author: Potter, J.: Daniels, J. :

text:
    HENRIETTE B. POWER, individually, and as Executrix of JOHN H. POWER, Deceased, Appellant, v. HUGH CASSIDY, Surviving Executor, etc., of JOHN H. POWER, Deceased, and others, Respondents.

      Trust —when beneficiaries sufficiently ascertained.

    A testator having' by his will first disclosed of two-thirds of his estate, therein provided as follows: “ the balance I give to my executors, to be divided by them amongst such Roman Catholic charities, institutions, schools or churches in the city of New York, as a majority of my executrix and executors shall decide, and in such proportions as they may think proper.” At the time of the testator’s death there were in the city of New York numerous incorporated Roman Catholic charities, institutions, schools and churches authorized to take real and personal property by devise or bequest.

      Held, that it was to be presumed that the testator intended to confine his bequest to such charities, etc., as were incorporated and authorized to take by bequest.
    That the objects of the testator’s bequest were sufficiently ascertained and certain, and that the trust was nojt invalid by reason of the uncei'tainty of the beneficiaries.

      Appeal from a judgment entered upon the trial of this action by the court without a jury.
    The action was brought to procure a construction of certain portions of the will of John H. Power, deceased. The material portions of the will are as follows, viz. :
    “After my lawful debts are paid, I give and bequeath all my property, both real and personal, unto my executrix and executors hereinafter named, that is to say : To my beloved wife Henriette B. Power, and to my friends Lewis J. White and Hugh Cassidy, of the city of New York, all of whom I have named as executrix and executors of this my last will and testament, to have and to hold the same and every part thereof unto the said parties, their heirs and assigns forever, upon the trusts nevertheless that they are to collect the moneys due on the bonds and mortgages due to me, and also the rents of my property, and sell and dispose of my stocks ; and out of the proceeds of the sale of my property or of the income thereof, I direct my executrix and executors to pay to my beloved wife Henriette the sum of eight thousand dollars per year, in half-yearly installments of four thousand dollars. * * *

    I hereby appoint my wife, Henriette, Lewis J. White, and Hugh Cassidy, of the city of New York, executrix and executors of this my last will and testament, with full power to them, or the survivor of them, to sell all my real and personal estate, at such times as they may deem proper, with the exception of the house and lease of lot on Fifth avenue, between Fiftieth and Fifty-first streets, which I wish sold as soon as possible, and with power to them to go on and finish the same, and take the expense of finishing out of my estate. All the rest, residue and remainder of my estate, both real and personal, I give and devise one-third thereof to my beloved wife, Henriette B. Power; one-third thereof to my nephew, Peter Rice, of the city of New York; and the balance I give to my executors, to be divided by them amongst such Roman Catholic charities, institutions, schools or churches in the city of New York, as a majority of my executrix and executors shall decide, and in such proportion as they may think proper.”
    The following is the opinion delivered by the court at Special Term:

      YaN Yokst, J.:
    By the final clause of his last will and testament, John II. Power, the testator, after giving and devising one-third of the rest, residue and remainder of his estate to his wife, and one-third to his nephew Peter Rice, disposed of the remainder in these words:
    “The balance I give to my executors, to be divided by them among such Roman Catholic charities, institutions, schools, or churches in the city of New York, as a majority of my executrix and executors shall decide, and in such proportion as they may think proper.”
    The evidence shows that there were, at the death of the testator, regularly organized and incorporated Roman Catholic charities, institutions, schools and churches, located in the city of New York, competent to take the testator’s gift, and that, after the death of the testator, Lewis J. White and Hugh Cassidy, the executors of the testator, being a majority of the “ executrix and executors ” named in the will, decided, and in writing designated what Roman Catholic institutions of charity, asylums and hospitals, should take the one-third part of the testator’s estate above designated, and the proportions of each, all of which institutions are organized as corporations. It is objected on the part of the plaintiff, executrix and widow of the deceased, that the above clause of the will is invalid and inoperative in law, and she claims that the portion of the estate therein attempted to be given is undisposed of. The learned counsel for the plaintiff, in support of his view that the provision is void, cites from Story’s Equity Jurisprudence, §§ 979, 964, as follows :
    “ Courts of equity carry trusts into effect only when they are of a certain and definite character. If, therefore, a trust be clearly created in a party, but the terms by which it was created are so vague and indefinite that courts of equity cannot clearly ascertain either its objects or the persons who are to take, then the trust will be hold entirely to fail, and the property will fall into the general fund of the author of the trust.”
    There can be no question of the correctness of this principle governing courts of equity. It has been repeatedly acted upon and applied in the courts of this State. (Owens v. The Mis

      sionary Society, 14 N. Y., 380; Downing v. Marshall, 23 id., 382; Sherwood v. American Bible Society, 1 Keyes, 561; Holmes v. Mead, 52 N. Y., 332.)
    After a careful consideration, I see nothing really vague or uncertain in the disposition made by the testator. There is no uncertainty with respect to the trustees, for they are named and have power to act; nor, in. a true sense, is there uncertainty as to the particular object of the testator’s bounty. He was a Roman Catholic, and his desire was that schools and institutions of charity connected with his church should share in a definite portion of his estate. It is evident that the object which the testator would favor was the religious teaching and work of charity in which his church was engaged, and that not in an universal s.'iise, but with limitations as to locality.
    The church, the school, the institution in the city of New York, were the particular agencies through which the testator would accomplish his religious and benevolent purposes. There is nothing vague, indefinite or uncertain with regard to these agencies as a class. They are distinct, and can readily be separated from the large number of religious and charitable organizations of New York maintained by other Christian or benevolent bodies. They, in fact, constitute a limited and well-defined class; have each a distinct organization, and are bodies corporate.
    The duty of designating the particular institutions from the general class is devolved upon the executrix and executors, who are also to determine the amount each should receive; and when that has been done, the action would have the same effect- as though the names of the particular institutions and charities were written in the will, and a court of equity would have no difficulty in inforciug the trust by its judgment. In Holmes v. Mead (supra), the income of a sum of money was directed to be paid in and for the support of the rector, etc., for the time being, of St. Mary’s church, Beechwood, for the support of a clergyman employed as a missionary, or otherwise to officiate, and who shall officiate therein.
    AuleN, J., at p. 343, says: “ The beneficiary under the trust is the minister officiating at the church named for the time being. Although the particular indi vidual is not named, he is so described that be is capable of being identified and distinguished from every other human being. There is nothing uncertain or indefinite in the description. A cestui que trust need not necessarily be described by name; any other designation or description by which he may be identified will do as well.” (Wilkinson v. Lindgren, L. R., 5 Ch. App., 570.)
    Within the limits prescribed by the testator, I cannot think that the trustees would have any difficulty in designating the particular objects to participate in the testator’s bounty under the will. They do not seem to- have had any, and have by their decision named them. It is not left to the court to select the donees, and the only duty left it, is to give effect to the testamentary disposition, by its judgment.
    ‘1 Where the gift is capable of being executed by a judicial decree, I know of no reason why the court should refuse to execute it.” ( Williams v. Williams, 4 Seld., 548.) In the case last cited the gift was for a permanent fund for the education of the poor, who should be educated in the academy in the village of Huntington, or in case of the destruction of the academy by fire or otherwise, “then in the school next west of the academy."
    It was held that “ a rule of ready application is given for selecting the objects of the testator’s bounty.” Although the authority of Williams v. Williams, so far, as it favors the existence of the law of charitable uses in this State, has been overruled by later cases in the Court of Appeals; still, the conclusion as to the validity of the gift under consideration in that case, and above referred to, has not been disturbed.
    In Owens v. The Missionary Society (14 N. Y., 408), it is said: “ To avoid misapprehension it maybe proper to add that nothing which has been said is intended to deny the power of courts of equity in this State to enforce the execution of trusts created for public and charitable purposes, in cases where the fund is given to a trustee competent to take, and whore the charitable use is so far defined as to be capable of being specifically executed by the authority of the court, even although no certain beneficiary other than the public at large may be designated.”
    There could bo no reasonable doubt that if, instead of devolving upon his executors the duty of selecting from a limited class of charitable societies those to share in his bounty, the testator had made the selection himself, and written the names of the beneficiaries in the will, the gift would have been legal. It appears to me it is no less so from the fact that he has entrusted an office which ho could have himself performed — that is, the making of a selection ■ — • to the decision of the' trustees appointed by him, he designating the special class from which the selection was to bo made. Such decision, when made, exhausts the power of the trustees on that subject, and having been made, and the beneficiaries designated being parties to this action, together with all others interested in the estate, there is not the least difficulty on the part of the court in making a just, complete and protective judgment, by which the whole estate may be justly and, according to the will of the testator, finally distributed.
    I do not think the benevolent intentions of the testator should bo defeated, through the interposition of imaginary or apprehended obstacles, when the case is presented in a form in which all just ground of difficulty or uncertainty is removed, and in a manner which the testator contemplated and expressly directed; nor is the fact, if it be so, that some of the Roman Catholic institutions in the city of New York were at the death of the testator unincorporated, any objection to the validity of the gifts in question. It is enough that there were schools and institutions answering the description of those named in the will incorporated and competent to take. We are not to presume that the testator intended to make an illegal disposition, or select objects incapable of receiving his gifts. The presumption is that he meant that his trustees should designate competent beneficiaries, and this they appear to have done. The designation by the two executors — a majority of the “ executrix and executors”- — -was sufficient.
    One of the executors, Mr. White, was ill. The executrix was invited to be present at the designation and selection; this she declined. By a refusal or omission to act with them after notice, she could not defeat the will; and in view of the illness of Mr. White, the majority were justified in making the selection. Mr. White died during the month in which the selection was made. I construe the letter of the executrix to be a refusal to join with her associates in the trust, in making the selection at that time. In respect- to the other matters, I am of the opinion that the widow is entitled not only to the annuity of $8,000 per annum during her natural life, but also to one-third of the residue of the estate, including the fund or property out of which the annuity is raised ; but the principal of that fund cannot be impaired or disposed of by her, to take effect during her life. The fund must remain intact, so long as she shall live, to produce the annuity. Upon a careful consideration of the whole will, I must conclude that the testator contemplated a conversion of the realty into personalty. The purposes of his will cannot well and efficiently be carried out without such conversion. A division was contemplated, to carry into effect his gifts to charitable objects and other legatees, and that can only be well done through a conversion. A direct authority to sell is given ; but that of itself would not be sufficient to work a conversion. It is only when the whole will is considered, and the disposition made of the estate, and the payments to be made thereout, and the division made thereof, is brought into view, that such result is reached. (Dodge v. Pond, 23 N. Y., 69.) The testator was a lawyer, and as such was conversant with the import of legal terms. He drew his own will. The third part of his estate, designed for these charities, is disposed of by the simple words 1 ‘ I give" When speaking of the other residuary legatees, he uses the words “/ give and devise." When making provisions for these charitable institutions, the language used would seem to indicate that, as to them at least, he meant gifts of money. These gifts cannot be well and conveniently consummated without a sale of the realty. That the terms of the will accomplish a conversion of the realty into personalty is conceded by the learned counsel of the plaintiff in his argument; and this would seem to obviate any objection arising under the Revised Statutes that the trust, so far as the real estate was concerned, was not recognized by its provisions. The.only trust in the executors, in respect to this jjortion of the estate, is to sell the same and to divide the proceeds among the beneficiaries to whom the same is in effect given. To that there can be no valid objection. The above considerations cover all the grounds submitted for judicial determination, and judgment is rendered accordingly.

