It seems to me that the language of the present will is even stronger than that which was the subject of construction in the case of Van Alstyne v. Van Alstyne. The testator restricts the provisions against the deduction from the share of any of his children to such sums as “I have heretofore given” or advanced, etc. I think he clearly intended by that to limit the exemption to such sums as he had given or advanced prior to the date of the execution of the will, which was December 26, 1895. Furthermore, it may well be doubted, under the decision in Van Alstyne v. Van Alstyne, whether moneys loaned can be regarded as sums given or advanced to any of his children. See, also, Sanford v. Sanford, 61 Barb, 299. It is claimed, however, by the defendant Nathaniel P. Eogers that, as he produced the $10,000 note and the policy upon the trial of this action, the plaintiffs cannot, upon the evidence as it stands, recover, and that the obligation rests upon the plaintiffs to show that the debt is still outstanding. Under the circumstances of this case, I do not think that this contention can ba sustained. See Grey v. Grey, 47 N, Y. 552. I am of the opinion, therefore, that the plaintiffs are entitled to a judgment in respect to the items of $1,000 of April 12,1889; $3,000, of May 25,1889; $1,000, of December 19, 1890 ; and $6,000, January 20,1891,—with interest thereon, but that the judgment should provide that upon the payment of the $1,000 and $3,000 an assignment t o the Iowa mortgage should be made by the executors of the estate to the defendants, or to such of the defendants as shall make the payment. Plaintiffs should also have their costs. Enter decision accordingly, and settle on notice.
    Jacob F. Miller, for app’lt ; T. D. Kenneson, for resp’t.
   PER CURIAM.

—Judgment affirmed, with costs, on opinion of court below.