text:
    Edward L. Thomas, Plff., v. Montauk Fire Insurance Co., Deft.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. INSURANCE (fire) — MORTGAGOR’S RIGHT TO INSURANCE — EFFECT OF RECEIPT OF PAYMENT GIVEN TO MORTGAGEE.
    A policy of fire insurance by its terms insured for one year “ William Emerson against loss . . to the amount of $ 600 on his frame ice-house . . loss, if any, payable to E. L. Thomas, mortgagee, as his interest may appear.” Emerson had title and the plaintiff was his mortgagee, but there was no undertaking on the part of the mortgagor to insure, and the plaintiff on his own account procured the policy and paid the premium. The ice-house was destroyed by fire within the year, and the mortaggee commenced an action to foreclose the mortgage. The mortgagor, however, paid to him the interest upon the bond and mortgage and made to him a deed of the property, which was only worth about one-fifth of the face of the mortgage, and upon the bond the mortgagor endorsed a receipt as follows: “ Received by deed, etc., in full of the within bond and the debt thereby secured, and the same is hereby surrendered and cancelled. But the insurance procured and paid for by E. L. Thomas, at his expense, and for his protection, and any sum he may collect by reason of the same is not affected by this surrender, but are and remain his property.” Held, that in view of the circumstances the receipt should be so construed as to give effect to the reservation and preserve,the claim of tne insured against the insurance company.
    2. Same — Subrogation — When insurer entitled to be subrogated.
    Where a mortgagee solely on his own account and at his own expense procures an insurance of his interest the contract is wholly between him and the insurer and the mortgagor is not entitled to the benefit of any liability incurred or payment made by the insurer on the contract of insurance. On payment of the loss to the mortgagor by the insurer the latter takes the right of subrogation pro tanto and may enforce the mortgage and the hond to which it is collateral to that extent.

      Motiok by plaintiff for a new trial on exceptions taken at Monroe circuit, and order beard at general term in first instance.
    Tbe action is upon a policy of insurance made September 12, 1884, by the defendant, by its terms insuring for one year. “ William Emerson, against loss ... to the amount of six hundred dollars on his frame ice-house . . . Loss, if any, payable to E. L. Thomas,' mortgagee, as his interest may appear.”
    Emerson had the title. The plaintiff was his mortgagee to the amount of $5,000. No undertaking on the’ part of the mortgagor to insure appears. The plaintiff, on his own account, procured the policy and paid the premium. The property was destroyed by fire, October 18,1884.
    The plaintiff thereupon commenced an action to foreclose the mortgage. And on November 17th, 1884, the mortgagor paid to the plaintiff the interest upon the bond and mortgage, and made to him a deed of the property. And upon the bond the plaintiff endorsed a receipt as follows : “ Received by deed, etc., in full, of the within bond, and the debt thereby secured, and the same is hereby surrendered and cancelled. But the insurance procured and paid for by E. L. Thomas, at his expense and for his protection, and any sum he may collect by reason of the same is not affected by this surrender, but are and remain his property.
    “ Rochester, Nov. 17, 1884.
    “ E. L. Thomas.”
    The plaintiff was nonsuited.

      J. D. Lynn, for plff.; JR. F. White, for deft.
   Bradley, J.

The questions presented are: First. Did the contract of insurance between the plaintiff and the defendant give to the latter the right of subrogation in the event of loss and payment of it ? And second. If it did, was that right defeated by the payment of the bond and mortgage to, and the surrender of them by the plaintiff as represented by the receipt of the latter ?

Although the mortgagor was named as a party insured by the policy, it was, in fact, taken by the plaintiff as mortgagee solely for his own benefit. And the premium was paid by him without any arrangement with the mortgagor that he should be charged with the expense of the insurance. The case is, therefore, distinguished from Grosvenor v. The Atlantic Fire Insurance Co., 17 N. Y., 391. And the policy may be treated as a contract with the plaintiff for his indemnity only, with no right in the mortgagor to the benefit of it in ease of loss. In such case the rule in tills State is, that on payment of the loss to the mortgagor by the insurer, the latter takes the right of subrogation pro tanto, and may enforce the mortgage and the bond to which it is collateral to that extent. In Matter of Kip, 4 Edw., 86; Ætna Fire Ins. Co. v. Tyler, 16 Wend., 385; Kernochan v. N. Y. & B. Ins. Co., 17 N. Y., 428; Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 N. Y., 343, 359; Foster v. Van Reed, 70 N. Y., 19, 24; Ulster Co. Savings Institution v. Leake, 73 N. Y., 161, 164.

The question presented here did not necessarily arise in those cases, but the doctrine has been repeatedly stated by the courts of this State. And the proposition must be deemed adopted and settled here. The principle upon which the rule is founded is not yery clearly defined by the cases. It is, however, put upon the ground analogous to that arising out of the relation of principal and surety.

In Carpenter v. The Providence Washington Insurance Co., 16 Peters, 501, Story, J., says: “ Where the mortgagee insures solely on his own account, it is but an insurance of his debt,” and upon payment of the loss “ the underwriters are entitled to an assignment of the debt from the mortgagee, and may recover the same amount from the mortgagor, either at law or in equity, according to circumstances, for the payment of the insurance by the underwriters, does not in such case discharge the mortgagor from the debt, but only changes the creditor.”

To say in such case that the insurance is of the debt, is evidently not an accurate expression. The insurance is of the mortgagee’s interest in the property, and of the security for the debt, rather than the debt itself; and is taken for his indemnity in that respect. And the liability of the insurer arises upon any loss of the property by fire, without reference to the question whether or not the remaining security is adequate for the payment of the mortgage debt.

The remedy over by way of subrogation is given because the insurer has been required by its contract to pay the loss which, as between it and the mortgagee, operates to discharge pro tanto ■ the debt, without affecting the liability of the mortgagor, or the force of the mortgage given to secure it.

The adoption of this proposition as the premises makes the way to the right of the subrogation as the consequence clear. Such right does not rest in contract, but on principles of justice, and considerations of equity, which enables a party who has been required to pay the debt for which another is primarily liable, to become subrogated to the right and remedies of the creditor. Gans v Thieme, 93 N. Y., 225.

