author: PATTERSON, J.

text:
    Samuel Rheinstrom, Resp't, v. Samuel J. Weir, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed May 1, 1896.)
    1. Place of trial—Change—Affidavit.
    Affidavits to change the place of trial on the ground of convenience of witnesses must state that the moving party can prove the material fact by the persons named, and it is not enough for-the moving party to say that he expects to prove such facts, unless,, by the affidavits, enough is shown to satisfy the court that there is a probability of the moving party presenting the facts by the persons named as witnesses.
    2. Same.
    An affidavit, which states that'each and every witness has a vivid recollection of the different conversations had between the defendant and plaintiff at the times herein mentioned, and that each and every witness here named is prepared to give testimony on the trial of the action, as herein set forth by each of the respective witnesses herein named',, is sufficient.
    Appeal from an order, denying a motion to change the place of' trial.
    Rufus P. Livermore, for app’lt; William Arrowsmith, for resp’t.
   PATTERSON, J.

This is an appeal from an order denying a. motion to change the place of trial of the action from New York county to Broome county. The change of venue is asked for by the defendant for the convenience of witnesses. The court at-special term denied the motion, in view of the fact that the defendant did not produce the affidavits of any of the witnesses whom he» alleges will be material and necessary to establish his defense in this action. It is charged in the complaint that the defendant agreed to execute a bail bond to secure the discharge from prison of one Joseph Rheinstrom, in consideration of which the plaintiff agreed to execute and deliver to the defendant a bond of indemnity to save him from loss by reason of his becoming such bail, and as further consideration the plaintiff agreed to give $200 to the defendant, to be divided between him and one Curtiss and one Hyat, and that the defendant agreed to execute the bail bond, and have Joseph Rheinstrom released on bail, as soon as the $200 were paid, and that it was further agreed that, if the defendant was not accepted as bail by the magistrate, the $200 would be returned by the defendant to the plaintiff. The complaint further alleges that the $200 were paid in accordance with the understanding that the plaintiff executed and acknowledged a bond of indemnity, but that the defendant has not carried out his part of the contract,' and still retains the $200 and the indemnity bond, and the action is brought to recover that amount. The answer* denies all the allegations of the complaint, except that referring to a criminal charge having been brought against Joseph Rheinstrom. It then proceeds to set up, as an affirmative defense, that Joseph Rheinstrom having been indicted on or about the 9tli day of May, 1895, the defendant, out of pure- sympathy for the wife and children of said Joseph Rheinstrom, executed a bail bond in the .sum of $500 for the appearance, of said Rheinstrom for trial under an indictment, which bond was approved by the county judge of Broome county, whereupon Rheinstrom was admitted to bail and and released from custody; that Rheinstrom failed to appear for trial, and the defendant thereby became liable on the bailpiece; that some months afterwards Rheinstrom was arrested in the- city of Atlanta, Gra., and was returned and surrendered to the authorities of Broome county; that thereupon the defendant at his place of business, in Binghamton, Broome county, had divers conversations with him concerning the release of Joseph Eheinstrom from custody, requested the defendant to give a bond of $500 as bail for the said Joseph Eheinstrom, and that the defendant declined to do that unless the plaintiff or his friends would pay to him (the defendant) the sum of $200, which it is 'alleged the defendant expended in going to Atlanta after the said Joseph Eheinstrom, and also on condition that the plaintiff give to the defendant a good bond of indemnity; that the plaintiff agreed to do both of these things, but failed to give the bond of indemnity, and still neglects to do it, and the defendant claims that he has fulfilled all the agreement on his part; that on the 7th of January, 1896, the defendant, pursuant to his agreement with the plaintiff, executed a bond for $500 for the purpose of getting Joseph Eheinstrom released on bail, but the county judge refused to approve the bond on the ground that it was insufficient in amount to secure the presence of Rheinstrom when the indictment should be called for trial.

It is apparent that the only issue between the parties to this action is as to the terms upon which, in Decemeber, 1895, the defendant agreed to become bail for Joseph Rheinstrom, and what was done under that agreement. The defendant says in his affidavit upon which the motion was based that there are eight material witnesses, residents of Broome county, whose testimony is necessary for him at the trial. Curtiss, Short, Gitchell, and Butcher,, he says, were present at certain conversations between the plaintiff and the defendant, all of which related to the terms of the agreement. That three others can also testify to material -conversations between plaintiff and defendant, and that the testimony of the county judge is necessary, to show the reasons for the rejection of the defendant as bail, and that that rejection was not because of defendant’s irresponsibility, but for insufficiency of the amount of the bond. All theses witnesses are to material facts. The analysis of the pleadings which has been .given shows that the affirmative defense can only be made out by persons living in the county of Broome.

The objection is taken that the moving papers presented to the court were insufficient, in that they do not comply with the rule laid down in McPhail v. Ridout, 83 Hun, 446; 64 St. Rep. 661, and in Thurfjell v. Witherbee, 70 Hun, 401; 54 St. Rep. 96. In the latter case it was held, and it is unquestionably the rule, that affidavits to change the place of trial on the ground of convenience of witnesses must state that the moving party can prove the material facts by the persons named, and it is not enough for the moving party to say that he expects to prove such facts, unless, by the affidavits, enough is shown to satifiy the court that there is a probability of the moving party proving the facts by the persons named as witnesses. The affidavit which was made the basis of this motion is not very concisely drawn, but it does appear that the defendant can prove by his witnesses what he alleges in his affidavit as within their knowledge, for it contains the following averment:

“That this defendant has conversed with the several witnesses herein named, and each and every witness has a vivid recollection of the different conversations had between this defendant and plaintiff at the times herein mentioned, and each and every witness so named is prepared to give testimony on the trial of this action as herein set forth; and deponent avers that he can prove on the trial of this cause all of the material facts, as herein set' forth, by each of the respective witnesses herein named.”

The affidavit was sufficient; the witnesses were shown to be material; the moving party disclosed his intention and ability to prove by them the material facts; and, in an action for $200, the defendant should not be compelled to bring this large number of witnesses from the county of Broome to the county of New York.

The motion should have been granted, and the order appealed from should be reversed, with $10 costs, and the motion to change the venue granted, with $10 costs, to abide the event.

WILLIAMS, O’BRIEN, and INGRAHAM, JJ., concur; VAN BRUNT, P. J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph G. Goldsmith, App'lt, v. Holland Trust Company, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed May 1, 1896.)
    1. Damages—Breach or contract.
    Where a contract for a loan of money is made, which may instantly be demanded, the borrower is not entitled to recover substantial damages for its breach.
    3. Same.
    But an action will lie for the breach of such a contract, if made-for a special purpose which contemplates a postponement of a demand for its return.
    Appeal from a judgment dismissing a complaint.
    Emanuel Myers, for app’lt; Gibson Putzel, for resp’t.
   PATTERSON, J.

This is an appeal from a judgment entered in favor of the defendant upon a dismissal of the plaintiff’s complaint on a trial of the issues at the circuit. The action was "brought to recover damages for the alleged breach of .an agreement by the defendant to loan and advance to the plaintiff the sum of $50,000, which loan, it is allleged in the complaint, the defendant contracted to make by advancing the amount referred to on the 1st day of October, 1889, at noon. It is claimed in the complaint that the defendant had full knowledge that the plaintiff, desired and applied for the loan for the purpose of using the money to pay part of the purchase price of certain real estate-which the plaintiff had contracted to buy from certain persons, and to pay for on the day named. It is also alleged in the complaint-that the plaintiff had contracted to sell and convey the same premises to other parties at a large -advance, and that he was under-contract to deliver the deed to such other parties on the said 1 st :day of October, 1889, at 2 o’clock in the afternoon, and that, in-consequence of the breach of the agreement made with the defendant for the loan and advance of the $50,000, he was unable to complete either of his contracts relating to the real estate, 'and that hie sustained damages to the extent of $800 for comImissions due a broker who negotiated his contract with the defendant, and also that he was compelled to lay out divers sums of money, amounting to $600, in matters connected with the transaction of the loan; and he also claims special damages, consisting of the loss of profits on the contract for resale of the premises by him to the third parties referred to. The answer, after denying various paragraphs of the complaint referring to the matters hereinbefore stated, proceeds to set forth, as a separate defense, that on or about the 19th of September, 1889, the plaintiff represented that he had1 purchased the premises mentioned in the complaint for the sum of $90,000, and that that was-the actual value of the property; that the executors of an estate had agreed to lend him $50,000 on a mortgage upon theproperty, and that he wanted to borrow$50,000 temporarily, to be secured by a bond and mortgage upon the premises; that lie was only awaiting the return of the executors referred to, for a permanent loan of the amount stated,—and he applied to the defendant for a loan of $50,000 on his promissory note, payable on demand, at six per cent, interest, and with one per cent, commission; the note to be secured by his bond, and a first mortgage of $50,000 upon the premises, the title to which was to be good, and in fee simple absolute, and free from all liens and incumbrances except the $50,000 mortgage to be given to the defendant; the title of said premises to be examined and approved by parties to be selected by the defendant, if it decided to make the loan. It was then alleged that the defendant discovered that the statements of the plaintiff were false, and that, thereupon, the defendant declined to make the loan. It appeared by the testimony of the plaintiff at the trial that, in the negotiation of this $50,000 loan, Hr. Van Siclen, an officer of the defendant, acted for it, and that the plaintiff stated to Hr. Van Siclen all the circumstances of his connection with the property, -and settled with him the terms upon which the $50,000 was to be advanced, and also informed him of the contract for the resale of the premises, and thiat, as a consequence of the interview, a paper signed by Hr. Van Siclen on behalf of the defendant was delivered to the plaintiff, in the following words: “Joseph G. Goldsmith, Esq.—Dear Sir: We will lend you the fifty thousand dollars -on 90 and 100 Cannon street; note, with B. and H., and title guaranty policy, collateral.” The plaintiff further testified that, at the request and upon the insistency of Hr. Van Siclen, he went to the title guaranty company, and made an agreement with it concerning the searching of the title, and informed Hr. Van Siclen of what he had done; that on the 1st day of October, 1889, he called uponHr. Van Siclen, at thq office of the defendant, when a promissory note was handed to him by Hr. Van Siclen to be signed, Van Siclen saying: “Sign this. It is all right. That is your note for fifty thousand- dollars for the loan;” that thereupon he signed anote for $50,000, dated Hew York, October 1,1889, payable, on -demand, to the Holland Trust Company, or order, with interest at the rate of six per cent., with one per cent, commission, and which recites that he deposited with the trust company as collateral security for the payment of the note, and also of all other present or future demands of any kind of the defendant against him, “certain property to he refered to in a memorandum to he kept with the note.” He further testifies that at that time, and at the procurement of Van Siclen, he also executed other papers-connected with the transaction, and drew a check for $500 for the one per cent, commission. He also swore that he paid $200 to the title guaranty company for searching the title, and produced the receipt therefore, and that he also told Van Siclen that he would have to pay $700 commission to the broker who was employed in the sale of the property; that he also was obliged to pay lawyer’s fees and disbursements; that he employed the broker, Soloman, to act for him in the transaction with the Holland Trust Company, although it subsequently appeared that he had not paid that broker, but bad been sued by him for his commissions. He also testified that on the 1st day of October, after be had executed the $50,000 note, and Van Siclen had received the cheek for $500, a further demand was made upon him for $800 by Van Siclen, who said, “Goldsmith, you will have to pay-eight hundred dollar’s before we give you the money.” This $800 apparently referred to a claim for commissions of a broker named Curtiss. The Holland Trust Company never advanced the $50,000, but the plaintiff, about the middle of October, 1889, took the title to the premises,'and procured a loan upon them elsewhere, and he subsequently conveyed the property in exchange-for other premises. At the close of the plaintiff’s case the learned judge at circuit dismissed the complaint on the ground that no-cause of action accrued to the plaintiff, as a borrower, because 'the contract he had made with the defendant was one to obtain loan payable on demand; and an exception was duly taken to that ruling.

