text:
    GEORGE GORHAM, Executor, etc., of EDWARD C. MARVINE, Appellant, v. JOSEPH PRICE, Respondent.

      Proof that a party has money — when not admissible in corroboration of the statement of a witness that the party offered, to make a payment — Might of a party to testify as to a conversation with a deceased, pes'son, as against his executor.

    On an issue as to whether the defendant was in possession of a farm as a tenant or under a contract of sale from the plaintiff's testator, a witness testified that he was present at a conversation between the plaintiff’s testator and defendant, in which the testator asked the defendant for some rent, and the defendant said he had the money in the bank ready to pay when he knew who to pay it to.
    Held, that the admission of evidence offered by the plaintiff to the effect that for a considerable period of time, embracing the time of the conversation, the defendant had several hundred dollars on deposit in the bank referred to, was-error.
    Where a plaintiff, suing as executor, proves by a third person a conversation between his testator and the defendant, it is competent for the defendant .to state whether the conversation testified to ever took place.
    Appeal from an order of the Chautauqua Special Term setting aside a judgment, entered on a verdict rendered herein in favor of the plaintiff, and granting the defendant’s motion for a new trial on a case and exceptions.

      John D. Teller, for the appellant.

      James Lyon, for the respondent.
   Smith, J.:

The complaint in the action contains two counts: One, for the rent of a farm owned by the plaintiff’s testator, Edward C. Marvine, and occupied by the defendant, and the other for the value of a quantity of manure removed by the defendant from said farm and for which he agreed to pay. At the trial the court held that there was no evidence to support the second count, and the case was submitted to the jury under the first count alone.

The learned judge before whom the case was tried, granted a new trial for what he regarded as an error in the reception of a single item of testimony. The principal issue between the parties was as to whether the defendant was in possession as the tenant of the testator or under a contract of purchase, and the issue was sharply contested. The plaintiff called a witness, Treat, who testified that he was present at an interview between Marvine, the testator, and the defendant, while the latter was in possession of the farm, in which the testator asked Price, the defendant, for some rent, and Price said he had the money in the bank ready to pay when he knew who to pay it to, but he had been forbidden to pay it to Mar-vine. The plaintiff was then permitted to prove by another witness, against the defendant’s objection to the immateriality of the •evidence, that for a considerable period, embracing the time of the aforesaid interview, Price had several hundred dollars on deposit in the bank referred to. Ve concur in the opinion of the learned judge, delivered at Special Term, that the latter item of •evidence was wholly immaterial, and that it was calculated to and probably did have a prejudicial influence with the jury, •and its reception was error. The fact that the defendant had money in bank had no legitimate tendency to show that he held the farm as tenant, or that he admitted that he so held. It-has sometimes been held that upon an issue of payment it is competent to show that the party had money with which the payment might have been made. (Dishno v. Reynolds, 17 Hun, 137.) In Nicholls v. Van Valkenburgh (15 Hun, 230) evidence was held .admissible that a person against whose estate a promissory note was presented, long overdue, was of ample pecuniary means at and after the date of the maturity of the note, by way of showing the improbability of its remaining overdue without a demand for its payment. And in Pontius v. The People (21 Hun, 328; aff’d in 82 N. Y., 339) evidence that a party was embarrassed in his pecuniary circumstances, and pressed by numerous debts was received by way of showing that he had not money to lend. Those cases and others similar are cited by the appellant’s counsel, but they do not authorize the position that the fact that a party has money in bank tends to show that he promised to pay it on a particular claim, or that it corroborates the testimony of declarations made by him to that effect.

In one other particular, also, we are inclined to think an error was committed at the trial. After the witness Treat had testified to the conversation between the deceased and Price, above detailed, the defendant was called as a witness in his own behalf, and was asked whether the conversation so testified to took place. The plaintiff objected to the question as incompetent and prohibited by section 829 of Code. The objection was sustained, and the defendant excepted. The cases of Brague v. Lord (67 N. Y., 495) and Kraushaar v. Meyer (72 id., 602) are cited to justify the ruling. In each of those cases the surviving party was called, in the first instance, to testify to a conversation between himself and the deceased, at which a third person was present, in respect to which no testimony had been given on the other side. Here, the plaintiff had called the third person to prove what took place in his presence between the defendant and the deceased. We think it was competent for the defendant to state whether the conversation testified to by Treat took place. * ■* *

The order appealed from should be affirmed, for the reasons above stated.

Talcott, P. J\, and Hardin, J., concurred.

Order appealed from affirmed.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. THE COHOCTON STONE ROAD, Respondent.

      Enforcement of costs against its directors in an action annulling a corporation for abuse of its powers.

    In an action in -which judgment was entered December, 1878, vacating the charter and annulling the existence of á corporation because of its abuse of its powers, and giving costs to the plaintiffs, a motion was made December, 1880, that an attachment or other proper process issue against the directors of the corporation for the enforcement of payment of the costs adjudged against it.

      Held, that at the time of the making of the motion there was no statute in force authorizing the court to grant the relief asked for.
    The provisions of the repealing act (chap. 245 of 1880) were to the effect that such repeal should not affect “any other lawful act done, or right, defense, or limitation lawfully accrued or established,” before the act took effect, nor “any offense committed, or penalty or forfeiture incurred,” before said act took effect, “except that the proceedings in a civil action or special proceeding brought by reason thereof, are subject to the provisions of the laws in force after this act takes effect.”

      Held, that such provisions did not apply to this case, as the words “right lawfully accrued or established,” implied an absolute right, not one resting in the discretion of the court as the issuing of an attachment in this case did.
    That the motion could not be regarded as a “special proceeding” to enforce a “penalty or forfeiture; ” and even if it were so regarded, it would by force of the third subdivision of section 3, of the repealing act above quoted, be “ subject to the provisions of the law in force ” after the repealing act took effect.
    Appeal from an order of the Monroe Special Term, denying a motion made December, 1880, on the part of the plaintiff for an attachment or other process against the directors of the defendant, to compel the payment of the judgment for costs herein, and to appropriate the money in the hands of the receiver to that purpose, so far as the same will go.
    The action was brought to vacate the charter and annul the existence of the defendant corporation, because of its abuse of its corporate7 powers, and judgment annulling the charter and for costs was recovered by the plaintiffs.

      Hamilton Wa/rd, Attorney-General, and John W. Brown., for the appellants.

      Brown & Hadden and E. D. Mills, for the respondent.
   Smith, J.:

Judgment having been rendered in this action vacating the charter of the defendant, a plank-road corporation in the county of Steuben, and annulling the existence of the corporation for abuse of its powers, with costs, and an execution having been issued and returned unsatisfied, the plaintiff moved for an attachment or other process requiring the directors of the corporation to pay the costs, and from the order denying such motion the plaintiff appeals.

The motion was noticed and brought on subsequently to the 1st day of September, 1880, on which day chapter 215 of the Laws of 1880, known as the repealing act, took effect, and the principal question in the case is, whether there was then any statute in force giving a right to the relief asked for. Section M2 of the Code of Procedure provided for a judgment dissolving a corporation adjudged to have forfeited its corporate rights, by neglect, abuse or surrender. Section 443 was as follows : If judgment be rendered in such action against a corporation or against persons claiming to be a corporation, the court may cause the costs therein to be collected by execution against the persons claiming to be a corporation, or by attachment or process against the directors, or other officers of such corporation.” The next section provided for the appointment of a receiver of such corporation. A provision substantially the same as section 443, was contained in the Revised Statutes. (2 R. S., 585, § 50.) Under that provision it was held that the directors of a. corporate company, against which judgment of ouster had been pronounced, were incidentally responsible for the costs of the proceedings, although they had no direct agency in the defense of the suit, and they had no corporate funds in their hands. (The People v. Ballou and ors., 12 Wend., 277.) It was also held that the payment of such costs might be enforced by attachment. (Id.) Chapter 245 of the Laws of 1880 repealed section 50 of the Revised Statutes above referred to (Laws 1880, chap. 245, § 1, sub. 3), and also the sections of the Code above cited, which sections were originally adopted in chapter 438 of the Laws of 1849. (Laws 1880, chap. 245, § 1, sub. 26, last paragraph.) The Code of Civil Procedure retains substantially the provisions of sections 442 and 444 of the old Code (Code of Civil Pro., § 1801), but the provisions of section 443 are essentially modified and limited. What remains of that section is found in section 1987 of the new Code, which reads as follows: § 1987. Where final judgment in an action, brought as prescribed in this title, is rendered against a corporation, or persons claiming to be a corporation, the court may direct the costs to be collected by execution against any of the persons claiming to be a corporation, or by warrant of attachment, or other process, against the person of any director or other officer of the corporation.” The title of which that section is a part does not authorize actions against corporations to annul their charters for abuse or neglect of their powers. Actions of that nature are provided for by section 1798, which has its place in another title. Of the actions mentioned in sections 442 and 443 of the old Code, the only ones which are authorized by the title of the new Code, of which section 1987 is a part, are actions against individuals acting as a corporation within the State without being duly incorporated, or exercising within the State corporate rights, privileges or franchises not granted to them by the law of the State. (Sec. 1948, sub. 3.) In those actions only can the directors or other officers of a corporation be held liable to attachment or other process for the payment of costs under section 1987, so that if section 1987 applies to the present case, the motion to compel the directors of the defendant corporation to pay the costs of the action was properly denied for the want of power.