It will not be questioned that when a mortgagee, solely on his own account, and at his own expense, procures an insurance of his interest, the contract is wholly between him and the insurer, and that the mortgagor is not entitled to the benefit of any liability incurred or payment made by the insurer on the contract of insurance. But whether the underwriter without the aid of a provision to that effect in the policy or contract can on payment take any benefit of the security by means of subrogation to the remedy of the mortgagee, has been questioned by some judicial authority and text-writers. And in that respect the courts of Massachusetts are not in harmony with those of this State. King v. State Mut. Fire Ins. Co., 7 Cush., 1; Suffolk Fire Ins. Co. v. Boyden, 9 Allen, 123. In the view taken of the contract of insurance the mortgagor had no beneficial relation to it, and on payment of the defendant of the loss it would have the right of subrogation.

It follows that if such right was defeated by the act of the plaintiff he cannot recover. The transaction between him and the mortgagor, as represented by the receipt of the plaintiff was that the interest on the debt and the deed of the property, were received in full of the “ bond and the debt thereby secured,” and that it was surrendered up and cancelled. The question arises upon the construction aud effect of this provision of the instrument in connection with that following, which adds, “ But the insurance procured and paid for by E. L. Thomas, at his expense, and for his own protection, and any sum he may collect by reason of the same is not affected by this surrender, but are and remain his property.”

This paper was signed by the plaintiff, and delivered with the bond, to the mortgagor.

And if it may be construed as a release of the latter, with the reservation of the right to proceed against the defendant upon the policy, the instrument may be treated as an undertaking of the plaintiff not to prosecute the mortgagor. Price v Barker, 4 E. & B. 760; Couch v Mills, 21 Wendell, 424; Matthews v. Chicopee Mfg. Co., 3 Robt. 711; Green v. Wynn, L. R. 4 Ch., App, 204, affirming S. C. 7 Eq. 28; Hubbell v. Carpenter, 5 N. Y., 171.

If, however, the mortgage debt was fully paid by the mortgagor, that rule cannot apply, and the remedy over by way of subrogation is gone, and with it the plaintiff’s right of action .against the defendant, defeated. The provision that the insurance is not affected by the surrender of the bond in the manner that it was done, is not consistent with that declaring a receipt in full of it, and when the intent of the parties is sought for in the instrument and the surrounding circumstances so far as they furnish any aid in that respect, if it may be seen that the purpose was to enable or permit the plaintiff to proceed to collect his loss from the defendant, which could not be accomplished if payment in full was made by the mortgagor to the plaintiff, but to treat it as in fuíl subject to the right of the plaintiff reserved, furnished by the policy to collect of the defendant an amount on account of the loss by fire, the several provisions of the receipt, or release were consistent and may be harmonized. And if such purpose appears from the paper and attending circum.stances the mortgagor may not be permitted to make the release effectual as a defense to an action by the defendant to enforce its right of subrogation. In Connecticut Fire Ins. Co., v Erie Ry. Co. (78 N. Y. 399, reversing S. C. 10 Hun, 59), the defendant had become liable to the owner of property insured by the plaintiff for loss by fire, occasioned by the negligence of .the railway company, with which the insured made a settlement reduced to writing which purported to be “ in full of all claims, demands, and causes of action ” against the railway company for $2,100, received; but a clause was inserted that it was not intended to discharge the insurance company from any claim which the insured had against it for insurance, “ but as a full settlement with and discharge of the Erie railway company only.”

The court there held that in view of the circumstances, the instrument of settlement should be so construed as to give effect to the reservation, and preserve the claim of the insured against the insurance company, and render the settlement with the railway company subject to such right.

It is difficult to distinguish in rule of construction, and effect applicable, the case at bar from that one. Here the amount of the bond and mortgage exclusive of interest appears to have been $5,000. The only evidence of value of the premises, at the time of the conveyance of the plaintiff, tended to prove them worth $1,200. This (if such was the value) was very much less than the debt secured by the bond and mortgage.

This fact is a mere circumstance, not excluded from consideration in the construction of the release, on the question of the intent of the parties, and whether the purpose was that the interest paid and the conveyance made should pay and .discharge in full the mortgage debt. If such were the intent of the parties it is not apparent why they provided by the terms of the instrument, that the receipt, and surrender, and their purpose as there expressed, should not affect the insurance in question taken by the plaintiff unless it was by reason of the form of the under-: taking of insurance in the policy, and that notwithstanding which, and the release, the plaintiff was entitled to collect of the company.

We think the doctrine established in Connecticut Fire Ins. Co. v. Erie Ry. Co., requires the conclusion that the exception to the direction of nonsuit was well taken. If this view is correct there is no question of surrender of the .bond and mortgage, or of merger by the conveyance, in the way of the exercise of the right of subrogation. Such right has relation to the situation of the security held by the mortgagee at the time of the loss, for which recovery is sought.

What advantage the plaintiff will finally realize by a recovery in this action is not the subject of inquiry here, as it is not now necessary to determine whether in the exercise of the right of subrogation the defendant may be required to first seek relief upon the bond against the mortgagor.

The motion for a new trial should be granted. Costs to abide the event.

BARKER and Haight, JJ., concur ; Smith, P. J., not voting.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Yates County National Bank of Penn Yann, Resp’t, v. Zara H. Blake, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)
    Place op teial — Action to compel assignment op peiob moetgage op BEAL PBOPEBTY NOT WITHIN CODE ClV. PBO., § 982.
    Plaintiff was the owner of a mortgage upon real estate in Livingstoncounty. Defendant was the owner of a first mortgage on the same land. This action was brought to compel defendant to assign to plaintiff his mortgage upon payment to him of the amount secured thereby. Held, that this action was not a local action within the provisions of Code Civ. Pro., § 982, providing that certain actions therein enumerated must be tried in the county in which the subject of the action or some part thereof is situated.
    Appeal from an order of the Monroe special term denying motion to change the place of trial from the county of Yates to the c.ounty of Livingston under section 982 of the Code.

      William T. Morris, for resp’t; J. A. Vanderlip, for appl’t.
   Haight, J.

The plaintiff is the owner of a mortgage upon real estate in the county of Livingston. The defendant is the owner of a first mortgage upon the same lands. The action was brought to compel the defendant to assign to the plaintiff his mortgage upon the payment to him of the amount secured thereby.

The question is whether or not this action is within the provisions of the section named. The section provides that Each of the following actions must be tried in the county in which the subject of the action or some part thereof is situated; an action of ejectment; for the partition of real property; for dower; to foreclose a mortgage upon real property, or upon a chattel real; to compel the determination of a claim to real property; for waste; for a nuisance; or to procure a judgment directing a conveyance of real property; and every other action to recover or to procure a judgment, establishing, determining, defining, forfeiting," annulling, or otherwise affecting an estate, right, title, lien or other interest, in real propérty or a chattel real.” It has been held that an action brought to restrain the erection of a bridge over a public highway to connect buildings on opposite sides of such highway, on the ground that such erection will injure property, is local, and not. transitory. Leland v. Hathorn, 42 N. Y., 547.