We are not disposed to question the general proposition that where a contract for a loan of money is made, which may instantly be demanded, a borrower would not be entitled to recover substantial damages for the breach of, such contract; for the very condition of such loan would seem to imply that the borrower was not to have the use of the money for any fixed purpose, or for any specified time, and the contract would be terminable at once, at the pleasure of the lender. In Bradford, E. & C. R. Co. v. New York, L. E. & W. R. Co., 123 N. Y. 316; 33 St. Rep. 614, among-other thing’s, it is remarked that it must be a rare case, indeed, where it can he said that a person has sustained any damages by the refusal of another to advance money which he has agreed to advance, and where the person to whom it is to be advanced is-under a valid obligation to pay it hack immediately. But this-.cause must he considered and decided upon the special facts whioK appear in it, and which certainly show that it was within the contemplation of both parties to the agreement that the $50,000 which was to be borrowed by the plaintiff from the Holland Trust Company was to be received" and used by the plaintiff for an express purpose, and for a special contingency, and the loan was desired at least for a period of time between the date at which, the money was to be paid to the plaintiff, and the time at which he would be able to arrange for a permanent loan of $50,000 on the property he was under agreement to purchase in Cannon street. All this was well understood by Hr. Van Siclen, the officer of the Holland Trust Company. The whole purpose of the loan was that the money might be obtained, and might be used in that transaction; and the feature of giving a demand note must-be considered in connection with the only puipose the plaintiff had in borrowing the money, and the only object he had in procuring the loan at all, and in view of which the defendant contracted. This is, therefore, one of the rare cases in which a breach of such a contract may result in damage to the borrower. The entire transaction of the purchase of the property, according to the testimony, depended upon his receipt of the $50,000 on the 1st of October, 1889, and the Holland Trust Company knew it. It. was at the instance of the Holland Trust Company that the arrangement was made with the title guaranty company concerning the examination of the title. It required the delivery of the plaintiff’s bond, and a mortgage on the real estate, as collateral security for the loan; and thus the very nature of the transaction indicated that, although in form of a loan to be returned on demand, yet it was within the terms of the agreement and the contemplation of the parties that it was not a demand to be made the same day that the money was-to be advanced, but a demand to be made at such future time as the defendant might select after the plaintiff had had the use of the money for the purpose of paying to his vendor that much of the purchase price of the real estate to be paid for on the 1st of October, 1889. Whether the defendant could have demanded the money the next day, or the next week, it is not material for us to decide. The question is as to the obligation under the special circumstances of this case-(which we are alone considering), of the defendant to advance the money on the day fixed for that puipose, so that the plaintiff on that day might use it. The evidence is that the failure of the defendant to advance the money was based upon the exaction of $800 more than the plaintiff had contracted to pay. The damage which the plaintiff has shown to have directly resulted from the breach of the contract is the amount paid to the title guaranty company and to lawyers, and such amount as he may be liable for to Soloman for commissions which Soloman claims to have earned in negotiating the transaction with the Holland Trust Company. Further than this, we do not see, upon this record, any evidence that would authorize an award of damages for the breach of the contract of resale made by the plaintiff with the third parties referred to. The proof does not show that, in the plaintiff’s subsequent dealings with the property, he sustained any real loss on account of the failure of his contract to convey to the third parties on the 1st of October, 1889; and, even if that had been shown, we would not be able to hold that the defendant was responsible therefor. But, as the case was made, we think the complaint should not have been dismissed for the reason assigned by the learned trial judge; and therefore the judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur.


author: GREEN, J.

text:
    George T. Ditmars, App'lt, v. Arthur E. Smith et al., Resp'ts.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    1. Trusts—Assignment to sheriff.
    The sheriff is not disqualified from talcing the assignment of a claim from a judgment debtor, in trust for the benefit of the judgment creditor in whose favor he holds an execution, and to collect the claim and apply the proceeds in payment or satisfaction of the execution which he holds in his hands.
    S. Same—Irrevocable.
    When a trust becomes executed by assignment or delivery of the claim, it is irrevocable by the assignee, so long as the judgment remains unpaid.
    S. Same—Party in interest.
    In case of such an assignment, the sheriff may sue in his own name for the benefit of the real party in interest; and the real party may also sue in his own name.
    /Appeal from a judgment in favor of defendants.
    Action to set aside an assignment made by defendant Smith to defendant Peel, a deputy sheriff, of certain book accounts to apply on execution against Smith in the hands of Peel, as deputy sheriff, for collection. January 16, 1895, James B. Ford re-, covered a judgment in the supreme court against Arthur E. Smith, the defendant in this action, for $3,634.80; and on the same day, and in the same court, John A. Parlett recovered a judgment against said Smith for $2,054.75. On the same day executions were issued thereon, and delivered to the defendant Peel, as deputy sheriff, who, under such executions, immediately levied on all the property of the judgment debtor, including his books of account, and, after due advertisement, sold the property at public sale. The amount so realized was $2,705.15, about $3.000 less than the executions in his hands. Prior to the sale about $1,000 in value of the property was surrendered to other creditors, who claimed such property so surrendered. The ^proceeds of the sale were credited by the deputy on the executions, in equal amount. Immediately after the levy was made the deputy sheriff obtained from the defendant Smith this assignment:
    “Geneva, K". Y.", Jan. 16, 1895.
    “¡For value received, I assign and turn over to George A. Peel, deputy sheriff, to apply on the' executions he holds against me, all of my book accounts, and the sums due thereon.
    “ARTHUR E. SMITH.”
    After the sale of the goods, Peel proceeded to collect what he could of the book accounts, and indorsed the amounts so collected on the executions. Subsequent to this assignment, other creditors of the defendant Smith obtained judgments against him, and the plaintiff was afterwards duly appointed receiver under such judgments, and he brings this action as such receiver.
    Geoge L. Bachman, for app’lt; D. B. Backenstose, for resp’t.
   GREEN, J.

The main contention of the appellant’s counsel is that this assignment is void upon its face, as it purports to be given to Peel, “deputy sheriff,” and for the further reason that there is no beneficiary named in the assignment, and that, therefore, the instrument cannot be held to be an assignment in trust. This is the fundamental question to be decided upon this review, and upon its decision rests the disposition of this ease. There are other exceptions raised, but, upon examination, I am satisfied that they were properly disposed of by the referee. Iam of the opinion that the finding of the referee that this assignment was a valid and legal instrument must be sustained. By this assignment a trust of personalty was created, and the sheriff became the trustee of an express trust for the benefit of the judgment creditors in the exe» curious named in the assignment. A trust of personalty may be created for any purpose not forbidden by law, or contrary to public policy. ¡Nor is any formal or written instrument or memorandum thereof necessary. Day v. Roth, 18 N. Y. 448; Gilman v. McArdle, 99 N. Y. 451. Even though the property be transferred by an instrument absolute in form, the trust may be shown by parol evidence. Chase v. Chapin, 130 Mass. 128. The subject-matter and the purpose of the trust, and the persons who are to take the beneficial interest, may be ascertained by parol proof. Kramer v. McCaughey, 11 Mo. App. 426. As a general rule, all persons may be trustees; and there is no rule of law or statutory provision disqualifying a sheriff from taking an assignment of a claim from a judgment debtor, in trust for the benefit of the judment creditor in whose favor h© holds an execution, and to collect the claim and apply the proceeds in payment or satisfaction of the execution which he holds in his hands. ¡When the trust becomes executed by assignment or delivery of tlie claim, it is-irrevocable by the assignee, so long as the judgment remains unpaid. Nor can it he questioned by his creditors, except upon the ground that it was made to hinder, defeat, delay, or defraud them. See Machine Works v. Kelly, 19 Hun, 399. The trustee is bound to hold the claim or securities assigned to him, and to apply the proceeds to- the benefit of the beneficiary. Morris v. Webb, 45 N. Y. Supr. Ct. 305. The assignee, by acceptance of the assignment, becomes a trustee for the persons designated, to the extent of- the moneys directed to be paid to them, and upon a collection o-f the claim an action will lie against him, by them, for the moneys so directed to he paid; and a parol agreement, made at the time of the assignment of the claim, as a part of the transaction, that a certain person should be paid a certain sum out of the proceeds of the claim, when collected, may, although it be not embodied in the written instrument, he proved on behalf of such person, he not being a party to the instrument. Warburton v. Camp, 55 N. Y. Supr. Ct. 290. It is a maxim o-f equity that a trust will not he permitted to fail for want of a trustee; so that, if the person named is incompetent-, another will be appointed. The inoompefency or disqualification of the person cannot affect the validity of the trust, nor impair its enforcement. The sheriff may become a trustee, independently of his official character, and is personally responsible for the execution of the trust. The assignment may be deemed to have been made to the incumbent of the office, in his individual, and not in his official, capacity. We are unable, therefore, to perceive upon what legal or equitable ground the other creditors have any claims upon these accounts, or their proceeds. See Bump, Fraud. Conv. 213, 405; Dunham v. Whitehead, 21 N. Y. 131. Indeed, the transaction may he considered as equivalent -to a levy by the sheriff. The sheriff, by virtue of this assignment, became a trustee of an express-trust, and. may sue in his own name for the benefit of the real party in interest; and so may the latter sue in their own names. Cumming v. Brown, 43 N. Y. 514, 524; Wetmore v. Hegeman, 88 N. Y. 69;