The question whether that section applies is not free from doubt. As has been said, the motion was noticed and brought on subse quently to the 1st day of September, 1880, at which time chapters 14 to 21, inclusive, of the new Code took effect. Section 1987 is in the sixteenth chapter. Subdivision 11 of section 3347 of the new Code provides that so much of chapters fourteen to twenty, inclusive, as regulates the proceedings to be taken in an action or special proceeding, and the effect thereof, applies only to an action or a special proceeding commenced on or after the 1st day of September, 1880, with certain exceptions therein specified, which do not affect this case. The new Code, however, left section 50 of the Revised Statutes, and section 443 of the old Code in force, but the repealing act, passed a few days afterwards (Laws 1880, ch. 245), repealed both of those sections and left no statute in force by which the directors can be charged, unless the case is saved by some of the exceptions contained in that act. The repeal effected by the first section of the act is subject to the following qualifications: Such repeal does not impair “ any proceeding in an action or a special proceeding had or taken pursuant to law” before said act took effect. (Sec. 3, subd. 1.) Nor does it affect “any other lawful act done, or right, defense or limitation, lawfully accrued or established,” before the act took effect. (Id., subd. 2.) Nor does it affect “ any offense committed, or penalty or forfeiture incurred,” before said act took effect, “ except that the proceedings in a civil action or special proceeding, brought by reason thereof, are subject to the provisions of the laws in force after said act took effect.” (Id., subd. 3.) The motion under review was not a proceeding “ had or taken ” before the act took effect. Was it made to enforce a right “ lawfully accrued or established ” before the act took effect ? Those terms seem to imply an absolute right, not resting in the discretion of the court. "Whatever right the plaintiff has to the relief sought by the motion, doubtless accrued when final judgment was rendered in the action. (Old Code, § 443; new Code, § 1987.) But is the right absolute ? The language of the statute is, “ the court may cause,” etc. (Id.) Where the provisions of a statute mean to impose a duty, the use of the word “may” is to be understood as imperative, but in other cases it is merely discretionary. (Cooke v. State National Bank of Boston, 50 Barb., 339.) Here no duty is imposed. Upon an application under this statute many circumstances may exist proper to be considered by the court. If the corporation possesses property out of which the costs may be made by means of an execution or 'through the instrumentality of a receiver, the court, in its discretion, may on that ground deny the motion. If it should appear that a minority of the directors had uniformly opposed the proceedings of the corporation out of which the costs had arisen and were in no way responsible for them, it can hardly be doubted but that the motion might properly be denied as to them. The right, resting in discretion, to some extent at least, cannot be regarded as “ lawfully accrued or established ” till the discretion of the court has been declared in its favor. Nor can the motion be treated as a “ special proceeding ” to enforce a “ penalty or forfeiture.” If it were such, it would then, by force of the third subdivision of section 3, be subject to the provisions of the laws in force after the repealing act took effect. The case, therefore, is not within either of the qualifications of the act (none of the other subdivisions of section 3 having any application to it), and if the foregoing exposition of the statute is correct, the case is not within the statute now in force.

The appellant relies upon the fact that the present motion is the renewal of one which was made for the like purpose in March, 1879, and was denied with leave to renew. That fact is of no moment so far as the questions above considered are concerned. The present motion is to be governed by the statute in force when it was made, the same as if it were the first .motion of its kind in the action.

For these reasons we are of the opinion that the motion to compel the directors to pay the costs was properly denied.

We see no reason for refusing the other branch of the motion, to wit, that the sum in the hands of the receiver be applied to the payment of the costs. We suppose that the statutes applicable to the distribution of moneys in the hands of the receiver, have reference to the proceeds of the property of the corporation which remain after the payment of the costs of the action or proceeding in which the moneys are realized. The costs are a charge upon the fund and have preference over debts owing by the corporation.

So much of the order appealed from as refuses an attachment or other process against the directors is affirmed, and so much as denies an order that the money in the hands of the receiver, arising from the sale of the property of the defendant, be applied towards the satisfaction o'f the judgment for costs herein, is reversed, and the motion to that effect is granted, without costs of this appeal to either party.

Talcott, P. J., and Hardin, J., concurred.

So ordered.


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    ROBERT BILSBORROW and others. Appellants, v. JOHN E. JAMES and others, Respondents.

      Bight of one agreeing for a specified sum “ to make sales," to employ and charge for the services of brolm's.

    A person agreed to manufacture into cheese all milk received at a certain cheese factory, “make all the sales, draw all the checks,” etc., for one dollar and sixty cents for each one hundred pounds of cheese manufactured.

      Held, that he was entitled, in addition to the one dollar and sixty cents per one hundred pounds, to recover the commissions paid by him to brokers who made sales of a portion of the cheese at places distant from the factory; which brokers’ services were necessary in order to find a market for the cheese, and were made according to the ordinary usage.
    Appeal from a judgment in favor of the defendants, entered on the report' of a referee.

      A. B. MeVoille, for the appellants.

      E. H. Sisley, for the respondents.
   Smith, J.:

In tbe year 1876, tbe plaintiffs and all tbe defendants, except John E. James, were patrons of a cheese factory located in Rem-sen, Oneida county, and delivered milk from their respective dairies at said factory, to be manufactured into cheese by the defendant James, he agreeing to manufacture all the milk received at said factory, during the cheese-making season for that year, into a “ number one” article of cheese; to furnish all the materials (except milk) required to manufacture the same, and to put it in fit shape to send to market, and to make all the sales, draw all the checks, do all the figuring, and make the dividends ; and for all said service and materials, he was to receive from said patrons one dollar and sixty cents for each 100 pounds of cheese so manufactured. It was also agreed that Evan Pugh, one of said patrons, was to see to or superintend the weighing of said cheese, at said factory, before it was shipped. The referee found that under that agreement there were taken to said factory during that year, by all of said patrons, 1,075,540 pounds of milk, and that the whole quantity of cheese which was or could have been made from’ said milk was 106,192 pounds, for which the defendant James should account. lie also found that James had fully accounted for the same, and had paid over to each of said patrons the amount due to him' on account thereof.

The principal question is whether, under the agreement, the defendant is entitled to an allowance made him by the referee for commissions paid to brokers who made sales of a portion of the cheese in New York and Htica. By the agreement, James was to make all the sales. He did in fact make sales at the factory or in its vicinity, but the cheese not disposed of in that way was sent by him to the New York and Htica markets, and there sold by brokers whom he employed and who remitted to him. Assuming that the disposition thus made of the cheese was necessary in order to find a market for it, and was according.to the ordinary usage, of which no question seems to be made, we are of the opinion that the defendant was entitled to the brokers’ commissions paid by him in addition to Ms own compensation of one dollar and sixty cents per 100 pounds'. He was to sell the cheese, and if it was necessary to seek distant markets for the purpose, it was not contemplated that he should go in person, since the duty of superintending the factory required him to be there; nor was he obligated to pay, at his own expense, the brokers necessai’ily employed to make such sales. He was clothed with full authority to use all the usual and appropriate means to accomplish the end, in the absence of express restriction. (Nelson v. Hudson River R. R. Co., 48 N. Y., 505 ; 1 Pars, on Cont., 72, 73; Story on Agency, §§ 73, 102, 103, 201.)

The appellants’ counsel contends that the respondent should be charged for certain sour cheese manufactured by him, but there is no evidence, and the referee has not found that the defendant was at fault in regard to it. True, he agreed to make a good article, but all that was required of him was to do the best he could with the materials furnished him, and if the cheese was sour without his fault, he was not liable.

It is claimed on the part of the appellants that the referee has fallen into some errors in respect to certain items of the account, but we have not been able to find any satisfactory evidence that such is the case.

The judgment should be affirmed.

Mullin, P. J., and Talcott, J., concurred.

Judgment affirmed.


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    MARGARET ENSIGN, Respondent, v. THE BOARD OF SUPERVISORS OF LIVINGSTON COUNTY, Appellant.

      Gounty — not liable for injury resulting from its failure to properly maintain a bridge — Section 9 of cha/pter 888 of 1837.
    A statute relating to the erection of a bridge over a river crossed by a public highway provided as follows: ‘ ‘ The said bridge shall thereupon become a public bridge and may be maintained at the expense of the county of Livingston.”

      Held, that the county was not liable in damages to one sustaining injury in consequence of defects in such bridge, arising from the neglect of the county to properly maintain it.
    The distinction between the liability of a municipal corporation and that of a county or town under such circumstances, considered.

      Appeal by tbe defendant from a judgment, entered on a verdict rendered at tbe Livingston Circuit, and also from an order denying a motion for a new trial made on the minutes of the justice before whom the action was tried.

      Charles J. Bissell, for the appellant.

      James Wood, for the respondent.

       Sec chapter 700 of Laws.of 1881.

   Smith, J.:

The action was brought to recover damages sustained by the plaintiff in consequence of defects in a certain bridge across the Genesee river, which, as she alleges, the county of Livingston was bound to repair. The principal question is whether the action will lie against the county. The river in its course between the towns of Geneseo and Leicester, is crossed by a highway leading from the village of Cuylerville, and at that point the bridge in question is located. In 1837, the legislature passed an act incorporating the Leicester Bridge Company for the purpose of building a toll bridge across the Genesee river at or near the point above indicated. (Laws 1831, chap. 388.) By the ninth section of the act it was provided that in case the bridge should be destroyed and not rebuilt as therein specified, the corporation should be dissolved, and (in the words of the act), “ the said bridge shall thereupon become a public bridge, and may be maintained at the expense of the county of Livingston.” The liability of the county to maintain the bridge, under that provision, was adjudged by this court in the case of Phelps v. Hawley and others., Comrs. of Highways, etc. (3 Lans., 160), and the decision was affirmed by the Court of Appeals (52 N. Y., 23). The ■question is whether the imposition of that duty upon the county by statute, gives a right of action against the county to any person sustaining injury by reason of a neglect of the duty.