That an action brought to set aside an assignment for the benefit of creditors, on the ground of fraud where the assigned property consists in part of real estate, is within the provisions of the section. Acker v. Leland, 96 N. Y., 383.

That an action to recover a penalty of the agent of a foreign insurance company who effects or procures an insurance against fire within the limits of a city or incorporated village without having first given a bond to the treasurer of the fire department of the municipality conditioned for the payment to such treasurer of a percentage on premiums received in accordance with the statute, is also within the provisions of the section. Ithaca Fire Department v. Beecher, 99 N. Y., 429.

That an action to have a deed of land declared a mortgage, and for the conveyance thereof, is local within the provisions of the Code. Bush v. Treadwell, 11 Abbot, N. S., 27.

That an action by a receiver to set aside a conveyance or assignment of real property made to defraud creditprs, is also within the provisions of the Code. Thompson v. Heidenrich, 66 Howard, 391.

That an action for trespass to real estate is also local. Easton v. Booth, 19 N. Y., Weekly Digest, 552.

But it will be observed that none of these authorities cover the question under consideration. A mortgage undoubtedly creates a lien upon real estate, and the question is whether or not such a lien is affected by this action. The relief sought is not to change the mortgage or the amount that it was given to secure; that remains the same, even though the plaintiff should recover in tins action. The action is simply to have the lien created by the mortgage, transferred from the plaintiff to the defendant. In the hands of the plaintiff it would remain the same lien, and for the same amount. The lien upon the real estate would not be affected by the action. The Knickerbocker Life Insurance Company v. Clark, 22 Hun, 506.

We are consequently of the opinion that it is not, within the provisions of the section, a local action ; and that the motion was properly disposed of by the special term. The order should therefore be affirmed with ten dollars costs and disbursements.

So ordered.

Bsadley, Angle and Childs, J.J., concurred.


author: Smith, P. J.

text:
    People of the State of New York, Resp’t, v. Joseph Holfelder, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. Criminal tbiaii — Evidence — Corroborative.
    In a trial wherein defendant was convicted of robbery in the second degree, testimony was given on the part of the prosecution tending to show that the offence alleged in the indictment was committed in the city of B., near the corner of Broadway and M. street, on December 18th, 1884, between 1.30 and 3 o’clock a.m. The complainant E.had visited a saloon kept by one K. a little after midnight,remaining there till about 1.30 a.m., and defendant was shown to have been in the saloon and to have left it shortly after E. entered it, evidence having also been given by the prosecution tending to connect defendant with the commission of the offense, defendant attempted to rebut it by testimony tending to show that he reached his residence on A. street and went to bed shortly before 1 o’clock.
    K. IT., a witness called by defendant, testified that she lived eight doors from his house, and that on the night in question a friend named S. had left her at her gate at 12.30 a.m. and went toward defendant’s house. Held, that this testimony was of importance only as it corroborated that of S. the next witness, that he parted with her between 12.30 and 1 o’clock a.m. as he judged, passed defendant’s house, saw him entering at his gate and spoke to him.
    2. Same — a party is not allowed to contradict his own witness— A PARTY QUESTIONING BEYOND THE LIMITS OP CROSS-EXAMINATION MAKES THE WITNESS HIS OWN.
    K. IT. on her cross-examination stated that she had talked with officers H. and F. and did not tell either of them that she saw defendant going to his house, go into the yard, go out of his yard, go down B. street about 1 o’clock, and return in about half an hour, and run into the alley, and that she got into her own house about two o’clock and looked at the clock. After defendant rested the prosecution called officer E. and asked him whether IC U. had told him the things before mentioned, to which defendant objected, and the objection being overruled took an exception. The witness answered that she did not say that time, but near 1 o’clock. Held, that this was an affirmative, substituting the time there mentioned for that given in the question. That it was improperly received, that the defense-having sought only to prove by K. IT. the hour at which S. left her, her cross-examination as to what she had stated of the subsequent movements of defendant was new matter, as to which the prosecution made her their own witness, and that it was not competent for them to contradict her. That evidence that she made contradictory statements as to when S. left her house was properly received, but beyond that, proof of her statements was improperly received.
    3. Same — Presumption arising from silence or lack op denial by a PARTY AGAINST WHOSE INTEREST A STATEMENT IS MADE — MUST BE SHOWN TO HAVE HEARD IT.
    The prosecution proved against the objection and exception of defendant a conversation had by officer ÍT. with defendant’s mother at her house about three o’clock of the morning in question. AVitness testified in substance that the mother said her son got home at two o’clock. N. testified that he thought defendant heard the statement of his mother. After the jury had deliberated several hours they sent a written communication to the judge inquiring what bearing the testimony of BT. should have in regard to what defendant’s mother said to him about the time when her son came home. The court in reply instructed the jury that if defendant did not hear what was said, the testimony was unimportant; but that if he did hear it, it would bear upon the question of his guilt or innocence, because if he heard the statement of his mother, and made no denial, it might be taken as an admission on his part that it was true. Held, that the correctness of the instruction in the abstract was not questioned, but that there was no evidence that if defendant heard the statement that he did not deny it, was silent, or how he received it. That the opinion of If was improperly admitted.
    4. Same — Remarks upon testimony by trial judge — What held error.
    After tlie foregoing instruction counsel differed as to the testimony of N. and the court told the jury that they must determine the evidence for themselves adding. “ The evidence of the other officer who swore that was my recollection is that he was very positive that defendant heard these declarations, but this is a question for you whether he did or not.” Upon a review of the testimony, Hold, that the remark was unwarranted by the testimony.

      Tracy 0. Becker, for Appl’t; Edward W. Hatch, dist. atty., for Resp’t.
   Smith, P. J.

Testimony was given on the part of the prosecution tending to show that the offense alleged in the indictment was committed in the city of Buffalo, between the hours of half-past one o’clock and three • o’clock in the morning of December 18th, 1884, on Broadway near the corner of Madison street. The complainant, Fleisner, had visited a saloon kept by one Kick, a little after midnight, remaining there till about half-past one, and the defendant was shown to have been in the saloon, and to have left it shortly after Fleisner entered it. Evidence having been given on the part of the prosecution tending to connect the defendant with the commission of the offense, the defendant attempted to rebut it by testimony tending to show that he reached his residence on Adams street and went to bed shortly before one o’clock.

