text:
    Thomas H. Stringham, Respondent, v. Cornelia M. Stewart, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


source: Caselaw Access Project

license: Public Domain

text:
    Waltemire v. Waltemire.
   Motion granted correcting judgment order so as to state thatfthe decision was made on a «question of fact.


author: Barnard, P. J.;

text:
    William A. Jackson v. Albert Daggett, Sheriff, etc.
   —Judgment reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Cullen, J., dissenting.


text:
    The People of the State of New York v. Richard Warren.
   Judgment affirmed. Opinion by

Barnard, P. J.;

Dykman, J. not sitting.


text:
    Ellis H. Roberts & Co., Respondents, v. John Buckley andothers,Appellants.
   Order affirmed, with ten dollars costs and disbursements, payable out of the fund.


text:
    William A. Tyler, Respondent, v. Timothy Guy, Appellant.
   Motion for reargument denied. Order affirmed, with costs.


text:
    Charles Van Velzer, Respondent, v. Oneida Community (Limited) Appellant.
   So much of the order as grants costs reversed, and the other part of the order affirmed, without costs to either party.


text:
    Hugh Williams, Appellant, v. William H. Peters, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. Carrie Goodrich, Respondent, v. Irving C. Terry, Superintendent of Onondaga Penitentiary, Appellant.
   Order reversed.


text:
    John P. Vidvard, Respondent, v. Amos K. Hedden and others, Appellants.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Osee Everett, by Guardian, Respondent, v. John Hickey, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John E. Knapp, Respondent, v. E. Frank Smith, Appellant.
   Motion for reargument granted.


text:
    Xaver Shocker v. Daniel Murphy.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Allen Bloomfield, Executor, etc., Respondent, v. George Clarke, Appellant.
   Motion to dismiss appeal denied, without costs to either party: also, order affirmed, with ten’dollars costs and disbursements.


text:
    David Wilber, Respondent, v. Cooperstown and Susquehanna Valley Railroad Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements.— Judgment affirmed, with costs.


text:
    The People of the State of New York v. Albert Harris.
   Motion to dismiss appeal granted.


text:
    Joseph Meyer, Respondent, v. Julia A. Flaesch, Appellant.
   Judgment and order affirmed, with costs.


text:
    Town of Kirkwood, Appellant, v. David Newbury and others, Respondents.
   Judgment and order affirmed, with costs.


text:
    Nancy H. Williams, Respondent, v. George W. G. Kinney and others, Appellants.
   Case ordered over the term, with leave to the appellant to apply to the Special Term upon payment of an argument fee, the disbursements of this term, within ten days; if such payment be not made within ten days, the judgment affirmed, with costs.


text:
    Singer Manufacturing Company, Appellant, v. Gilbert D. Drummond, Respondent.
   Motion for leave to go to the Court of Appeals denied.


text:
    Achsah Gunn v. Edgar Kenyon and eight other cases.
   Motion for reargument denied.


text:
    Michael McCarthy v. James O’Hara.
   Leave granted to appeal to the Court of Appeals, on the ground that the case involves a question of law which ought to be determined by that court.


text:
    Catherine J. Deland and others v. Henry Brooke.
   Motion for reargument denied; also, motion for leave to appeal to the Court of Appeals denied.


author: Parker, J.

text:
    Walter S. Church, Respondent, v. George J. Brownell, Appellant
   Judgment affirmed, with costs. Opinion by

Parker, J.


text:
    Thomas Burridge v. Maxwell Abernethy.
   Judgment affirmed, with costs. Opinion by

Parker, J.


author: Landon, J.;

text:
    Charles W. Wales, Respondent, v. Richard Stout and George H. Stout, Appellants, Impleaded with Reuben H. Wales and others.
   Judgment reversed, new trial granted, referee discharged and costs to abide event. Opinion by

Landon, J.;

Parker, J., not acting.


author: Landon, J.

text:
    Gilbert Car Manufacturing Company, Respondent, v. William D. Mann, Appellant.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Patrick Mahar, Respondent, v. David H. Simmons, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Mem. by

Landon, J., and by Parker, J., dissenting.


text:
    William T. Kellam, Appellant, v. Horace W. McKoon, Respondent.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Parker, J.


text:
    Albert V. D. Collier, Appellant, v. Horace T. Bedell, Respondent.
   Motion denied, with ten dollars coste and printing disbursements.


author: Bockes, J.

text:
    Charles S. Smith v. Abel R. Vibbard.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


author: Parker, J.;

text:
    The Metropolitan Life Insurance Company of New York, Respondents, v. John C. Sturges and Myron N. Babcock. Appellants.
   Judgment affirmed, with costs. Opinion by

Parker, J.;

Bockes, J.. dissenting.


author: Bockes, Landon and Peckham, JJ.

text:
    Edward J. Brown, Respondent, v. John Campbell, Appellant.
   Judgment and order affirmed, with costs. Opinions by

Bockes, Landon and Peckham, JJ.


text:
    Julia Gaffigan, Appellant, v. The City of Troy, Respondent.
   Motion denied on payment of costs and filing undertaking.


text:
    Lewis Brownell and others, Appellants, v. The National Bank of Gloversville, James H. Burr and others, Respondents.
   Order resettled as by memorandum on papers; no costs to either party on motion.

Landon, J., not acting.


text:
    Nelson D. Morehouse, Respondent, v. Joel B. Morehouse. Appellant.
   Decision to be entered nunc pro tunc, on account of death of party.


text:
    Thomas Cusick, Jr., Respondent, v. William K. Adams, Appellant.
   Judgment affirmed, with costs.


text:
    James McNaughton, v. Ralph R. Osgood.
   Motion to resettle order granted.

Learned, P. J., not acting.


author: Learned, P. J.

text:
    John M. Newton, as Trustee, etc., Respondent, v. William Reid, Appellant.
   Order reversed, with ten dollars costs and printing disbursements, and retaxation granted, with ten dollars costs, but plaintiff to lbe at liberty to apply to the court to ascertain value of real estate, and then to have proper statutory allowance computed by clerk. Mem. by

Learned, P. J.


text:
    John Staats v. Thomas Garrett.
   Motion for reargument denied.


text:
    Daniel C. Bradt, Appellant, v. Joseph Hynes, Respondent.
   Order affirmed, with ten dollars posts and printing disbursements.


text:
    Richard Heller, Appellant, v. Peter Fritcher et al., Respondents. Jane C. Moody, Appellant, v. Same, Respondents.
   Order vacating injunction reversed, with ten dollars costs in each case and printing disbursements, and motion to vacate injunction denied, with ten dollars costs in each case.


text:
    Richard Heller, Appellant, v. Harlan P. Kline et al., Respondents. Jane C. Moody, Appellant, v. Same, Respondents.
   Order vacating injunction vacated, with ten dollars costs and printing disbursements in each case, and motion to vacate denied, with ten dollars costs in each case.


text:
    Esek Bussey, Appellant, v. Milo H. Olin, Respondent.
   Order aflirmed, without costs, the defendant consenting not to move to change the place of trial.


author: Learned, P. J., and Bockes, J.;

text:
    The People of the State of New York v. The Mayor, etc.
   Order reversed and motion granted, no costs of appeal or order to either party. Opinions by

Learned, P. J., and Bockes, J.;

Landon, J , not acting.


text:
    Eliza Rodman, Respondent, v. Henry Rodman, Appellant.
   Order appealed from modified; ordered that the thirty dollars costs, granted in the order for attachment, be stricken out, and that execution of attachment be limited accordingly. Mem. by

Learned, P. J.


text:
    John P. Collier and another, Appellants, v. Charles C. Abeel and others, Respondents.
   Judgment affirmed, on opinion of Special Term.


text:
    George D Smith, as Administrator, etc., Appellent, v Benjamin Cooper and others, Respondents.
   Judgment reversed, new trial granted, costs to abide event. Mem. by

Learned, P. J.


text:
    William Clark, Jr., as Executor, etc., Respondent, v. George Clarke, Appellant, Impleaded, etc.
   Order aflirmed, with ten dollars costs and printing disbursements.


text:
    Rufus Heaton, Appellant, v. John Phillips and others, Respondents.
   Judgment of County Court affirmed, with costs. Mem. by

Learned, P. J.


text:
    Hiron W. Allen, Executor, etc., Respondent, v. James W. Shephard and others, Appellants.
   Order reversed, with ten dollars costs and printing disbursements, and motion to change place of trial granted, with ten dollars costs.


text:
    Abel A. Crosby v. The President, etc., of the Delaware and Hudson Canal Company.
   Motion for leave to go to Court of Appeals granted.


text:
    Adelbert W. Boynton and another, Respondents, v. Melvin Wilkins, Appellant.
   —Order affirmed, with ten dollars costs and printing disbursements.


text:
    Alexander C. Morrison, Respondent, v. Jane Van Benthuysen and others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    S. Eugene Newcomb, Respondent, v. H. Joseph Buddington, Sole Survivor, etc., Appellant.
   Judgment affirmed, with costs.


text:
    In the Matter of the Estate of Mary McPherson.
   Decree affirmed, with costs.


text:
    Sylvester Viets, Appellant, v. The Union National Bank of Troy, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.


author: Davis, P. J.

text:
    In the Matter of Samuel J. Hunt.
   Order reversed, and proceedings remanded for further hearing, with costs of appeal to appellant, to he credited to him and applied on amount adjudged against him. Opinion by

Davis, P. J.


text:
    Warren Beman, Plaintiff, v. Louis L. Todd, Defendant.
   Judgment reversed, new ‘trial ordered, costs to abide event. — Order to be entered as directed in opinion. Opinion by