The plaintiff’s counsel asserts the broad proposition that when a duty is imposed by law upon a public body or officer, an action will lie for a neglect to perform that duty in favor of a party injured by reason of such negligence. The cases cited by him were actions against municipal corporations for negligence in respect to some ministerial duty imposed upon them by the terms of their charter or assumed by them under its provisions. There is a distinction, in this respect, between municipal corporations created by charter and vested by the government with a portion of its sovereign power for their peculiar benefit, and counties and towns which, like assembly and senatorial districts, are mere political divisions organized for the convenient exercise of portions of the political power of the State. In the former class of cases, the surrender by the government of a portion of its sovereign power to the municipality, if accepted by the latter, has been regarded as affording a consideration for an implied undertaking, on the part of the corporation, to perform the duties imposed by the charter, a neglect of' which will render the corporation liable, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. ( Weet v. The Trustees of the Village of Brockport, 16 N. Y., 161 ; Conrad v. The Trustees of the Village of Ithaca, Id., 158; McCarthy v. The City of Syracuse, 46 id., 194, per Rapallo, J., p. 197.) The case of Conrad (supra) is one of those cited by the plaintiff’s counsel, and all the cases cited by him may be sustained upon the principle above stated. But we have not been referred to a case, and we are not aware of one, in which an action of this kind has been maintained against a county or town, unless the right of action was expressly given by statute. The fact that there is no precedent for the suit is strong evidence that no right of action exists. The case of Morey v. The Town of Newfane (8 Barb., 645), we regard as an authority adverse to the plaintiff. The well-reasoned opinion 'of Mr. Justice Samuel L. Selden in that case, has been referred to with approval by the Court of Appeals. (The People ex rel. Van Keunen v. Town Auditors, 74 N. Y., 316.) In several of the New England States the care of roads and bridges is vested in the several towns and the statutes expressly give an action against a town for neglect to repair, but the courts in those States hold that no action lies except by force of the statute giving it. (Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Chidsey v. Town of Canton, 17 Conn., 475 ; Reed v. Inhabitants of Belfast, 20 Maine, 246; Eastman v. Town of Meredith, 36 N. H., 284.) Numerous cases to the same effect are to be found in the reports of other States, to which it is unnecessary to refer.

We ai’e of the opinion that the county is not liable to a civil action, and that conclusion obviates the necessity of examining the other questions raised by the appellant’s counsel.

The judgment and order should be reversed.

Mullin, P. J., and Talcott, J., concurred.

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


author: Talcott, J.:

text:
    TRUST AND DEPOSIT COMPANY OF ONONDAGA, Trustee, etc., Respondent, v. DANIEL PRATT and others, Executors, etc., Appellants, Impleaded, etc.

      Executor who commits devastavit and dies before an accou/nting — remedy against his sureties — Appeal from interloeutory judgment overruling a demurrer withleave, etc.

    Where an executor, who has committed a devastavit is dead, a court of equity will, although the devastavit has not heen adjudged to exist, take cognizance of a suit brought against the sureties on the executor’s bond, or their representatives and the persons interested in any estate the executor may have left, and will hold them liable for any waste or misapplication of assets; although this could not be done in an ordinary case where the executor is alive and within reach of a court of law or the Surrogate’s Court.

      Semble, that an appeal does not lie to the General Term from an interlocutory judgment, to the effect that the plaintiffs have judgment unless the defendants who have interposed a demurrer answer over within twenty days, etc.
    Appeal by certain of the defendants from an interlocutory judgment overruling a demurrer served in this action, with leave to the defendants to withdraw their demurrer and put in an answer within twenty days upon payment of costs. The judgment further appointed a referee to report as to the waste in the complaint alleged to have been committed.

      D. Pratt, for the appellants.

      G. Doheny, for the respondent.
   Talcott, J.:

This suit is commenced by the plaintiff as trustee of the estate of Elizabeth D. Bristol, otherwise known as Elizabeth D. Bristol Sweet, appointed such trustee by an order of tbe Supreme Court at a Special Term held in tbe county of Onondaga on the 23d of May, 1873. The action isa suit in equity against the administrator and administratrix of John A. Green, deceased, and John M. Jayoox, and against the appellants as the executore of James P. Haskin, deceased, and this appeal is taken from what is called an interlocutory judgment entered in the,case under an order of Mr. Justice Mullin, made at the Onondaga Special Term, overruling a demurrer to the complaint in the case and ordering that the plaintiff have judgment thereon, but with leave to the said defendants to withdraw their demurrer and put in an answer within twenty days on payment of costs. The demurrer was interposed by Daniel Pratt and others, the executors of James P. Haskin, deceased, who are made parties defendant in their representative character, upon the ground that the said James P. Haskin was in his lifetime one of the sureties of John A. Green, also deceased, as one of the executors of the will of the said Elizabeth D. Bristol. None of the other defendants have answered in the case, and the appellants, as the executors of the will of the said James P. Haskin, have demurred to the complaint specifying the following causes of demurrer, viz.:

1. That the plaintiff has not legal capacity to sue in this case, as the bond set forth in said complaint is payable to the people, and no assignment has been made to the plaintiff. 2. That several causes of action against different persons have been improperly joined. 3. That no leave to sue the bond has been granted by the surrogate. 4. That the action should have been brought by Frank Hiscock, surviving executor. 5. If there were no executor to sue, an administrator de bonis non should have been appointed, who alone can sue. 6. That there is a defect of parties in this, that Frank His-cock should have been a party defendant. 7. That the complaint does not state facts sufficient to constitute a cause of action.

It is doubtful whether an appeal lies to the General Term from the interlocutory judgment in this case, which is in substance an appeal from the order that the plaintiffs have judgment unless the defendants, who have interposed a demurrer shall answer over within twenty days, etc.

The Superior Court of the city of New York have in several eases decided at General Term, that an appeal does not lie from such an order in such a case. (See Garner v. The Harmony Mills, impl'd, etc., 45 Supr. Ct. Rep., 148; Cameron v. The Eq. Life Ins. Co. of the U. S., Id., 628, and Church v. The Am. Rapid Telegraph Co., N. Y. Weekly Dig., vol. 11, No. 24, p. 553.)

But having arrived at the conclusion that the order made by Mr. Justice Mullin must be affirmed upon the merits, yre pass by this objection to the regularity of the appeal and proceed to consider the order on the merits.

The allegation in the complaint is that the executor, John A. Green, committed in his lifetime a devastavit of the estate of the said Elizabeth Bristol, and that he the said John A. Green died intestate, without ever having accounted as such executor and trustee for or paid over to any one entitled to receive the same, the money or property which came to his possession as such executor and trustee, and without having been in any manner discharged as such executor and trustee, and that at the time of his death the said John A. Green was bankrupt and insolvent, and unable to pay his debts in full, and that no payment whatever has been made on the sum so appropriated by said Green as aforesaid, except those made by the assignee in bankruptcy of Jay cox and Green. That there are no assets of the estate of said Green. That upon the death of said Green said Frank Hiscoek duly resigned as such executor and trustee of the said Elizabeth D. Bristol, and thereupon the plaintiff was by an order of this court duly appointed trustee of the estate of Elizabeth D. Bristol in the place and stead of said TIiscock and Green, which order is fully set forth in the complaint and purports to have been made on a full settlement of the accounts of said Hiseock as one of the executors and trustee of Mrs. Bristol. The complaint further alleges that on or about the 3d of April, 1873, an accounting was had before the surrogate of Onondaga between the representatives of the estate of Green and the said Bristol of the trust and of the receipts and disbursements of said Green as such executor and trustee, upon which accounting it was ascertained, determined and decreed that there was due from the estate of said Green, to the estate of said Bristol for moneys appropriated by said Green to his own use as such executor and trustee, the sum of $12,212.18, to which decree the plaintiff refers as a part of his complaint.

This is not an action on the bond given by Green with Haskin and Jaycox as his sureties under the statute, but is an action in equity for an accounting. It is impossible to bring an action on the bond, because of the fact that Green died before rendering any account and before any decree was made by the surrogate, and no judgment had been obtained against Green as executor. (2 R. S., 116, § 19, etc.)

Consequently the surrogate could not order the bond to be prosecuted, because Green had not refused or omitted to perform any decree made against him by the surrogate. The plaintiff cannot proceed in the Surrogate Court under the statute, because no decree was made against Green in his lifetime, and although the surrogate has determined the amount of the devastavit, the plaintiff cannot bring a suit against Green’s representatives because they have no funds with which to pay, and the surrogate cannot make a decree that the administrators of Green shall pay without first having-ascertained that they have assets in their hands applicable to such purpose, and for this reason probably the surrogate has made no order that Green’s administrators shall pay the amount which he found that Green had misappropriated of the estate of Elizabeth Bristol. This not being an action at law on the bond of Green and his sureties, the authorities cited by the appellants, showing how to sue upon the bond of one executor or administrator, and who can sue thereon, are not in point. They are under the statute applicable to cases where the executor or administrator had refused or omitted to comply with a decree.

The existence of a Surrogate Court and the equitable powers conferred upon it have not taken away or abridged any of the powers of a court of equity, and unless the plaintiff can have relief in a court of equity, the case would present the anomalous one of a party having a bond conceded to be valid without any mode of legally enforcing it.