Katie Ushold, a witness called by him, testified that she lived eight doors from Holfelder’s house, and that on the night in question a friend named Shuler had been out with her and left her at her gate at half-past twelve, A. M., and went towards Holfelder’s house. This testimony was important, only, as it corroborated Shuler, the next witness, who testified that he parted with Katie Ushold at her house between half-past twelve and one o’clock, as he judged; passed Holfelder’s house; saw Holfelder going into his gate and spoke to him. Katie Ushold, on her cross-examination, stated that she had talked with officers Nicken and Fernlacken and did not tell them or either of them that she saw Holfelder going to his house, go into the yard, go out of the yard, go down'Beckwith street'about one o’clock and return in about half an hour and run into the alley, and that she got into her own house at two o’clock and looked at the clock.

After the defendant rested, the prosecution called officer Fernlacken and put to him the following question : “ Did she,” Katie Ushold, “ tell' you she saw Holfelder run into his yard about half-past - twelve, or one o’clock, that she saw him go out and go down Beckwith street, and in about three-quarters of an hour she saw him run back into the alley ? ” The question was objected to on the ground, among others, that in respect to the matter to which it related, the prosecution made Katie Ushold their own witness and they cannot contradict her. The objection was overruled, and the defendant’s counsel excepted. The witness answered, “She did not say that time, she said near one o’clock.” We understand this to be an affirmative answer to the question, substituting “ near one o’clock ” for “ about half-past twelve or one o’clock,” and the reception'of it we think was error.

The only material fact which the defense proved or sought to prove by the witness Katie Ushold, was the hour at which Shuler left her, and its only materiality consisted in the circumstance that it tended, in connection Avith the testimony of Shuler,' to fix the hour when the latter saw the' defendant going into his gate. Her cross-examination as to what she had stated in regard to Holfelder’s subsequent movements was new matter, in regard to which the prosecution made her their own witness, and it was not. competent for them to contradict her. It was undoubtedly competent for them to give evidence tending to show, as they did by the witness Nicken, that she made a contradictory statement as to the hour when Shuler left her at her house, but beyond that, the proof of her statements was improperly received. (People v. Cox, 21 Hun, 47; S. C. affd. 83, N. Y. 610).

The prosecuting attorney was permitted to prove, against the objection and exception of the defendant', a conversation had by officer Nicken with the defendant’s mother at- the house of the latter, about three o’clock on the morning in question. The witness testified in- substance that the mother said her son got home at two o’clock; that she knew that Avas the hour because she got out of bed and looked; that her son had promised her that he would be at home at twelve o’clock and go to church in the morning; and that she had given him a talking to for coming home so late. The testimony Avas received upon the theory, doubtless, that the son heard Avhat his mother said, and by his silence impliedly admitted it to be true. It is' questionable, in view of the testimony, Avhetlier' the defendant heard whát his mother said to the officer. Nicken testified that the defendant was in a room adjoining that in which the conversation Avas had, eight or ten feet away, as the witness judged, engaged in dressing himself; the door was open; the Avitness testified that he spoke in a pre,tty loud tone, but it did not appear in what tone the mother spoke. The witness in reply to a question put by the court as to whether he thought the defendant heard the talk, replied that he thought he did, but in reply to a question put by the defendant’s counsel said he would not swear that the defendant heard it. The testimony respecting the conversation with the mother seems to have had decided weight Avith the jury. After they had deliberated several hours, they sent a written communication to the judge inquiring what bearing the testimony of Nicken should, have in regard to what Mrs. Holfelder said to him about the time when her son came home. In reply, the court instructed the jury that if the defendant did not hear what was said the testimony was unimportant, but if lie did hear it, it would bear upon the question of his guilt or innocence, because, said the court, “ if he heard his mother state to the officers that it was two o’clock when he got in, and lie made no denial of it, it might be taken as an admission on his part that what his mother said was true.”

The correctness of that instruction, in the abstract, is not questioned. But two comments are to be made upon it, in view of the facts of this case. In the first place, there is no evidence whatever, that if the defendant heard the statement, he made no denial of it, or was silent. It does not appear how he received it. In the next place, the case shows that after the instruction above stated, was given, the counsel differed in open court as to the testimony of Nicken, and the. court then told the jury that they must determine the evidence for themselves and he made the following remark, “ The evidence of the other officer who swore u, in that was — my recollection is that he was very positive that die defendant heard these declarations ; but this is a question for you, whether he did or not.” So far as the case shows (and it purports to contain all the evidence), the remark respecting the testimony of any officer other than Nicken was inadvertently made. The only officers who were at the house with Nicken were Hammersmith and Christbaum. Christbaum testified that he did not go inside of the house and did not know what happened there. In regard to Hammersmith the ease does not give his testimony in detail, and states nothing more on this subject, than that he gave further testimony tending to corroborate Nicken as to what occurred at the defendant’s house. It does not appear that his testimony was any more positive than that of Nicken, who said he thought the defendant heard what was said, or that he testified to any fact on which such opinion could be based, in addition to the facts stated by Nicken. The remark in question, was therefore unwarranted by the testimony, and probably had weight with the jury, upon what they seem to have regarded as the turning point in the case. Indeed, it is not too much to say, in view of what occurred after the jury first retired, that the verdict was produced by the remark of the judge above referred to, and the opinion expressed by the witness Nicken that the defendant heard the conversation with his mother. The opinion, we think, was not proper evidence. The question whether the defendant heard was not one to be determined by the testimony of experts. Manke v. The People, 17 Hun, 410; S. C. affd. 78 N. Y. 611. Although no exception was taken to this item of testimony or to the remark of the court above referred to, yet as it is impossible to say that they did not produce the verdict, we think it a case where justice requires a new trial. Code of Civ. Proc, §. 527, as amended by ch. 360, L. 1882.

The conviction should be reversed and a new trial ordered in the court of Sessions of Erie county to which court the proceedings should be remitted.

All concur.