      Platt, Gerard & Powers, for tbe appellant.

      Dunning Pdsell, Hart & Fowler, for tbe respondents, Cassidy .and Rice.

      Deolin & Miller, for tbe Catholic societies, respondents.
   Potter, J.:

This is an appeal from a judgment of this court at Special Term. Tbe action was brought by plaintiff individually and as executrix, to obtain a construction of tbe will of John H. Power, deceased who was tbe husband of tbe plaintiff" and a determination of this court upon that portion of tbe will contained in its residuary clause. Tbe court at Special Term adjudged tbe will valid, and that by tbe will tbe real estate of tbe testator was converted into personalty. Tbe plaintiff appeals from tbe judgment declaring that tbe devise to tbe Roman Catholic societies, charities, schools, etc., was valid, and tbe defendant Rice from so much of tbe judgment as declares tbe conversion into personalty. There is also an appeal from tbe order making such charities, etc., parties defendant in tbe action.

Tbe principal question in this case is whether tbe devise of one-third of tbe residue of tbe testator’s estate, which consisted of both real and personal property, to his executors, to be divided by them among such Roman Catholic charities, institutions, schools or churches in tbe city of New York, as a majority of tbe executrix and executors shall decide, and in such proportion as they may think proper, is valid under tbe statute of uses and trusts or powers in trust.

Tbe estate and subject given, and tbe persons named as trustees, are well-defined, certain, and therefore free from difficulty. Tbe question arises from the uncertainty of tbe beneficiaries. The case of Williams v. Williams (4 Seld., 525), which is cited upon this point, has been modified and limited at least in respect to several dicta contained in it. "We think the law is definitely settled by the cases reported since the case of Williams v. Williams, that a trust for undefined beneficiaries is void, however certain the trustees may be, and though the estate vests in the trustees at' once upon, tbe death of the testator, and notwithstanding the devise or bequest was for charitable, religious or public uses. (Bascom v. Albertson, 34 N. Y., 584, 592.) There can be no trusts of realty except such as are permitted by the Revised Statutes. (1 R. S., 727, § 45 ; id., 728, § 55 ; Holmes, Ex’r, v. Mead, 52 N. Y., 332; Dillaye et al. v. Greenough, 45 id., 438 ; Levy v. Levy, 33 id., 97.)

The general rule in relation to the necessary degree of certainty as to beneficiaries under a valid trust, is stated in Story’s Eq. Jur., as follows: “If, therefore, a trust be clearly created in a party, but the terms by which it is created are so vague and indefinite that courts of equity cannot clearly ascertain either its objects or the persons who are to take, then the trust will be held entirely to fail, and the property will fall into the general funds of the author of the trust.” (2 Story’s Eq. Jur. (10th ed.), § 979, a; Wheeler v. Smith, 9 How. [U. S.], 55, 79.) In Wright v. Atkins (Turner & Rus., 157), Lord EldoN said, in order to determine whether a trust of this sort is a trust which a court of equity will interfere with, it is a matter of observation and authority that the object must be as certain as the subject.

The trust must be of a such a nature that if the trustee should decease or refuse to act, the court itself can execute the trust. (Morice v. The Bishop of Durham, 10 Vesey, 521.) Under this rule a provision in a will directing the executors to devote the avails of certain real estate, together with any residue, to such charitable and educational objects and purposes, as to them might seem proper and just, is invalid. (Adams v. Perry, 43 N. Y., 490; Morice v. The Bishop of Durham, 10 Vesey, 522.) So a power of appointment to give or devise property, “ among such benevolent, religious or charitable institutions as she may think proper,” hold void, because vague and indefinite. (Norris v. Thompson’s Exr. 4 C. E. Green [N. J.] Rep., 307.) But in order to satisfy the rule above stated it is not necessary that the beneficiaries or cestui que trusts be named; any designations or descriptions by which they be identified or determined will answer the rule. . It is entirely proper, not to say common, to resort to parol proof or proof aliunde the will, to identify or ascertain the beneficiaries, legatees or devisees. (Lefevre Ex. v. Lefevre, 59 N. Y., 434.) It is not necessary or material that the beneficiary be definitively ascertained and known at the date of the will, or even at the death of the testator. If the gift is to a well defined class, which is capable of being ascertained to a certainty, when the right to receive it accrues, it is sufficient. (Holmes v. Mead, 52 N. Y., 332, 343.) A devise to trustees to pay the yearly income of lands to the sister of the testator for her life, and after her decease to divide the same among the partners of the testator who should be in partnership with the sister at her decease, or to whom she had disposed of her business, was held a good devise to the persons to whom she disposed of the business when ascertained. (Stubbs v. Sargon, 3 Myl. & C., 507.)

Hoey v. Kenny (25 Barb., 396), was a devise of a life estate to the wife, and to be by her distributed and divided among the testator’s relatives in such shares as she saw fit.

It was proved upon the trial that there are and were numerous Roman Catholic charities, churches, etc., existing in the city of New York, duly incorporated and authorized to take devises and bequests, and these were the classes of beneficiaries named in the will, and from which the executors were to select the objects or corporations which should receive the testator’s bounty.

In the case of Williams v. Williams (4 Selden, supra), it was held that where the beneficiaries were not more definite and specific than the children of the poor of Huntington it was sufficiently certain. I do not understand that this practical application of the rule in quesion has been overruled or condemned by subsequent cases in the court of last resort. If so, it has escaped my attention ; it is some of the principles in the abstract enunciated by Judge DeNIO, in that case, which had been disapproved by that court in later cases. (Bascom v. Albertson, 34 N. Y., 584; Adams et al. v. Perry, 43 id., 487; Holmes v. Mead, 52 id., 337.) But in these cases, while condemning some of the propositions enunciated in Williams v. Williams (supra), the court declared that trusts, which indicate specific and ascertainable classes as the beneficiaries of the trust, are valid. (See Bascom v. Albertson, 592.)

If the beneficiaries are defined and capable of being ascertained with certainty, the rule in relation to certainty of beneficiary is satisfied. (Holmes v. Mead, supra, at p. 343.) The incorporated Roman Catholic churches, etc., may be easily ascertained by a reference to the public records kept m the State or city. When they are found, that is the end of the inquiry as to the existence of the beneficiary.

In the case of Williams v. Williams (supra), and many other cases, the inquiry is much more laborious, and the facts oftentimes much more difficult of ascertainment and determination; for instance, to ascertain in a community the names of the children, their parents, and whether such parents are rich or poor, imposes great labor, requiring a large amount of time with careful and judicious discrimination. In the case under consideration a search for a short time among the office records would discover all the corporations of the class specified in the will, and require nothing further of the executors than to select the particular corporation which should partake of the bounty, and the sum it should take. This principle is confirmed and illustrated by various provisions of the Revised Statutes in relation to powers. Indeed the provisions of the will under consideration, if it were not for the alleged conversion of the real into personal, and the fact that the estate consists of both real and personal property, might well be treated as a special power in tr.ust, because it authorizes a disposition to be made to a class. (Sec. 95, m. p. 734, 1 R. S.) Where the disposition is directed to be made to several persons, without specification of the share to each, all shall be entitled to receive alike. (Section 98.) But where it is left to the trustees to select, he may allot the whole to one or more of the cestui que trusts. (Section 99.) And if the trustee shall die before execution of the power, the execution shall be decreed in equity for the equal benefit of all the beneficiarios. (Section 100.) Wc are brought to the conclusion that the beneficiaries are sufficiently designated to answer the rule in that regard. I do not think the trust invalid because the selection by the trustee of the beneficiaries was not limited in terms to incorporated bodies.. Only incorporated bodies can take, and it is not to be presumed that the testator intended, nor that the trustees would attempt, to give to those who could not take, and the court would restrain or restore a gift by the executors to an unincorporated beneficiary. A devise to a trustee to distribute and divide the residue of an estate to the relatives of the testator was held good, though some of the relatives were aliens and could not take. (Hoey v. Kenny, 25 Barb., 396.) The distribution iu this case has been made among corporations who are competent to take under the devise, and are the parties to the record and judgment. But it is insisted, and we think correctly, that there is no proof in the case that there are other Catholic institutions in the city of New York and not incorporated.