The living surety, Jaycox, and the representatives of the deceased surety, Ilaskin, and the representatives of the deceased principal, Green, being all parties defendant, the1 court has power to compel an accounting for the trust estate and to decree payment of the amount at which it shall determine the devastavit by the principal or by his sureties in the same action, and will not compel the party beneficially interested in the bond, first to proceed against the representatives of the deceased insolvent principal to establish the abstract fact of the devastavit, and after having so established that fact, then to bring another action against the personal representatives of the deceased surety, to compel them to pay the amount thereof.

Whether the proceedings be in equity or at law, of course the devastavit must be established by competent evidence, as preliminary to the liability of the estate of Haskin, the surety on the bond of Green.

“ Where an administrator committing a devastmit is dead, equity will, before action establishing it, take cognizance of a suit against his sureties or their representatives, and the persons ■ interested in any estate which he may have left, and make them liable for any waste or misapplication of assets. But this would not be done in an ordinary case where the administrator is in full life and within the' reach of a court of law, or the Surrogate’s Court.” Such is the principle upon which the case of Carow v. Mowatt (2 Edw. Ch. R., 57), was decided, which ease was principally founded on the case of Spottswood v. Dandridge (4 Munf., 289), decided by the Court of Appeals of Virginia, and in which the latter court gave an elaborate opinion to the effect that a court of equity has jurisdiction in all such cases. The embarrassments in such cases growing out of the situation of the parties, which prevent or render the obtaining relief at law hazardous and uncertain, are a sufficient reason to give a court of equity jurisdiction, where all the parties in interest can be convened and justice administered according to the rights of each party.

The judgment appealed from is affirmed with costs to the respondent, and with leave to the appellants to withdraw their demurrer and to put in an answer in twenty days, on payment of costs of the appeal and demurrer.

Present — Talcott and Smith, JJT.; Mullin, P. J., not sitting.

Ordered accordingly.


author: Talcott, P. J.:

text:
    ANDREW M. CAREY, Appellant, v. MORRIS S. MILLER, Jr., Respondent.

      Signature to note obtained by fraud — the party signing is liable to a bona fide purchaser.

    One who having an opportunity and power to ascertain, with certainty, the exact obligation he is assuming, relies on the statements of the person with whom he is dealing and, being under no actual physical inability to ascertain the tenor and effect of the instrument, executes, without reading it, a negotiable instrument, is estopped, as against a bona fide holder for value before maturity, from claiming that he intended to execute an entirely different instrument, and that the statements made to him were false.
    The law in such case imposes the loss on the party who, by his misplaced confidence, has enabled another on the faith of his obligation to obtain money or property from an innocent third person.
    Appeal from a judgment dismissing the plaintiff’s complaint, entered on the report of a referee.

      Henry T. Utley, for the appellant

      George W. Smith, for the respondent.
   Talcott, P. J.:

The case in this action was submitted at the last General Term. The action is brought to recover the price of a mare sold by the plaintiff to the defendant in July or August, 1876, at the town of Augusta, in Oneida county, upon the ground that the defendant had passed to the plaintiff in payment for the agreed price of the mare, a forged note, purporting to be the note of D. B. Mason and Charles Mason, for $175, dated June 19, 1876, payable to the order of Charles Rider and indorsed by the latter, and the question principally in controversy was whether the note was in fact forged, or whether it was a valid note against the Masons.

The two Masons purporting to have signed the note are farmers residing in the town of Yernon, where they carry on a farm jointly.

The action was referred to B. J. Beach, before whom it was tried, and who, amongst other things, reported as follows:

“ On the nineteenth day of June, when they (the Masons) were together on their farm, a stranger accosted them and said he wanted to sell a mowing machine. They did not want to buy a mowing machine, but they wanted to buy a cutter-bar for the machine they then owned, and the stranger said he had an adjustable euttei’bar, and he showed a sample of it with sections, and said it could be made to fit their machine, and if they were willing to pay the freight on one from Toledo to Oneida, they might have one free,, because he wanted to introduce the cutter-bar in their neighborhood. They asked him what the freight would be and he said about a dollar, and they said they would pay the freight from Toledo to Oneida and would also give him a shilling each for a set of extra sections. The stranger produced a pen, ink and paper on which he filled up a printed form having blank spaces, so that, the paper when filled up purported to be an agreement to pay freight on a cutter-bar and a shilling each for an extra set of sections. He asked Daniel B. Mason to sign, and Daniel supposing he was signing such an agreement as just stated, signed his own and his brother’s name thus to an instrument hereinafter more particularly described. Charles Mason was present and consented to the bargain and the signature. The stranger went off with the paper or papers. He was well-dressed and a good talker. * * * * *

A few days later, a man named Rider sold at Deansville, in the neighboring town of Marshall, three promissory notes,” among which was a note signed “ C. and D. B. Mason, for $175,” which was on a printed form having blank spaces filled in with pen and ink, and read thus : ***** *

“ $175. “ Yernon Centre, June 19, 1876.

Three months after date we promise to pay to the order of Charles Rider, one hundred and seventy-five dollars for value received, payable at First National Bank, Htica, New York.

C. & D. B. MASON.”

And the referee further found as follows: “And this was the paper that, in fact, was signed by the Mason brothers, as above stated, when they supposed they signed an agreement about a cutter-bar.” Rider sold the three notes to one Crackett to whom he was introduced by the landlord of the inn at Deansville as a person who was selling mowing machines and farming implements, and who had taken some notes which he wanted to dispose of, and Crackett bought the notes at a discount of twenty per cent. About a week later Crackett sold two of the notes so purchased for a valuable consideration to the defendant Miller.

In the latter part of July, 1876, Miller purchased from the plaintiff the mare in question, at the agreed price of $170, and gave the note of C. & D. B. Mason aforesaid in payment for the mare, Carey agreeing to pay Miller the five dollars by which the note exceeded the price of the mare, when he should collect the note. '

The plaintiff presented the note to the Masons the day after it matured, and they refused to pay it, “ declaring that they never had signed a note payable at the National Bank of Utica f and one of them tore off the signature. Carey went the same day with the note thus mutilated, without the signature, which the Masons kept, to Miller and acquainted him with their refusal to pay the note, and requested Miller to take back the note and pay him the price agreed to be paid for the mare. Miller declined to do this and insisted that the Masons should be compelled to pay the note.

And the referee further finds as follows: “ The note was the result of a fraud practiced on the Masons by the plausible stranger who called on them June 19, 1876. They had no idea of signing a note or of authorizing any note to be written over their signatures to what they supposed was an order for a cutter-bar. The stranger was a swindler and the note was a swindle in his hands. But the careless confidence of the Mason brothers in the plausible stranger contributed to the success of the swindle. Whether the written words and figures were inserted in the blanks of the printed form of note before or after the signature of the Masons was appended was immaterial. The note when offered for sale to Crackett bore every appearance of authenticity. The signature was genuine, and Crackett purchased the note without notice of the fraud practiced upon the signers. Before it fell due, Morris S. Miller, Jr., bought it of Crackett and paid full value for it without notice of the fraud. Before it fell due Miller paid it to plaintiff Carey as the equivalent of money, and Carey took it in good faith and parted with value for it before it was due, and as a conclusion of law the referee held that the paper in question, when it was transfen’ed to Carey in payment for the «nare, was in his hands a valid obligation on the part of the Masons to pay the sum of money named in it which he could enforce against them, and the plaintiff has no claim against the defendant for the price of the mare, and the referee directed that a judgment be entered that the complaint be dismissed. We think the decision of the referee was correct according to the cases. That providing a promissory note bears the genuine signature of the obligors which has been intrusted to the holder, the obliger is bound in favor of a holder for value who has taken the note before maturity, and with no notice of any fraud in obtaining the signature, provided there was no actual physical inability to ascertain what the tenor and effect of the instrument purporting to be signed in fact was. (See Whitney v. Snyder, 2 Lans., 477.) Though it seems incongruous to hold that an instrument, which is in fact a forgery, should create an obligation against the person upon whom the forgery has been committed. The principle adopted seems to be as stated in McWilliams v. Mason (31 N. Y., 294), that “the law imposes the loss on the party, who by his misplaced confidence has enabled another, on the faith of his obligation, to obtain money or property from an innocent third party.” Even the fact that the instrument, taken as a whole, is a forgery, for the making of which the party who makes it might be convicted of a felonious forgery, the party whose genuine signature is affixed is nevertheless held liable in favor ef a bona fide holder for value. (Van Duzer v. Howe, 21 N. Y., 531; see also Schultz v. Astley, 29 Eng. Com. L., 655.) The leading features of this case seem to be like the case of Chapman v. Hose, where the defendant entered into a contract with one Miller to act as the agent for the sale of a patent hay fork and pulley, a contract was filled out by Miller and signed by both, also an order which was signed by the defendant for one of the hay forks and two pulleys, for which by the order the defendant agreed to pay nine dollars. These were delivered to the defendant. Another paper was then presented to the defendant for his signature which Miller represented to be but a duplicate of the order. The defendant without reading or examining it, signed it, and delivered it to Miller. The paper so signed was the note in suit for $270. The plaintiff purchased' in good faith before maturity, paying therefor $245. It was held that the plaintiff could recover on the note on the ground that “ where one having the opportunity and power to ascertain with certainty the exact obligation be is assuming, yet chooses to rely on the statements of the person with whom he is dealing, executes a negotiable instrument without reading or examination as against a bona fide holder for value, he is bound by his act, and is estopped from claiming that he intended to sign an entirely different obligation, and that the statements upon which he relied were false. To avoid liability he must show that he was guilty of no laches or negligence in signing.”