The judgment should be affirmed, with costs.

All concur.


author: VAN BRUNT, P. J.

text:
    Cooper Manufacturing Company, Resp't, v. John Warner et al., App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed May 1, 1896.)
    1. Salt—Fraud.
    Where the purchaser has no reasonable ground to believe, when he purchases goods, that he will be able to pay for the same, it renders the sale a fraudulent one, w’hich the vendor has a right to rescind.

      2. Same—Purchaser in good eaith.
    The fact that the- consideration paid was not equal to the full value of the goods, does not entirely invalidate the sale ,where the purchaser acts in good faith, but he is entitled to he considered as a Oonajide purchaser, pro tanto.

    3. Same—Retention or goods.
    In such case, the purchasers are entitled to retain all the goods until they are reimbursed the amount which they, in good faith, paid out upon becoming- the purchasers thereof.
    4. Same.
    It is no answer to say that subsequently the purchasers, by a sale of tiré goods, realized sufficient to indemnify them as far as their cash advances were concerned.
    5. Same.
    The question as to what has been done subsequent to the commencement of the action, cannot effect the rights of the parties.
    Appeal from a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    E. J. Myers, for app’lt; A. Blumensteil, for resp’t.
   VAN BRUNT, P. J.

This action was brought to recover the possession of certain merchandise sold by the plaintiff to the firm of Gerrish & Co., upon the ground of fraud upon the part of Gerrish & Co. in malting the purchase. It appeared from the evidence that, after the delivery of the goods in question, Gerrish & Co. sold their stock in trade to the defendants Warner, De Forest & Co., for the consideration of $1,000 in cash, a note at three months for $3,355.53, the assumption of certain liabilities of Gerrish & Co. by Warner & Co., and the payment of certain antecedent debts due by the former to the latter. There seems to have been ample evidence to justify the verdict that, at the time of the purchase of the goods in question, Gerrish & Co. had no reasonable ground to believe that they would be able to pay for the same. Long prior to the purchase they had assigned all their accounts to one Barnes, for an alleged indebtedness; and prior to the delivery-of any of the goods, and the purchase of a considerable portion thereof, they had been sued by another importunate creditor upon a claim to which they had no defense. They had no means to meet this obligation, and they must have known that, when the time for the entry of judgment in that action came, their business must cease. This was the condition of affairs when the goods were received, 'and it would appear that in anticipation of the entry of this judgment the arrangement with Warner & Co. was made, by which they transferred all their stock in trade, including the goods received from the plaintiff, which still remain in the original package. Under these circumstances, as already observed, there was ample ground for a finding of the jury that Gerrish & Co. had no reasonable ground to believe when they purchased the goods in question that they would he able to pay for the same. This rendered, the sale a fraudulent one, which the plaintiff had a right to resind, and to 'recover the goods, as against Gerrish & Co., or any other person who was not á bona fide holder for value.

This brings us to the consideration of the second proposition, which is as to the relations of the defendants Warner & Co. to the goods in question. As has been said, Gerrish & Co. transferred all their stock in trade to the defendant for a present consideration of $1,000, a note of $3,355.53, the assumption of certain liabilities, and the payment of certain antecedent debts due from Gerrish & Co. to the defendants. If Warner & Co. acted in good faith, they were certainly the holders of the merchandise in question for value, to a considerable extent. Assuming the fact to be that the present consideration was not equal to the full value of the goods, this does not entirely invalidate the sale, but the purchaser is entitled to be considered as a bona fide purchaser pro tanto. This being the condition of affairs, what were the rights of Warner & Co. at the time the demand was made upon them for the goods in question, and at the time of the commencement of this action? They being bona fide holders to the amount of the present consideration, they were entitled to retain all the goods until they were reimbursed that which they had in good faith paid out upon becoming the purchasers thereof. Hence the plaintiffs were not entitled to the actual possession of the goods in question at the time of the making of the demand and of the bringing of this suit. It is no answer to say that subsequently Warner & Co., by the subsequent sale of the goods in question, realized sufficient to indemnify them as far as their cash advances were concerned. It might very well have been that creditors of Gerrish & Co., who have sold goods to them, had claims of a similar character against that firm, for goods bought under similar circumstances, 'and which Warner & Co. would have to surrender if the plaintiffs in this action had a right to call for the delivery of the goods sold by them. And thus Warner & Co., although bona fide purchasers to a certain extent, might be stripped of all the goods they had purchased, without any indemnity whatever for that which they had parted with in good faith upon the receipt of such goods from Gerrish & Co. It will thus be seen that, if the jDlaintiffs had any rights against Warner & Co.,'they could not enforce them by an action at law in the nature of'replevin, which is entirely a possessory action, and which depends upon the right to immediate possession of the goods in question, upon the part of the plaintiff. The rights of creditors and of Warner & Co. might have beemsettled in an action in equity in which.all the parties’ rights might have been protected, and thus the plaintiffs, if entitled to reimbursement in full, or to a return of their goods, might have had that remedy offered them. But, until Warner & Co. had been reimbursed the amount which they had advanced in good faith upon the purchase of these goods, an action of replevin could not possibly be maintained. It was error, therefore, for the court to take away from the jury the question as to the good faith of Warner & Co. In the disposition of the preceding proposition, the court has assumed that Warner & Co. acted in good faith. It may be that upon a consideration of the whole evidence a jury might find otherwise. But the question of the good faith of Warner & Co. was not submitted to the jury. It was expressly taken away from them upon the ground that since the commencement of the action, by the sale of the goods received- by them, they had been reimbursed for the advances in cash which they had made at the time of the receipt of the bill of sale. As already stated, the question as to what was done subsequent to the commencement of the action cannot affect the rights of the parties. The point is, were the plaintiffs entitled to a delivery of the goods at the time they made their demand upon Warner & Co. ? If Warner & Co. were purchasers in good faith, they had not been reimbursed for the money which they had advanced; and consequently they had a right to hold these goods, as well as others, and were justified in refusing to comply with the plaintiff’s demand.

Under these circumstances we think the court erred in refusing to submit the question of the bona tides of Warner & Co. to the * jury; and for this error the judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: PER CURIAM.

text:
    Sarah Lazarus et al., Pl'ff, v. Bernhard J. Ludwig, Def't.
    (Supreme Court, Appellate Term, First Dept.,
    Filed June 9, 1896.)
    Justice’s Court—Appeal—Return.
    Section 3053 of the Code, which provides that the justice must, after ten and within thirty days from tne service of the notice of appeal and the payment of the costs and fees, make his return to the appellate court, does not prevent the justice from filing his return as soon after the service of the notice of appeal upon him as he desires.
    Motion to strike the cause from the calendar.
    Wm. Strauss, for the motion; N. S. Spencer, opposed.
   PER CURIAM.

Section 3053 of the Code provides that the justice must, after ten and within thirty days from the service of the nptice of appeal and the payment of the costs and fees, make Ms return to the appellate court. The return herein having been made within ten day from the service of the notice of appeal, the respondent claims it was prematurely filed, for the appellant was thus enabled to get the cause on the calendar for hearing at the May term, whereas, if the justice had filed his return after the ten days, the’cause could not have been so placed upon the calendar. We find, nothing in the statute which prevents the justice from filing his return as soon after the service of the notice of appeal upon him as he desires. He is under no obligation to do so, for the statute does not require him to file the same within ten days; but it is not to be implied from this that he is forbidden to do it. The claim has never been made that a retum'filed after the thirty days deprives the court of the right of hearing the appeal, or subjects either party to any penalty other than that of inconvenience caused by the delay. Delays in the administration of justice are not to be encouraged, and, as the justice is bound to make a return, we see no reason why he may not make it as soon as he pleases, provided he offends no statute, and none has been infringed in this instance. “In general, it may be laid down as a rule that, when a statute directs certain proceedings to- be done in a certain way or at a certain time, and the form or period does not appear essential to the judicial mind, the law will be regarded as directory, and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being of the essence of the thing required to be.done.” Potter, Dwar. St. p. 226, citing numerous illustrations.

The court of appeals applied the rule in Re New York Protestant Episcopal Public School, 47 N. Y., at page 561, reiterating the language of Lord Mansfield in Rex v. Loxdale, 1 Burrows, 447:

“There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament and clauses merely directory. The precise time in many cases in not of the essence.”