I think there can be no question that the selection of these objects of the bounty was made in conformity to the will and the law. Some question was made m relation to the nature of the estate, whether the real was converted into personal estate by the will and if so, what the ultimate rights of the widow in the residue, and the mode of providing and assuring the payment of the annuity bequeathed to her would be. The executors are authorized to sell all property of the testator, and with the proceeds of the sale, or the income thereof, to raise an annuity of $8,000 for the wife of the testator and the general legacies ; and in a subsequent portion of the will, in which he appoints the executors and trustees, he authorizes them, or the survivor of them, to sell all of his estate at such time as they should deem it proper, with the exception of the unfinished house upon Fifth avenue, which they are directed to finish and sell at once. He, moreover, directs a division of the residue, after paying the debts, legacies and the annuity into three parts, one of which is, as we have seen, is to be divided among the cestui que trusts, limited only by the number of incorporated Catholic institutions and the discretion of the trustees. The time, but not the _/aci, of selling the real estate, was left to the trustees. It is manifest the testator intended the real should be converted into personal property. (Dodge v. Pond, 23 N. Y., 69; Arnold v. Gilbert, 5 Barb., 190.) I think the holding of the court below, that the widow took one-third of the residue, including the investment to produce the annuity, is in entire accord with the provisions of the will and the intention of the testator. This conclusion effectually disposes of the appeal from the order bringing in certain Roman Catholic institutions as parties defendants.

The decree should be affirmed with costs to be paid to the executor Cassidy and the Roman Catholic institutions named in the order as defendants, out of the one-third of the residue devised to the plaintiff and to defendant Rice, respectively, in equal proportions.

INGALLS, P. J. (with some hesitation), concurred.

Daniels, J. :

Whether the devise and bequest of the third of the testator’s estate to his executors and executrix, to be divided by them among such Roman Catholic institutions, schools, or churches, in the city of New York as a majority might decide upon, and in such proportions as they should think proper, was sufficiently certain to constitute a valid disposition of this interest in the estate, is certainly a point attended with very great doubt. It was not sufficiently definite to be capable of being executed by the court, if the executors failed to exercise the discretion intended to be vested in them. And if that be the test, as it was intimated to be in Holmes v. Mead (52 N. Y., 332, 334), and substantially held to be in Morris v. Thompson (4 C. E. Green [N. J.], 307), then this interest has not been legally disposed of by the will. But the learned judge, before whom the cause was tried at Special Term, has fortified an adverse conclusion to this, by an elaborate and able opinion, and that has been followed in a similar manner by Mr. Justice Potter, after hearing the argument made in support of the appeal. The point presented is important as well as interesting, and the parties affected by it will not be satisfied without obtaining upon it the judgment of the last tribunal to which it can be taken. Under these circumstances, and for the purpose of facilitating the early as well as final disposition of the case, the conclusion of these opinions will be adopted without any further discussion of the point, and that will lead to the present affirmance of the judgment.-

Decree affirmed,


source: Caselaw Access Project

author: Potter, J. :

license: Public Domain

text:
    ADOLPH V. TIEDEMANN, Respondent, v. WILLIAM G. ACKERMAN, Appellant.

      Usurious mortgage — when a guaranty of the mortgage is void- — when the guarantor is not estopped from, setting up the defense of usury.

    One Hoyt, desiring to raise money, gave Ms bond and mortgage for $5,000, to defendant who at Hoyt’s request executed an assignment of the same, and guaranteed the payment thereof. Plaintiff subsequently purchased the same from an agent of Hoyt’s for $4,000, out of which Hoyt paid the agent $250 for his services. There was no consideration for the mortgage given to Hoyt by the defendant, though plaintiff had no knowledge of that fact.
    In an action upon the defendant’s guaranty; held, that the bond and mortgage were usurious and void.

      Held,, further, that defendant’s guaranty of the payment thereof did not estop him from setting up its invalidity.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.
    The action was brought against the defendant upon a guaranty of a bond which, with the mortgage collateral thereto, was assigned by him to the plaintiff. The guaranty was as follows : “ For and in consideration of the sum of one dollar, and other consideration, to me paid by A. V. Tiedemann, I hereby guaranty the payment of the foregoing bond, and the interest due and to become due thereon.” The defense was usury.

      Ulmcm, Remington, & Porter, for the respondent.

      R. W. Van Pelt, for the appellant.
   Potter, J. :

The referee found as facts that one Anson B. Hoyt gave to dgfñii¿la»fc.his..boiKl and mortgage.for j|5,000,; that the bond and mortgage did not represent any indebtedness or actual consideration between the defendant and Hoyt; that they were assigned byALsfendant, and afterwards guaranteed by him.at.-the request of Hoyt, amito enable him to borrow money ; that these securities were negotiated, through an agent, with plaintiff for the sum of $4,000 ; that Hoyt paid the agent out of the $4,000 paid by plaintiff the sum of $250, for his services; that the plaintiff did not know that the bond and mortgage were without consideration, and the defendant did not know that they were to be sold at a discount. Upon these facts the referee reported that plaintiff was entitled to recover of defendant the sum actually paid by plaintiff, $4,000, together with interest, and judgment was entered accordingly. We think the referee erred and judgment should have been given for the defendant. The bond and mortgage had no inception anddicTiiot represent a real transaction, until negotiated to the plaintiff. The statute makes such transactions usurious and void, however nearly the securities are made to resemble and use the language of real transactions. The papers must have, previously to their negotiation with the plaintiff, formed a factor in a real transaction between the parties to the papers. Such papers, while they have the form, lack the substance of real things, and have no legal existence. Having no legal existence, they cannot be the subject of sale and purchase, and cannot amount to anything more than security for a loan of money, and are void on account of usury. (Cark v. Sisson, 22 N. Y., 312; Payne v. Burnham, 62 id., 69.) But the referee, while conceding that the transaction was essentially usurious, held that the defendant was estopped by the language of the guarantee from asserting usury as a defense.

In this we think he was in error. There is no representation in the guarantee that the bond was valid, or tree from usury or set-off, or any defense, either legal or equitable, or of any fact whatsoever. It was a simple guarantee of payment of the bond. (Ross v. Terry, 63 N. Y., 613; 62 id., 69, supra.) The bond was but a promise to pay this $5,000. In brief, the guarantee was but the defendant’s promise to pay the sum of money which Hoyt had promised by his bond to pay defendant. The first promise was void for usury, and the second is not different or better than the first, nor would the hundredth bo if he had made it. As there was no representation of any fact, there can be no estoppel.

Judgment reversed and a new trial granted, costs to abide the event, and the order of reference vacated.

DaNiels, J., concurred.

Present — INGalls, P. J. ; DaNiels and Potter, JJ.

Judgment reversed and new trial granted, costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN J. WESTRAY, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      A Commissioner of Accounts of New York city— may be removed at pleasv/re by the Mayor.

    The Commissioner of Accounts of the city of New York, appointed under section 108 of chap. 335 of 1873, may be removed at the pleasure of the mayor; and section 28 of said act, requiring- removals to be for cause, has no application to him.
    Appeal from an order made at tbe New York Special Term, denying an application to reverse the proceedings under which the relator was removed from the office of Commissioner of Accounts of the city of New York, and dismissing the writ of cer-tiorari issued to review the same.

      A. Bell Malcomson, Jr., for the relator.

      William Q. Whitney, for the respondent.
   Potter, J. :

This is an appeal from the order of Special Term of this court denying a motion to reverse the proceedings removing the relator from the office of commissioner of accounts of said city, and dismissing the writ of certiorari to bring up said proceedings.

It appears the relator was duly appointed by the mayor of said city in January, 1875, one of the commissioners of accounts, under section 106 of the Laws of 1873, chapter 335. He filled that office till June, 1877, when he was removed by the mayor, not for cause, but in the exercise of his pleasure.

It is contended by the' appellant that the mayor had no power to remove this officer, except for cause, and that the officer must be informed of the cause of his proposed removal and allowed an opportunity of making an explanation pursuant to section 28 of that act. We think the section (28) has no application to the office in question, and that the decision of the court at Special Term was correct.

Upon an examination of the scheme of the act of 1873, we think it will be manifest that the government of the city has its head in the mayor, and its functions are committed to certain departments and bureaus specified in the act.