Ve cannot understand how in the case at bar the fraud ujion the Masons was perpetrated, as one of the Mason brothers took the order for the cutter-bar, and as they say read it aloud, and then signed it in the name of both. But immediately after the transaction it appeal’s that the Masons suspected that the stranger was a dishonest man, and Charles Mason suggested to liis brother that there might be a note, saying: “ He will fill up a note and go to Yernon and sell it.” Charles Mason also testifies that when the stranger wrote the paper, which it appears was written on the bottom of the wagon, that although he stood looking over the stranger’s shoulder when he wrote it, he could not read what he wrote. David B. Mason testified: I cannot swear that I knew what he was writing as he wrote; cannot tell what he wrote; I saw him write it; cannot Say but he wrote a note then; I read what I signed — that was an order.” He also states that, “ there was space enough to write a note between where he left off writing the order and where I signed the signatures.”

The referee has found as a matter of fact that the instrument signed was the promissory note in question, and whether the fraud was perpetrated by some ingenious device in folding the paper, or whether the signatures were intrusted to Rider, with a sufficient blank space above them in which to write a note, it all comes to this, that the signature of the Masons was obtained by a fraud by which they in fact signed an instrument not contemplated, or negligently intrusted their blank signatures to this stranger, and thusr enabled him to commit a fraud upon an innocent party. We think, in view of what has been held in like cases, the referee came to the correct conclusion.

The judgment should be affirmed.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment affirmed.


author: Hardin, J.:

text:
    SEWELL SCOTT, Respondent, v. CYNTHIA A. OTIS, Appellant, Impleaded, etc.

      Married woman — liability of, to an aooom/modation indorse)' of her note.

    Where a married woman, procures one to indorse, for her accommodation, a note made by her with the avowed purpose of using the proceeds thereof for the benefit of her separate estate, or in a separate business, she is liable to such indorser for the amount he has been obliged to pay because of her failure to pay such note at maturity, independent of the fact as to whether its proceeds were used for the purposes designated.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial, made on the minutes of the 30urt before which the action was tried.
    There was a verdict at the Jefferson Circuit, for the plaintiff for the amount due upon two notes made by the defendant. One note was for $200, and the other for $600. The defense presented related solely to the note of $600.
    The defendant was a married woman and made her note to the order of George Otis, her husband, and the same was indorsed by him and then indorsed by the plaintiff, and used to borrow $600 of one Davis. It was protested and the plaintiff was obliged to pay it, and he brings this action against the maker to recover what he was obliged to pay upon the note so indorsed. The defendant insisted at the trial that she was not liable. A motion for a new trial on the minutes was made and denied and judgment was entered, and the appeal is from the judgment and order.

      John Zansmg, for the appellant.

      O' Brien & Emerson, for the respondent.
   Hardin, J.:

Cynthia A. Otis made a $600 note in 1876, and procured the indorsement of the plaintiff, a neighbor, thereon, and through ,S. B. Ilpham, as her agent, negotiated it for the loan of $600 in money from one Abel Davis, who took the note and held it till it matured, and then took another note in renewal and finally the $600 note in suit was given, and after its maturity, and after the plaintiff was fixed thereon as an indorser, he took up the note and now seeks to recover of the defendant. These facts were shown upon the trial, and no dispute arose in respect thereto.

It also appeared that the defendant resided in Rutland with her husband, and that she owmed a farm, and there was evidence given tending to establish that she is and was “ carrying on a separate business ; ” she has lived on the premises- some fifteen years and her husband lives there with her.

Mr. Upham, the cashier, testified that the defendant called upon him in 18Y5, and wanted to procure a loan, and he says, “she claimed to own a farm and be carrying it on — a farm in Rutland Hollow.”

She claimed to own the farm in her own right and to be carrying it on herself. “I sent to Abel Davis to see if he would loan-her $600, on a year’s time with Sewell Scott’s indorsement, and he concluded to take the note. * * * Mrs. Otis made the arrangement with me in person; I think Mr. Davis left his check with me and I delivered it.” * * * *

The court instructed the jury that in order to permit a recovery against a married woman upon a note, it must appear that it was either (first) given for the benefit of her separate estate, or (second) given in some business that she was carrying on.

The point here is, whether or not it was shown that the $600 note was given, either “ for the benefit of her separate estate or some business that she was carrying on.” This instruction was sufficiently favorable to the defendant. (Smith v. Kennedy, 13 Hun, 9.) It was held in Mc Very v. Canhill (70 N. Y., 295), that a married woman was liable upon her note given for borrowed money, for the avowed purpose of using the same for the benefit of her separate estate, though, in fact, it was not so applied.

The evidence before us would have justified a finding that such was her avowed object and purpose at the time she arranged for the loan of the money. Her representations at that time ought to estop 1 ér from maintaining a contrary uosition. (Bodine v. Killeen, 53 N. Y., 93.)

In Cashmam v. Henry (75 N. Y., 103), Andrews, J., clearly points out the principle upon which a married woman’s liability arises when she becomes the purchaser of real estate and assumes the payment of a mortgage resting thereon, although the purchase was not made for the purposes of trade or business.

It is difficult to see why she should not be liable for money loaned, as in the case before us, as well as for the payment of a mortgage which was assumed as a part of the purchase of the property so acquired by her.

In either case she receives and her estate derives the benefit, we must assume. In either case, in equity, she ought to pay, and that duty arises out of the exercise of her right to acquire property.

In Broome v. Taylor (76 N. Y., 564) it did not appear that the bond was given by the married woman for money loomed to her, and there is nothing in the opinion which conflicts with the views here expressed.

Again, the plaintiff being a surety for the defendant, the law presumes that she agreed, as a condition of her becoming such surety, to indemnify him against loss. lie had no defense to the note, and paid it because he was legally liable to pay, and she, upon her implied indemnity, ought to save him against any loss by reason of becoming her surety. (Vartie v. Underwood, 18 Barb., 561.)

From the views already stated we derive the conclusion that the verdict, judgment and order are right and should be sustained.

Talcott, P. J., and Smith, J., concurred.

Judgment and order affirmed.


text:
    ANN WILLIAMS, Appellant, v. THE CITY OF OSWEGO, Respondent.

      Statute requiring notice of claim against a city to be filed — to be construed pi'ospectimty.

    The provisions of chapter 127 of 1877, requiring that “all claims against the city for damage or injury alleged to have arisen from the defective, unsafe, dangerous or obstructed condition of any street, crosswalk, etc., shall within three months after the happening of such damage or injury, be preseated to the common council,” or the action therefor shall be barred, is to be construed prospectively, and is not applicable to a case where the injury was sustained before, although less than three months prior to the passage of the law.
    Appeal by plaintiff from a judgment, entered upon the report of a referee, who found that she sustained $300 damages by slipping and falling upon the defendant’s sidewalk, negligently left in an unsafe and insecure condition, but gave judgment in favor of defendant because notice of the claim was not hied within three months. The referee says : “As conclusions of law I find that the defendant became liable to pay to the plaintiff the sum of $300 for the damage sustained by her by reason of the said pain and suffering and personal injuries. * * * That the failure of the plaintiff to present to the common council of said city, her said claim in writing properly verified, describing the time, place, cause and extent of her damages or injury, withm three months from the happening of said damage or injury, is a bar to this action, and the defendant is entitled to a dismissal of the complaint herein upon the merits, and I therefore order that judgment.”

      D. P. Lester, for the appellant.

      8. M. Coon, for the respondent.
   Hardin, J.:

February 6, 1877, the injuries were received, and September 7, 1877, this action was commenced to recover therefor. April 11, 1877, the legislature amended and added to the charter of the defendant, as will appear by chapter 127 of the Laws of 1877 (p. 132). The defense which the referee has sustained is predicated upon section 15 of that act. It first provides that the city of Oswego “ shall not be liable for the damage or injury sustained by any person in consequence of any sidewalk or crosswalk in said city being out of repair, unsafe, dangerous or obstructed by snow, ice or otherwise, unless actual notice of the defective, unsafe or obstructed condition of said sidewalk or crosswalk, shall have been given to the common council * * * at least forty-eight hours previous to su,ch damage or injury” And then follows, secondly, the words upon which the referee has put his decision of this case. These are the words :

“ All claims against the city for damage or injury alleged to have arisen from the defective, unsafe, dangerous or obstructed condition of any street, crosswalk, sidewalk, culvert or bridge of the city, or from negligence of the city authorities in respect to any such street, crosswalk, sidewalk, culvert or bridge,, shall within three months after the happening of such damage or injury, be presented to the common council by a writing signed by the claimant and properly verified, describing the time, place, cause and extent of the damage or injury. “ The omission to present such claim as aforesaid within said three months, shall be a bar to amy action or proceeding therefor against the city.”

These provisions were wholly new, and designed to work a radical change, in respect to enforcement of liabilities of the city. The one requiring actual notice to the common council, etc., forty-eight hours previous to such injury, must tend to greatly diminish, if not practically prevent the opportunity to persons receiving injuries to recover from the city.

The provision as to claims being presented within three months to the common council is also new, and seems to attach an absolute requirement upon the claimant, as an indispensable condition precedent to the right to recover for injuries sustained. The omission to present “ such claim ” within said three months shall be a bar to any action, etc.

Taking the whole language together, did the legislature intend that the latter provision should attach to and apply to claims or causes of action which had accrued prior to the passage of the act? The three months referred to seem to be those next after the happening of the injuries. That being so, it is important to notice that it is the omission to present within the said three months that is declared a bar to any action.