Davis, P. J.


author: Daniels, J.

text:
    Meta Muhlenbrink and others, Appellants, v. Louis J. Pooler and another, Respondents.
   Motion denied, with ten dollars costs. Opinion by

Daniels, J.


author: Macomber, J.

text:
    William C. Bauer v. T. F. Betz.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Macomber, J.


text:
    D. Willis James v. The Mayor, etc., of the City of New York.
   Judgment ordered for plaintiff, as directed in opinion. Opinion by

Daniels, J.


text:
    James Talcott, Respondent, v. Walter P. Hess, Appellant Lewis Mayer and others v. Walter P. Hess.
   Judgments affirmed, with costs. Opinion by

Daniels, J.


text:
    Claus F. Hinck and another, Respondents, v. Adolph Dessar and others, Appellants. Abraham Stetnan, Respondent, v. The Same.
   Orders affirmed, with ten dollars costs and disbursements. Opinion by

Macomber, J.


text:
    Anna M. Dean, Appellant, v. William Milne, Executor, etc., Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Macomber, J.


text:
    Nelson Merrill, Respondent, v. Farmers’ Loan and Trust Company, Appellant.
   Judgment and order reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Charles Doll and another, Respondents, v. William Noble, Appellant.
   Judgment affirmed, with costs. Opinion by

Macomber, J.


text:
    In the Matter of Vesta Miller.
   Order reversed, with ten dollars costs and disbursements, and motion denied. Opinion by

Daniels, J.


text:
    John F. Betz, Respondent, v. Henry Daily, Jr., and another, Appellants.
   Judgment aflirmed, with costs. Opinion by

Macomber, J.


author: D aniels, J.

text:
    In the Matter of Nathaniel Gilman.
   Orders aflirmed, without costs. Opinion by

D aniels, J.


text:
    Francis S. Bangs and others v. Robert Hill.
   Judgment ordered for plaintiff as directed in opinion. Opinion by

Macomber, J.


text:
    Constance B. Price, Respondent, v. Stephen Brown and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Macomber, J.


author: Brady, J.

text:
    William E. Westerfield, Appellant, v. Peter A. H. Jackson, Respondent.
   Judgment affirmed. Opinion by

Brady, J.


text:
    In the Matter of H. Mason Raborg.
   Order modified as directed in opinion, and affirmed as modified, without costs. Opinion by

Daniels, J.


text:
    Joseph Cornell, Respondent, v. James Eagan, Administrator, etc., Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    In the Matter of Richard Amerman.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Macomber, J.


text:
    Herman Weckerlin, Appellant, v. Henry K. White and others, Respondents.
   Judgment affirmed. Opinion by

Macomber, J.


text:
    Robinson Consolidated Mining Company, Respondent, v. William H. Craig and another, Appellants.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by-

Brady, J.


text:
    Frederick P. James, Appellant, v. James A. Cowing and another, Respondents.
   Judgment affirmed, with costs. Opinion by

Macomber, J.


author: Daniels. J.

text:
    Horace D. Kelley, Appellant, v. Alexander V. Davidson, Respondent.
   Judgment modified as directed in opinion and affirmed as modified, without costs. Opinion by

Daniels. J.


text:
    In the Matter of the Trustees of the Female Academy of the Sacred Heart, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Brady and Daniels, JJ.

text:
    Rudolph Bohn, Respondent, v. Michael Fay and William Stacom, Appellants.
   Judgment affirmed. Opinion by

Brady and Daniels, JJ.


text:
    Philip Tillinghast, Appellant, v. Francis T. Walton, Respondent.
   Judgment affirmed, with costs Opinion hy

Daniels, J.


author: Van Brunt. J.

text:
    Adolph Bernheimer and others, Appellants, v. Simon Rindskopf and others, Respondents. Augustus D. Juliard and others, Appellants, v. Same, Respondents.
   Judgment affirmed, with costs on opinion of

Van Brunt. J.


author: Van Brunt, J.

text:
    William H. Seymour and others, Appellants, v. Simon Rindskopf and others, Respondents.
   Judgment affirmed, with costs, on opinion of

Van Brunt, J.


author: Churchill, J.

text:
    Julius Schutz and others, Respondents, v. Samuel Corn and others,Appellants.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Churchill, J.


text:
    John L. Macaulay, as Surviving Partner, etc., Respondent, v. Joseph R. Palmer, Appellant.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Churchill, J.


text:
    Henry P. De Graaf, Respondent, v. Jacob F. Wyckoff, Appellant.
   Judgment modified, as directed in opinion, and affirmed as modified, without costs. Opinion by

Daniels, J.


text:
    Stephen P. Nash and others, Respondents, v. Sylvester H. Kneeland and Jacob Berry, Appellants.
   Judgment affirmed. Opinion by

Brady, J.


text:
    James Bostwick, Appellant, v. Matilda Brush, as Administratrix, etc., Respondent.
   Judgment modified as directed in opinion, and affirmed as modified, without costs. Opinion by

Daniels, J.


text:
    Martha W. Leach, Respondent, v. James A. Flack and others, as Executors, etc., Appellants.
   Judgmentand order reversed, and new trial ordered, with costs to abide event. Opinion hy

Daniels, J.


text:
    James Talcott, Respondent, v. Moses G. Rosenberg and Joseph Rothschild, Appellants. William Turnbull and others, Respondents, v. Same, Appellants
   —Orders affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    William K. Forster, Respondent, v. James W. Bouton, Appellant.
   Judgment modified as directed in opinion} and affirmed as modified, without costs. Opinion by

Daniels, J.


text:
    James J. Nealis, as Receiver, etc., Appellant, v. Henry Adler and others, Respondents.
   Judgment reversed, new trial ordered, costs to abide event Opinion by

Daniels, J.


text:
    In the Matter of Christopher R. Roberts.
   Decree affirmed. Opinion by

Daniels, J.


text:
    Walter K. Yorston v. James W. Bouton.
   Judgment modified, so far as to sustain the demurrer to the first, third, fourth and fifth causes of action contained in the complaint, and as modified the judgment should be affirmed, but without costs of the appeal to either party5 and with liberty to the plaintiff to amend his complaint within twenty days after notice of this decision. Opinion by

Daniels, J.


text:
    Robert J. Dean and another, Respondents, v. Horace K. Thurber, as Assignee, Appellant.
   Judgment reversed^ new trial ordered, costs to abide event. Opinion by

Macomber, J.


text:
    Isaac Strauss Respondent, v. William Heyenga, Appellant.
   Judgment affirmed, with costa. Opinion by

Macomber, J.


author: Bradley, J.:

text:
    JULIA MARTIN, Respondent, v. JESSE COLBY, Appellant.

      When a condition of a bond will he treated as an agreement — when specific performance thereof will he enforced — presumption as to an inst/rument having been under seal — what consideration will support an agreement — the court will not dweet specific performance where a parrty is unable to perform his contract.

    On February 5,1880, the defendant made to the plaintiff his bond in the penal sum ■ of 0,000, containing the condition “ that if the said Julia Martin (the plaintiff), her heirs, executors, administrators or assigns shall pay to the said Jesse Colby (the defendant), his executors, administrators or assigns the just and full sum of fifty-eight hundred and fifty dollars, and the interest from the date hereof in one year from the date hereof, then said Jesse Colby, his heirs, executors or administrators shall execute and deliver to the said Julia Martin, her heirs, executors and administrators a good and sufficient warranty deed in fee simple, with the usual covenants, of the samé lands in the town of Alden which are described in a certain deed this day executed by Levinus W. Cornell and wife to Jesse Colby, then this obligation to be void, else to remain in full force and virtue; and the said Julia Martin shall pay, in addition to the stated sum, for all improvements that the said Jesse Colby shall have done on the said lands during one year from the date hereof, and the said Jesse Colby shall have all the privileges of the said lands as he would have if this writing was not made.”
    On February 5, 1881, the plaintiff caused a tender to he made to the defendant of the amount she claimed was then due to him, and requested him to execute a deed of the lands. He having refused so to do, upon the ground that the bond had been canceled, the plaintiff brought this action to compel a specific performance of the agreement, and recovered a judgment therefor.

      Held, tliat the agreement to execute and deliver the deed of the lands constituted an agreement to sell them, and imposed upon the defendant a duty to convey the lands, which could be specifically enforced in this action.
    The original bond was not produced upon the trial, and the copy used had no mark following the name subscribed to indicate that the original was sealed, but the language of the instrument declared that it was sealed

      Held, that this was some evidence of the fact that the original bond was sealed.
    That a sufficient consideration for the defendant’s agreement was shown by proving that the conveyance, made at the same time to the defendant by Cornell, was made pursuant to an undertaking that the defendant should permit the plaintiff to purchase the property at the price mentioned in the bond.
    On .March 31, 1880, thirty-five acres of the land were conveyed by the defendant and his wife to the plaintiff, by a deed expressing the consideration of $3,000, the plaintiff giving back a mortgage to secure $3,200 of the purchase-money.

      Held, that this did not necessarily operate as a satisfaction or rescission of the contract expressed in the bond.
    That as the nature of the liability which the plaintiff might incur for the improvements, which might be made by the defendant, was such that she could not accurately measure their value, and as no means was provided by the contract for determining this question the provision for the payment for such improvements would be construed to create a liabi.ity rather than a condition precedent, and 'that the plaintiff was not required to cover by the tender the value of any improvements which the defendant might have made.
    The defendant offered, but was not allowed, to prove that hi-s wife had refused, and did refuse, to sign a deed conveying the lands to the plaintiff, the refusal of his wife to execute the deed having been alleged in his answer.