That the mayor as head, with certain restrictions, is to appoint certain commissioners and theheads of departments. (Section 25.) The heads of departments are given the power to appoint the heads of bureaus into which the departments are divided, as also all clerks in their respective departments. (Section 28.) By section twenty-five no head of department or other officer whose appointment is provided for under this section, and no head of a bureau or clerk appointed under section twenty-eight, can be removed except for cause. The question in this case is simply this, was the relator one of the officers specified in section twenty-five, or a head of a bureau or clerk as specified in section twenty-eight ? Section twenty-five provides for the heads of departments and that class of commissioners who have charge of departments or bureaus. The relator’s commission was not of the class or character specified in section twenty-five. This is further manifested by the fact that if the commissioner of accounts was embraced in section twenty-five there was no occasion for section 106, which specifically and only provides for commissioners of account. These sections were passed at the same time, and form distinct parts of one act. Section 106 not only provides for the appointment, but the removal of the relator by the mayor, showing that the power of appointment and removal is derived from section 106 and not section twenty-five. It is very clear that section twenty-eight has no relation to the office of commissioner of accounts. That section provides for the appointment of heads of bureaus and clerks by the beads of departments, and tbe manner of their removal. The relator was not a head of a bureau or clerk. He was appointed by the mayor and not by the head of a department, who alone appoints heads of bureaus and clerks. We conclude the mayor had the right of removal of the relator at his pleasure, and the court cannot challenge or review the exercise of that pleasure.

The order should be affirmed, with ten dollars costs, and disbursements for printing, etc.

INGALLS, P. J., concurred.

Present — Ingalls, P. J., and Potiee, J.

Order affirmed, with ten dollars costs, and disbursements.


author: INGALLS, J.:

text:
    ALICE J. ALDEN, Appellant, v. GEORGE S. DIOSSY, Respondent.

      Usury — to authorize the cancellation of a collateral obligation, not given by the borrower, the money actually loaned must be retwned.

    "Where a wife, in order to secure a loan made to her husband, executes a chattel mortgage upon her separate property, she cannot maintain an action to have the same canceled, on the ground that the loan was usurious, unless prior to the commencement thereof she has tendered to the lender the amount actually loaned, and so alleges in her complaint.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The action was brought to have a chattel mortgage given by plaintiff to defendant canceled, on the ground that it was given to secure an usurious loan. The loan was made to the plaintiff’s husband.

      Samuel J. Crooks, for the appellant.

      JOrastus New, for the respondent.
   INGALLS, J.:

The judgment should be affirmed. The complaint shows that the loan was made to the husband of the plaintiff, and she executed the mortgage in question for his benefit. She, therefore, became a surety for her husband, and consequently cannot be regarded as the borrower of the money in such sense as to enable her to maintain this action, without showing that previous to the commencement of the action she had tendered to the defendant the money actually loaned, and in her complaint so alleged. Such tender is indisponible to the maintenance of an action in equity by any party, except the actual borrower of the money, to avoid a contract tainted with usury.

A surety must establish an offer to return that which has actually been received, before a court of equity will interpose to relieve the surety. (Fanning v. Dunham, 5 Johns. Ch., 122; Dey v. Dunham, 2 id., 182; Campbell v. Morrison, 7 Paige Ch., 157; Story’s Eq. Jur., § 301.) “If the borrower comes into a court of equity, seeking relief against the usurious contract, the only terms upon which the court will interfere are that the plaintiff will pay the defendant what is really and bona fide due him, deducting the usurious interest; and if the plaintiff do not make such offer in his bill, the defendant may demur to it and the bill will be dismissed.” (Rogers v. Rathbun, 1 Johns. Ch., 367; Bissell v. Kellogg, 60 Barb., 631.) The statute of 1837, chapter 430, does not apply to this case, as the plaintiff cannot be regarded a borrower within that statute. (Wheelock v. Lee, 64 N. Y., 243; Marsh v. House, Vol. 6 N. Y. Weekly Dig., 58; Post v. The Bank of Utica, 7 Hill, 391.) The plaintiff did not ask to amend, or even pretend that any such offer had been made to the defendant.

We perceive no escape from the consequences of such defect in the plaintiff’s case, and conclude that the judgment must be affirmed, with costs.

Davis, P, J., concurred; Beady, J., talcing no part.

Judgment affirmed, with costs.


author: Potter, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, ex rel. GEORGE W. WALKER, Secretary and Treasurer and Incorporator of the Walker Glass Importing, Silvering and Manufacturing Company, Appellant, v. ISAIAH C. BABCOCK, Treasurer of the Adams Express Company, Respondent.

      Express company — will not he compelled hy mandamus to carry goods, subject to the eommon-law liabilities of a cormnon-eamer.

    ■Where an express company refuses to carry fragile goods, such as glass, offered to it for transportation, unless the shipper will accept a receipt containing a contract limiting the company’s liability for breakage, etc., a mandamus will not issue, commanding the express company to carry the goods, subject to all the common-law of liabilities of a common-carrier.
    Appeal from an order, made at a Special Term, denying an application for an alternative writ of mandamus. The relator made an affidavit stating that he was “ the secretary and treasurer of the Walker Glass Importing, Silvering and Manufacturing Company. That said company was organized under the statute of this State, that their place of business was in the city of New York; that it becomes necessary for said corporation, in the carrying on their extensive business, to send them products to all parts of the country ; that for several years the said company has been accustomed to send the articles manufactured by said company by express to their customers in different parts of the country, within and without this State ; that they have done the most part of their business with the Adams Express Company, * * * common-carriers ; that, as to the said Glass Company, they have sought to limit their responsibility by receipts ; * * * that this day he sent a package of glass to be forwarded to a customer at Baltimore; * * * that deponent offered to pay them their charge for carrying said package to Baltimore, and handed the said agent the full amount of the customary charge for such service, and more, and requested said Adams Express Company to carry said package, and said to said agent that he did not require any receipt whatever, but requested said Adams Express Company to carry said package to Baltimore, as aforesaid, offering to pay as aforesaid, and' actually tendering tbe money therefor; ” that the company refused to carry the goods, unless the usual receipt was given and accepted. The proposed alternative writ was to the effect that the company, immediately after the receipt of this writ, no longer “ refuse to transport such merchandise as said Walker Glass Importing, Silvering and Manufacturing Company may reasonably offer to you for that purpose, over any of your established lines as common-carriers, upon the tender to you of the accustomed price for such transportation or carriage, and that you perform without restriction your duties as common-carriers to the general public, whenever called upon and paid the accustomed and reasonable compensation therefor ; or that you show cause to the contrary.”
    The respondent claimed that it had never discriminated in any way against the relator, but had always been and was willing and ready to carry goods for the relator on the same terms and conditions as it imposed upon other parties.

      II 0. Bouthworth, for the relator.
    In a matter of public light, any citizen of the State may be a relator in an application for a mandamus. (19 Wend., 56; 1 Chitty, 479; 1 Cow., 23, 529; 4 id., 544; Bex v. The Justices of Ilerfordshire, 1 Chitty, 700; Bex v. Sparrow, 2 Strange, 250; 3 Term R. [D. & E.J, 574, note.) As to who are common-carriers and their duty. (1 E. D. Smith, 115, marg. note; 1 id., 132, text, 133; 6 IIow. [U. S.], 344.) If the carrier refuse to do his duties due the public or individuals, the court will compel him by mandamus, there being manifestly no other adequate remedy. (4 Seldon, 383; 1 Hill, 544; 1 id., 533; 18 Wend., 91; 1 Bl. Rep., 352; Cowper, 376; 5 Comyn's Dig.,21; 5 Wend., 114; The People v. Steele, 2 Barb., 401; 2 B. R., 419; 10 Wend., 393; 23 id., 457; 20 Pick., 484; 12 Pet., 629.)

      G. A. Seward and Ghas. M. Da Gosta, for the respondent.
    A carrier has a right to reject, as against all the public, a specified class of shipments, and he has an equal right to say that, if requested to carry them, his liability in respect thereto should not be that of the common law, but such as he is willing to assent to.
      [Sewell v. Allen, 6 Wend., 355; 7 Eng. L. & Eq., 397; 1 Pars, on Conts., 615, 649, 710, 715; Edwards v. Sherrcitt, 1 East, 611; Beal v. South Devon Go., 5 H. & N., 875; Harrison y. London Go., 8 Jurist [N. S.], 740; Neio Jersey Go. v. Merchants' Bank, 6 How., 344.) In relation to this particular express company, it' has been frequently decided in this State that its bills of lading were lawful and that it might lawfully limit its liability. (Kirkland y. Dinsmore, 62 N. Y., 171; Magnin v. Dinsmore, 56 id., 168; 62 id., 35; Daily Reg., Oct. 6, 1877; McDougal v. Bell, 4 Cal., 177.) To entitle the relator to a mandamus,.he must show Eirst. An undisputed legal right (64 N. Y., 600; 66 id., 606); Secónd. That Babcock’s legal duty is to permit him to exercise it. (Kentucky v. Dennison, 24 How., 66; 1 Ohio St. \suprai\-, 22 Wis., 250 \supra~\) 66 N. Y., 606.) Third. That such duty is a public one and in accordance with the general usage of the company. (55 Ill., 110; 2 Harring., 48; 10 N. II., 486.) Fourth. And in accordance with the public professions of the company. Fifth. Finally, that he is remediless at and by the course of the common law; and that, unless a mandamus be issued, there will be a defect of justice. (Kentucky v. Dennison, 24 How., 66; People y. Supervisors, 12 Barb., 220; King y. Bishop, 1 T. R., 394, 404; People v. Corporation, 1 Wend., 325; Wilkinson v. Bank, 3 R. I., 22.) Where there is a common-law remedy, a mandamus cannot issue. (People v. Board, 64 N. Y., 627; lie Shipley, 10 Johns., 484.) If the relator is correct in his claim, he has a complete legal remedy, at and by the course of the common law, by an action on the case. (JacksonY. Rogers, 2 Shower, 327; Angel on Carriers [cd. of 1876], § 124, and cases cited in note.)
   Potter, J.:

We think this order, from which this appeal is taken, was properly made. The remedy which the relator sought to avail himself of is exceptional and extraordinary and, as applicable to the facts in this case, without precedent. He asks this court, by its mandate, to compel the respondents to receive, carry and deliver glass for him, under the rigorous responsibility imposed upon common-carriers by the common law. The objections interposed by tlie respondent, to this extraordinary proceeding, are both technical and substantial. We do not deem it necessary to refer to but one or two of them, and not to discuss them at any length. The court will not issue the writ of mandamus to compel the performance of an act unless the relator has a clear and unquestioned right to have the specific act performed. (The People ex rel. Mott v. The Board of Supervisors of Greene Co., 64 N. Y., 600.)