Statutes are directory where they relate to some-immaterial matter, where a compliance is matter of convenience rather than of substance. People v. Schermerhorn, 19 Barb. 558.

As to the application of the principle to courts of inferior jurisdiction, the court of appeals (In re Empire City Bank, 18 N. Y., at page 220) has said:

“But if the proceedings should be regarded as not taking place in a court of general jurisdiction, but should be assimilated to a special proceeding before an inferior magistrate, we still think the time fixed for the performance of intermediate steps, after jurisdiction had been once acquired, should be regarded as directory merely, and that an omission to perform one or more of them in time would not render the whole proceeding abortive.”

There is nothing in Moench v. Yung (Com. Pl.), 30 St. Rep. 430; or Zoller v. Smith, 45 Hun, 319; 12 St. Rep. 438, which] conflicts with these views. It follows that the motion must be ’denied.


author: DALY, P. J.

text:
    Frank P. Lant, Resp't, v. Antonio Rasines et al., Impleaded, etc., App'lts.
    (Supreme Court, Appellate Term, First Dept.,
    Filed June 2, 1896.)
    1. Witness—Expert.
    An expert witness should be confined to questions which contain in themselves the facts assumed to be proved upon which his opinion is desired.
    S. Same.
    There is an exception to the rule where the testimony of a single witness is called to the attention of the expert and he is aslced a question based upon the testimony of that witness.
    3. Same.
    An expert witness cannot state, after testifying that he had heard most of the testimony, that he could give an estimate of what plaintiff’s services were reasonably worth.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    Mark Ash, for app’lts; Geo. W. Sandford, for respt.
   DALY, P. J.

The rule with respect to questions put to expert witnesses on the subject of value is, as stated by Judge Gray in Link v. Sheldon, 136 N. Y. 1; 32 N. E. 696: “An expert witness should he confined to questions which contain in themselves the facts assumed to he proven upon which his opinion is desired.” There is an exception to the rule, and that is where the testimony of a single witness is called to the attention of the expert, and he is asked a. question based upon the testimony of that witness. It is there the same as if the testimony had been read over to. him and embodied in the question. That was the case of McCollum v. Seward, 62 N. Y. 316, where the expert was asked, “What were his services as he, the plaintiff, described them worth?” and the case of Seymour v. Fellows, 77 N. Y. 178, when the query was, “What, in your opinion, was the value of the services which Mr. Seymour stated he rendered?” and the ease of Miller v. Richardson, 88 Hun, 49; 69 St. Rep. 290, where the court said: “There was no error.in the reception of the evidence offered to prove the value of services performed by plaintiff, as described by the testimony of another witness.”

This ease is not within the exception to the rule. The plaintiff having given testimony which covers a large number of folios, an expert is called and asked this question: “Q. Have you heard all the testimony in this suit? A. Most of it.” And is then asked: “Q. Can you answer my question now, and, give, as an estimate, from what you have heard of the testimony, what these services were reasonably worth ?” The jury could not possibly know what was in the witness’ mind. He did not say: “I have heard the testimony of the plaintiff, and, from what he stated, his services-were worth so much.” He only professed to speak from what he had heard of the testimony, and we do not know whether that excluded the more important parts of it or not. . It is impossible to-sustain that question without extending the ¡exception to the rule-further than the court of appeals or the supreme court has beam willing to go, and perhaps without destroying the rule.

Judgment reversed, and new trial ordered, with costs to appellant of appeal in this court and the court he-low, and of the former trial to abide event.

All concur.


text:
    William Ziegler, Resp't, v. Hugh Lamb, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed May, 1896.)
    Deposition—Examination of party before trial.
    Examination of a party to an action before trial cannot be haffi for the purpose of enabling his adversary to ascertain whether he has a cause of action ag'ainst other persons not parties.
    Appeal from an order denying a motion to vacate an order for the examination of defendant before trial.
    Albridge C. Smith, for app’lt; J. Tredwell Richards, for resp’t.
   PER CURIAM.

This order should he reversed. The plaintiff makes no affidavit upon which to obtain the order for the examination of the defendant before trial. His attorney alone makes the affidavit. But, further, it clearly appears from the attorney’s affidavit that he does not need the defendant’s examination for the purpose to which he, refers, namely, the purpose of amending his complaint by setting up the real owners of the land. The defendant admits that he has the legal title to the property,, and that is sufficient. There is no provision allowing the examination of a party to an action before trial, so as to enable his-adversary to ascertain whether he has a cause of action against other persons not parties. The avowed object of this examination is to discover whether or not such persons exist, and we know of no principle that would justify the granting of such an application.

The oTder should he reversed, with $10 costs and disbursements, and the motion to vacate the order for the examination of the defendant before trial granted, with $10 costs.


text:
    Irene A. Fleet, Resp't, v. Helen M. Cronin, Executrix, etc., App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed May, 1896.)
    Discovery—Application.
    Until the cause is at issue, an application for a discovery of books- and papers for use upon the trial is premature.
    Appearl from an order, requiring defendant to make discovery of certain papers.
    I. Newton Williams, for app’lt; L. A. Gould, for resp’t.
   PER CURIAM.

This motion was made after issue joined to-obtain a discovery and inspection for use by the plaintiff upon the trial. After the motion was noticed, an amended complaint was-served, to which it does not appear that any answer has been interposed. As the service of an amended complaint destroyes the issuesraised by the original pleadings, and as the defendant has not-joined issue upon the amended complaint by serving an answer, the motion should have been denied; it having been many times-held that, until the cause is at issue, the application for discovery of books and papers for use upon the trial is premature.

The order should he denied, with $10 costs and disbursements, and the motion denied, with $10 costs, but with leave to plaintiff' after issue joined to renew the motion.


author: LANDON, J.

text:
    Tompkins County National Bank, Resp't, v. Bunnell and Eno Investment Company, Impleaded, etc., App'lt.
    (Supreme Court, Appellate Division, Third Dep’t.,
    Filed July 7, 1896.)
    1. Bills and notes—Bona fide holder.
    Where, by the act of the maker of a bond, negotiable in form and of apparently completed inception, its agent is equipped with apparent title, who transfers it in exchange for another bond andas collateral security for his own indebtness, the pledgee’s right to recover is to be tested by the rules applicable to negotiable promissory notes.
    3. Same.
    Where the bond is pledged in fraud of the rights of the maker, thepledgee must convince the court, by its evidence, that it acquired the bond before maturity, in good faith, without notice of any facts i-opairing the agent’s title to it, afid in case the bond never had any inception in the-agent’s hands, for full, and not usurious, consideration.
    Appeal from a judgment in favor-of plaintiff.
    Before October 1, 1892, the plaintiff had discounted several notes for the defendant Gray upon the security of several bonds of other companies, among which was a bond for $500,—worth that amount. These notes were renewed several times upon the continued pledge of these securities. About, but prior to, March 7, 1893, the plaintiff, at Gray’s request surrendered to him the $500 bond last mentioned, and delivered to the plaintiff, in its place, as collateral, the appellant’s said bond for $500. After-wards, and on May 6, 1893, Gray executed and delivered to the plaintiff an agreement reciting the previous delivery to the plaintiff of the other bonds, and of the $500 bond here in question, “'as security for the payment of certain loans made to me by said bank,” and, for value received, agreeing and consenting that the same be held by the bank “as security for any and all notes made by me and held by said bank, or any renewals thereof, or for any notes which may be executed and delivered by me to the said bank hereafter,” and, in case of default of payment of any of the notes, to dispose of the bonds, without notice, and apply the proceeds to the payment of his indebtedness. Thereafter the bank renewed the said notes upon the credit of said collateral and said agreement. Default having been made in paymSnt, this action is to foreclose plaintiff’s lien upon all the securities. The appellant alone defends..
    Walter Welch, for app’lt; Wm. N. Noble, for resp’t.
   LANDON, J.

The bond belongs to the appellant. It never had any legal inception in Gray’s hands. It was delivered to him to enable him to give it a legal inception by selling it to Livermore at par, but this he did not do. Gray’s act in transferring it to plaintiff, upon his own account, in exchange for another bond, and as collateral security, for his own indebtedness to the plaintiff, was .a fraud upon the appellant. The bond was negotiable, and, when transferred to the plaintiff, was not yet due, according to its terms. It was the bond of a private, and not,of a municipal, corporation; and therefore the cases cited by the appellant as to the bona lides of a holder, who must at his peril look to see if the statutory requirements lying at the foundation of the authority to issue the bond have been complied with, have no relevancy. The case is one where, by the act of the maker, Gray was equipped with the apparent title to a bond of apparently completed inception. The bond was negotiable in form, and therefore the plaintiff’s right to recover is to be tested by the rules applicable to negotiable promissory notes. Ledwich v. McKim, 53 N. Y. 307. As pledgee it is entitled to the same protection as if a pxxrchaser. Bank v. Vanderhorst, 32 N. Y. 553; Bank v. Hoge, 35 N. Y. 65. Since the bond was pledged in fraud of the rights of the appellant, it was incumbent upon the plaintiff to convince the court, "by its evidence, that it acquired the bond before maturity, in good faith, withoxxt notice of any facts impairing Gray’s title to it, assuming the bond never had any inception in Gray’s hands (Joy v. Diefendorf, 130 N. Y. 6; 40 St. Rep. 491), for full, and not a usurious, consideration (Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191; 33 St. Rep. 389). There was evidence upon all these questions, and the court determined them in favor of the plaintiff. That the plaintiff acquired the bond before maturity is not disputed. As to parting with value, the plaintiff surrendered to Gray another bond of equal value for it, and thus parted with full value. Bank v. Watson, 42 N. Y. 490; American Exchange Nat. Bank v. New York Belting & Packing Co., 148 N. Y. 698. Besides, the plaintiff, upon the security of this bond, renewed the Gray notes, and thereby extended their payment for definite periods. Such extension is of itself a valuable consideration. Cary v. White, 52 N. Y. 138. In a certain sense, the plaintiff received the bond upon an antecedent debt, but this is a statement of only part of the whole truth. It received this bond in exchange, for another one of equal face value, whose validity and actual value are not questioned, and therefore holds it by the like title as it held the bond it exchanged for it. As to good faith:: The plaintiff had no actual notice of any defect in Gray’s title. There is no reason given why this bond was of any benefit to plaintiff, over the one it surrendered fox it. It made the exchange at Gray’s request. Certainly, if it had had any suspicion as to Gray’s title to it, it is improbable that it would have consented to take it in exchange for the other bond, as to which no defect in title is suggested. The plaintiff exchanged this bond for the other apparently to accomodate its customer, Gray, under circumstances which would not excite suspicion, unless the plaintiff had further knowledge than the evidence discloses.