      Held, thafothe court erred in refusing to receive the evidence.
    Appeal from a judgment, entered on a decision made at tbe Erie. Special Term.
    The action was brought for the specific performance of an alleged contract to convey lands situated in the town of Alden, county of Erie.
    On the 5th day of February, 1880, the defendant made to the plaintiff his bond in the penal sum of $10,000, containing the condition “that if the said Julia Martin, her heirs, executors, administrators or assigns shall pay to the said Jesse Colby, his executors, administrators or assigns the just and full sum of fifty-eight hundred and fifty dollars, and the interest from the date hereof in one year from the date hereof, then said Jesse Colby, his heirs, executors or administrators shall execute and deliver to the said Julia Martin, her heirs, executors and administrators a good and.sufficient warranty deed in fee simple, with the usual covenants, of the same, lands in the town of Alelen which are described in a certain deed this day executed by Levinus W. Cornell and wife to Jesse Colby, then this obligation to be void, else to remain in full force and virtue; and the said Julia Martin shall pay in addition to the stated sum for all improvements that the said Jesse Colby shall have done on the‘said lands during one year from the date hereof, and the said Jesse Colby shall have all the privileges of the said land as he would have if this writing was not made.”
    The premises referred to in this instrument contained 160 acres, and was described in three parcels, one of which consisted of thirty-five acres, upon which was a cheese factory and some other buildings. . On the 31st day of March, 1880, this thirty-five-acre parcel was, by the defendant and wife, conveyed to the plaintiff by warranty deed expressing the consideration of $3,000. And the plaintiff gave to the defendant a bond, with a mortgage upon the premises, to secure the payment of $2,200 of the purchase-money. The plaintiff, on February 5, 1881, caused’a tender to be made to the defendant of the amount she claimed was then due him of the purchase-money, and requested him to execute to her a deed of the remaining 125 acres. He refused to do this, and claimed that his bond had been canceled and surrendered up to him. ■ Thereupon this action was brought to require him to perform by thg conveyance of this 125 acres.
    The trial court found that the defendant’s bond remained operative and that the plaintiff was entitled to its performance, and directed judgment, which was entered against the defendant that he convey the land to the plaintiff on notice that the purchase-money is paid into court.

      O. F. Tabor, for the appellant.

      L. P. Perkins, for the respondent.
   Bradley, J.:

It is contended on the part of the defendant that this bond does not constitute or contain any agreement of the defendant to support an action for specific performance. And this is urged upon the ground that by it he did not agree to sell, but only to execute, a deed upon a condition, that the plaintiff did not undertake to purchase the premises, and that the bond was in fact made without consideration. The agreement to convey embraces that to sell, and the obligation, in form, imposed upon the defendant by his bond was the performance of the condition expressed in it as effectually as if it was in the form of a simple contract on his part to sell and convey. It is something more than a naked condition, which was that involved in Palmer v. Fort Plain and C. P. R. Company (11 N. Y., 376).

The condition of a bond expresses the purpose for which the obligation is assumed, and has the support of it for the purposes of the remedy. The obligation expressed in the instrument in question is to execute and deliver to the plaintiff a deed upon payment by her of the requisite amount at the time specified. N o question applicable here arose in Turk v. Ridge (41 N. Y., 201). And while that case was correctly decided, some remarks there made by the learned judge were unnecessary to the result. (Booth v. Cleveland Mill Co., 74 N. Y., 15-22; Merrill v. Green, 55 id., 270.) No form of words or phraseology is necessary to'the creation of a contract obligation. It is sufficient that by the language used, the intention of the parties is fairly manifested, and when that is found in the phraseology employed, the instrument must be construed accordingly.

The seal furnishes a presumption of consideration which may be repelled. The original bond was not produced, and the copy used had no marks following the name subscribed to indicate that the original was sealed, but the language of the instrument declares that it was sealed, which is some evidence that the original bond was so.

And the evidence tends to prove, that the conveyance was made by Cornell to the defendant pursuant to an understanding between them that the latter should permit the plaintiff to purchase the property at the price mentioned in the bond, and that it was made at the same time as the conveyance to the defendant, in consummation of such understanding, founded upon reasons to which it is here unnecessary specifically to refer. The obligation of the defendant having been assumed, upon a consideration sufficient to support it, he was charged with the duty and legal liability to perform his undertaking. (2 R. S., 135, § 8; Tallman v. Franklin, 14 N. Y., 584; Worrall v. Munn, 5 id., 229; McCrea v. Purmort, 16 Wend., 460; Justice v. Lang, 42 N. Y., 524.)

The execution and acceptance of a deed of a portion of the premises between the parties, was not necessarily a satisfaction or rescission, of the contract in question. It was a part performance, by consent of the parties, before the time designated for performance, and pursuant to some further arrangement between them, and the effect of such conveyance upon the defendant’s obligation, is dependent upon the agreement which pi’oduced such partial performance. This is the subject of a conflict oi evidence. The evidence on the part of the defendant tends to prove, that at the time of such conveyance of the thirty-five acres to the plaintiff, and pursuant to which it was made and taken, there was an agreement that the bond should Jbe canceled. And he produces at the trial a written instrument, to which the signature of the plaintiff is subscribed, bearing even date with the deed to her, and distinctly stating that the bond is canceled and gives evidence to the effect that the plaintiff executed such written agreement. This is denied by the plaintiff, and the evidence on her part tends to prove that no such arrangement was made; that, she did not subscribe any agreement to cancel the bond, and other evidence is given which it is claimed tends to impeach the instrument. The parties also disagree about the circumstances which led to the conveyance. While the evidence on the part of the plaintiff is that it was made, and the mortgage given at his request and for his accommodation, to enable him to raise money to pay off certain incumbrances then upon the premises, the evidence on the part of the defendant is directly to contrary, and to the effect that it was done wholly for the accommodation of the plaintiff and her husband.

These controverted facts were for the determination of the trial court upon the evidence; and we cannot say that the court has failed, by its finding of the facts against the defendant, to represent the truth of the occurrences between the parties. And in that view the defendant’s bond remained operative and his obligation, on payment of the purchase-money remaining unpaid, continued, and required him to convey the residue of the land to the plaintiff. And the evidence on the part of the plaintiff tended to prove, and the trial court found, that the amount tendered and offered to the defendant was a proper and requisite sum, and was a complete tender of performance on her part, by which she was entitled to receive conveyance of such residue. And that by his refusal the defendant was placed in default. This conclusion of the court is excepted to. And the only question presented by this exception, other than that of fact arising out of the conflict of evidence (the finding upon which we think was justified), is whether the plaintiff was required to cover by the sum tendered the value of the improvements the defendant had made upon the premises during the year.

It appears by the terms of the bond, that it was contemplated that the defendant might make some improvements during the year, and that if he did, the plaintiff should pay him for them 'in addition to the sum before mentioned in the condition of that instrument.

It will be observed that this was not i.n express terms embraced in the sum required to bé paid as the condition upon which the right to a deed depended, but that his conveyance on payment by her of the purchase-price of the land rendered his obligation void, and if he failed, on such payment, to make to, her the deed, his obligation should remain in force. And sucli is tiie interpretation that it should receive. The nature of the liability which might be incurred for the improvements he should make, might be such that she could not accurately measixre the value of them. There was no means provided by the contract to arrive at their value. And in view of the circumstances,-the provision referred to would seem to have been designed to create a liability, rather than a condition precedent for improvements, in the event the defendant made any, and such as were within the contemplation of the parties.

At the time the tender was made the defendant had not furnished and did not then furnish to the plaintiff any statement of the improvements made by him, or of the amount or value of them. He then, evidently, put his refusal to make the deed mainly on his claim, that the bond was canceled,, and that no obligation remained to convey the residue of the premises. He- says: “ I did not put my refusal of the money tendered wholly on the ground that they didn’t tender me any money for improvements, but on the 'ground that the contract was canceled; as to that I told them so, not wholly on that, but on the ground they did not tender me enough money; but I didn’t specify any sum nor any special demand. They said they didn’t tender me any money for improvements.”

It may be assumed that the defendant was married and had a wife at the time he made the bond. She is not a party. The defendant offered to prove that his wife has refused to sign, and will not sign a deed to the plaintiff of the 125 acres, and took exception to the rejection of the evidence. This evidence was probably offered to show, that the defendant could not specifically perform the obligation to give a deed with the stipulated covenants.

The trial court directed judgment that the defendant execute and deliver to the plaintiff a deed of conveyance with specified covenants, constituting what is known as a full covenant warranty deed. And to this conclusion exception was taken. And to the refusal of the court to determine that the deed should not contain any covenant against a claim or right of dower of his wife the defendant also excepted.

11 will be presumed, when nothing appears to the contrary, that a party is able specifically to perform his undertaking to convey; but he is permitted to prove that he cannot, and such fact, when established, is in the way; partially or wholly, of that form of relief, because a party will not usually be directed, by judgment, to perform when he cannot. The deed which the defendant is, by the direction and judgment of the court, required to give, cannot be made unless his wife joins in its executionj and one made by him alone, with such covenants, will not answer the requirement of the judgment. (Jones v. Gardner, 10 Johns., 266; Stevens v. Hunt, 15 Barb., 17.)

If the court should become satisfied upon the trial that the wife would not execute the deed, the defendant would not be unqualifiedly directed by the judgment to convey with covenants covering her right of dower. And the plaintiff is not required to accept a conveyance less valuable than that which performance of defendant’s contract requires. In such event the plaintiff could not take both such a deed as defendant could alone effectually execute, and damages for the deficiency in the conveyance, but the remedy would be for damages only. (Sternberger v. McGovern, 56 N. Y., 12; Dixon v. Rice, 16 Hun, 422.)