So ordered.


author: Angle, J.

text:
    Charles Boehme, Resp’t; v. Morris Michael, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887).
    1. Peactice — Notice to produce — Secondary evidence oe. written instrument.
    Tliis action was brought to recover a balance of account for work and labor performed, and material furnished, at defendant’s request.. Plaintiff in his own behalf had testified to conversations with defendant and his son and said that he made and gave the paper giving dimension of the work to defendant’s son. Plaintiff asked defendant to'produce paper of which he had served notice, and defendant declined so to do. Plaintiff being asked if that was the paper which he had given notice to produce, defendant objected to the question as immaterial and irrelevant, and the objection was overruled and exception taken. Held, that this was no error.
    2. Testimony — Objection to admission of — When must be taken.
    Plaintiff having testified to conversation between defendant’s son and himself. Held, that defendant had no right to sit quietly by and allow testimony to be given and then object to the “ foregoing” testimony.
    3. Cross-examination — Error to refuse to allow, as to items of paper sworn to on direct examination.
    Plaintiff having testified that the items of labor and materials charged for were contained in a paper marked exhibit A., and this paper having been put in evidence upon cross-examination defendant asked as to each particular item therein contained, and upon plaintiff’s objection to such questions being sustained, excepted thereto. Held, that this was error and a new trial should be granted.
    Appeal from judgment in Erie county court upon report of tlie referee.
    Tlie action, as alleged in tlie complaint, was to recover $360.-68, and interest, for a balance of account for work, labor and materials, on a house on Franklin Street, Buffalo, N. Y.' The whole of the account was $865.68, of which $540 was for work, etc., which defendant expressly agreed to pay plaintiff,- and the remaining $325.68 was for other, further and extra materials, etc., at defendant’s request.
    The complaint admits payment on said work, etc., of $500.

      E. Michael, for appl’t; W. L. Jones, for resp’t.
   Angle, J.

The first exception taken by defendant is as follows : The plaintiff in his own behalf had testified, among other things, to conversations with defendant and his son, Isador, and said, “ The paper giving the dimensions of the work I made and gave to Isador Michael.” Plaintiff asks defendant to produce paper he had served notice of, defendant declined to produce it. Q. Is that the paper you have reference to that we have given them notice to produce ? Objection made as improper, immaterial and irrelevant. Overruled and exception given to defendant. A. Yes, that is the paper.” There is clearly no error in this.

The plaintiff still testifying to conversations between himself and Isador, says, “ I remember he told me to figure that up and make it as low as I could. At that time I put the time down on a piece of paper. I think this is the paper.” Paper shown witness, marked A. Defendant objected to the foregoing testimony for the reason that the pleadings show that the action is upon contract and that plaintiff has testified that it was upon written contract and that none of these conversations pretended to be had at anytime when the contract was made, and that it is improper, irrelevant and immaterial. Overruled and exception to defendant.

The above exceptions were made after plaintiff’s direct examination had been through about twelve folios relating mainly to conversations about the contemplated work. The defendant had no right to sit quietly .by and allow the testimony to be given and then object to the “foregoing testimony.” The objection that plaintiff has testified that the action was upon written contract was not true in fact, nor are any of the other objections well taken.

Plaintiff then testified that he thinks that when he got exhibit ready he gave it to Isador; he thinks defendant came in and they both looked it over. Plaintiff testifies that defendant produced a paper, a contract which he desired plaintiff to sign, but the latter refused to sign it. Plaintiff also testifies that he told defendant, “ I will sign that paper that I gave you and do all that paper calls for, he says, go up and see my son and see what you can do with him.” He then went to see the son and told him defendant had sent him to come to some conclusion about the work. He (Michaels) then said, “ Well, what conclusion do you want to come to ? I then said, “ I will sign that paper of mine and do what that paper calls for, for that amount of money.” He then said, “ Then there are some little things here that you agree to do • that are not on here.” I told him I would do these things . . .1 then said, “ To put you on the safe side, hand me a few sheets of paper and I will write another mentioning these few small articles.” He then handed me two sheets of paper. I wrote a little heading and then copied the items pretty near like A. I put a little heading at the top and the same items as on exhibit A, and other items. Isador stuck the two sheets together and plaintiff signed at the bottom; during the time defendant came in and looked it over and said, “ Now, Boehme I want all this work done in one week.” Before I left the office I took exhibit A. and said to Isador Michaels, “ You won’twant this as you have the other and I will take exhibit A.” I put the paper in my pocket and went away. The other paper was left in defendant’s office, and plaintiff has not seen it since.

Exhibit A was then put in evidence, commencing with what seems to be a bill or estimate of quantity of timber and lumber followed by the items below:

Hemlock and labor.$96 00
7 M. shingling and labor . . . . 60 00
62 ft. 14 in. tin gutter . . . 10 00
90 ft. 12 in. cornice.18 50
1600 ft. 1 1-8 flooring .... 48 00
4 box window frames and shutters . . 48 00
2 new door frames and setting old door . 6 00
Setting 3 old windows . . . •. . 4 50
Setting 1 old door frame in back wall . 2 00
200 feet base . . . . . • 8 00
1250 feet 7-8 ceiling . . . . 44 00
Casing new sink.6 00
Removing rear stairs (old stairs) . . 10 00
One week’s work repairing all doors . . 18 00 Casing water closet in cellar .. . . 6. 00
Repairing fences.10 75
$465 50
Vestibule— '
Repair in rear part store, one balcony m front of main building and lattice work under rear porch . . . . . . 75 50
$540 00

On his direct examination plaintiff was asked, “ Did you go on and do this work of which exhibit A is a copy? A. Yes, I did all the work except the coal bins and knobs which defendant bought and T put on ; they were in my contract to put them on . . . the work was done in a proper and workmanlike manner.’

On cross-examination defendant’s counsel asked plaintiff “did. all the Hemlock charged in exhibit A, go into the house ? Objected to by plaintiff on the ground that it is contract work and defendant has not been charged with any of that material and witness did keep track of materials used on this contract. Objection sustained. Defendant has exception. Q. Did 7000 ■ shingles and labor as charged in exhibit A, go into that house ? Plaintiff raises the same objection as to last question, and further that it is not proper subject for cross-examination at this stage of the proceedings. Objection sustained, defendant has exception. Q. Did the 62 feet 14 inches tin gutter go into defendant’s house set forth in exhibit A? Plaintiff raises same objection as to last question. Objection sustained. Defendant excepts. Q. Did you put 90 feet of 12 inch cornice in defendant’s building ? Plaintiff objects on the ground mentioned in last question as this work refers to contract work in exhibit A. Objection sustained. Defendant has exception. Q. Did you furnish 1600 feet 1-8 flooring in defendant’s building ? Plaintiff objects on same grounds as in last and as materials set forth in exhibit A. Objection sustained. Defendant has exception. Q. Did you furnish 4 box window frames and shutters in defendant’s building ? Plaintiff objects on same ground as last, and that it is not charged in items of account. Objection sustained. Defendant has exception.”

The above questions relate to items in exhibit A, which plaintiff recognizes as included in his contract and which 'he swears to the performance of. Indeed one of the grounds of objection stated was that it was included in the contract. Upon the question of the performance of that contract it was competent for defendant on cross-examination to ask plaintiff as to each item, the doing of which was requisite to performance, whether he had performed the labor or furnished the materials that item required. Defendant was not obliged to let the matter rest upon plaintiff’s general statement that he had gone on and done the work of which exhibit A is a copy.