We think the learned trial judge prop erly found for the plaintiff upon the evidence.

The judgment should be affirmed, with costs.

All concur.


author: RUSSELL, J.

text:
    People ex rel. George M. Thomas, Pl'ff, v. M. R. Sackett, as County Treasurer, etc., Def't.
    (Supreme Court, St. Lawrence Special Term,
    Filed June, 1896 )
    1. Excise—Local option—Special town meeting.
    Where a special town meeting is held after the passage of the act and before the annual town meeting, ballots must be ureuared for voting upon the excise propositions.
    2. Same.
    A special town meeting may be called and legally held to determine whether tax certificates may be given for the selling of liquor in the towns of this state.
    Certiorari to review the action of the county treasurer of St. Lawrence county, in refusing a liquor-tax certificate to relator.
    John C. Keeler, for relator; L. P. Hale, for county treasurer.
   RUSSELL, J.

The sole question to be decided in this case is-whether a special town meeting may be called and legally held to determine whether tax certificates may be given for the selling of liquors in the towns of this state. The provisions affecting cities áre different from those affecting the various towns upon the question of local option. The counsel for the county treasurer frankly concedes the regularity of the special town meeting held in the town of Edwards, after the passage of the general excise law known as the “Raines Bill,” which voted in favor of selling liquors, and makes no criticism-on the fairness of the expression of the voters casting their ballots at such election. The new excise law differs widely from the previous law in force, and the provision for local' option is direct, instead of being direct, as under the previous law.; Heretofore commissioners of excise were elected by force of law* in each town of the state, and the granting or withholding of licenses was within their discretion 6r caprice. .Their views upon the subject, when elected, might be known or unknown, and their subsequent action might or might not follow the inclination supposed to exist when the voters cast their ballots. By the new act it is given to the towns to determine by lawful vote whether liquor shall be sold in the respective towns, and the county treasurer has no discretion in granting or withholding, other provisions of law. being complied with. In many towns of the state no annual election can be held for nealy a year after the passage of the new excise-, law. I see no provision in the act which contemplates the holding the power of the town to declare for or against the permission to sell liquors in that town in suspension during such a1 period. Its-theory is radically different. The power of the various towns upon the subject is co-existent with the force of the law, and began when that law took effect. And, as the subject to be voted upon is one-which is regarded -as affecting the morals and well-being of the community, it might well have been the intent of the legislature to-allow it, if the electors so chose, to be dissevered from the complications of an annual town meeting, at which town officers are to be elected, and various money propositions voted upon; so far, at least, as the first vote upon the subject was to be taken.

Section 16 of the act (chapter 112 of the Laws of 1896) provides-for the subject of local option. It requires the town officers to prepare the ballots “for a town election occurring next after the passage of this act,” for voting upon four propositions: Eirst, upon the subject of selling liquor to be drunk on the premises where sold; second, selling liquor not to be drunk on the premises where sold; third, selling liquor as a pharmacist; fourth, selling liquor by hotel keepers. It would thus seem to be required by law that, where a special townmeeting is held, after the passage of the act, and before the annual town meeting, perhaps nearly a year later, bailóte must be prepared for voting upon the excise propositions. The word “annual” is not prefixed to “town election.” And this view is still further strengthened by the provision in the same section that the same questions shall be submitted again in the same way ac the annual town election held in every second year thereafter, provided ten per centum of the voters so request. Unless, therefore, it is construed that the use of the two expressions was carelessly made by the legislature in the same section, we must presume that they intended that the language should cover any town meeting in the first instance.

Under the present provisions of law the electors at special town meeting may vote upon any question which may be lawfully voted upon or determined at a special town meeting, and that law now provides for the method of filing applications for requesting a vote •at such town meeting, for public notice of the presentation of the question, and the preparation of the ballots therefor. Rev. St. (Banks’ 9th Ed.) p. 734, §§ 25, 26, 34. The electors of the state, under the new excise act, were confronted with a new state of things in respect to the vending of liquors. They had the power in the various towns to determine whether liquors should be sold or not witbin the town, and had the full right to consider how soon, and in what manner, in respect to this important law, their action should be taken. Such power should not he suspended for many months; it should operate as quickly as the law itself. The question of licensing was not to be determined, as theretofore, by their own town officers acquainted with the wishes of the people of the town, but, within certain defined limits, the power to sell liquor could he placed upon them against their will, because the officer issuing the certificate had not the power to give or withhold. Thus the right of local option, given by the law, is one which should be used unless the electors were contented with the conditions likely to be prevalent in the town in respect to the number of places seeking the privileges afforded by the tax certificate.

The principal argument against the construction advanced by the counsel of the county treasurer is the provision that a vote against licensing shall not shorten the term for which any liquor tax certificate may have been given under the provisions of this act, nor affect the right of any persons thereunder. Section 16. He claims that this would display a want of mutuality in the effect of the vote, in that, if the special town election voted favorably to license, such licenses might be granted while, if it v^ied against licensing, those certificates which had been issued would be preserved in force until their expiration. The provision referred to has an evident meaning which sufficiently accounts for its insertion in the section. It preserves the pecuniary rights of one whio has paid for his privilege, and in that sense is just, as no other provision is made for paying him hack for the unexpired term of his certificate. It would have the same effect, if the electors declared against license at an annual town meeting, as to the certificate issued shortly prior thereto; and no distinction of construetion, therefore, existed to point the intent- of the legislature to distinguish between a special election and an annual one. Indeed, the insertion of this language preserving the right of the party holding the certificate in case the town votes against licensing, rather corrobates the theory of the instantaneous force of the law. The provision is not that, notwithstanding the vote against license, the power to issue certificates shall remain until the expiration of 'any license granted; it solely excludes the idea of granting any more licenses except the one in operation, and which has been paid for, until a period in the future.

The action of the county treasurer, therefore, must be reversed, with costs.

Ordered accordingly.


author: PUTNAM. J.

text:
    John E. McElroy et al., as Executors, etc., Pl'ffs, v. Albany Savings Bank et al., Def'ts.
    (Supreme Court, Appellate Division, Third Department,
    Filed July 7, 1896.)
    1. Bask—Deposit—Sürvtvoeship.
    A deposit in a savings bank to the depositor or her husband, or tne survivor of them, creates a joint ownership, and entitles the survivor to the-property.
    2. Same—Gift.
    Deposit in savings hank to depositor or his wife, or the survivor of them, imports a gift to the wife if she survives her husband, though she should not have possession of the pass book during his lifetime.
    Controversy submitted upon an agreed statement of facts.
    I & J. M. Lawson (Isaac Lawson, of counsel), for pl’ffs; James Fenimore Cooper, for def’t Albany Sav. Bank; Albert Rathbone, for def’t M. H. Rochester.
   PUTNAM. J.

James C. Bell, deceased, made the following deposits in the Albany Savings Bank: April 3, 1891, $2,000; June 21,1891, $500; February 1,1892, $500. The entry in the-pass book which be received from the hank, relating to said deposits, was as follows: “Albany Savings Bank, in account with Mrs. Alida P. Bell or James C. Bell, her husband, -or the survivor of them.” James C. Bell died on the 9th day of March, 1895, leaving a last will and testament, and tbe plaintiffs, named therein as executor and executrix, afterwards duly qualified as such. Alida. P. Bell died intestate on the 2d day of November, 1895, and the defendant Montgomery H. Bochester was duly appointed administrator of the goods, chattels, and credits of said deceased. During the lifetime of the said James C. Bell he retained the actual possession of said pass hook, and it never came into that of said Alida until after his death, although she knew of its existence-before. The question is presented whether the plaintiffs, as executors of James C. Bell, deceased, are entitled to demand and receive from the Albany Savings Bank the balance unpaid on the deposits aforesaid; or is the defendant Boehester, as administrator, entitled to collect such fund. Had the deposit been made to the credit of Mrs. Alida P. Bell and James C. Bell simply,, it is clear that the former, on surviving her husband, would have been entitled to the fund remaining’ in the bank. In that case there would have been, created a joint ownership of the deposit, and under well-settled doctrines the survivor would have been entitled to the property. I think that the deposit made to the credit of “Mrs. Alida P. Bell or James C. Bell, her husband, or the survivor of them,” should be deemed to have the same meaning and effect as would a deposit to the credit of Alida P. Bell and James C. Bell. Had the entry in the pass book been thus made,, either, on presenting’ the pass book to the bank, could have drawn the whole sum deposited, and the survivor, after the death of one,, would have been entitled to demand the whole amount remaining on deposit. The deposit, as in fact made, to the credit of Mrs. Alida P. Bell or J ames C. Bell, her husband, also authorized either during their joint lives, on the presentation of the pass book to the bank, to draw the whole fund, and the words added, “or the survivor of them,” place the parties in the same position and with the same rights, as if the entry had been to the credit of Alida P. Bell and James G. Bell. This construction of the entry in the pass book effectuates the evident intent of J ames G. Bell in making the deposit. The question then arises whether there was a valid gift of the deposit to Alida P. Bell from her husband. She never had possession of the pass book until after his death. Ordinarily, to constitute a valid gift of personal property, there-must be an intent to give, and a delivery, either by transferring the custody of the property itself given to the donee, or by delivering some symbol which represents possession. In Beaver v. Beaver, 117 N. Y. 421; 27 St. Rep. 405;Id., 137 N. Y. 59; 50 St. Rep 69; In re Bolin, 136 N. Y. 177; 49 St. Rep. 59; Young v. Young, 80 N. Y. 422; Wadd v. Hazelton, 137 N. .Y. 215; 50 St. Rep. 400,—cited by the learned counsel for the plaintiffs, the court of appeals held that no valid gift was established, for ¡he reason that in each of those cases there was no delivery of the thing given, or of any symbol representing possession. There are authorities, however, which have held gifts valid, although there was no actual delivery to the beneficiary; as where one deposits money in his own name in trust for another, and thus makes himself a trustee. Such are the cases of Martin v. Funk, 75 N. Y. 134; Hyde v. Kitchen, 69 Hun, 280; 53 St. Reg. 371; Macy v. Williams, 55 Hun, 489; 30 St. Rep. 345. In such cases the possession by the trustee is for the benefit of the cestui que trust, and, in fact, the possession of the latter. So it has been determined that, where a doner gives, to a donee a joint interest in property with himself, the possession of the thing given, or of a symbol thereof, is not required to constitute a valid gift. Where a husband lent money and took a note therefor payable to the order of himself and wife, it was held that this imported a gift to the wife in case she survived him, and a delivery of the note to her by the husband was not necessary. Sanford v. Sanford, 45 N. Y. 723; 58 id. 69. In Fowler v. Butterly, 78 N. Y. 68, a husband took out a policy of insurance, securing a benefit to himself and his wife. In delivering the opinion of the court, Miller, J., said, assuming that there was no actual delivery of the policy to the wife:

“His possession [that of the husband] was the possession of the wife; and the general rule that where there is a gift there must be an actual delivery, therefore has no application. * * * It is, we think, well settled that where the husband takes a security or obtains a policy of insurance, in which the sum named therein is payable to himself and his wife, and she survives him, that the action survives to her, and the form of the security implies a design by the husband to benefit the wife.”

See, also, Lowery v. Erskine, 113 N. Y. 52; 21 St. Rep. 917.

If our conclusion is correct, that the deposit made by James C. Bell in the Albany Savings Bank to the credit of himself or his wife or the survivor of them has the same meaning as if the entry had been made to the credit of Alida P. Bell and James C. Bell, the principles established in the authorities last above cited apply. The deposit thus made by James C. Bell made his wife a joint-owner of the sum deposited with himself. It was not necessary to the validity of the gift, under the circumstances, that the wife should have possession of the pass book during the lifetime of her husband. As held in Fowler v. Butterly, supra, the possession of the husband was that of the wife. See, also, Scott v. Simes, 10 Bosw. 314; Orphan Asylum v. Strain, 2 Bradf. Sur. 34 ; Mack v. Bank, 50 Hun, 477; 20 St. Rep. 247. We conclude that Alida P. Bell, surviving her husband, was -entitled to demand and receive from the Albany Savings Bank the balance of the funds deposited by him remaining in the bank at the time of his death. We have examined the cases in the court of -appeals cited on behalf •of the plaintiff, and of the opinion that they do not conflict with the conclusion we have reached.

Judgment should be rendered in favor of the defendant Rochester.

All concur.


author: PUTNAM, J.

text:
    William D. Alley v. William J. Turck.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    1. Contracts—Considf,ration.
    A promise by the surety of a building contractor, to whom the contractor had assigned the money to become due under the contract, to pay the claim of a subcontractor, if the subcontractor would' do certain work on the premises, is without consideration, unless the work specified was something which the subcontractor was not required by his contract to do.
    3. Same—Injury to party promised.
    The omission of a subcontractor to file a mechanic’s lien is a sufficient consideration to support a promise by the contractor to pay the subcontractor’s claim.
    8. Statute op frauds—Promise to pay debt op another—Hew consid eration.
    A subcontractor, at the request of the contractor’s surety, to whom the contractor had assig'ned the payment to become due under the contract, and who afterwards received the payment, omitted to file a lien, on the promise of the surety to pay his claim. Held, that there was a new consideration for the promise, such as would take the case out of the statute of frauds.
    Appeal from Ulster county court.
    Action to recover money alleged to be due plaintiff from one Brundage for work performed under contract with him, and which plaintiff alleges that defendant agreed to pay. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.
    Howard Chipp, Jr., for app’lt; Brinnier & Newcomb (A. S. Newcomb, of counsel), for resp’t.
   PUTNAM, J.

In the month of March, 1893, one Samuel Brundage contracted to erect for one Robert Mains a house, and to do -all the work and furnish all the materials therefor. The plaintiff entered into an agreement with said Brundage to do the mason work required by the contract. The defendant was a surety for Brundage, becoming responsible to Mains for the completion of the house according to the contract. Brundage was then indebted to the defendant, and the latter was about to furnish the former with lumber necessary to perform said contract. Bran da see thereupon, and shortly after the execution of bis contract with Mains, assigned bis (Brundage’s) interest in said contract to the defendant, in form, by an absolute assignment, but intended as a security to the latter. After .the assignment, Brundage proceeded to erect the house and perform the contract, and received from the owner the greater part of the payments due on the contract. The last payment, however, of $1,100 was collected by the defendant. After the plaintiff claimed to have completed bis mason work under his agreement with Brundage, he testified that he had the following conversation with the agent or the üefenuant:

'“I went down to see Mr. Turck, and-I said: ‘Mr. Turck, wliab is there about my money on the Mains job? I have begun to get uneasy, and if l don't get any money, I will put a lien on it.' He said: ‘There is nothing to be uneasy for. Don't put a lien on it. Yre are Mains' bondsmen, and, when Mains pays us, we will pay you every dollar you have got in it.’ * 'x‘ * On the Monday after, I went and saw Mr. Turck. He said Mr. Mains was finding fault with regard to the cellar bottom. He said as soon as he was satisfied, he would pay me every dollar I had in it. He said him and I were the men that had to deal. T had nothing to do with Brundage, no more than a man out west. He said that Mains insisted upon having the bottoms ripped wholly out. * * * Mr. Turck then told me to go on, and put on the cement, and be would pay every dollar. ] did so.”

The plaintiff further said that, relying upon the promise of Mr. Turck, he did not file a notice of lien. The above-quoted testimony of the plaintiff is denied by that of the defendant’s agent, but its truth must be deemed established by the verdict of the jury.

The plaintiff brought this action upon the said promise of the defendant, to pay the balance of his claim against Brundage, and recovered in the court below. It was shown that, after the promise, the defendant received from Mains $1,100, the balance due on the contract, but that he refused to pay the plaintiff according to his agreement. The defendant insists that the promise of the defendant, on which the plaintiff seeks to recover, was without consideration, and, if otherwise, was a promise to answer for the debt of another, and, not being in writing, was void by the statute of frauds.

I concur with the view of the learned counsel for the appellant. that the additional work put upon the cellar bottom of the Mains house by the plaintiff at the request of the defendant, after the conversation above detailed, did not constitute a sufficient consideration for the promise of the defendant, upon which the action was brought. The plaintiff contracted to do the mason-work to the entire satisfaction of the owner. It appeared that Mains was not satisfied, and it was not shown that his objection to the work was unreasonable. Hence, the plaintiff failed to-show that, in performing the additional work on the cellar bottom at the request of the defendant, he did what he was not legally compelled to do.

I think, however, that the omission of the plaintiff to file a notice of lien at the request of defendant’s agent, and upon the promise of the latter to pay the balance due the former, afforded a sufficient consideration for the promise. It was said by Comstock. J., in Mallory v. Gillett, 21 N. Y. 412-414, where a creditor released a lien he had on a canal boat at the request and upon the promise of the defendant to pay the amount or the plain inris claim, “the consideration was perfect.” Here the plaintiff waived his right to file a lien at the request of the defendant, and relying on his promise. There was a sufficient consideration for the promise. But, as held in the case cited, it requires something more than a sufficient consideration to support a promise to answer for the subsisting debt of another to take the case out of the operation of the statute of frauds. It requires a new consideration, beneficial to the promisor. Where there is such a new consideration beneficial to the promisor, the statute of frauds will not apply. Thus, in White v. Rintoul, 108 N. Y. 222; 13 St. Rep. 495, it was held as follows:

“It seems a promise to pay a debt of another, antecedently contracted, where the primary debt still subsists in original, and so valid within the statute of frauds, although not in writing, when it is founded on a new consideration, moving to the promisor, and beneficial to him, and when by the promise he comes under an independent duty of paying, irrespective of the liability of the principal debtor.”

See, also, Mallory v. Gillett, supra; Ackley v. Parmenter, 98 N. Y. 425; Raabe v. Squier, 148 id. 81; 54 St. Rep. 824; Robinson v. Iron Co., 39 Hun, 634.

At the time when the promise of the defendant was made on which the plaintiff seeks to maintain this action, the latter was entitled -to file a notice of lien, which would have secured the payment of his claim. He omitted to do so at the request of the defendant, and on the promise of the latter to pay the balance due him. The defendant at the time was responsible to Mains for the completion of the house by Brundage. according to the terms of the contract. He also had an assignment of the interest of Brundage in the contract-with Mains, and was entitled to receive e the balance due from the later to the former, and, after the promise counted on by the plaintiff, did receive $1,100, the amount of such balance. If the plaintiff had filed a notice of lien, Mains would have been entitled to deduct the amount thereof from the sum to he paid the defendant. In consequence of plaintiff’s omitting to file a lien, the defendant received from Mains $70.90 more than he would had the lien been perfected. Hence, the defendant was directly benefited by the omission to file a notice of lien,, induced by his promise.