The defendant, in his answer, alleged the refusal of his wife to execute the deed. It cannot now be said what effect should or would have been given, if received, to the evidence offered to prove that she refused to, and would not, execute the deed, but it was error to exclude it. And unless the plaintiff is willing to accept a deed of conveyance from the defendant, with covenants so qualified as to obviate that question, a new trial must be granted.

The defendant, by. his obligation, undertook to make to the plaintiff a conveyance with the covenants as directed by the judgment, and she is entitled to it, or to the requisite compensatory damages, assuming that she is entitled to recover. (Jones v. Gardner, 10 Johns., 266; In re Jane Hunter, 1 Edw. Ch., 1, 6; Burwell v. Jackson, 9 N. Y., 535; Delavan v. Duncan, 49 id., 485-487.)

It is not apparent that the evidence of value of the premises could have any legitimate bearing except in the event, that the court should have finally determined that the plaintiff was entitled to relief other than that of specific performance of the contract, which might entitle such evidence to consideration. We think no error can be predicated upon the exception taken to its reception. There seems to be no other question requiring consideration.

The judgment should be reversed and a new trial granted, costs of this appeal to abide the event, unless the plaintiff stipulate, to so modify the judgment as to direct, that the conveyance be made subject to the inchoate right of dower of the person who was the wife of the defendant on the 5th day of February, 1880. And in that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.

Smith, P. J., and Barker, J., concurred ; Haight, J., not sitting.

Judgment reversed and new trial ordered, costs of this appeal to abide the event, unless the plaintiff, within twenty days, stipulates to so modify the judgment as to direct that the conveyance be made subject to the inchoate right of dower of the person who was the wife of the defendant on the 5th day of February, 1880, and in that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either partv.


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    GEORGE HYLAND and JOHN HYLAND, as Administrators, etc., of GEORGE HYLAND, Deceased, Appellants, v. BERNARD BAXTER and Others, Respondents.

      Payments made by an administrator to an infant will not be allowed — when an equitable claim, for supplies and necessaries furnished to the infant will be recognized — the Surrogate’s Court has power to allow such a claim, — sales from a trustee to infant beneficictyies will not be sustained.

    Upon an accounting of ODe George Hyland, as administrator ’ of one Baxter, it appeared that Baxter died on May 27,1862, intestate, leaving a widow, Bridget, and three infant children; that on June 5, 1862, the said George Hyland and the widow were appointed administrators; that Hyland took possession of the personal estate, consisting of livery property, continuing the livery business until August, 1862, when he sold the property on terms of credit, under which the last payment was not made until September, 1866. An inventory was made soon after the appointment of the administrators, but was not filed until in June, 1872; nor was any guardian appointed for the children until in May, 1872.
    Upon the hearing before an auditor, apDointed to examine the accounts of the administrators and report thereon, evidence was given tending to show that the widow and her family were substantially without means of support, other than such as were derived from her services and the estate of the deceased, except that a small amount was received by her from the rent of a house in her possession; that the administrator, Hyland, from time to time furnished her with money and articles of merchandise, which she received in her capacity as administratrix and appropriated to the support of the minor children.

      Held, that as no general guardian had been appointed for the infant defendants, and no one was entitled to receive any portion of the fund in the hands of the administrators, the acting administrator had no legal right to hand over to his co-administrator any of the assets in his hands, or to furnish supplies for the family of the intestate at the expense of the estate.
    That to establish an equitable right in behalf of the administrator to an allowance or credit, as against the estate of the children, the administrator must show that he acted with good faith, and that the necessities of the minors required the expenditure of the moneys.
    That the Surrogate’s Court had jurisdiction to fully adjust and award any equities existing between the parties and in behalf of Hyland.

      Hyland v. Baxter (98 N. Y., 610; affirming S. C., 31 Hun, 354).
    That the fact that it might be difficult to make the apportionment between the children, so as to definitely and correctly charge their respective shares with the amounts supplied, would not justify the court in refusing to make such apportionment, as the same difficulty would have existed in the accounting of the widow, if she had been the general guardian of all the children, as they were of one family.

      A rule which requires the severance of a family for the protection of a guardian in his account, would he harsh and the consequences unnatural.
    The evidence showed that a considerable portion of the amount claimed by the administrator was for goods sold from his store, he being engaged in carrying on mercantile business for profit.

      Held, that unless special reasons were shown to exist in this case those amounts should be disallowed under the rule prohibiting trustees from dealing with infant beneficiaries.
    Appeal from a decree of the surrogate of Livingston county, made upon accounting of George Hyland, as Administrator, etc., of Bernard Baxter, deceased.
    It appears that Bernard Baxter died intestate, May 27, 1862, leaving Bridget Baxter, his widow, and three infant children: Mary, aged seven years; Bernard, aged two years; and Ella, aged seven months. And J une o, 1862, Bridget Baxter, the widow, and George Hyland were appointed administrators. The personal estate consisted of livery property, amounting, as per appraisal and inventory, to $1,481.
    The administrator, Hyland, took possession of the property, and for a short time, and until he could sell it, continued the livery business. He sold it in August, 1862, on terms of credit, which, required monthly payments of twenty-five dollars each and interest. The purchase-money was received by him in installments, and the payment was completed in September, 1866. An inventory was made shortly after the appointment of the administrators, but it was not filed until June, 1872, when it was done pursuant to the order of the surrogate, made in proceeding instituted by the guardian of the infants. There was no guardian for the infants until "Wendell Zimmer was so appointed in May, 1872. And upon his petition the order was made, pursuant to which Hyland filed his account as administrator. It was then referred to an auditor, to examine and report thereon.
    Upon the hearing, the evidence tended to prove that the widow and her family were substantially without means of support, other than such as were derived from her services and the estate of the deceased, except that a small amount was also received by her from the rent of a house in her possession; and that from time to time the administrator, Hyland, furnished her with money and articles of merchandise, and paid some taxes assessed to her on houses and lots in her possession.

      The auditor reported that- the proceeds of t.he personal property which came to Hyland’s hands were....... $1)481 00
    And interest as stated in his account................. 140 00
    Interest surcharged............................... 100 00
    And receipts from use of the livery property between May 26 and July 31, 1862....................... 151 87
    Making..................................•... $1,872 87
    And that he should be credited wifth the payment of debts of intestate, funeral expenses and commissions, amounting to................................... 631 60
    Leaving in his hands for distribution as of September 1, 1867................................ $1,241 27
    Treating one-third as paid to the widow.............. 413 75
    Leaving for distribution to the next of kin.......- $827 52
    Adding interest from September 1, 1867, to time of his report, September 19, 1874..... $415 23
    Less commission on that sum............... 10 38 -- 404 85
    Producing a balance in his hands............... $1,232 37
    . The auditor found that the administrator, Hyland, paid the widow chiefly in articles of merchandise, with some money, equal to the distributive shares of her and the children in the estate, being the same charged in his account, intending such as payment of their distributive shares, but that such payment in his opinion was unauthorized by law, and could not be allowed to him as a credit upon his accounting as administrator in that court; that she received the money and merchandise, claiming them in her right as administratrix, and appropriated the same to the support of the minor children. And on bringing into court the widow, as a party to the proceeding of accounting, the auditor afterward made a further report that she had expended the distributive shares of the minor children “ in providing for their necessaries during their minority, and that if she had expended the same as their general guardian, «the said payment would have been allowed to her, on her accounting as guardian,” but that in his opinion she, as administratrix, had no legal right to make such payments, and such court had no power to allow such payments to the administrators as a credit. And consequently they must be jointly charged as against the next of kin, but that, as between the adminstrators, Hyland was entitled to a decree that the widow pay the same, and that she repay to him so much as. he shall pay to the next of kin.
    The surrogate sustained exceptions to the finding of the auditor, that the money and merchandise received by the widow from Hyland were appropriated by her for the support of the minor children, or for their necessary support during their minority. And in other respects apparently confirmed the report, and a decree was entered December 22, 1876, from which this appeal was taken by the administrator, Hyland, who afterwards died, and the appeal was continued in the name of the present appellants. And the widow having afterwards also died, Bernard Baxter, as administrator of her estate, was substituted as a respondent.

      Oscar Craig, for the appellants.

      J). W. Noyes and Charles J. Bissell, for the respondents.
   Bradley, J.:

The embarrassment of the appellants arises mainly out of the failure of their intestate to observe the .statutory direction to him as administrator of the estate of Bernard Baxter, deceased. He, as such, took possession of the personal estate and converted it into money. He was called upon by the widow of the decedent, his coadministrator, for money and for merchandise, and he furnished them to her. She and her three minor- children constituted her family, and all of them remained at home with her for about five years after the death of her husband, when the eldest child, Mary, went out to work, and did so a considerable portion of the time thereafter.

It may fairly be inferred or assumed, that the money and merchandise so received by the widow of Hyland was used by her in the support of her family, and that some benefit was thus received by all of the children. And it is quite evident, as the court below understood, that Hyland furnished to the widow the merchandise and money in good faith, believing that he was properly supplying the family with the means of support from the estate in his hands of his intestate, and that it was used for such purpose. The family had no means of support other than from the labor of the mother, and this personal estate in the hands of Hyland, except a small amount of rent received for the use of a house, until the expiration of five years after the death of Baxter, when some relief was furnished by the absence and labor of the one daughter. The acting, administrator had no legal right to hand over to his coadministrator any of the assets in his hands, or to furnish supplies for the family of his intestate, at the expense of the estate.