This view of the words helps to the construction which applies the whole section prospectively rather than retrospectively. Our views in respect to the general rule, which adopts the latter construction, when it will answer the exact letter and fair intent of the legislature, were expressed last term in Matilda Carpenter v. Anthony Shimer (24 Hun, 464), and we think a fair application of the rule there stated to this statute sanctions a construction which applies the statute exclusively to cases or injuries arising after its passage.

If there was a clear intent in terms expressed to apply the statute to injuries already incurred a different question would arise, but we think all of the language can receive full sense and meaning by applying it to cases arising.after its passage.

There is no declaration that the statute shall be construed to apply to injuries already sustained. (Berley v. Rampacher, 5 Duer, 188.) The current of authority seems to lead in favor of the construction we have stated. (McCahill v. Hamilton, 20 Hun, 388; Dash v. Van Kleeck, 7 John, 477; Palmer v. Conly, 4 Denio, 374; Butler v. Palmer, 1 Hill, 325 ; Benton v. Wickwire, 54 N. Y., 226 ; Ely v. Holton, 15 id., 597; Moore v. Mausert, 49 id., 333; New York and Oswego M. R. R. Co. v. Van Horn, 57 id., 476; Matter of Peugnet, 67 id., 444.) Dubois v. The City of Kingston, (20 Hun, 464), was disregarded in Carpenter v. Shimer (supra). (People v. Supervisors, 10 Wend., 363, and Hackley v. Sprague, Id., 113; Fairbanks v. Wood, 17 id., 330.)

The case of Acker v. Acker (81 N. Y., 143)'is not in conflict with the view stated. There the repeal of the act in respect to the disability of a married woman necessarily reached cases where the statute would have applied but for its repeal.

Forger, Ch. J., says: “ By the express terms of the act (see § 15), section five of it applies to actions then pending, or such as might thereafter be brought, and hence it must apply to all rights of action whether then accrued or thereafter to accrue.”

The cause of action was perfect in the plaintiff, February 6, 1877; and the statute of April 14, 1877, does not in terms nor by its fair .construction apply. If it were applied literally, the plaintiff would have had only fifty-three days in which to present a claim to the common council, as the statute provides that the claim to be presented must be within “ said three months ” after the happening of such damage.

We conclude that it was not the intent of the legislature that it should be applicable to causes of action perfect at the time of its passage. It was prospective and not to apply to cases where the right of recovery was perfect on the day of its passage. (Johnson v. Burrell, 2 Hill, 238.) The action was not barred. The referee was in error in so holding. As the question here presented cannot be changed by a new tidal, we deem it proper to order judgment for the plaintiff for the damages found by the referee.

Judgment should be reversed, and judgment ordered for the plaintiff for the amount of the damages found by the referee and interest.

Talcott, P. J., and Smith, J., concurred.

So ordered.


text:
    JOAB L. CLIFT, Surviving Partner of the late Firm of CHARLES PARDEE & CO., Respondent, v. WILLIAM C. RODGER, Appellant, Impleaded with MARGARET A. RHOADES.

      Indorser — when liable, though notice of protest is not given — the facts excusing the giving of notice must he pleaded.

    The holder of a note cannot recover against the indorser who has had no notice of protest, unless he not only gives proof bringing the case within one of the exceptions above mentioned, but also avers in his complaint the facts which would establish such exception.
    He cannot allege that notice of protest was given, and then make proof on the trial of the facts which would excuse proof of such notice.

      Semble, that in order to charge an indorser of a note where notice of presentment and non-payment has not been given to him, it may be shown— ■
    1st. That he has taken a general assignment of the maker’s property.
    2d. That there has been a waiver of notice of protest, or that the absence of notice did not and could not work injury to the indorser.
    Appeal by tbe defendant Rodger from a judgment, entered in Onondaga county upon the report of a referee.

      The action was brought upon a promissory note made by Margaret A. Rhoades and indorsed by the defendant, William C. Rodger, dated January 27, 1876, for $500, payable two months after date.
    The referee has found that “payment of the note was duly demanded, but said note was not paid, and the same was duly protested for non-payment, and notice thereof was mailed to H. O. Rodgers and not to the said William C. Rodger, and the said William C. Rodger did not recéive the same.”
    The referee also found, viz., “ That on the same day that the said note was executed, the said Margaret A. Rhoades executed to said William C. Rodger a chattel mortgage on all her property in the sum of $1,'350 to secure the said Rodger against any loss or damage which he might sustain in consequence of said indorsement, and also for the indorsement of two other notes, one of $350 and the other for $500, and interest. That the said Margaret Rhoades has made payments to said Rodger to apply on said notes, and there remained unpaid on the same about $450, and interest from January 25, 1879.”
    As a conclusion, he found that the said William C. Rodger having taken a mortgage on all the property of Margaret A. Rhoades, to secure him for indorsing the said note, was not entitled to a notice of protest, and was liable to pay the said note, and that the plaintiff was entitled to judgment for the amount of the note and the interest on the same, amounting to the sum of $639.50, against the defendant William C. Rodger, with costs, and the same was ordered accordingly.
    The complaint contained the ordinary allegations in an action against maker and indorser of a promissory note, and among other things alleged that said note was then and there duly protested for non-payment, of all of which the said defendant Rodger had due notice. The jdaintiff on the trial offered evidence of certain facts with a view of showing that no notice of protest was necessarjq after it appeared that no notice of the dishonor of the note was given to the indorser.
    That evidence was objected to and received against the defendant’s exception. The referee “ expressly decided and ruled that the testimony offered was admissible under the pleadings,” and the defendant excepted to such ruling. .The referee also found “that tlie chattel mortgage given to said defendant (the indorser) by Margaret A. Rhoades was not an adequate security to defendant for the indorsement by him of the promissory notes therein referred to including the note in suit.”

      William Porter, for the appellant.

      Kewnedy & Tracy, for the respondent.
   Hardin, J.:

Failing, upon the trial, to prove that notice of the dishonor of the note was given to the indorser, the plaintiff sought to recover by showing that no notice was necessary, and that the defendant was liable as indorser by reason of having taken security of the maker; and, secondly, because the chattel mortgage was renewed after the maturity of the note; and, thirdly, because the indorser had" accepted part payment upon the note after knowledge of want of protest, and that, therefore, there was a waiver thereof.

When notice of the dishonor is not given to the indorser, “ imjwry is presumed until the plaintiff, by proof on his side, removes all chance of damage.” {Smith v. Miller, 52 N. Y., 548, opinion of Rapallo, J.; Commercial Bank of Albany v. Hughes, 17 Wend., 94; Spencer & Sharp v. Harvey, Id., 489.)

Therefore, it was incumbent upon the plaintiff to give proof that the defendant, the indorser, sustained no damage nor ran any chance of damage by reason of the failure of the holder of the note to give notice of its dishonor. A complaint against an indorser, which did not aver notice of dishonor, or that notice was dispensed with by the indorser, would be held bad on demurrer thereto, as it would not contain a cause of action.

As a general rule, notice of presentment and non-payment must be given to an indorser as a condition precedent to a recovery against him. The exceptions to this rule are laid down in the cases in this State to be where : (1.) The indorser has taken a general assignment of the maker’s property. (2.) Where there has been a waiver of notice of protest, or it clearly appears that the absence of notice did not, and could not work injury or damage to the indorser. {Spencer v. Harvey, supra ; Mechanics' Bank v. Griswold, 7 Wend., 168; Sea- cord v. Miller, 13 N. Y., 55 ; Otsego Co. Bank v. Warren, 18 Barb., 291; Gawtry v. Doane, 48 id., 156 ; Smith v. Miller, supra; see, also, French's Executors v. Bank of Columbia, 4 Cranch, 162.)

The question presented sharply in this case is, can a holder recover when he does not prove notice of dishonor, and seeks to bring himself within one of the exceptions, without averring, the fact or facts necessary to constitute the exception? We have seen that without such proof the holder has no cause of action.

The burden of proof of the fact or. facts which dispense with notice of dishonor is cast upon the plaintiff. With averment of giving of notice of dishonor he is at liberty to prove it. Without such averment he would not be at liberty to make proof of the notice. In case he is not able to make proof of notice of dishonor, he needs to prove other “fact or facts,” and to that end he should aver the fact or facts which form an essential part of his cause of action.

Our system of pleading is regulated by statute, and we, therefore, turn to the Code of Civil Procedure to learn the office of the complaint. We find section 481 declares what the “ complaint must contain, ” viz., a plain and concise statement of the facts constituting each cause of action without unnecessary repetition.” The late revision changed the word “ shall ” to must,” as we suppose for the purpose of making the language more imperative. (See Throop’s note to § 481, Oode of Civil Procedure and § 142 of Code of Procedure.) If the “ fact or facts, ” as we have seen, constitxrting a part of the plaintiff’s cause of action, had been averred in the complaint, the defendant would have had an opportunity to admit or deny and answer thereto, and thus joined an issue, if he elected in respect thereto, preparatory to the trial.

The proof we have seen was essentially a part of the plaintiff’s case, and without such “ proof he could not recover,” and without an averment of the “ fact or facts ” constituting his cause of action he ought not to be allowed to make the needed proof.

In a similar case the Superior Court, all the judges concurring with Duke, J., in-Garvey v. Fowler (4 Sandf., 667), held that as the plaintiff would be bound to prove such “ fact or facts,” he must aver them in his pleading. We are referred by the learned counsel for the respondent to Tebbetts v. Dowd (23 Wendell, 379), in which Cowen, J., refers to the rule contended for by the respondent, and says there is a conflict in the authorities, and that the balance seems to be that where there is a waiver you may aver notice, and then prove a promise or other equivalent act of waiver.