It follows tliat there was n new oonriderntion for the nrnmise of the defendant, on which the plaintiff relies, viz., the omission of the latter, at the request of the former, to perfect a lien bv which he could have secured the payment of his claim. This consideration was one moving to the promisor, and beneficial to him. Therefore, the promise of the defendant to pay the debt 'iflne from "Brundage to the plaintiff, although the primary debt still subsisted, was original, and valid within the statute of frauds. By the promise, under the circumstances, the defendant came under an independent duty to pay the plaintiffs claim, although tue liability of Brundage continued. White v. Rintoul, supra.

In this view of the case, it is unnecessary to consider whether or not the verbal release of Brundage by the plaintiff was valid. The contract under which plaintiff claimed was a new agreement, founded upon a new consideration, beneficial to the defendant, and under which he became obligated to pay the balance due the plaintiff, although the liability of Brundage continued.

The judgment should be affirmed, with costs. All concur, i


author: PARKER, P. J.

text:
    Merriam J. Lester et al. v. Harmon Worden et al.

    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    Bastakdy—Bond—Compliance with statute.
    Under 2 Rev. St., p. 286, see. 59, providing that no officer shall take any bond in any other case or manner than such as are provided by law, and that any such bond taken otherwise shall be void, a bond in a bastardy proceeding which requires the obligor to pay a certain sum per week for the support of the bastard, instead of requiring him to pay said sum, or such sum as the court of sessions may order (Code Cr. Pro., § 851), is void.
    Appeal from Rensselaer county court.
    Action on a bond given by defendants for the support of a bastard child. A judgment rendered by a justice of the peace in favor of plaintiffs was reversed by the county court, and plaintiffs appeal. Affirmed.
    Nelson Webster, for app’lts; Thomas F. Doherty, for resp’ts.
   PARKER, P. J.

The serious question in this case is over the validity of the bond upon which the action is brought. The defendant, Worden, who is principal in the bond, was defendant in proceedings to charge him as the father of abastard child. The bond was given under section 851 of the Code of Criminal Procedure, and the defendants Phillips and Hogoboom are his sureties. It is claimed by the defendants that such bond in not within the provisions of that section, and is therefore void. At the time this, .bond was taken, it was provided by Rev. St. § 59, art. 2, tit. 2, ch. 3, pt. 3, that no officer should take any bond, obligation, or security by color of his office, in any other case or manner than such as are provided by law; and any such bond, obligation, or security, taken otherwise than as so provided, should be void. This statute has been enforced by the courts with great strictness, and, while mere verbal variations from the statutory form will not render the instrument void, yet, if the bond in question imposes upon these defendants any burden or obligation greater than the provisions of section 851 require, it is clearly void. Cook v. Frendenthal, 80 N. Y. 202; Haberstro v. Bedford, 118 id. 187; 28 St. Rep. 857; 23 N. E. 459; People v. Meighan, 1 Hill, 298. Section 851 contains two subdivisions. lire first provides for security when the defendant does not intend to dispute the adjudication that he is the father of the child. It is to the effect that he will pay weekly, or otherwise, as may have been ordered, the sum directed (viz., by the magistrates) for the support of the child, and of the mother during her confinement and recovery, or which may be ordered by the court of sessions of the county; and that he will indemnify the county and the town where the bastard was or may be born, and every other county or town which may have been, or may be, put to epeuse, etc., against those expenses, or that the sureties will do so, not exceeding the sum mentioned in the undertaking, and which must be filed by the magistrates. Upon giving an undertaking, with approved sureties, to the above effect, the defendant is entitled to be discharged from arrest; and, while he may not review the ajdudication that he is the father of the child, he may appeal from that part of the order of filiation fling the weekly or other allowance to be paid. See Code Cr. Proc. §§ 852, 861, 862. In the case at bar, the magistrates, instead of taking on undertaking, took the bond in question. Without deciding whether the change in form would be sufficient to invalidate it, let us look at its provisions.1 It recites that an order of filiation has been made by two magistrates of the town of Nassau, whereby Worden was adjudged to be the father of a bastard child, and that he was required by such order to pay to the overseers of the poor of the town of Nassau the sum of $1.25 per week while said child remained a charge upon said town. It further recites that by such order said Worden was also adjudged to pay to such overseer a certain amount of costs in such bastardy proceedings, and, after such recitals, it proceeds as follows:

“Now, therefore, the conditions of these obligations are such that if the said Harmon Worden shall well and truly observe all the conditions of said order of filiation, then this obligation to be void; otherwise, to remain in full force and effect.”

Plainly, this obligation is to pay $1.25 per week so long as the child is a charge upon the town of Nassau. But the obligation required by the statute is to pay that sum, or such sum as “may be ordered by the court of sessions of the county;” and the omission of such latter provision from the bond before us clearly enlarges the liability of the defendant and his sureties. Under the obligation required by the statute, if the defendant appealed to the court (£ sessions, and there procured an order reducing the amount to be paid by him (see section 865), he would fully perform its conditions by paying the amount so reduced; but, by the bond which he did give, he must continue to pay the amount fixed by the magistrates’ order of filiation. No provision is made for its reduction by the court of sessions, and he is therefore practically foreclosed from taking an appeal. Being under bonds to pay the amount fixed by the order of filiation during the whole period that the child remained a charge upon the town, an appeal, ror the purpose of reducing such amount, would be of no advantage. T'he bond in question is, therefore, not only different in form from the undertaking required'by section 85.1, but it also omits therefrom a very important limitation to the defendant's liabilty, which such section requires shall be in it, viz., that in the event that the court of sessions shall change the amount adjudged to he paid by defendant for the support, of the child, such amount shall thenceforth be.the limit of the obligation thereby incurred. This omission evidently imposes a different and greater liability upon defendant than the magistrates had the right to exact. Such an obligation is not warranted by the statute, and hence is utterly void.

For this reason the judgment of the justice could not be sustained, and its reversal by the county court was correct.

Judgment of the county court affirmed, with costs.

All concur.


text:
    Joseph E. Moak v. John W. Moak et al.

    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    Wills—Construction—Quantity of estate.
    Testatrix devised a portion of her land to her grandson, “his heirs and assigns, forever.” Another portion she devised to her granddaughter “during her natural life, and after her decease to her heirs and assigns, forever.” Held, that the granddaughter, notwithstanding the use of the-word “assigns” in the devise to her, took only a life estate.
    Appeal from dismissal of complaint by general tern.
    Clarence E. Holmes, for app’lt; John S. Pindar, for resp’ts.
   PARKER, P. J.

Katharine Donaldson, by her last will and testament, which was admitted to probate in Schoharie county November 2, 1857, made the following devise: “Second. I give and bequeath to my granddaughter. Maria Moak (wife of Jacob M. Moak), all the remaining easterly part of my homestead farm and the westerly half of a six-acre lot lying on the north side of the highway; to have and to hold the same during her natural life, and after her decease to her heirs and assigns, forever;” and the single question presented hv this appeal is whether Maria Moak, by such devise, took any greater interest than a life estate in the premises. If it were not for the insertion of the words “and assigns” after the words “to her heirs,” in such devise, it is conceded by all parties that her interest, would have been limited to a life estate; bpt the trial court held that by the use of the words “to her heirs and assigns” a grant of power to dispose of the remainder after her death was given her, and that, therefore, the estate which she took was equivalent to a fee in the lands. A cardinal rule of testamentary construction is that the plain intent of the testator, as evinced by the language of his will, must prevail, and such intention may be collected from the whole will taken together. Schouler, Wills, §§ 466, 468; Byrnes v. Stilwell, 103 N. Y. 458; 4 St. Rep. 241; Roe v. Vingut, 117 N. Y. 202-212; 27 St. Rep. 238. “Where words are equivocal, that explanation shall be given which will ureserve consistency in preference to one which will create inconsistency; and, if possible, some effect shall he given to each distinct provision, rather than that it shall he annihilated.” Chrystie v. Phyfe, 19 N. Y. 344, 348. We are to seek, therefore, for the intent of the testatrix as manifested, not only in the particular language which constitutes this devise, but also by any other language or provision of the will bearing upon this question, and when we shall have so ascertained the testatrix’s intent we will have solved the question presented to us. By the first clause of the will the testatrix gave to her grandson, Leroy Snyder, the other half of the lands mentioned in the devise under consideration, and in so doing made use of the following language: “First. I give and bequeath to my .•grandson, Leroy Snyder, forty-four acres of land; * * * to have and to hold the above-described premises to the said Leroy Snyder, his heirs and assigns, forever.” Here is a plain devise of the fee in one-half of the lands, made by apt and appropriate language, to vest the absolute title and fee in him. She then proceeds hv the second clause, above quoted, to dispose of the other half of such premises. She gives and bequeaths all such other half to her granddaughter, Maria Moak, “to have and to hold the same during her natural life, and after her decease to her heirs and assigns, forever.” Can there he any doubt but that the testatrix intended to give a different estate or interest to Maria Moak from what she had given to Leroy Snyder? Is it at all probable that she used the apt and natural words to give Leroy a fee in one-half the lands, which she did use, and then, with the purpose and intent of giving Maria Moak the same interest in the other half, she used the unusual and very doubtful phrase which we find in the devise to her? Can we for a moment sunpose that, with the fixed purpose and intent in her mind to give Maria Moak the absolute ownership, she would first declare that she was to “have and hold the same during her natural life,” and then'negative that, limitation by the provision that “after her decease” she was to hold it to her assigns forever? Surely, she did not adopt such phraseology for the purpose of investing Maria Moak with the same interest that she had given to Lerov Snyder. What, ■then, was the interest she intended to give to Maria Moak. She had .qiven Leroy Snyder the absolute ownership forever. Plainly she intended Maria Moak to have a different, and necessarily & less, interest; and the first phrase which she used, viz., “to have and to hold during her natural life,” in my opinion, designates exactly what she intended her to have. They are the natural and apt words to use in bestowing a life estate upon her. They are utterly inapplicable and of no force whatever in order to bestow a fee, or any greater interest, in the premises. The interpretation for which the despondent contends requires us to omit entirely from this clause of the will the words, “during her natural life, and after her decease,” and to give force only to the words,. “to have and to hold the same, to her heirs and assigns, forever.” iWe must drop out the words “and afver her decease” as well as the words “during her natural life,” for a phrase reading, “to-have and to hold the same, and after her decease to her heirs and assigns,” would hardly manifest an intent to vest, in her absolute and unlimited ownership and power over the estate. It would indicate that the testatrix’s idea was to have her hold possession until her decease, and that after that only were her assigns or heirs tQ take. The idea of a life interest and possession seems to have been the leading one in the testatrix’s mind, and with that in view we are to inquire what effect is to be given to the words “her heirs and assigns.” It is plain, I think, that the scrivener intended to give the absolute ownership to Maria Moak’s heirs after her death, and that he used the words “and assigns” for that purpose. The idea in his mind was that after her death the estate was to go to her heirs and their assigns, and such, I think, should be the reading which we must give it. The phrase, “upon her death, to her heirs and assigns,” is by no means unnaturally forced by such a construction. If it road “to her heirs or assigns,” it might be different, but it could hardly go to both her heirs and her assigns, after her death, by any disposition she could make of it. I am so thoroughly convinced that the testatrix intended to give Marin Moak no more than a life estate that I think we are authorized to insert the word “their” before the word “assigns,” and by so. doing we give effect to all the language of the devise. Phillips v. Davies, 92 N. Y. 199.