The infant children were not represented by any general guardian, and no one was entitled to receive for them any portion of the fund in his hands. And the question arises whether any equities exist in behalf of this administrator, which fairly require any allowance or credit to him, as against the shares of the children in the estate. "When the rights of infants are involved, a trustee is usually held to a strict accountability in- the line of his duty as such. (Howell v. Mills, 53 N. Y., 322.) And equities are found in his behalf in ease of departure from his legal duty, in the event only of entire good faith on his part, and when it is subservient to the necessities of the minors beneficially interested. The denial of the right to break in upon the capital of funds held for infants, or to obtain reimbursement by the trustee or guardian so doing, has been somewhat rigorously adhered to. (2 Perry on Trusts, § 618; Walker v. Wetherell, 6 Vesey, 473.)

But in this State that rule is not inflexible, and circumstances may arise to justify the impairment of the principal of the fund for maintenance, and when they have so existed and produced expenditure made in good faith, equitable considerations will be applied to reimburse the trustee. (In re Bostwick, 4 Johns. Ch., 100; Hill v. Hanford, 11 Hun, 536.) Such allowance of credit, however, for past disbursements will be given only in cases where the court would have permitted it to be made on prior application in behalf of the infant beneficiary. While the failure of the administrator to file the inventory of the estate or to render and settle his account until required by proceediugs taken against him for those purposes are circumstances of negligence and disregard of duty, they do not necessarily deny to him good faith and purposes in dealing with the fund.

The personal estate which came to him was such, that he was required to sell it on a long installment credit, which did not wholly result in proceeds to him until four years afterwards, and in the meantime the widow was calling upon him for money and goods for the use of her family which he supplied, and which was thereafter continued in like manner. The view of the auditor, as expressed by his opinion, was that the Surrogate’s Court had no power to consider the equities, if any existed in behalf of the administrator, Hyland, with a view to allowance to him of any credit for the moneys and merchandise so advanced by him. And the surrogate did not, in his opinion, expressly adopt or disaffirm that proposition. He placed the confirmation of the report on other grounds.

At all events the apprehension of want of power in that court to treat the equities claimed by Hyland, it seems, induced him to bring an action in the Supreme Court for such alleged purposes, in which he, failing to get relief at the trial court, sought review at the General Term, where the judgment was affirmed (Hyland v. Baxter, 31 Hun, 354), and on appeal to the Court of Appeals it was there held that the decree of the Surrogate’s Court was res judicata, because that court had jurisdiction to fully adjust and award any equities existing between the parties and in behalf of Hyland, and that his remedy and relief, if he was entitled to any, must be found in the review of such decree, and the judgment was affirmed. (98 N. Y., 610.)

If it be assumed that the administrator was equitably entitled to allowance of credit in his account for moneys furnished by him to the support of the infant beneficiaries, there is some difficulty in making the apportionment between them, so as definitely and correctly to charge their respective shares with the amounts supplied. This is one ground upon which the surrogate put his conclusion as appears by his opinion. And such was the view expressed in the opinion of the General Term on review of the judgment in the action before mentioned on the facts there presented. It is contended that by such decision the questions here were disposed of adversely to the appellants.

That was a review of the findings of the trial court, and they were entitled to the most favorable view which could legitimately be taken of them upon the evidence. And, as appears by the determination finally made by the Court of Appeals, such question was not properly in the action for consideration. Although the matter of the accounting and determination were theoretically had before the surrogate, the auditor was instrumental in taking the evidence and making the report upon which the decree was directed. And his view that there was no power in that court to determine the equities, if any there were, excluded from his consideration that question. And it is not apparent that the surrogate entertained a contrary view of the jurisdiction of his court in that respect. The question at least was one then not free from difficulty. And there is reason to apprehend, that the subject of controversy here may not have received the attention which it would have had if the power to extend the inquiry beyond the legal duties of the administrator,. and to equitable considerations, had been clearly assumed by the Surrogate’s Court. The auditor found substantially that these funds went to the support of the family. There is no specific finding of necessity of the infants for such contribution to their maintenance. And in the auditor’s view of want of power, such fact was necessarily deemed by him of no importance.

The finding of such fact we cannot say is not justified by the evidence. It tends to prove that on the deach of Baxter the family were substantially without means of support, other than such as the estate of the decedent might supply. The question of apportionment between the infants of the fund,, which may be deemed as applied to their joint maintenance and support, is one of some difficulty. But it does not appear that no means are, or can be, furnished by the evidence to apply, to greater or less extent, a rule for that purpose. The question of its accuracy must necessarily be that of judgment, having in view all the circumstances, which should be carefully exercised for the protection of their interests, respectively.

It may be seen that the same difficulty may have existed in the accounting of the widow, if she had been the general guardian of all the children, as they were one family. A rule which requires the severance of a family for the protection of a guardian in 1ns account, would be harsh, and the consequence unnatural. This matter should go back to the surrogate for rehearing, unembarrassed by any question of power or jurisdiction.

But unless special reasons appear, and are applicable to the account for merchandise rendered in this case, it should not be allowed as against the infants’ fund. The permission of a trustee to deal with infant beneficiaries, by selling to- them his property, and thus charging the fund, cannot, without liability to great abuse, be permitted. And the rule which ordinarily denies such right is, for obvious reasons, a salutary one.

The administrator was in the mercantile business. A considerable portion of his account rendered is for goods sold from his store. This business was carried on for profit. How much profit was within the prices charged does not, and probably cannot, appear. While there may be circumstances -which will justify the allowance of such a claim, and when credit should be permitted, it is safer, generally, to apply the rule somewhat rigorously against the allowance of such dealing with the funds of infants by trustees than to indulge departure from it.

Tn the view taken of this case, we see no basis upon which direction can be given here which will enable the parties to obviate a rehearing. The decree should, therefore, be reversed and a rehearing had of the matter of accounting in the Surrogate’s Court, costs of this appeal to abide the final award of costs.

Smith, P. J., and Barker, J., concurred.

Decree reversed and rehearing ordered in the Surrogate’s Court of Livingston county, costs of this appeal to abide the final award of costs.


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    THE FIRST NATIONAL BANK OF UNION MILLS, Appellant, v. JUDSON H. CLARK, Respondent.

      Certificate of deposit — when a promise to pay will be implied therrefrom — what facts establish a transfer thereof.

    On December 5, 1882, tbo defendant, a private banker, discounted a note for $3,500, made by Knox Brothers to, and indorsed by, Sliney & Whelan, upon the oral understanding that the proceeds should not be paid until the fifteenth of the month. The defendant’s cashier then gave to Sliney & Whelan an instrument in the following form: “Deposited by Sliney & Whelan with Judson H. Clark, banker, Scio, N. Y., December 5,1882; discount $3,412.50.” On the same day this instrument was delivered by Sliney & Whelan to the plaintiff, at its bank, with a check for $3,412.50, drawn by them upon the defendant, payable to their own order ten days after date, and indorsed by them, the plaintiff then paying to them that amount, less interest for thirteen days. Knox Brothers and Sliney & Whelan having failed before December fifteenth, and the defend ant having failed to pay the amount named in the instrument to the plaintiff, this action was brought to l^cover the same.

      Held, that the certificate prima faeie represented an undertaking on the part of the defendant to pay the sum mentioned in it to the depositors on demand, and that a transfer of the certificate would transfer all the right possessed by the depositors against the defendant in respect to the deposit.
    That even if this were not so, yet as the evidence produced upon the trial was sufficient to enable the jury to find that the intention of the parties to the transaction was to effect a transfer of the claim against the defendant, from Sliney & Whelan to the plaintiff, and that this transfer was made, the court erred in directing a nonsuit upon the ground that the plaintiff had failed to show an assignment of the claim.
    Appeal from a judgment, entered on a nonsuit directed at tbe Allegany Circuit.
    The defendant was a private or individual banker at Scio, N. Y. The evidence tends to prove that on the 5th day of December, 1882, Sliney & Whelan indorsed and presented a note, made by Knox Brothers for $3,500, to the defendant’s bank for discount, and that it was there discounted with the oral understanding that the proceeds should not be paid until the fifteenth of the month, and thereupon the defendant’s cashier gave to Sliney & Whelan a deposit check or certificate in the following form:
    “Deposited by Sliney & Whelan
    JTTDSON H. CLARK, Banker,

      Scio, N. Y., December olh, 1882.
    Discount, $3,412.50.
    F. M. BABCOCK.”
    That on the same day this deposit check was delivered by Sliney & Whelan to the plaintiff, at its bank, and with it a check drawn by them upon the defendant, payable to their own order ten days after its date, and indorsed by them for $3,412.50, was also delivered to the plaintiff; that the plaintiff then advanced or paid to them that amount, less interest for thirteen days; that on the seventh December the two cheeks were inclosed by the plaintiff to the defendant in a letter asking return in New York exchange, and on the nineteenth they were returned by the defendant to the plaintiff with the statement that there were “ no funds to meet it,” and that afterwards the defendant refused, on presentation of the checks and on demand, to pay the amount to the-’plaintiff. It also appeared that after the deposit check was made, and prior to the fifteenth December, Knox Brothers and Sliney & Whelan failed and made a general assignment for the benefit of their creditors. The defendant’s motion for a nonsuit, on the ground that the plaintiff had failed to show an assignment of the claim from Sliney & Whelan to it,, was granted and the plaintiff excepted.

      Ansley c& Dame, for the appellant.

      Rufus Seott, for the respondent.
   Bradley, J.:

The question presented here is whether the evidence was sufficient to permit the conclusion that the plaintiff derived from Sliney & Whelan title to the alleged claim against the defendant for the amount of the deposit. Assuming that Babcock represented the defendant in making it, the certificate was in effect an acknowledgment by the latter that the sum mentioned had been deposited in his bank, in the manner so indicated. This certificate contains no express promise to pay, and it is, therefore, contended that it is nothing more than a mere receipt in its legal import and effect.