In that same case Bronson, J., says, at page 412, the question of wai/oer does not arise. The case does not seem to pass authoritatively upon the question here presented. Besides, it arose before the Codes, and the observations made there do not answer the views expressed above.

In Crandall v. Clark (7 Barbour, 171), ‘Gridley, J., says: “To allow a party who had averred the actual performance of a condition precedent to show an excuse for its non-performance, would be contrary to the first principles of pleading. The object of pleading is to inform the adverse party of the facts relied upon by the pleader, to enable such adverse party to meet them by opposing proof. The better opinion, therefore, is notwithstanding some cases that seem to look the other way, that as a general rule an averment of performance will not be sustained by evidence of a legal excuse for non-performance.”

This case and the doctrine thereof are approved by Allen, J., in Oakley v. Morton (11 N. Y., 33), and many other cases cited there to sustain it. (See also Shultz v. Depuy, 3 Abb. Pr., 252 ; Hill v. Varmet, 3 Green, 253.)

The principle is also reasserted by the Court of Appeals in Tooker v. Arnoux (76 N. Y., 397), where a complaint was held not to contain a cause of action, which omitted to state facts which were conditions precedent to the defendant’s liability upon his acceptance.

No amendment was allowed in that case, but the judgment was reversed without any attempt to conform the pleadings to the facts proven. The referee erred in receiving evidence to establish essential facts constituting a part of the plaintiff’s supposed cause of action, which were not averred in the complaint.

Ye ought to reverse. Ju Igment reversed and a new trial ordered before another referee, wdth costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

So ordered.


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    JAMES F. CONVERSE, Respondent, v. CELESTINE E. COOK as Executrix of MALCOLM G. COOK, Deceased, Appellant.

      Accommodation indorser— not discharged by the neglect of the holder of a note, after request so to do, to enforce payment thereof from the maker.

    An accommodation indorser isnol a surety insucli a sense as to enablelum to discharge himself from liability on a note by proving a request to the holder of the note to enforce payment by the maker, the neglect of the holder to do so, the solvency of the maker at the time when such request was made, and his subsequent insolvency.
    Appeal from an order setting aside a verdict for defendant and granting a new trial, the motion for which was made upon the minutes of the trial court, whereupon “a case was made and settled for that purpose.” The trial was had at the Jefferson Circuit, held by Mr. Justice Mullin. The action was to recover upon an indorsement by the intestate for the accommodation of Harvey D. Littlefield, of his note for $240, dated December 3, 1875. The note was given for a loan of money to the maker. The fourth defense set up was that the indorser required the jilaintiff at the time the notice of dishonor was given, “ to go on and collect the note ” of the maker, and “ that the maker was then solvent, and after-wards lie-became insolvent.” In the course of the trial the plaintiff objected to evidence offered to sustain the defense, and afterwards in the course of the charge to the jury the court said: “ I shall hold, for the purpose of this case, that that does not constitute a defense, and therefore you will disregard that part of the evidence, and pass upon the question of the notice, demand and refusal.”

      F. N. Hubbard, for the appellant.

      Levi H. Brown, for the respondent.
   Hardin, J.:

Hpon the trial evidence was received tending to show that a request was made by the indorser Cook to the holder of the note to collect the note out of the maker. Evidence was given tending to-show that the maker was solvent when the request was made, and that thereafter he became insolvent, being only able to pay twelve cents upon the dollar of his unsecured debts. After this evidence-was in, the court ruled that such evidence presented no defense for the reason that the indorser for accommodation was not a surety in such a sense as to be able to avail of a defense upon the ground suggested by the evidence. As the defendant took an exception to-such ruling, he requested that two questions be submitted to the jury to find upon specifically. The plaintiff objected thereto.

The court thereupon submitted the case to the jury, with instructions to find a general verdict for the plaintiff for the amount due upon the note, or a general verdict for the defendant, and that in either event the two questions be answered specifically.

The two questions were, viz.: Did Cook require Converse to sue and collect the note ? (Answered affirmatively.) (2.) If Converse-had taken steps to collect the note within a reasonable time after Cook required him to do so, could it have been collected out of the-property of Littlefield? Answered affirmatively, and the jury also rendered a general verdict for the defendant.

Thereupon a motion was made by the plaintiff for a new trial upon the minutes of the judge, and it was granted. The defendant appeals from the order granting a new trial.

The second finding falls short of the rule which requires in such cases solvency of the maker to be made out by the party giving the notice. The rule is strict, and as such defenses are not favored by or to be extended by the courts, it must be strictly followed and complied with. (Herrick v. Borst, 4 Hill, 650; Singer v. Troutman, 49 Barb., 182 ;Curtis v. Leavitt, 15 N. Y., 141 and 200 ; Howe Machine Co. v. Farrington, 82 id., 121.) In Huffman v. Hurlburt (13 Wend., 375, and same case 378), where an accommodation maker set up the defense, the court said it must appear that the debt was-clearing collectible by suit to justify the defense.

In the case of Schroeppell v. Shaw (3 Comstock, 446), the court discusses the doctrine of Pain v. Packard (13 Johns., 174), and alludes to the controversy over it in King v. Baldwin (17 Johns., 384), and recognizes the result, but refused to extend the principle-where it was not satisfactorily shown by an accommodation maker-that a request had been made to collect out of the principal debtor or his collaterals in the hands of the creditor.

It is now well settled by authority that an indorser for value is not a surety in such a sense as to enable him to avail of a defense predicated upon request to the holder of a note, solvency at the time .of the request of the maker, and subsequent insolvency, and therefore a discharge of the indorser. ( Wells v. Mann, 45 N. Y., 327; Colgrove v. Tallman, 67 id., 99; S. C., 5 Hun, 103; First Nat. Bank v. Wood, 71 N. Y., 411.)

Called upon to pass upon the question arising in this case, as to whether an accommodation indorser can avail of such a defense, we have looked into a long line of cases, and come to the conclusion that such an indorser cannot make such a defense. His contract of indorsement was an independent one.

He could have taken up the note and brought suit upon the note at once. It was his duty as well as obligation to pay the note upon receiving notice of its presentment, refusal and its dishonor. Principle and authority concur in requiring him to take up and pay if he would have the obligation enforced at once out of the maker. Pain v. Packard (13 John., 174), was a case where an accommodation maker was allowed to make such a defense.

Three years after, in Trimble v. Thorne (16 Johns., 152), the court says: “We do not think the case of Pain v. Packard applies; for the indorser, though in the nature of a surety, is answerable upon an independent contract, and it is his duty to take up the bill when dishonored.”

It is not stated that Thorne was an accommodation indorser, though it is fairly inferable from the report of the case.

In Warner v. Beardsley (8 Wend., 199), the opinion of the chancellor says: “To bring a case within that decision, it is necessary for the surety to show that the principal was solvent at the time he requested the creditor to proceed and collect his debt and was within the jurisdiction of the State, and that the creditor without any reasonable excuse'- neglected or refused to proceed until the principal debtor became insolvent and unable to pay,” and that “ applying these tests to the case under consideration, it is evident the indorser of this note was not discharged by the mere neglect to proceed and incarcerate the insolvent drawer who had not sufficient visible means to pay tlie costs of the proceeding.” In tbe same case Senator Seward said: “ "Whether the plaintiff in error, as indorser of an accommodation note, is entitled to be regarded as a surety, and if so regarded, whether in accordance with the principle laid down in the case of Pain v. Packard, he could discharge his liability by giving notice to the holder of the note to prosecute his remedy, are questions not necessarily to be decided in this cause and upon which I wish to be understood as not expressing an opinion by my vote.” That case is not an authority upon the question before us.

The case of King v. Baldwin (17 John., 384), in which the doctrine of Pain v. Packard {supra) was reasserted, was where King was an accommodation maker and signed as “ security,” and though it sustained the doctrine of Pain v. Packard, the question now before us was not passed upon. In Pitts v. Congdon (2 Comst., 352), Gardiner, J., says that “drawers and indorsers are in the light of sureties, in the nature of sureties,” and adds, “ but we have been referred to no adjudication, nor have I been able to find one in which it has been held that they are sureties in fact,” and he then cites Hurd v. Little (12 Mass., 503), to show that they do not sustain that relation, and it was held in that ease that an indorser for value “ was not a surety for the maker in any such sense as would entitle him to an account from the holder of these notes for the value of a collateral security, taken by him from the maker on his own account and subsequently surrendered in good faith and without payment.”

In the M. Iron Co. v. Sweeting (10 Wend., 162), the defense was interposed in behalf of an accommodation maker.

The principle of the cases of Pain v. Packard and King v. Baldwin, was brought in review in Remsen v. Beekman (25 N.Y., 556), and reaffirmed, and it was declared that Beekman stood in the relation of surety to the mortgage debt. The question before us was not involved. In Hubbard v. Gurney (64 N. Y., 465), the general principle of Pain v. Packard was reaffirmed by the late Chief Justice Church, but the only question before the court was as to the effect of an agreement giving further time when one of the makers was surety, and it was held that evidence of such fact was admissible and that the agreement discharged the surety.

The right of a party to make such a defense was recognized by Chief Justice Church in Clark v. Sickler (64 N. Y., 233), but that was a case also of an accommodation maker.

In Northern Insurance Company v. Wright (13 Hun, 168) Talcott, J., refers to the principle of Pain v. Packard approvingly, but the learned counsel cannot find any aid for his position in that case, for that was a clear case of a surety who had guaranteed a bond and mortgage. Nor does the case of Goodwin v. Simonson (74 N. Y., 135) aid the appellant, for that was a case where the question was as to whether the appellant was a surety upon a mortgage debt.