We do not think the facts stated in the affidavits such as these— that the respondent, who has been engaged in the express business since 1854, carrying glass and other fragile articles, uniformly upon the terms expressed in the printed receipt offered to the relator and for the relator himself, for the last four years, and which is substantially the same as the terms on which six of the principal express companies have for a long time and still carry this class of wares, and have never publicly professed to carry otherwise— make a case of clear unquestioned right in the relator to have his glass carried and delivered under the strict and unqualified liability of the common-carrier.

But another requisite to the writ of mandamus is the incapacity of the common-law to afford an appropriate remedy for the enforcement of this clear right. (People ex rel. Tenth National Bank v. The Board of Apportionment, etc., 64 N. Y., 627; In re Shipley, 10 John., 484; The People ex rel. Isaac v. Allen Campbell, Com’r, decided by the Court of Appeals; not yet reported.)

We got an early impression from numerous cases running back a great many years, and still have it, that the common law afforded a party aggrieved by the unwarranted refusal of a common-carrier to receive, carry, and deliver his goods, a remedy, ample and appropriate, in an action to recover damages for such refusal.

We think the order appealed from should be affirmed, with ten dollars costs and disbursements.

INGALLS, P, J., concurred in the result; DaNiels, J., taking no part.

Order affirmed, with ten dollars costs and disbursements.


author: 1'NGALLS, J. : DaNiels, J.,

text:
    MYRA A. WHEELER, Respondent, v. THE CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Policy of insurance — insanity of assured, does not excuse non-payment of premiums— application for paid-up policy, must be made in life-time of assured.

    October 28, 18G9, defendant issued a policy of insurance upon the life of J. Gr. Yose, who on the 4th of November, 1872, assigned it to his children, covenanting to pay the premiums and keep it in force. Before the payment of the premiums due in 1873, Yose became insane, and so continued until his death on March 17,1874. The premium falling due on October 28,1873, was not paid. On December 10,1875, the guardian of the children assigned the policy and all rights of action thereunder to the plaintiff. To excuse the failure to pay the premium falling due October 28, 1873, the complaint alleged, “ that previous to the last-mentioned day the said John G-. Vose became and was, by the visitation and act of God, insane, and was consequently unable to, and did not, pay the premium which was due on said last-mentioned day on said policy, and on the policy hereinafter mentioned, although he was possessed of money sufficient to pay the same of his own, and of and belonging to his said children, but he was bereft of reason, and in consequence thereof did not know or remember that said premium was then due, nor that he had agreed to pay the same.”

      Held, that the facts alleged did not excuse the failure to pay the premium, and that a demurrer to the complaint should be sustained.
    The policy provided “that if, after the payment of two or more annual premiums upon this policy, the same shall cease and determine by default in the payment of any subsequent premium when due; then, notwithstanding such default, this company will grant a “ paid-up policy ” (payable as above) for such amount as the then present value of this policy will purchase as a single premium, provided that this policy shall be transmitted to and received by this company, and application made for such “ paid-up policy ” within one year after default in the payment of premium hereon shall first be made.” Held, that the application for a paid-up policy must be made by the assured during his life, and could not be made after his death, by the then owner of the policy. (Daniels, J., dissenting.)
    Appeal by tbe defendant from an order of the Special Term overruling a demurrer to the complaint.
    The action was brought upon policies of insurance issued by the defendant upon the life of John Gr. Yose, deceased. The first count in the complaint set out the issuing of a policy for $20,000 to him on October 28, 1869 ; that on or about the 4th clay of November, 1872, for a good and valuable consideration, the said John.Gr. Yose sold, assigned and transferred the said policy of insurance and all the moneys to become payable thereunder, unto his children, Flora L. Vose, Raymond II. Vose, Myra H. Vose, and Louise Or. Vose, by an instrument in writing indorsed upon the said policy; that the said John G. Vose paid to the defendant the annual premiums falling due in the years 1870, 1871 and 1872 respectively; that on about the 1st day of January, 1878, the said defendant declared a dividend out of its surplus earnings and receipts for the preceding year, payable to its several policy-holders, and that the amount of such dividend, payable to the said John G. Vose, or his assigns, in respect of the said policy and of the policy hereinafter mentioned, was then the sum of about $210; that the said defendants did not pay the same to said John G. Vose or his assigns but retained the same, and the said dividend was in its possession on the 28th day of October, 1873; that the said John G. Vose, at the time of said assignment and up to the time of his death, was the general guardian of his said children, and had been duly appointed as such' by the Orphan’s court of the county of Essex, in the State of New Jersey, in which' county ho and they resided at the time of such appointment; that previous to said last-mentioned day the said John G. Vose became and was, by the visitation and act of God, insane, and was consequently unable to, and did not, pay the premium which became due on said last-mentioned day on said policy and on the policy hereinafter mentioned, although he was possessed of money sufficient to pay the same, both of his own and of and belonging to his said children, but he was bereft of reason, and in consequence thereof did not know nor remember that said premium was then due, nor that he had agreed to pay the same; that the said defendant did not, at the last-mentioned time, nor at any time until after the death of the said John G. Vose, claim nor insist that any forfeiture of said policy, nor of the policy hereinafter mentioned, had been caused by the aforesaid omission, but retained the said dividend in its possession, which, by the terms of said policy and by the agreement between the said Joím G. Vose and the said defendant, was applicable to the payment of the premium falling duo October 28, 1873; that thereafter, and on or about the 17th of March, 1874, the said John G. Vose departed this life at Atlantic City, in the State of New Jersey, leaving tbe said policy of insurance in force and effect, and that immediately thereupon bis said children became entitled to the said sum of $20,000, so insured as aforesaid, according to the terms of the said policy, and that they had an interest therein to the amount thereof, as and for so much money of their deceased mother in his hands, and also as his children, who were dependant upon him for their support and maintenance ; that thereafter, and on or about the 10th of October, 1874, at the office of the defendant, in the city of Hartford, dué notice and satisfactory evidence of the death df the said John G. Yose and of the appointment and .authority of John Yan Yechten as their guardian, hereinafter mentioned, was given to and served upon the defendant and payment of the said sum so insured under said policy to the said children was demanded ; but the defendant then and there refused to pay the same or any part thereof; that when such proofs of loss were presented to the defendant the said policy was transmitted to and received by the said defendant, but it refused to grant a paid-up policy for such amount as the present value of the policy, on the 28th day of October, 1873, would purchase as a single premium, or to pay such amount to said John Yan Yechten as general guardian of said children, and also refused to pay the amount of insurance to which said dividend, as an annual payment made on the 28th day of October, 1873, would have entitled the said John G. Yose for a year from that day; that said John G. Yose and his said children, at the time of his death, were, and his said children have ever since been, residents of Orange, in the county of Essex and State of New Jersey, and that thereafter, and on or about the 20th day of April, 1874, John Yan Yechten, of said Orange, was duly appointed general guardian of the said children by an order duly made by the Orphans’ court of the said county of Essex, to which court, by the laws of New Jersey, the appointment of general guardians of the estates of infants rightly belonged; and the said John Yan Yechten was also duly appointed general guardian of the said infants by an order duly made by the surrogate of the city and county of New York, on the 25th day of April, A. D., 1874, and as such had full power to dispose of the estate of said infants; and that the said John Yan Vechten, as such general guardian, by an instrument in writing, under his hand and seal, assigned the said policy and the policy hereinafter mentioned, and the moneys due thereon, and all causes of action arising thereupon, and all their causes of action against the defendant to this plaintiff on the 10th day of December, 1875. The second count was similar to the first.
    The policy provided, among other things, that this policy shall not take effect until the advance premium hereon shall have been actually paid during the lifetime of the insured, and that if any subsequent premium on this policy be not paid when due, then this policy shall cease and determine (except as hereinafter provided), and this company shall not bo liable for the payment of the sum insured herein nor of any part thereof, and that no premium on this policy shall be considered as paid, unless a receipt shall be given therefor, signed by the president or secretary of the company ; that if, after the payment of two or more annual premiums upon this policy, the same shall cease and determine by default in the payment of any subsequent premium when due, then, notwithstanding such default, this company will grant “ a paid-up policy” (payable as above) for such amount as the then present value of this policy will purchase as a single premium, provided that this policy shall be transmitted to and received by this company, and application made for such “ paid-up policy,” within one year after default in the payment of premium hereon, shall first be made.