In Hotchkiss v. Mosher (48 N. Y., 482), it was remarked by Leonard, C., that “ a simple certificate ” (like the one there in question) “ is not the basis of an action, like a' promise in writing, but would be evidence like a receipt to raise an implied promise to pay, in an action for money had and received.” And Daniel, in his work on Negotiable Instruments, has adopted the same proposition. (Sec. 1704.)

In that case the action was brought to recover for the alleged conversion of some promissory notes, to which the plaintiff claimed title. One question raised was whether the plaintiff had paid the defendants for the note. It appeared that for a portion of the sum claimed to have been, paid, the defendants had given the plaintiff a certificate to the effect that he had deposited such amount with the defendants. And it was held that parol evidence was competent to prove that the money for which the certificate was made was, in fact, received in payment for the notes. The learned judge there said the certificate contained no promise on the part of the defendants, and if it had, the portion which operated as a receipt for money was quite as capable of separation from that part which evidenced a contract as in the case of a bill of lading.” The question whether a promise would be implied in such a certificate to pay, was not in Hotchkiss v. Mosher.

So far as it contained the elements of a receipt, merely as such, it was treated as subject to explanation and modification by parol evidence, and this was clearly right as there illustrated. (Meyer v. Peck, 28 N. Y., 590; Abbe v. Eaton, 51 id., 410.) But the instrument here is prima facie evidence that the amount stated in it was received by the defendant as a deposit and, therefore, the certificate furnished the evidence of an implied obligation of the defendant to pay the amount to the depositors, or to those succeeding to their rights.

In Payne v. Gardiner (29 N. Y., 146; affirming S. C., 39 Barb., 634) an action was supported upon a certificate containing no express promise to pay ; and see Pardee v. Fish (60 N. Y., 265; affirming 67 Barb., 407). In none of these cases was the question here necessarily considered, although it was somewhat involved in the facts upon which Payne v. Gardiner was determined.

In Long v. Strauss, recently decided by the Supreme Court of Indiana (reported in 6 N. E. Rep , 123; 7 id., 763, and in 34 Alb. Law Jour., 71 and 152), it was held that a mere certificate of deposit was a "contract, having the effect of an acknowledgment of receipt of money and a promise to pay it, although no promise was expressed ; and in Smiley v. Fry (100 N. Y., 262) the character of a certificate of deposit, as distinguished from a promissory note, and a deposit, as distinguished from a loan, are considered.

We think the certificate in question prima facie represented an undertaking on the part of the defendant to pay the sum mentioned in it to the depositors on demand. It declares that they have deposited such amount with the defendant; the law supplies by implication such undei'taking. In that view a transfer of the certificate would have the effect to transfer all the right possessed by the depositors against the defendant in respect to the deposit. But without treating the certificate as a contract to pay on demand there was sufficient in the evidence to send the case to the jury. It was necessary, to the support of the action, to find a transfer to the plaintiff of the claim against the defendant. The check drawn by Sliney & Whelan, and delivered to the plaintiff, not having by its terms been drawn on a particular fund, did not operate as an equitable assignment of the claim within the law of this State. (Attorney General v. Continental Life Ins. Co, 71 N. Y., 325.) The rule is otherwise, in some of the other States, when the check or draft in fact covei’S and corresponds in amount with the entire fund in the hands of the drawee.

The evidence given of the transaction between the depositors and the plaintiff, was susceptible of a construction, and permitted the conclusion, that a transfer of the claim was made to the plaintiff in any view which may be taken of the nature of the certificate of deposit. It is sometimes designated in the evidence as a deposit check.

The member (Sliney) of the firm who did the business says he took this deposit check to the plaintiff, and gave the firm check on the defendant banker to it; that at the time he transferred the claim to the plaintiff, he transferred the deposit check to it, and the plaintiff’s cashier gave him the money on it. And on his ctossexamination he is asked : “ By transferring this deposit check, you mean you simply delivered it to Mr. Sill ? A. Yes sir; I got the money on it. Q. Did you do anything more ? A. I gave him the check on Mr. Clark’s bank.” And Sill, the plaintiff’s cashier, says that Sliney came to him at the bank, talked about a claim he had against the defendant’s bank, produced the deposit, check, and said he had so much money in his bank, the proceeds of a note discounted there, had agreed to wait ten days, and wanted to use the money, and wished to have the plaintiff discount those papera; and I let him have the money.” And then follows: “Q. What did you discount, the claim or the check? A. The claim. Q. Then yon purchased the claim that he then stated he •had against Clark ? A. Y es, sir. Q. What was the check giver for ? A. To draw the money.”

There was sufficient to enable the jury to find that the intention of the parties to the transaction was to make and take a transfer of the claim against the defendant, and that it was consummated by them. No formal words of transfer were requisite to produce such result. It will answer if the transaction was. characterized by the evidence as such. The plaintiff paid substantially the full amount of the claim. The money advanced did not necessarily purport to be a loan to Sliney & Whelan, but may be construed as payment for the claim represented by the deposit, the delivery and taking the certificate of deposit as the evidence it furnished of the claim, and the check as the means to enable the plaintiff to draw the amount of it from the defendant’s bank. At all events, the jury were authorized to so infer.

It appears sufficiently for that purpose by the evidence of both Sliney and Sill, that they assumed that the claim was transferred to the plaintiff, and that the latter took title to it. The united understanding of those parties to that effect, in view of the purpose and circumstances of the transaction, was sufficient to fairly present that question. And the evidence may be so construed as to permit the conclusion that their minds met at the time in that respect, and produced-such result, and for that purpose effect is to be given to the transaction itself, as well as to the words used to ascertain what they intended to and did accomplish. All which, as well as the matter of credibility of the witnesses, were for the jury. (Risley v. Phenix Bank, 83 N. Y., 318.)

The evidence was also sufficient to permit the jury to thefind that person who received the note at the defendant’s bank and made the certificate of deposit was authorized to do so, and represented the defendant in what he did, and that the certificate was that of the latter for the purposes for which it purported to have been made.

These views lead to the conclusion that the case should have gone to the jury on the evidence as it stood when the motion for nonsuit was made and granted. No facts now appear to render the failure and consequent insolvency of the makers and indorsers of the note, alleged to have been discounted by the defendant, important.

Other considerations might arise if the diseount of the note had not become perfected before such failure, but existed in executory agreement until after it occurred. (Benedict v. Field, 16 N. Y., 595; affirming S. C., 4 Duer, 154.) But, on tbe evidence presented by tbe record, there is no support for the contention that the agreement to discount the note and give credit for the proceeds remained in executory agreement of the parties to that transaction at the time of such failure, and it is unnecessary to give that question any consideration.

The judgment should be reversed and a new trial granted, costs to abide the event.

Smith, P. J., BaeKer and Haight, JJ., concurred.

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


author: Beadley, J.:

text:
    JOHN M. SMITH, Appellant, v. SETH A. TOZER, Respondent, Impleaded, etc.

      Receiver in supplementary proceedings— the title to only such real estate of the debtor as lies within this State is vested in Mm — Oode of Civil Procedure, sec. 2468.
    Upon an appeal by tbe plaintiff from an order made at a Special Term denying bis motion that 'tbe court direct and require tbe defendant to execute and deliver to tbe receiver — appointed in supplementary proceedings instituted upon tbe judgment recovered in tbis action — a conveyance of bis interest in lands situate in tbe State of Illinois, and punish him, for contempt, because of bis disobedience of an order of tbe county judge of Ontario county directing him to make such conveyance:

      Meld, that tbe order should be affirmed.
    That tbe power conferred by sections 297 and 298 of tbe old Oode upon tbe judge acting in such proceedings to order any property of tbe judgment debtor, not exempt from execution, to be applied towards tbe satisfaction of tbe judgment, ceased upon tbe repeal of these sections by chapter 417 of 1877.
    That although this court may and will exercise its equity powers at Special Term upon motions to compel conveyances to be made to receivers, in actions where the facts and circumstances are such as not to require a trial of issues in an action brought for the purpose of determining the question upon which the right to relief depends, yet it could not make the order applied for in this case, for the reason that the title to the real estate in Illinois was not vested in the receiver, as section 2468 of the Code of Civil Procedure, providing for the vesting of the property of the judgment debtor in the receiver, expressly excepts “ real property,” the title to which is “ only ” to vest in him from the time when ' the order, or a certified copy thereof, is filed with the clerk of the county where it is situated, thereby requiring the situs of all real estate, to be vested in Mm, to be witMn the limits of this State.
    That the plaintiff’s remedy was by a judgment creditor’s action under the provisions of article 1 of title 4 of chapter 15 of the Code of Civil Procedure.
    Appeal from an order of the Monroe Special Term, denying the plaintiff’s motion for an order directing and requiring the defendant to execute and deliver to a receiver conveyances of his interest in lands situate in the State of Illinois, and to punish him for contempt for disobedience of the order of the county judge of Ontario county directing him to make such conveyance.

      II. M. Field, for the appellant.

      Spencer Gooding, for the respondent.
   Beadley, J.:

The plaintiff recovered, in an action in this court, judgment against Seth A. Tozer and another defendant, upon which execution against the property of the defendants was returned unsatisfied. Thereupon, proceedings supplementary to execution were instituted before the county judge of Ontario county against the defendant Seth A. Tozer, and, after his examination,'a receiver of his property was appointed by the order of such county judge, and by the order such defendant was directed to execute and deliver to the receiver a proper assignment and conveyance of all his lands and real estate wherever the same are situated, and particularly the lands and real estate in the counties of Williamson and Platt, in the State of Illinois.” This order was duly filed and recorded in the office of the clerk of Ontario county, January 19, 1886 And the receiver having duly qualified, served the defendant with such order, and thereafter presented to him for execution quit-claim deeds of the Illinois lands in question and requested him to execute them, which the defendant refused to do.