It must be noticed that at the time the above rulings were made the list of items (copied mainly from- exhibit A) to which plaintiff had put a heading and had signed, had not been put in evidence. That paper was subsequently put in by defendant, and the heading to it is : “ Buffalo, Mar. 6, 1883. Mr. Michaels. Dear sir, I propose to do all the undersigned for the sum of five hundred and forty dollars, including to new finish first and second floors of rear building: first floor, two rooms, one partition, two thicknesses of 7-8 match lumber and ceil one room 8 feet high with 7-8 flooring; second floor, two rooms and hall from main building with shingled roof.”

Then follows the items in exhibit A, and several other items, including the coal bins and knobs mentioned. There is nothing in the contract as evidenced by this instrument that obviates the errors in the above rulings on plaintiff’s cross-examination, and a new trial should be granted, to be had before a new referee to be appointed by Erie county court.

All concur.


text:
    M. Bennett, Resp’t, v. John J. Kenyon, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. Practice — Appeal prom Justice’s Court — Service op notice on attorney.
    At the close of the trial of an action in a justice’s court plaintiff stated in the presence of the defendant and his attorney that the case -would be appealed, and defendant told his attorney to attend to it. And said'attorney before he was served with the notice of appeal, in reply to plaintiff’¿''inquiry, gave him a notice of retainer, and appeared for defendant therein on the appeal. On a motion to sit aside the judgment of the county court on the ground, that no notice of appeal was served upon defendant, Held, that the motion was properly denied, and that the defendant was guilty of laches in .waiting until after the decision of the county court.
    2 Same — Attorney — When liable to client — Discretionary order.
    Whether the defendant is not confined to his remedy against the attorney if he has been prejudiced by his action, there being no evidence that he is insolvent, and whether the order of the county court is one restingin discretion and thereforemot appealable. Qitcere.
    Appeal from an order of the Cayuga county court denying the defendant’s motion to set aside the judgment of that court rendered in this action.

      Oscar Tryon, for appl’t; S. Greenfield, for resp’t.
   Smith, P. J.

The plaintiff herein commenced an action in a justice’s court agáinst the defendant, to recover damages alleged to have been caused by defendant’s cattle breaking into and destroying the plaintiff’s buckwheat.' Issue having been joined, the plaintiff recovered a judgment for six cents damages, besides costs, from which he appealed to the county court, and there the judgment was reversed. The order now appealed from, denied a motion made by the defendant to set aside the judgment of reversal. The motion was made upon the ground that no notice of the appeal was served upon the defendant. In opposition to the motion- it was shown that Mr. Wright, an attorney of the court, accepted service of the notice of appeal, and appeared for the defendant in the' county court and acted for him in the appeal. Whether he was authorized by the defendant to do so, was a question in dispute upon the motion.

That the notice of appeal was not served upon the defendant personally, is undisputed. Mr. Wright’s affidavit was read, in which he stated that he was retained to try the case for the defendant before the justice ; that at the close of the trial there, the plaintiff and his attorney said in the presence of Wright and the defendant that the ease would be appealed; that the defendant and Wright talked about it, and Wright “ told plaintiff that probably from plaintiff’s talk he would appeal,, and defendant told deponent, Wright, to attend to, or see to, it, and depoent said he would.” That supposing it was fully understood, as it must have been from this talk, that he was retained in case there was an appeal, be admitted service of the notice of appeal, and appeared for defendant therein.” The affidavit of Mr. Greenfield, the plaintiff’s attorney, was also read, in which he stated that he did say at the trial before the justice that the case would be appealed, and both Wright and defendant replied to it, and from what was then said deponent supposed that Mr. Wright was to appear for defendant on the appeal; that deponent went to Mr. Wright’s office and said to him: “I suppose you are to appear for Kenyon on the appeal.” He replied that he was, and thereupon gave me the notice of retainer annexed to the judgment roll. That deponent acted in perfect good faith in so doing, and supposed Mr. Wright was authorized to appear for defendant.”

The alleged conversation at the trial before the justice was denied by the defendant, and his son and a third person, who deposed that they were present, and that they heard nothing of it. The defendant also denied that he ever authorized Wright to appear or act for him in the appeal.

The appellant’s counsel contends that the affidavit of Wright shows nothing more than that he was authorized to act for defendant, if the case was appealed, and that until an appeal was perfected, he had no authority to act. And that as an appeal could only be made, by service of notice on the defendant personally, his assuming to accept service of notice was unauthorized. That construction of the language used appears too narrow. Both attorneys seem to have understood it otherwise. The defendant was notified by the conversation that the case would be appealed, so that he might safely dispense with service of the notice on him if service was made on his attorney. There is no reason to suspect collusion between the attorneys. Mr. Greenfield says he acted in good faith, supposing from what he heard said between the defendant and Wright that the latter was authorized to act as he did.

The contention of the defendant’s counsel that the denial of the motion is against the weight of evidence cannot be sustained. The conflict of evidence was such, that the decision of the county court is conclusive.

We also think the order should be affirmed, by reason of the defendant’s laches. The notice of appeal was served on Wright the 13th of March, and on the 19th of May following, Wright informed defendant by letter that the case was appealed by service on him, and would be argued at some future time. The letter was received by the defendant on the 21st of May. Tt would seem that if he had not authorized Wright to accept service and appear for him, he would, at once on the receipt of that information, have gone to Wright and asked for an explanation. For a few days, at least, and for how many his affidavit does not disclose, he did nothing. When he acted, instead of seeking Mr. Wright, who lived in the town of Moravia, he Avent from his residence in Venice, to the city of Auburn to consult his present attorney, Mr. Tryon, and upon his'advice wrote to Mr. W right for an explanation, stating that he understood the appeal was invalid because no notice had been served upon defendant. The date of that letter does not appear. Defendant deposes upon his information and belief that it was received by Wright before the appeal was argued, but the source of his information is not stated, nor any fact on which his belief is based. He received a reply from Wright, dated the 16th of June, stating that service of notice of appeal on him was of the same effect as if served on defendant, and. that the appeal had been argued some ten days before, but had not been decided. After the receipt of that letter, the defendant says, but how long after he does not state, he again Avent to Auburn and was there advised that “ nothing further could be done until the result of the argument Avas learned.” He seems to have AAmited accordingly until he ascertained that the appeal was decided against him, and then on the 22d of July, he took action in the case by moving to set aside the judgment. At any time after he was informed of the pendency of the appeal he might have moved to dismiss it upon the same ground on Avhieh he afterwards sought to get rid of the judgment. Having lain by for several weeks, and. taken the chances of the result of the appeal, he was too late with his motion.