In the numerous cases presented to us by the counsel we have found none which authoritatively passes upon the question in respect to an accommodation indorser.

The case of Boyd v. McDonough (39 How., 389) turned upon an extinguishment of the debt for which the note was held as a collateral, that being paid, it was held the note was extinguished. But a further analysis of the cases is not needful. An examination of them, so far as we have made it, does not reveal any holding like the one contended for by the appellant. (See Bradford v. Corey, 5 Barb., 461 ; Singer v. Troutman, 49 id., 183; Russ, Adm'r, v. Jones, 22 Wallace, 576, and cases cited in opinion of Clifford, J.)

In volume 2 of Daniels on .Negotiable Instruments (page 293), it is'stated to be the rule in this State that an indorser cannot avail of the defense attempted in this case, and he adds in a note at page 321 that in New York “the indorser, while regarded in the nature of a surety, is not a surety in the sense of the cases above quoted,, who has a right to require the creditor to sue the maker.” (See, also, White v. Gardner, 3 Redfield, 74.)

The indorser was in duty bound to pay. He was bound by his contract which had become absolute upon notice of the dishonor of the note, and the creditor at all times could aptly reply to any request to collect of the maker : Do your duty ; take up the note, and bring suit yourself, as you have become liable to pay me and I need look no farther for satisfaction. Act and pay yourself instead of commanding me to proceed against another no more obligated to me than you are for the debt.

We cannot say the jury would have found, upon the other issues, for the defendant had the evidence relating to the attempted defense, improperly received and submitted to them, been left out of the case. (Foote v. Beecher, 78 N. Y., 155 ; Church v. Howard, 79 id., 423.)

We must, therefore, affirm the order granting a new trial.

Talcott, P. J., and Smith, J., concurred.

Order affirmed.


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    THE TOWN OF LYONS, Appellant, v. DWIGHT S. CHAMBERLIN AND OTHERS, as Executors, etc., of DE WITT PARSHALL, Deceased, Respondents, Impleaded, etc.

      Trustee directed, to pay over money — when chargeable with interest — Town bonding proceedings — allowance to be made for expenditures, made before they are set aside.

    The general rule is that a trustee acting in good faith, who keeps funds in his hands ready to disburse, without mingling them with his own moneys, should not be charged with interest thereon; but where a trustee, after his accounts have been stated and he has been ordered to pay over certain moneys, retains such moneys in his hands, he will be charged with interest on the moneys so retained.
    In order to avoid payment of interest he should either pay over the money to the party entitled thereto or deposit the same in court.
    Where a proceeding instituted for the purpose of bonding a town in aid of a railroad is adjudged to be illegal, after it has proceeded so far that certain bonds of the town have been sold and the proceeds of sale have been expended in the construction of the road in good faith, by the agent or trustee for the town, such agent or trustee, on an accounting by him should be allowed for the money so expended.
    Appeal by the plaintiff from part of a judgment in its favor, rendered against De Witt Parshall in his lifetime, and in which action said Parshall’s executors have been substituted in his place ; also from part of an interlocutory judgment and from two certain orders herein.
    Prior to the 17th day of May, 1872, proceedings were taken by sundry citizens of the town of Lyons for the purpose of bonding that town in aid of the Sodus Bay, Corning and New York Railroad Company, which proceedings resulted in a judgment that the town be bonded in the sum of $150,000, and Messrs. Cole, Perrine and Chamberlin were appointed commissioners on behalf ■ of the town to subscribe for the stock of the road and issue ■ the bonds of the town. On the same day the commissioners, with the railroad company and Mr. Parshall, entered into an agreement, tripartite, by which the commissioners, as parties of the first part, agreed to create and execute bonds of the town to the amount of $135,000, and deliver the same to Parshall, in trust, to exchange for an equal amount of the stock of the company.
    This action was commenced against Parshall, the commissioners appointed to subscribe for the stock of the railroad and the railroad company. The plaintiff prayed, among other things, that the bonding proceedings might be adjudged void, that the company might be enjoined from recovering any bonds from the defendant Parshall or the commissioners, and that the bonds and coupons might be delivered up to be canceled.
    An answer was put in to the complaint, and the issues raised thereby were referred to a referee to hear, try and determine.
    The referee reported adjudging the bonding proceedings to be invalid, and found that forty-one of the bonds had been sold by Parshall, who should account for the proceeds of sale, and further found, among other things, as follows :
    “8th. That the defendants account to the plaintiff for the remaining forty-one bonds of said town, and for any of the coupons oi proceeds thereof, or of any of the coupons of the said 109 bonds sold by them or either of them ; the said defendants to be allowed for all'of the same and the proceeds thereof which they have in good faith laid out and expended in building and equipping said road through the county of Wayne, and for any legal purpose mentioned in the agreements between the defendant Parshall and the said commissioners in evidence before me, for which purpose a further reference should be ordered.”
    . In accordance with the report, an interlocutory judgment was entered, in obedience with the provisions of which judgment the parties appeared before the referee, and the defendant Parshall filed his account.
    The court decided that Mr. Parshall was not chargeable with interest upon the money while the same remained in his hands, for the reason that it appeared that the, same had been constantly kept in bank to his credit, as trustee, and subject to be called out of his hands at any moment, and that he had been ready at all times to pay over the same when the amount and the person to whom it was to be paid were ascertained.
    The counsel for the plaintiff claimed that the plaintiff was entitled to the interest upon the amount found due, after the correction by the decision of Judge Rumsey, from the date of the report, December 30, 1879, up to the time of its payment.

      Charles II. Boys, for the appellant.

      Dwight S. Chamberlin and W. F. Cogswell, for the respondents.
   Hardin, J.:

The plaintiff appeals from the judgment herein entered December 18, 1880, in Wayne county clerk’s office, and in its notice of appeal specifies the particular parts of said judgment from which an appeal is taken. The plaintiff also appeals from an order of the Special Term entered in Wayne county, December 18, 1880, which order vacated a judgment entered on the 21st of October, 1880. The plaintiff also appeals, thirdly, from that part and portion of the eighth paragraph of the interlocutory judgment entered herein in said clerk’s office on the 3d day of August, 1871, which part and portion is therein contained and expressed in the following words, to wit: That said defendants be allowed for all the same and the proceeds thereof, which they have in good faith laid out and expended in building and equipping said road through the county of Wáyne, and for any legal purpose mentioned in the written agreement between the defendant Parshall and the said commissioners put in evidence in this case.”

The plaintiff also appeals from an order made at Special Term, and entered 27th April, 1880, which order confirmed the report of the referee as modified, and overruled some of plaintiff’s exceptions and sustained others.

Section 1316 of the Code of Civil Procedure provides that an appeal taken from a final judgment, brings up for review an interlocutory or an intermediate order, which is specified in the noUce of appeal, and necessarily affects the final judgment.” * *

If the order of July 30,1877, referred to in the notice of appeal, had been specified at large, it would, under the section quoted, have been here for review in all its parts. But the appellant in its notice of appeal has referred to one paragraph of the order or interlocutory judgment, and by thus doing expressly limited the right of review to that portion so specified in its notice of appeal.

The remaining portions of the order or interlocutory judgment remain standing obligatory upon the parties unappealed from. That interlocutory judgment recites the findings of fact and of law made by Mr. Referee Macomber, and then it is ordered and adjudged that the said report of said referee be and the same hereby is in all things confirmed. ” Thus we see vital and controlling portions of the interlocutory judgment are not brought up before us upon this appeal for review. Besides the quotations we have given, it is stated in said interlocutory judgment, that the referee found there was no actual fraud committed or deception practiced by the defendants Parshall, Cole, Perrine and Chamberlin, or by either of them in any of the proceedings relating to the bonding of said town in aid of the construction of said railroad.”

We must hold, therefore, that the testator was allowed properly for all money expended by him in and about the construction of the road, and in the preliminary proceedings in aid of the construction of the road while acting in good faith as agent or trustee for the town. (Colburn v. Morton, 36 How., 150.) . It was proper to allow the usual fees or commissions given to parties acting as trustees, as there was no stipulation that the funds should be received and disbursed without charge. (King v. Talbot, 40 N. Y., 96.)

The referee reported, December 30, 1878, that the plaintiff was entitled to judgment against Parshall for the sum of $36,149.44.

After that report was made the usual rule in regard to interest upon verdicts or reports applied, and the 'plaintiff was entitled to recover interest thereon. (Code of Procedure, § 310; Laws of 1869, chap. 807 ; Fuller v. Squire, 8 How., 121; Hunn v. Norton, Hopkins’ Chy., 344.)

Although the general rule is that a trustee, acting in good faith, keeping funds in hand ready to disburse, without mingling them with his own, should not be charged with interest thereon (Jacot v. Emmett, 11 Paige, 143), we see no reason after a trustee’s accounts are stated, and he ordered to pay them over forthwith, why he should not, if any delay in payment occurs after such a report is made, be charged with interest; if he rvould avoid paying interest he should pay to the party or deposit the funds in court. (Hunn v. Norton, Hopkins R., 344; Hoffman’s Prac., 112; Code of Civil Pro., § 1235.)

We should modify the judgment so as to allow the plaintiff to recover interest from the date of the report. In other respects the several orders and the final judgment should be affirmed with costs.

The order allowing interest from the entry of judgment modified, so as to allow interest on the amount found due by the referee from the date of the referee’s report, and in all other respects orders affirmed, and the judgments affirmed, with costs to respondent payable out of the fund.

Talcott, P. J., concurred; Smith, J., not voting.

So ordered.