This motion was then, upon due notice to the latter, made and denied.

On the part of the plaintiff it is contended that the order of the county judge was an effectual requirement for the execution of a conveyance to the receiver of such lands, and that his refusal to do so charged him with contempt, and subjected him to punishment as the consequence. No question is made as to the manner of bringing Mm before the court for that purpose; and it is unnecessary to inquire whether it could be done otherwise than by an order to show cause. The question is one of power of the judge to direct by order the execution of the conveyance to the receiver. It was within the power of the judge in such proceeding given by the old Code to order' any property of the judgment debtor, not exempt from execution, to be applied towards the satisfaction of the judgment (sec. 297) and to appoint a receiver with ample powers to consummate the purposes of such order. (Sec. 298.) And it was held that those provisions made an order of the judge before whom the proceedings were had effectually operative upon the judgment debtor in respect to his lands situated outside the State. (Fenner v. Sanborn, 37 Barb., 610.) In that view, the inquiry here is whether there has been any modification of the statute to deny such effect to the order in question. Those sections were repealed by Laws of 1877 (chap. 417). And the Code of Civil Procedure supplies all the provisions now relating to proceedings supplementary to execution as such.

The power of the judge in them is wholly dependent upon the statute. There is no remaining provision of the statute authorizing the judge to order the application towards the payment, or the delivery, or transfer, to the receiver for such purpose of any other than personal property of the judgment debtor. (Code Civil Pro., § 2447.) The direction in the order to assign or convey the real property, situated in the State of Illinois, was not within the power of the judge and, therefore, the judgment debtor was not in contempt. The judge may appoint a receiver, in whom the property of such debtor becomes vested by force of the statute, subject to certain exceptions. (Id., 2468.) The powers of the receiver are ample to reach and make available the property of the judgment debtor within the jurisdiction of the court, and there is no apparent reason why aid may not be given, by the direction of the court, requiring him to transfer to the receiver any of his property outside the State which becomes vested in the receiver by virtue of his appointment. The equity power is inherent in this court, having jurisdiction of the person of a judgment debtor to require him to transfer to the receiver any property so.vested in the latter, when such transfer is necessary to its appropriation by him for the purposes of the trust, although such property is beyond the jurisdiction of the court. (Mitchell v. Bunch, 2 Paige, 608-615; Bailey v. Ryder, 10 N. Y., 363; Fenner v. Sanborn, 37 Barb., 610.) And for other purposes the court, having like jurisdiction of the party, has frequently exercised its power of requiring him to perform acts relating to property beyond the State, when his duty to do so has been judicially declared. (Newton v. Bronson, 13 N. Y., 587; Gardner v. Ogden, 22 id., 327; Williams v. Fitzhugh, 37 id., 444; Shattuck v. Cassidy, 3 Edw. Ch., 152.) This court, in an action by the receiver, might require the defendant to transfer or convey to him any property vested in him, which may be in another State when such transfer or conveyance is necessary to its proper appropriation in the execution of the trust. And this court may and will exercise equity powers at Special Term, upon motions, in actions, when the facts and circumstances are such as not to require a trial of issues in an action for the proper determination of the questions upon which the right to relief depends. (Wetmore v. Law, 34 Barb., 515-517; Hale v. Clauson, 60 N. Y., 341.)

Although this is a special proceeding, it is such in the action, and auxiliary to the purpose of enforcing the collection of the judgment, which is one of the purposes for which the action was brought. And the legitimate remedies attendant upon the proceeding, and to render it effectual, so far as the orders of the court may be required, are taken as in the action. When the receiver was appointed he became subject to the direction and control of the court. (Sec. 2471.) No dispute of the facts appeared by the papers upon which this motion was heard, and the question presented is whether the direction asked for came within the power of the court.

This, in the view taken, depends upon the right the receiver took by his appointment, by force of the statute, to the property in question. The statute provides that the property of the judgment debtor is vested in the receiver from the time of filing the order appointing him, subject to the exceptions that real property is vested in the receiver, only from the time when the order or a certified copy is filed with the clerk of the county where it is situated, etc. (Code Civil Pro., § 2468.) The real property in Illinois cannot come within the exception, nor is any real property vested in the receiver which does not come within it, because, by the terms of the section,' all the real property vested in the receiver is that embraced within the exception, and its situs must be in this State.

If the exception by qualification in terms had limited the real property mentioned in it to that situated in this State, the vesting provision of the section might have a broader construction, but as it is, the only real estate which the receiver is permitted to take, by force of this section is that which is situated in a county where the order may be filed. And our attention is called to no other provision of the statute enlarging the power of a receiver appointed in such proceeding in the respect in question. The plaintiff, however, is not without remedy. The provisions taking the place of the statutory creditors’ bill for discovery, etc., authorized by the Revised Statutes (pt. 3, chap. 1, tit. 2, art. 2), and somewhat enlarging them, furnish a requisite remedy (Code Civil Pro., chap. 15, tit. 4, art. 1), as in such an action the court may, by judgment, appoint a receiver, and direct the judgment debtor to convey to him, etc. (Id., § 1877.) The difficulty in the way of relief by motion here is found in the qualified power of the receiver. He is not vested with the real property of the debtor situate without the State and, therefore, could not by action, or any proceeding in invitum, acquire a conveyance from him.

The views taken lead to the conclusion that the order should he affirmed.

Smith, P. J., and Baeiock, J., concurred; Haight, J., not sitting.

Order affirmed, without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE SEMINARY OF OUR LADY OF ANGELS, Appellant and Respondent, v. THOMAS M. BARBER and Others, as Assessors, AND GALEN MILLER, as Supervisor of the Town of Lewiston, Niagara County, New York, Appellants and Respondents.

      Taxation — exemption of buildings, and the lots on which they stand, of colleges — 1 Revised Statutes, 388, section 4, subdivision 3, as amended by chapter 39 /' of 1883 — duty of assessors in entering property omitted from the roll of last year.

    The policy of this State, as displayed in the laws providing for the exemption from taxation of the property of colleges, incorporated academies and other seminaries of learning, has been from an early day to encourage, foster and protect corporate institutions of religious and literary character, because the religious, moral and intellectual culture afforded by them were deemed, as they are in fact, beneficial to the public, necessary to the advancement of civiliza- : tion and to the promotion of the welfare of society.
    Although the statute does not in terms prescribe the purposes for which the lot on which the buildings are situated may be used, nor its dimensions, yet a reasonable interpretation thereof requires that the lot be devoted to no use other than that which is necessary or fairly incident to the use and purposes of the institution, and that its dimensions be governed by the reasonable and proper uses to which it is applied, rather than by its magnitude when it is within reasonable limits in that respect.
    That as suitable recreations and physical exercise are deemed requisite to health and successful mental culture, the means and opportunity required for that purpose may properly be provided upon the premises of a literary institution for its students.
    The relator, which was incorporated “ to establish and maintain a seminary of learning in the county of Niagara for the care and education of young men,” acquired title, as authorized by the acts incorporating it, to a tract of land on the east side of and adjacent to the Niagara river, in the town of Lewiston, extending back from the river about one mile, and being in width about one-half mile, containing, exclusive of a highway and of the lands of a railroad company which runs northerly and southerly through the premises, about 294 8-luu acres. The buildings are near the west end of the farm and consist of a college building, a chapel and other buildings occupied as a tailor shop for repairing the clothes of the professors and pupils, a shop for repairing their shoes, a music and band-room and some sleeping-rooms, a laundry, a wood-house and bake shop, a carpenter’s shop, a machine shop, a gas-house, a boiler-room and some dwellings. The buildings are occupied and used and the business is carried on for the benefit and purposes of the institution and the teachers and students of the college. There is also a cemetery and an apple orchard on the premises.
    The land farther east is used for raising vegetables, grain, hay and for pasturage; horses being kept for the purpose of working the land and upwards of thirty cows to supply milk and butter. The teachers and students are furnished by the corporation with board, and their washing and mending is done for them, the students being charged therefor. All the products of the farm are used upon the premises to supply those engaged there as teachers, students and servants.

      £{eld, that as the farm on which the college building is situated was used for the maintenance of the college and in support of its efficiency in aid of education, and seemed to be wholly devoted to the purpose of the institution, and as its extent did not seem to be unreasonably great, the whole tract of land was entitled to be exempted from taxation under the provisions of subdivision 3 of section 4 of 1 Revised Statutes, 388, as amended by chapter 397 of 1883.