It may be questioned whether the defendant is not confined to his remedy against the attorney, if he has been prejudiced by his action, there being no evidence that the attorney is insolvent, and also whether the order of the county court is one resting in discretion, and therefore not appealable, but as the order must be affirmed upon the grounds above discussed, it is unnecessary to consider those questions.

The order should be affirmed with ten dollars costs and disbursements.

Babkee, Haight and Bradley, JJ., concur.

So ordered.


author: FiNCH, J.

text:
    George R. Alexander, Appl’t v. Samuel E. Alexander, Resp’t.

      (Court of Appeals,

      Filed January 18, 1887.
    Appeal — Waiver by accepting portion of judgment — Partition.
    Where the appellant who was defendant in an action of partition and by the jndgment rendered was awarded a portion of the proceeds resulting from a sale ordered by the court, accepted those proceeds after his appeal was perfected and took also the costs allowed to him by the judgment. Held, that the appeal should be dismissed. That he could not receive the fruits of the judgment to which he may not be entitled if his appeal succeeds and yet persist in his appeal.
    Appeal from an order entered in supreme court, general term, second department, denying a motion to dismiss an appeal from a judgment.
    The notice of appeal to the general term was as follows:
    “ Sir : — Please take notice that the above named defendant appeals to the general term of the supreme court from the interlocutory judgment entered herein on the 29th day of December, 1885, and the final judgment entered herein on the 27th day February, 1886, in the office of the clerk of the County of Kings, and each of them, and from so much of said judgments as adjudge and determine the plaintiff, George R. Alexander, to be the -owner of an undivided share of the premises directed to be sold, of the clear value of $42,500 over all incumbrances, including the dower of the defendant Hannah Alexander, and of one half of the residue, and adjudging the appellant, Samuel G. Alexander, to be only entitled to the one undivided half of such residue, and also from so much of the said judgments and each of them as directs the referee appointed herein to deliver and pay over to the plaintiff bonds and mortgages and money amounting to the sum of $42,500, before dividing the proceeds of said sale, and in excess of the amount directed to be paid to the defendant, appellant.” Other facts and questions raised sufficiently appear in the opinion.

      Josiah T. Marian, for appl’t; Nathaniel O. Moak and David IP. Manning, for resp’t.

       Reversing, 1 N. Y. State R., 510. 41 Hun. 642 mem.

   FiNCH, J.

The motion to dismiss this appeal is founded upon the fact that the appellant, who was defended in an action of partition, and by the judgment rendered was awarded a proportion of the proceeds resulting from a sale ordered by the court, accepted those proceeds after his appeal was perfected, .and took also the costs allowed to him by the judgment. His notice of appeal was served Marchl3,1886,and the referee appointed to make the sale swears that he paid the share awarded to the defendant bj two checks, dated respectively the seventeenth and twenty-fourth of the following April, both of which have been paid by the bank upon the defendant’s indorsement. It is not denied that he could not be permitted at the same time to take the fruit of the judgment, and appeal from it as erroneous ox* wrong; but it is contended in the present case that no such in-consistencj exists, because the whole controversy concerns a fund other thaxx the residue, a share of which the defendant accepted ; or, in substance, that what the defendant took he would be entitled to retain in any conceivable disposition of the case. Clowes v. Dickenson, 8 Cow. 328; Knapp v. Brown, 45 N. Y., 207. We are not able to concur in a view of the situation which would make those authorities applicable. The litigation involved a question of advancements. The court found that 157,500 had been advanced to the defendant, and $15,000 to the plaintiff, and awarded to the latter the difference of $42,500, to be first paid out of the proceeds of sale for equality of partition, dividing the residue eqxxally between the two parties. The defendant’s notice of appeal is from the interlocutory and the final judgment, and not from any alleged separable or independent portion which left the rest unaffected and. unassailed. So far as the division of proceeds is concerned, we cannot discover any such separable or independent portion to which the appeal could have been limited. The amount of residxxe must necessarily depend upon the amount of the advancements adjudged to have been made. Those to the defendant are alleged in the complaint to have consisted of certain parcels of real estate, the value of which is not stated, and which value necessarily became the subject of proof. If the judgment should be reversed, the plaintiff, on a new trial, will be at liberty to show, and may possibly establish, that such value was greater than the -$57,500, or that the advancements to himself were less than the $15,000 and in either event the sum first payable to him from the proceeds would be increased, and, as a consequence, defendant’s slxare of the residue lessened. He stands thus in the attitude of holding the fruit of the judgment to which he may not be entitled if his appeal succeeds, and yet persisting .in his appeal. The trouble is that he cannot gain the right to recover more without incurring the hazard of recovering less.

But it is further insisted that he took his share of the residue with the plaintiffs consent and under an arrangement which nevertheless contemplated the prosecution of the appeal. The proof of this is sought to be deduced from an affidavit of the defendant’s attorney. He swears that, just before the entry of judgment, he declared his client’s purpose to appeal, and thereupon, the plaintiff’s attorney expressing a desire not to have proceedings stayed, and to be at liberty to collect and receive the sum awarded, it was finally agreed that he might do so upon assigning to the referee in trust a mortgage as security for any restitution which might be ordered. That assignment and a covenant of restitutution were executed April 1, 1886, and after the appeal had been taken. The affidavit further showed that the plaintiffs” attorney frequently said tbat there was no need of tying up the proceeds of the sale, but that a speedy sale and distribution were desirable. It is to be noticed that the affidavit asserts no negotiations except as to the right of the plaintiff to get his money, and to prevent a stay, which would hinder that result, and does not claim that anything was said, or any agreement made, relating to the share awarded to the defendant. It shows only that the plaintiff wanted his money ; that he could not get it if the defendant on his appeal effected a stay of proceedings; that security was given to obviate the need of that stay ; and what was said about not tying up proceeds and expediting the appeal naturally referred to that negotiation, and related to that effort. The defendant’s silence as to his own share is made more emphatic by the affidavit of the plaintiff’s attorney that he never uttered a word about defendant’s treatment of the residue awarded to him, or in any manner recognized the appeal after that share was accepted. It is not possible to infer a consent or waiver. The defendant does not claim that his act was inadvertent, and without consciousness of the question it might raise. If he did that, and offered to restore the money received to its official custodian pending the appeal, the question would assume a more hopeful shape. But he stood and stands here upon his right. While we cannot help thinking that some misunderstanding has existed, and should be glad to sustain the appeal taken, we can find no just ground upon which to rest such a decision.