      W. A. Beach, for the appellant.

      Everett P. Wheeler, for the respondent.
   1'NGALLS, J. :

This action is brought upon a policy issued by the defendant October 28, 1869, insuring the life of John E. Yose. On the 4th of November, 1872, the policy was assigned by Yose to his four children, who were then infants, and for whom he was appointed guardian. Yose died March 17, 1874, and John Yan Yechten was, on the 20th day of April, 1874, appointed general guardian for said infants. On the 10th day of December, 1875, Yan Yechten, as such guardian, assigned such policy, and all rights of action under the same, to the plaintiff. The complaint does not state that the plaintiff is related to the children of said Yose, nor upon what terms she became the owner of said policy. Such statements are probably unnecessary, so far at least as the strict legal rights of the parties are concerned. By the terms of the policy a premium became payable on the 28th day of October, 1873, which was not paid. The policy contains the following condition : And that if any subsequent premium on this policy be not paid when due, then this policy shall cease and determine and this company shall not be liable for the payment of the sum insured herein, or any part thereof."

The complaint alleges, as an excuse for such failure to pay, “that previous to said last-mentioned day the said John G. Yose became and was, by the visitation and act of God, insane, and was consequently unable to, and did not, pay the premium which became due on said last-mentioned day on said policy, and on the policy hereinafter mentioned, although he was possessed of money sufficient to pay the same of -his own and of and belonging to his said children; but he ivas bereft of reason, and in consequence thereof did not know or remember that said premium was then due, nor that he had agreed to pay the same.” By demurring the defendant admits the truth of the facts, which are material and well pleaded in the complaint. It must be assumed that the parties to this contract of insurance entered into the same deliberately, and with a full knowledge of the terms and conditions thereof; and the obligations were created by express agreement, and not imposed by operation of law. This distinction is important in determining the rights of the parties to such contract. When the law creates the duty or charge, it more freely excuses a failure to perform than when the party expressly binds himself by contract. (Harmony v. Bingham, 12 N. Y., 99.) Edwards, J. (p. 107), remarks : “ It is well-settled that where the law creates a duty or charge, and the party is disabled from performing it, without any default in himself, and has no remedy over, then the law will excuse him ; but where the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by contract. This rule has been uniformly followed, and that, too, even in cases in wbicli its application has been considered by the court as attended with great hardship.” In the same case Judge Ruggles (p. 115,) says : “ It is a well-settled rule of law that where a party, by his own contract, absolutely engages to do an act, it is deemed to be his own fault and folly that he did not thereby expressly provide against contingencies and exempt himself from responsibility in certain events; and in such a case, therefore — that is, in the instance of an absolute and general contract ■ — ■ the performance is not excused by an inevitable accident or other contingency, although not foreseen by, or within the control of the partyThe same doctrine is again asserted in Tompkins v. Dudley (25 N. Y., 275). In that case reference is .made to The School Trustees of Trenton v. Bennett (3 Dutcher [N. J.], 514), in which the court say: I! No rule of law is more firmly established by a long train of decisions than this, that when a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by contract.” “No matter how harsh or apparently unjust in its operation the rule may occasionally be, it cannot be denied that it has its foundation in good sense and inflexible honesty.” (See also Story on Bail-ments, § 36.) This rule of law is applied with greater rigor to conditions incorporated in policies of insurance than to covenants in ordinary contracts. In Roehner v. Knickerbocker L. Ins. Co. (63 N. Y., 167), Judge Folger remarks : “ The contract of life insurance is sui generis ; it is one-sided. By a strict observance of the conditions of it, the insured may hold the insurers to their contract, while they have not the power or the right to compel him to remain in contract relations with them longer than he chooses. Thus it differs widely from a lease. For this reason the clauses of forfeiture in policies of life insurance have been construed literally, and, on breach of condition, the 'policies have been held avoided in favor of the insurers, without demand or other notice of election on their partí Again, on p. 164, “ the payment is a condition precedent which must be kept or the policy falls. It is a rule of the common law that if the terms of the contract violate no law or public policy, are sustained by sufficient consideration, and have been fairly entered into, a strict and exact compliance with them may be insisted upon.” In Sparks v. The Liverpool Water-works Company (13 Ves., 428 [Sum. ed.] ), the Master of the Eolls, says : “ This bill is founded in forfeiture, and upon the ground that the plaintiff did not consider himself as a partner, and offering compensation and praying to be relieved from the forfeiture. The parties might contract upon any terms they thought fit, and might impose terms as arbitrary as they pleased. It is essential to such transactions. This struck me as not like the case of individuals. If this species of equity is open to the parties engaged in these undertakings they could not be carried on. It is essential that the money should be paid, and that they should know what is their situation.” “ The party making default is no longer a member, but if a party can in equity enter into a discussion of the circumstances, each may bring his suit.” “Why is not this equity open to contractors for the government loans ? Why may not they come here to be relieved when they have failed in making their deposits, and if they could have that relief how could government go on ? It would be just as difficult for these undertakings to go on.” This reasoning applies to life insurance; the premiums are relied upon to furnish capital, with which to conduct the business, and meet obligations. Prompt payment thereof is indispensable to the existence of such companies. Every person who accepts a policy is presumed to understand the nature of the obligation which he assumes with the company, and the necessity of strict performance. Insurance companies should be hold to a strict accountability, and required to perform their contracts, and those who accept policies should be subjected to the same rule in regard to their engagements. When a party has deliberately entered into such an agreement, and bound himself by covenant or condition, and no fraud or imposition has been practiced upon him, he should certainly be required to perform in a case like this ; and a court of equity should be reluctant indeed, to lend its aid, and relieve a party from the consequences of a forfeiture, against -which he might have provided by his contract. While such rule may operate harshly in a particular case, it will bo salutary in its general effect. If it is understood that contracts will be rigorously inforced by the courts, they will be entered into with greater caution, and more faithfully performed. The condition m the policy before stated must be regarded as a condition precedent; upon its strict performance depended the life of the policy, and when a failure to pay a premium occurred, the obligation of the company to pay the sum specified in the policy ceased, and that too without any declaration of the company that it regarded the same forfeited. (Roehner v. Knickerbocker L. Ins. Co., supra; Evans v. The United States Life Ins. Co., 64 N. Y., 308.) In that case Judge Earle says: “The policy, therefore, became absolutely void after July 1, 1870. It was unnecessary for defendant to make any election, or to do anything else to render it void. It became dead by its own terms and could never again have any vitality, except by some sufficient act of the defendant reclothing it with life.” In order to invoke successfully the equity powers of the court to relieve a party against forfeiture, even in an ordinary contract, where such party who made the contract has been stricken by disease, or prostrated by inevitable accident or casualty, so as to be unable to perform his agreement, it is not sufficient to show that the act or duty required to be performed was difficult; it must be shown to be impossible of performance without the personal intervention of such party. (Evans v. The U. S. Life Ins. Co., 64 N. Y., 305; Beebe v. Johnson, 19 Wend., 500.) In the last case the court (p. 502) say: 1 ‘To bring the case within the rule of dispensation it must appear that the thing to be done cannot by any means be accomplished, for if it is only improbable or out of the power of the obligor, it is not in law deemed impossible.” (Story on Bailments, § 36 and note; Story’s Equity Juris., § 1303.) The author remarks, “ so if the thing is physically possible, but not physically possible for the party, still it will be binding upon him if fairly made, for he should have weighed his own ability and strength to do it.” In Howell v. The Knickerbocker L. Ins. Co. (44 N. Y., 281), Judge Gray says : “The payment of the premium was an act which could have been performed by any other person than the plaintiff’s husband; its payment did not necessarily depend upon his continued capacity or existence; and hence, although he was shortly prior to the •expiration of the policy, when about to pay the premium, rendered incapable by the act of God, she is without the rule that relieves a party from the consequences of an omission to do an act, rendered impossible by omnipotent power.” Regarding the strict requirements of the law in reference to the performance of such a contract, can it be reasonably said, in view of the allegations of the coim plaint, that the premium could not have been j)aid by any other person than Mr. Yose ? ■ It is not sufficient that he was the proper person to make payment, nor that he had money with which he could have paid it, but for the insanity. Any other person might have paid the premium, and thereby bound the company and prevented the forfeiture. The complaint does not even allege that the children were of such tender years, at the time, as to even raise a presumption that they did not possess a degree of intelligence sufficient to understand their rights, and to have performed' this act; nor that the existence of the policy and the necessity of paying the premium was not known to other persons, who could and would have paid the same upon request. The complaint does not even allege, in so many words, that Yose would have paid the premium if he had been sane. While pleadings are to receive a liberal construction, since the adoption of the Code, yet a cause of action must be stated. In this case the plaintiff was confronted at the threshold by the forfeiture, and was required to state facts which excused the failure to pay the premium, showing that the same could not possibly have boon paid by any person other than Yose. This may seem a severe rule, but we are dealing with a forfeiture under a contract where, as we have seen, the most stringent rule of construction obtains. Again, regarding the nature of this contract, and the adjudications which bear upon the question, whether the insamty of the insured will excuse the performance of a such a condition as is contained in this policy, we are of the opinion that the complaint does not allege facts which would justify a court of equity in granting relief against such forfeiture. (Howell v. Knickerbocker L. Ins. Co.; Evans v. United States L. Ins. Co.; Roehner v. Knickerbocker L. Ins. Co.) All before referred to. Reference has been made to the effect of the war upon such contracts, and the cases (Cohen v. N. Y. M. L. Ins. Co., 50 N. Y., 610; Sands v. N. Y. Life Ins. Co., 50 id., 626) among others have been cited. Jt is held that the war suspended such contracts, and the remedies to enforce the same; such result arose necessarily from the antagonism which existed between the citizens of the various sections of the councry, and the impiacti-cability of inforcing or performing the conditions of such contracts; such restriction operated, not only upon the contract, but upon the parties and the courts. This doctrine rests upon the ground of public policy, to prevent an enemy from deriving strength from commercial intercourse. We do not think that class of cases lends support to the plaintiff’s case by analogy or otherwise. In the case of Sands v. N. Y. L. Ins. Co. (supra), it was suggested that an act of providence would not dispense with strict performance of a condition in a policy of insurance. Judge PeckhaM did not deny the soundness of the proposition, but remarked, “without stopping to question this position, it is clear that war in this respect, then, can accomplish what cannot be done otherwise. War extends the statute of limitation.” This case certainly does not support the plaintiff’s case upon this precise question. In Wilkinson v. First National Fire Ins. Company (9 Hun, 523), it is held to be no sufficient answer to the statute of limitations that the party was restrained by an injunction, and this decision has recently been affirmed by the Court of Appeals. Certainly the decisions of the courts do not show a tendency to relax the rule in regard to the strict performance of contracts. To obtain relief in a court of equity, the case must be brought within some acknowledged head of equity jurisdiction. It is not sufficient to show that relief cannot be obtained by the strict rules of the common law, and that the party will be subjected to great loss, unless a court of equity grants relief. If it were once established that a court of equity would interpose in all cases of extreme hardship, parties could not rely upon their contracts, and utter confusion would be the result. The complaint does not show but that the plaintiff purchased the policy, and the right of action, for a nominal consideration, and is engaged in a speculation. While this remark may not apply to her right of recovery at law, it is certainly an important consideration when a court of equity is asked to relieve against the effect of this forfeiture. From the frequency with which such questions arise, and no decision being discovered or produced, justifying the granting of the relief necessary to sustain the plaintiff’s case, we may introduce here the remark of the Lord Chancellor in Peachy v. The Duke of Somerset (1 Strange, 452) : “ This is a point of so great consequence that if relief could be given in this court, it is strange it should not have been found out long ago.”