The respondent relies upon the case of Goetz v. Ballon, 64 Hun, 490; 46 St. Rep. 421, as authority for the construction which he claims should be given to this will. True, the phrase, “after her decease, to her heirs and assigns, forever,” is there interpreted as he desires this to be, but the reason why it was so construed is in entire harmony with the reasoning and conclusion above adonted. In that case the intent of the testator was sought for, and it was concluded that by such phrase he intended to give the absolute ownership to his daughter Louise, therein named, because bv a previous clause in the will he had, by the use of ant- and appropriate words, given a life estate to another daughter, with remainder over to her heirs. Thus he had devised the premises to his daughter Agnes for life, and by the following language: “And from and immediately after her decease I give the same to her heirs or their assigns, forever,”—he had limited a remainder upon it. It was concluded that, had he intended to give Louise the same kind of an estate that he had given to Agnes, with a similar remainder over, he would have used similar language, and that the purpose to give them different estates was plainly indicated by the change made in the language used." I conclude, therefore, that under the will in question Maria Moak took no-more than a life estate in the premises, and that, therefore, the judgment dismissing plaintiff’s complaint was erroneous, and should be reversed.

Judgment reversed, and new trial granted; Posts to abide the event.

All concur.


author: FOLLETT, J.

text:
    Rose J. Clark et al. v. Bruce S. Aldrich.
    (Supreme Court, Appellate Division, Fourth Dept.
    April 18, 1896.)
    1. Parties—Misjoinder—Sufficiency of answer to raise objection.
    An answer which merely alleges a misjoinder of parties plaintiff is not sufficient to raise the objection that one of the plaintiffs, asadministratrix, had no interest in the controversy, but it should point out specifically the defect relied on.
    3. Landlord and tenant—Estopped to deny landlord’s title.
    The rule that a tenant cannot deny his landlord’s title precludes a. tenant, in an action for rent, from raising the objection that plaintiffs (the lessors) were not the sole owners of the demised premisse„
    3. Assignment—Sufficiency—Question of law.
    A writing which recites that, “For value received, I hereby sell,, assign, transfer, and set over to M. all my right, title, and interest in and to a certain lease,” describing it, is, as a matter of law, sufficient; and it was error for the court to submit the question of its. sufficiency to the jury.
    Appeal from Onondaga county court.
    Action for rent. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.
    This action was begun July 21,1894, in a justice’s court. The pleadings were as follows: Complaint: “Plaintiffs complained for rent of premises near Maple Bay, Onondaga county, for April, May, and June.” Answer: “Defendant answered: General denial; misjoinder and nonjoinder of parties plaintiff.” A trial was had which resulted in a verdict for $185.76 damages. The costs were adjusted at $6.92, and a judgment rendered for the-plaintiffs for $192.68. Thereupon the defendant appealed to-the county court, demanding a new trial, which was had, and & verdict rendered for the plaintiffs for $185.85. A motion for s±
      new trial on the minutes was made, denied, and an order entered. Thereafter the plaintiffs’ costs were taxed -at $59.22, and July 19, 1895, a judgment was entered in favor of the plaintiffs for $245.07, from which the defendant appealed to this court.
    October 14, 1888, George S. Brand died intestate, seised in fee of a farm, leaving Rose J. Clark, Carrie Quinn, and Ella 11. Brand, daughters (the plaintiff herein), and two grandsons, children of a deceased son, who are infants residing in the state of Iowa, his heirs and next of kin, and Almena Brand, widow. May 14, 1889, the plaintiffs herein and Almena Brand entered into a written lease, under seal, with Willis S. Barnum, by which he leased the part of the farm lying east of the Oswego <& Syracuse Railroad for the term of ten years from April 1, 1889-, for the yearly rent of ten dollars per acre for the upland and fifteen dollars per acre for the swamp and reclaimed land, payable on the 1st days of April, May, June, July, August, September, October, and November in each year. The lease provided that the quantity of land was to be ascertained by a survey, which was made, and it was ascertained that there were 18 79-100 acres of upland and 20 52-100 acres of swamp and reclaimed land, and that the annual rent amounted to $495.36, $61.92 being payable on the 1st days of April, May, June, July, August, September, October, and November in each year. Under this lease the lessee entered into possession of the demised premises, and December 12, 1892, he sublet a piece of said premises forty feet wide by seventy feet Ionic to George W. Steele for twenty years for an annu&I rent of ten dollars. • Steele entered into possession of the piece so sublet to him, and still remains in possession thereof. Willis S. Barnum occupied the remainder of the demised premises until August 9, 1893, when he, by a written assignment", assigned his lease, and also the lease to Steele, to the defendant in this action, who then entered into possession of all the leasehold premises, except that sublet to Steele, and paid the stipulated rent until April 1, 1894. November 23, 1893, the defendant signed the following instrument:
    “For value received, I hereby "sell, assign, transfer, and set over to Frank B. Maycumber all my right, title, and interest in and to a certain lease of land at Maple Bay, by Ella M. Brand and others to Willis S. Barnum.
    “Syracuse, Nov. 27th, 1893. BRUCE S. ALDRICH.”
    This assignment was not delivered to the assignee therein named until April 2, 1894.' The interest of Almena Brand in the premises was her unassigned dower right. May 13, ^1892, she died intestate, leaving her said three daughters and said two grandchildren her heirs and next of kin, and subsequently Ella M. Brand was anpointed administratrix of said deceased. Th;s action was brought for the recovery of the rent due in April, May, and June, 1894, and was defended on the ground that the defendant had assigned the lease, surrendered possession of the premises to his assignee, and was not liable for rent, nor for use and occupation, after his surrender, and also on the ground that there was a defect of parties plaintiff.
    E. N. Wilson, for app’lt; Charles E. Ide, for resp’ts.
   FOLLETT, J.

The unassigned dower right of Almena Brand in the leased premises was extinguished by her death, which occurred May 13, 1892, and her administratrix has no interest in the rent sought to be recovered in this action, and she is an unnecessary party plaintiff, but the objection was not sufficiently raised by the answer. The defendant should have pointed out specifically the defect relied on,—that t'he administratrix was improperly joined as a party plaintiff (Berney v. Drexel, 33 Hun, 419),— and, not having done so, the objection is waived.

The defendant cannot dispute the title of his landlords, and the grandsons of George S. Brand, if living and retaining their interests in the premises, are not necessary parties; and, besides, the answer does not specifically raise the question that they should have been joined plaintiffs.

The assignee of a lease, who enters into possession of the leased premises, is liable for the rent thereof during the time he remains in possession; but, if he assigns his interest, and ceases to occupy the premises, his liability for rent is terminated. The decision of the case turned upon whether the defendant occupied the premises under this lease during April, May, and June, 1894. The defendant read in evidence the assignment of EÍovember 27, 1893, set forth in the statement of facts, and testified that he had not been in possession of the premises, or any part of them, since November 27,1893, at which-date, he testified, he surrendered them to Maycumber, his assignee. The plaintiffs asserted that this assignment was merely colorable, and that the defendant remained in possession during the time for which rent was sought to be recovered. The question of fact was sharply litigated on the trial, and the evidence was quite sufficient to present a question for the ury. If it were true that the defendant’s assignment was color-able, and that he was in fact in occupation of the premises, through Maycumber as his agent, he remained liable for rent.

T’he defendant requested the court to charge that, “if it (the assignment of the lease) was executed and delivered with the intent of conveying the estate, that the instrument itself is legally sufficient to accomplish that purpose. The Court: The effect of this instrument I am going to leave to the jury.” The defendant also requested the court to charge “that the instrument (Exhibit No. 4, the assignment of the lease) purporting to be executed by the defendant to Maycumber is in form and language sufficient to legally transfer all the interest that Aldrich had in the premises in question. The Court: I don’t know about that. I will leave that to the jury. I decline to charge that.” To this ruling the defendant excepted. This was error. This assignment, on its face, was sufficient in form to transfer all the defendant’s interest in the original lease, and the court should have so charged. This assignment had no legal effect, unless it was delivered by Aldrich to Maycumber, and accepted by the latter, with intent on the part of both that it should take effect according to its terms. If it were so delivered and accepted, it was sufficient to transfer the defendant’s interest in the premises, provided the defendant surrendered possession of the premises to Maycumber pursuant to the assignment, and thereafter ceased to occupy the premises.

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

All concur.