The order of the general term should be reversed, and the appeal dismissed, with costs

(All concur.)


author: Finch, J.

text:
    Matter of Estate of Andrew Hood, Deceased.

      (Court of Appeals,

      Filed January, 1887.)
    1. Practice — Appear from Surrogate’s Court — Failure to make findings — Effect of — Code Civ. Pro., § 2545.
    The failure of a surrogate to make findings of fact or law in proceedings had before him, as required by Code Civ. Pro. § 2545, is not available as error on appeal by a party taking no exception to the decision or decree. It is the duty of the party appealing to procure to be made such findings or refusals as will present, through appropriate exceptions, the questions which he desires to argue, or he cannot review the rulings of which he complains.
    2. Executors and administrators — Removal — Accounting. An executor who has been removed maybe compelled to account and pay over the moneys in his hands to his co-executor.
    3. Same.
    After the executor had been removed he was proceeded against by his former co-executor, who continued in office for an accounting, and he set up a former accounting, through which he claimed to hold the assets remaining in his hands as testamentary trustee. He was not discharged by the former accounting and was not directed to hold the remaining assets as trustee, nor was he credited with such transfer; but the decree directed as to the assets remaining, that “ the said executor shall hold and invest pursuant to the powers and directions contained in said last will and testament.” There had been no payment to defendant as trustee, no new account opend and' kept in the new capacity, and no separation or division of the fund allotting to the beneficiaries their exact and specific proportions. Held, that he continued to hold the assets remaining in his hands after the former accounting as executor, and must account for them as such.
    Appeal from an order of the supreme court, general term, second department, affirming an order of the Surrogate’s Court of Westchester county, directing the filing of an account of an executor who had been removed.

      JEdwará, P. Wilder, A. J. Dittenhoefer and John N. Hayward,. for appl’t; John J. Maclclin, for resp’t.

         Affirming 30 Hun. 657 Mem.

   Finch, J.

The petition presented to the surrogate, as the ground of the relief sought, that Frederic Hood and the petitioner had been originally appointed executor and executrix of the last will of Andrew Hood; that the letters testamentary issued to Frederic Hood had been revoked for his misconduct, leaving-the petitioner sole remaining representative of the estate; that previous to such revocation, and about January, 1869, the said executor had collected bonds and mortgages, winch were assets in his hands, amounting to between forty and fifty thousand dollars; and upon these facts the petitioner asked for an order that the removed executor account for and deliver over to the-executrix the assets remaining in his hands.

The Code authorizes the surrogate to call an executor or administrator to account where the letters have been revoked (section 2724,) and more specifically provides that “ the surrogate’s-court has the same jurisdiction upon the petition of the successor or of a remaining executor, administrator, guardian, or trustee to compel the person whose letters have been revoked to account for or deliver over money or other property, and to settle his account, which it would have upon petition of a creditor or person interested in the estate if the term of office conferred by the letters had expired by its own limitation ” (section 2605). Upon the petition filed the surrogate had jurisdiction to grant the relief sought. The executor’s answer alleged that he had accounted before the surrogate in 1869, for all assets held by “him. in that character, and that thenceforward he retained the-balance in his hands as testamentary trustee. Other defenses were pleaded, but need not be here stated for reasons which will appear.

On the hearing the surrogate made an order requiring the ■ appellant to account as executor, and the latter having filed an account, the surrogate made a final order, adjudging that the-appellant held nearly §80,000 received as executor, which he should pay over to the petitioner. From each of these orders which have been affirmed by the general term the removed executor appeals. Whether the order to account was merely preliminary, or final in so far as it adjudged the character in which the assets were held, (In re Halsey, 98 N. Y. 48,) is of no consequence, in view of the fact that the appeal from the order finally rendered by its terms brings up for review the order to account.

The return shows that the surrogate made no findings of fact or law as is now required, (Code, § 2545; Angevine v. Jackson, 103 N. Y. 470, S. C. 3 N. Y. State R., 643,) and that no exceptions were taken to his decision or decree in any form. But on the hearing, and during its progress, three exceptions were taken, and only three. These raise the sole questions available to the appellant in this court. His own counsel suggest the absence of requisite findings, insisting that for such cause the decree is irregular. That does not follow. It is the duty of the party appealing to procure to be made such findings or refusals as will present, through appropriate exceptions, the questions which he desires to argue. If he suffers this necessary step to be omitted, lie will find himself without the means of reviewing the rulings of which he complains. The three exceptions taken are, therefore, the sole basis, and mark the limits of this appeal.

These were — First, to the admission of the order revoking the executor's letters testamentary; second, to a ruling which sustained an objection to an inquiry whether he had acted as executor since the decree of 1869; and third, to the question what he had done with the bonds and mortgages left in his hands after that decree. The first two exceptions are without merit, and, indeed, are not relied upon or argued in the appellant’s brief. The third exception raises the only question open for consideration. The ground of objection stated was that after the defendant’s final accounting in 1869, his responsibility as executor ceased, and the funds in his hands were held by him as trustee, and what became of them was totally immaterial on a proceeding against him as executor. But this defense we have already held to be untenable. When the case was first before us, (85 N. Y., 561,) we decided that, by the will of Andrew Hood, there was an equitable conversion of the real estate into personalty, and that for the proceeds of its sales the executor was accountable in that capacity. At a later period, the order revoking his letters testamentary came up for review, (98 N. Y., 363,) and we then held, passing by the inquiry whether, under the will, it was possible for him to exchange the character of executor for that of trustee, that he had not effected such exchange, and remained executor only, and removable as such for his misconduct in that capacity. We pointed out that, on the accounting in 1869, he was not discharged, was not directed to hold the remaining assets as trustee, was not credited with such transfer, and his account thereby balanced; but the decree entered directed, as to the assets remaining, that “ the said executor shall hold and invest pursuant to the powers and directions contained in said last will and testament.” There had been no payment to the defendant as trustee, no new account opened and kept in the new capacity, and no separation or division of the fund, allotting to the beneficiaries their exact and specific proportions. If the question had respected commissions, it was shown that our own decisions would have compelled us to hold that the defendant could not be entitled to them in the character of trustee. Our decision, intermediate the two referred to, does not affect the present appeal, since the removal of the executor is a new fact which has occurred since the decree of 1869, and brings with it new rights and responsibilities.

The order and decree should be affirmed, with costs.

All concur.