We are satisfied that the complaint cannot be sustained, upon the ground that it alleges a cause of action under the following provision of the policy : Sixth. “ That if after the payment of two or more annual premiums upon this policy, the same shall cease and determine by default in the payment of any subsequent premium when due, then, notwithstanding such default, this company will grant a “ paid-up policy (payable as above) for such amount as the then present value of this policy will purchase as a single premium, provided that this policy shall be transmitted to and received by this company, and application made for such ‘paid-up policy’ within one year after default, in the payment of premium hereon, shall first be made.”

The pleading was framed upon no such theory. Two distinct causes of action are stated, in terms so unmistakable, that neither can be construed into the statement of a cause of action within the said provision. It is not even alleged that a demand was made of the defendant for a paid-up policy, nor is any such relief claimed in the complaint. Indeed, the entire pleading negatives the idea that any such cause of action or relief was contemplated by the pleader. While pleadings, under the Code, are to be liberally construed, yet it is not allowable to glean from an entire pleading one fact here, and another there, and then group them in such manner that a cause of action may possibly be spelled out, which did not enter the mind of the pleader when he framed the pleading, and which is also inconsistent with the entire scope of the pleading, and the relief demanded thereby. It would in effect be substituting a new cause of action. (Leeder v. Sayre, 70 N. Y., 181.) Independent of this question of pleading, there arises, inherent in the contract itself, an obstacle to the plaintiff’s right to recover upon any such grounds when applied to the facts alleged. The agreement provides, in substance, that after the payment of two or more annual premiums, the policy may be transmitted to the company, and an application made for a paid-up policy, at any time within one year after default shall first be made m the payment of a premium; and the company will grant a paid-up policy. There is no pretence that any such application was made by John E. Yose, in his lifetime, or by any other person in his behalf or that of any other party who was interested. Consequently no right of action accrued against the defendant prior to the death of Yose. The contract of the defendant was to grant a paid-up policy, and there is no agreement to pay money as an equivalent therefor. Obviously the policy was to be issued to Yose, or at least to depend upon his life, and when he died such life ceased to be a subject for insurance, and surely no other could be substituted. From the nature of the contract, and the purpose sought thereby, the conclusion seems inevitable that the agreement in that respect was personal to John E. Yose, as there is nothing which indicates that a continuing covenant was intended. To whom could the policy issue ? Upon the termination of what life must payment depend ? With whom rested the right to elect whether the original policy should be surrendered, and a paid-up policy accepted in its stead ? It seems clear to my mind that it was intended by the parties that the contract in this particular should be performed in the lifetime of Yose, and that his death had the effect to terminate all right to a paid-up policy, or any equivalent therefor in money. Yose and his assignees relied upon the original policies, and a recovery is sought by the plaintiff by virtue thereof. Such are the causes of action stated in the complaint, and they are inconsistent with the pretence that any other cause of action is relied upon. The right to a paid-up policy depended upon a surrender of the original policies, as both could not be claimed or asserted with any semblance of right. We fail to discover any substantial ground, legal or equitable, which would justify a recovery by the- plaintiff upon any such pretended cause of action. As it is quite probable that a cause of so much importance, and involving questions so novel, will be presented to the Court of Appeals for final adjudication, we deem it best for all the parties that all the questions of law raised by the demurrer should be passed upon and the rights of the parties declared, so far at least as the law which should govern the case is concerned.

The judgment of the special term must be reversed with costs; but with leave to the plaintiff to amend her complaint within twenty days, upon payment of the costs of the demurrer to the defendant.

Barrett, J., concurred.

DaNiels, J.,

dissenting:

This action has been brought upon two policies of insurance, issued by the defendant to John G. Yose upon his own life, on the 28th day of October, 1869. He assigned these policies to his children on the 4th of November, 1872, and in the assignments covenanted to pay the annual premiums upon them out of their moneys in his hands and to keep the insurance in force. At that time, and up to the period of his own decease, he was the general guardian of these children, who were minors, and the premiums on the policies were paid by him for the years 1870, 1871 and 1872, besides the sums required to be paid when the policies were issued. Before the premiums became due for the year 1873, he became insane, and continued to be so until the 17th of March, 1874, when he departed this life. When he became insane he had moneys in his hands belonging to his children, from which these premiums might have been paid; but they were not paid because of his insanity.

To the complaint, alleging these and other facts, the defendant demurred, on the ground that they were insufficient to constitute a cause of action. That was overruled by the Special Term, and in support of the appeal taken from the order, the point most elaborately argued was, whether there had been a forfeiture of the policies because of the non-payment of the annual premiums, when that resulted from the existence of this state of insanity, and it has been very ably and thoroughly considered in an opinion already -written by the learned justice presiding on the argument of the appeal; but whether the position there taken and maintained should be adopted in the disposition of the case will not now be discussed, for the demurrer can be properly disposed of without considering that subject.

These policies provided for other liability on the part of the defendants, besides that for payment of the amount mentioned in them, and for which they were primarily obtained, and the facts exhibiting these obligations have been set forth and averred in the complaint. One of them was the obligation to make and declare dividends out of its surplus earnings, in which the insured was entitled to participate; and in conformity to it the complaint shows such a dividend to have been declared to the extent of the sum of $210 in favor of the assured; but as it was not sufficient to meet the premium which afterwards matured, it was not obliged and does not seem to have credited the amount on this policy. Still no right of action for its recovery exists under the circumstances stated, for no demand of the amount has ever been made upon the defendant, and such a demand seems to be necessary before an action for the recovery of the dividend can be sustained. (Scott v. Central R. R. Co., 52 Barb., 45.) But as to another of these obligations, the plaintiff’s case stands in a very different condition; that was created and stated in the sixth condition to which the policies were subjected, and by that it was provided and declared: ‘1 Sixth. That if after the payment of two or more annual premiums upon this policy, the same shall cease and determine by default, in the payment of any subsequent premium when due, then, notwithstanding such default, this company will grant a ‘ paid-up policy ’ (payable as above) for such amount as the then present value of this policy will purchase as a single premium, provided that this policy shall be transmitted to and received by this company, and application made for such ‘ paid-up policy ’ within one year after default in the payment of premium hereon shall first be made.”

Three of the annual premiums were shown by the complaint to have been paid upon each of these policies, and by reason of that fact this provision had become operative in favor of the assured and his assignees, under the terms of the assignments made to them, for all moneys becoming payable under the policies were assigned, as well as the policies themselves ; and it has been averred that at the time when the proofs of death were presented to the defendant, which was on or about the 10th day of October, 1874, the policy for the sum of $20,000 was transmitted to and received by the defendant, but it refused to grant a paid-up policy for the amount of the value of the policy as a singlo premium on the 28th day of October, 1873, the day when the default was made in the payment of the annual premium. These facts constituted a compliance with what the defendant had prescribed to entitle the assured to a paid-up policy; and at that time they were the assignees of the policy. Their application was made within the year after the default, and in the mode described by the defendant, and it refused to perform this obligation, and that was sufficient to constitute a cause of action in the case.

For the purpose of justifying the defendant in its refusal, it has been urged that as the person whose life had been insured was dead at the time of this application, the condition itself could not be complied with by issuing a paid-up policy. But that was not a contingency to which the performance of this obligation had been subjected. It had been rendered dependent, on the contrary, on two circumstances only. They were that two or more annual premiums should be paid, and that the application should be made within one year after the first default, and both were shown to have been complied with in the case.