      It seems, that in entering land upon the assessment-rolls for an omitted tax of the preceding year the assessors can exercise no discretion. Their powers and duties being, in this respect, merely ministerial, they can do no more than to enter the same valuation as that of the year before. (Bradley, J.)
    Appeal from an order of the Erie Special Term modifying an assessment.
    This is a proceeding by certiorari to review the assessment of 1885, made of the relator’s property. The relator was incorporated “ to establish and maintain a seminary of learning in the county of Niagara, for the care and education of young men,” by Laws of 1863 (chap. 190). And it was by the act provided that whenever, in the opinion of the regents of the university, the state of literature of the seminary and the value of its property should justify it, they might, on the petition of the trustees, erect it into a college. (Id., § 6, amended by Laws 1883, chap. 92.) And it was authorized to take title to certain property. (Laws of 1877, chap. 273.) The institution was erected into a college by the regents of the university, by an instrument to that effect of date of August 7,1883, recorded in their book of incorporations September 27, 1883.
    The relator’s land is on the east side of and adjacent to the Niagara river, in the town of Lewiston, and contains, exclusive of the highway and the Rome, Watertown and Ogdensburg Railroad, running through it, 294-^5- acres. This railroad runs northerly and southerly through the premises, and is east of the college building and chapel. In 18S4 the east part, and all except forty-five acres of the land, was assessed as 250 acres at fifty dollars per acre, $12,500, and the tax levied was $137.76. This assessment was in proceeding by certiorari stricken from the roll for informality in its entry upon it. In 18S5 assessment was made of the premises, excepting designated portions, making fourteen forty-seven one-hundredths acres. And that assessed was inserted at 271 acres at fifty dollars per acre, $13,550, and tax levied $19I.3é. And the omitted tax of 1881 was made as upon 271 acres, at a valuation of $13,550, and tax levied, $149.33.
    This proceeding was taken to review the assessment of 1885 and the entry as for the omitted tax of 1884. The Special Term struck out the entry of the assessment as fo.r omitted tax, and modified the other by extending the exemption so as to cover twelve sixty-nine one-hundredths acres more of the premises and reduced the assessment accordingly. Both parties appeal.

      G. II. c& T. H. Pipper, for the relator.

      Joel L. Walker, for the defendants.
   Bradley, J.:

The statute under which the exemption is claimed by the relators provides that “every building erected for the use of a college, incorporated academy, or other seminary of learning, and in actual use for either of such purposes; every building for public worship, every school-house, court-house and jail, used for either of such purposes, and the several lots whereon such buildings so used are situated, and the furniture belonging to each,” shall be exempt from taxation. (1 R. S., 388, § 4, sub. 3, as amended by Laws of 1883, chap. 397.) The buildings of the relator, so far as requisite for the purpose, come within the provisions of this statute. They have been for many years and were, at the time of the assessments, used as and for a seminary of learning. The question here is whether the exemption extends to all the land there owned by and in the occupation and use of the relator, or whether less than the whole, and if so, how much, and what portion of it, properly comes within such protection.

The land constituting this farm was known as lots 27 and 28 of the “Mile Reserve,” and extends back from the river about one mile, and is in width about one-half mile. The buildings are near the west end of the farm, and consist of a college building, a chapel and other buildings occupied as tailor shop, for repairing the clothes of the professors and pupils, a shop for repairing their shoes, a music and band-room, and some sleeping-rooms; a laundry, a wood-house and balje-shop, a carpenter shop, a machine shop, a printing office, a gas-house, a boiler-room, and some dwellings. The buildings are occupied, used, and the business carried on for the benefit and purposes of the institution and the teachers and students of the college. There is also a cemetery and an apple orchard on the premises.

The land further east is used for raising vegetables, grain, hay, and for pasturage. Horses are kept for the purpose of working the land, and upwards of thirty cows to supply milk and butter. The teachers and students are furnished by the corporation with board, and washing and mending are done for them there, and the students are charged for it. All the products of the farm are used upon the premises, to supply those engaged there as teachers, students and servants, and are said to be insufficient for such purposes. The number of students was 190, from September, 1884, to June, 1885. Since then the average has been 150. The college has capacity for 225. From the printing office is issued, to subscribers, a paper edited by students, and some job work is done there. The premises, as a whole, are operated for the benefit of the institution, and the system by which they are conducted seems to be one for its maintenance. Its purpose, evidently, is self-support.

The policy of the law has been, in this State from an early day, to encourage, foster and protect corporate institutions of religious and literary character, because the religious, moral and intellectual culture afforded by them were deemed, as they are in fact, beneficial to the public, necessary to the advancement of civilization, and the promotion of the welfare of society. And, therefore, those institutions have been relieved from the burden of taxation by statutory exemption.

This statute is entitled to such a construction as will permit it to serve the purposes in view. There is, by its terms, no qualification of the purposes for which the lot on which the buildings are situated may be used, nor is the dimension of the lot prescribed; but a reasonably necessary interpretation requires that tbe lot be devoted to no use other than that which is necessary or fairly incident to the use and purposes of the institution. The contemplated dimensions of the lot must, in like manner, be governed by the reasonable and proper uses to which it is applied rather -than to its magnitude when within reasonable limits in that respect. Suitable recreation and physical exercise are deemed requisite to health and successful mental culture. The means and opportunity for that purpose may, therefore, properly be provided upon the premises of a literary institution for its students. This was the view of the Special Term, and its order embraced within the exemption all those portions of the land in question devoted to such purposes. The inquiry now arises whether that portion of the lot or farm which supplies the substantial maintenance of the relator, that which furnishes its vegetables, the grain for its bread, the milk, butter and pork for its ^table, come within the like protection. The farm upon which the college building is situated is used for the maintenance of the college, goes in support of its efficiency in aid of education and seems to be wholly devoted to the purposes of the institution and in its behalf. And, so far as adequacy may furnish a guide in that direction, it does not here appear that the extent of the premises is unreasonable for those purposes. The question presented does not seem to have often arisen under the statute.. The question has in this State usually been one of concession rather than litigation.

In People ex rel. Academy of the Sacred Heart, etc., v. Commissioner of Taxes (6 Hun, 109), the relator was an academy, its buildings were upon premises owned by it, containing about fifty acres. The buildings covered five acres, a garden occupied eight acres of it, where vegetables were produced for the use of the teachers and pupils, and thirty-six acres were used for walks and recreation of the students. The court there held that the entire land was within the meaning of the statute exempt from assessment from taxes. And this was affirmed by the Court of Appeals. (61 N. Y., 656.)

In People ex rel. St. John's College v. Commissioner of Taxes (10 Hun, 246), the lots ou which the college buildings were situated comprised 103 acres, the portions not occupied by the buildings were used as a vegetable garden and for farming purposes for the pupils, teachers and officers of the college, as a cemetery, and for the recreation and walks of the pnpils. It was held that the land was exempt from taxation. The rule of construction of the statute adopted in those cases appears to be applicable to the case at bar. The difference in quantity of the lands there and in this case does not seem important, inasmuch as all portions of the lot or farm in question are in use for the purposes of the college, its pupils, teachers and servants, and its products are wholly devoted to, and exhausted by, such use. The question is wholly one of statutory construction and not of discretion of the assessors, when the facts are not in dispute. When they made the assessment the assessors may not have had the means of information satisfactory to them of the operation of the land and the uses made of its products.

The premises appeared to have the management common to farming lands, and were operated for like general purposes, and in like manner divided by fences into fields for{grain, meadow and pasture.' The facts are not questioned by the evidence that the agricultural and horticultural business of the farm are conducted by the relator through its servants, for the single purpose of furnishing supplies for its maintenance, upon the system adopted by it to carry on its work of education. And whether or not this may be deemed the better manner to- aid the result, in view of or within the legitimate purposes of the institution, is not the subject of inquiry here, but is matter of its discretion, unless it may be seen that it is an improper exercise of corporate power in aid of or to accomplish the purposes of its organization. It is not so treated. (People ex rel. St. John's College v. Comr. of Taxes, supra ; Wesleyan Academy v. Wilbraham, 99 Mass., 599.)

The question presented by this case is one of some importance, in view of the quantity of land embraced in the lot, and of the fact that the products are used to some extent to supply the students with board for a consideration by them paid.

In the view taken here, this is not done as a means of profit, as distinguished from that of maintenance of the institution, but as the latter, and for its support in the accomplishment of its educational purposes. This construction of the statute seems to lead to the conclusion that the limit is measured only by adequacy, when the situation in other respects comes within the statute, and that any other rule must be dependent upon legislation. And although this construction is not made entirely clear by the terms of the statute, the adjudications referred to seem to furnish authority for its support.

The fact that the lot is intersected by a highway, and a railroad constructed through it, does not, we think, affect its character as a lot, in its relation to the institution as such, within the meaning of the statute. The question was, to some extent, in the St. John’s College case. While most of the buildings are west of the railroad there are some east of it, “erected for the use of seminary,” within the meaning of the statute.

The amendment of 1883, given to the statute, is not a modification bearing upon any question in this’ case. The purpose and effect of the amendment were to designate, as the buildings within the statute, those only which are in use for the specified purposes.

These views render the consideration of the question relating to the omitted tax of 1884 unnecessary.

We think that question was properly disposed of at the Special Term. In entering the land upon the roll of 1885, as for an omitted tax of the preceding year, the assessors could exercise no discretion. Their powers and duties in that respect were ministerial. They could properly do no more than to enter the same valuation as that of the year before, and the board of supervisors were required to levy a tax at the same rate per cent as that of such year. (Laws of 1865, chap. 453; People ex rel. Oswald v. Goff, 52 N. Y., 434.) We think the assessors were not permitted by this statute, with a view to an omitted tax, to insert on the roll a greater valuation than that of the preceding year, although they made entry as original assessment of an increased quantity of land, but that they should have 'been governed by the judicial action of the assessors of such preceding year.

If the view taken of this case is correct, the conclusion follows that the judgment should be reversed, so far as it sustains the assessment of any portion of the relator’s land, and so modified as to direct that the assessment of 18S5 be stricken from the roll, and in other respects, and as so modified affirmed.

Smith, P. J., and Barker, J., concurred; Haight, J., not sitting.

Judgment, so far as it sustains the assessment of any portion of the relator’s land, reversed, and so modified as to strike the assessment of 1885 from the roll, and as so modified affirmed, without costs to either party.