As a continuing insurance, the policy applied for would truly be inoperative; but the essence of the obligation was not of that nature. It was that the company would place itself in the position in which it would be obliged to pay the value of the paid-up policy for premiums received by it, and that it was shown to have refused to do.

The case, in this respect, is quite analogous to those in which insurance companies have been held liable, after losses have arisen on their contracts or those of their agents, to make and issue policies never made out or delivered. The fact that the policy could not afterwards be operative as an existing insurance was not allowed to exonerate the company from the effect of its obligation; but it was required to jiay the loss the same as though a formal policy had been executed to include it. These authorities have been cited in the case of Post v. Ætna Ins. Co. (43 Barb., 351, 362-364), and the same principle may well be applied to the disposition of this case.

The practical object of this condition was to place the assured in a position in which substantial benefit should be derived from the premiums paid, even though that should be followed by a subsequent default. It was to secure the same advantage as if an amount of money, equal to the value of the policy at the time, were paid over for a paid-up policy. This was the spirit and intent, as -well as the import, of the language used in the condition, and no such insuperable obstacle stood in the way of its performance as should deprive the assured of its benefit. The company had assumed this obligation and it could have been literally performed by it, and the effect of that performance would be to entitle the assignees to demand and receive the amount required to be paid to discharge the paid-up policy. Its refusal to perform rendered it liable in damages for an equivalent amount, and that the present plaintiff" has, by the facts stated, shown herself entitled to in this action. That is a good cause of action, although not very artistically set forth. In many other respects more precision should have been given to the allegations made; but while they may not be free from other objections, they are sufficient against the defendant’s demurrer, for the facts stated do show the existence of this cause of action. The case is an important one, and all the facts should have been more clearly and properly pleaded; but as it now stands the appeal from the order cannot be sustained.

The order accordingly should be affirmed; but as the cause of action upon which that result has been reached has not been separately set forth, it should be without costs of this appeal.

Judgment reversed.


author: Davis, P. J.:

text:
    THE FIRST NATIONAL BANK OF MEADVILLE, PENNSYLVANIA, Respondent, v. THE FOURTH NATIONAL BANK OF THE CITY OF NEW YORK, Appellant.

      Duty of collecting agent — check taken in payment of draft, must be presented on the same day.
    ■Where a draft sent to a hanlt for collection is presented hy it, and the drawee’s check taken in payment thereof and the draft surrendered, it is the duty of the hank to present such check for payment on the same day, if it can he so presented by the exercise of reasonable diligence; and if the check would have been paid, if presented on that day, but is not good on the next, through the failure of the maker, the drawers of the draft are discharged and the bank is liable to its depositor for its failure to collect it.

      Smith v. Miller (43 1ST. Y., 171), and S. C. (52 id., 545), criticised and followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The referee found, among other things, that the Crawford County National Bank, being indebted to the plaintiffs, made its draft upon Culver, Penn & Co., who were bankers and brokers in New York, to the order of the plaintiffs for $6,000, dated March 22, 1866, payable at sight, and delivered it to the plaintiffs. The plaintiffs indorsed the draft to the defendants, the collecting agents of the plaintiffs, and sent it by mail to the defendants to be collected and credited to their account. The draft came to the hands of the defendants on the morning of Monday, March 26,1866. The defendant presented the draft for payment to the drawees, Culver, Penn & Co., on the morning of March twenty-six, and received for it a check of Culver, Penn & Co., dated that day, for $6,000, upon the Third National Bank of New York, the bank where Culver, Penn & Co. kept their account. No uniforn custom in regard to accepting checks upon banks in payment from the payees of sight drafts, sent to the banks as agents for collection, was proved to exist in the city of New York. The practice varies with the credit of the drawees, the condition of the money market and other circumstances, and among different banks. Culver, Penn & Co. were embarrassed in conducting their business and meeting their payments on the twenty-sixth of March. They paid small drafts upon them in cash, and gave checks for those of larger amount presented during that day. They had on hand on the twenty-sixth of March, for the purpose of transacting their business over their counter, about $19,000 in cash. Their obligations, maturing' on the twenty-sixth, were largely in excess of this amount. Their account in the Third National Bank was overdrawn. The Third National Bank paid or certified all checks of Culver, Penn & Co. drawn upon it, which were presented to it during Monday, March twenty-six. The account of Culver, Penn & Co. with the bank was overdrawn when the check given to the defendants was. drawn. The Third National Bank, for at least a month previous to March 25, 1866, had been in the practice of paying or certifying, upon presentation, checks of Culver, Penn & Co. beyond the amount at their credit. When it was found, in making up their account on the morning of any day, that the checks of the previous day had thus exceeded their cash balance, Culver, Penn & Co. deposited collateral securities to the amount of such overdrafts. The amount to which this should be permitted, and its continuance, was constantly at the discretion of the Third National Bank. On the twenty-seventh of March the Third National Bank refused any longer to pay checks of Culver, Penn & Co. The check on the Third National Bank, given by Culver, Penn & Co. to the defendants, on March twenty-sixth, was not presented on that day to the Third National Bank for payment or certification. It was sent in through the clearing house of the New York banks with the exchanges between the defendants and the Third National Bank, and was thus presented to the Third National Bank on the twenty-seventh of March. Payment of the check was then refused by the Third National Bank. The defendants then returned the check to Culver, Penn & Co., and received back from them the draft for $6,000, drawn upon them by the Crawford County National Bank. That draft was then again presented for payment to Culver, Penn & Co. by the defendants. It was not paid and was protested, and notice of its non-payment duly given to the Crawford County National Bank and to all the parties to the draft.
    The referee further found that on March 26, 1866, the Crawford County National Bank had on deposit, to its credit with Culver, Penn & Co., money exceeding $6,000 in amount to meet its drafts, and directed judgment for plaintiffs.

      II JB. Bristow and W. Beet, for the appellant.

      George A. Blade,, for the respondent.
   Davis, P. J.:

If an action had been brought by the present plaintiff against the Crawford County Bank, the drawer of the draft described in the complaint in this action, upon that instrument, it would bo impossible to distinguish the case from that of Burkhalter v. The Second National Bank of Erie (42 N. Y., 538), and tbe law as declared by tbe Court of Appeals in that case, and in Turner v. Bank of Fox Lake (4 Abb. Ct. App. Dec., 434; id., 3 Keyes, 425), would entitle the plaintiff to recover, unless overruled by the court which pronounced it. But the learned referee in this case has felt himself bound by the decision of the Court of Appeals in Smith v. Miller (43 N. Y., 171; 52 id., 545.) The defendant, The Fourth National Bank, was the collecting agent of the plaintiff, and as such received the draft drawn by the Crawford County Bank for collection. Its duty was to collect the draft, or, on failure to make collection, to take such steps in respect of it as would charge the drawer, or enable the plaintiff to charge the drawer. On presenting the draft to the drawees for payment the defendant received the check of the drawees on the Third National Bank, and delivered up the draft. According to the law of Smith v. Miller (ubi supra), it was the duty of the defendants to have presented that check for payment or certification, during the business hours of the day on which it was made. In Smith v. Miller the plaintiffs had about two hours of the day on which the check was drawn in which they might have presented it; and it was held that their neglect to do so discharged the drawers of the draft for which the check was given. Precisely the same course in relation to the check was taken in that case as,in this ; that is, the check was sent in for collection on the following day through the clearing house, and it was hold that the drawer of the draft was discharged by the negligence of the plaintiff in not presenting the check on the day before, the bank having failed on the following morning. The rule given by this case is an extremely dangerous and variable one; for if a delay of two hours in presenting the check on the day of its date be negligence, it is obvious that one of a single hour, or even of a much less period, where circumstances permit an immediate presentation, will have the same effect. There is no safety in such cases for a collecting agent or his principal, except in the use of the utmost diligence ; because, where five minutes after its delivery is abundant time in which to present a check under such circumstances, and would have secured payment, it must follow that fifteen minutes is too great a delay. Established commercial usages, and even the settled rules of law relative to commercial paper, are impotent to regulate this class of business, as the question of reasonable diligence in each case becomes one of fact, quite independent of such usages and rules. There is nothing so essential to the safety and convenience of commercial business as fixed and well-understood rules, definitely prescribing the time within which commercial paper must be presented, demanded, accepted or protested and notice given, etc.; and whatever tends to render such rules uncertain, and dependent upon the accidents of particular circumstances, is bad in policy and ought to be bad in law. Wo feel ourselves, however, like the learned referee, constrained to follow the decision in Smith v. Miller, and that leaves but a single question in this case, which is, whether it is sufficiently found or shown that the check of the drawees, if presented on the day of its date, would have been paid by the Third National Bank? It appears that the check was not “good,” within the legal signification of that term. Its makers were largely overdrawn at the bank, and had no funds there out of which the bank was legally bound to have paid the check; but it was shown, and was so found by the learned referee, that an arrangement existed between the bank and the makers of the check, under which, at that time and for more than a month previously, the bank had paid the overdrafts of the makers, and that the bank did pay or certify all other checks presented on the day of the date of this check, and did not refuse to pay any of their checks until the following day. The referee has not distinctly found that the check would have been paid, if presented on the day of its date; but the fair presumption, from the facts found by him, is that such payment would have been made. The defendant acted in good faith, and in accordance with the ordinary course of transacting business of this character ; but in the conflict of decisions in this State, it is our duty to follow the later case of Smith v. Miller, which leads, we think, to an affirmance of the judgment.

The judgment should be affirmed.

Beady and INGAlds, JJ., concurred.

Judgment affirmed.