author: Per Curiam:

text:
    LIZZIE GAMBLE, Respondent, v. THE VILLAGE OF WATKINS, Appellant.

      Municipal duties — entertaining visitors not within the scope of

    In an action brought to recover for meals and lodging rendered by the proprietors of a hotel, in entertaining a party of representatives of the press, the entertainment having been authorized and directed by the board of trustees of the defendant, by resolution duly passed by the board acting as such: held, that such entertainment was not a duty for which the municipality was created, and for a debt contracted therefor it was not liable.
    Appeal from a judgment of the County Court of Schuyler county, affirming a judgment in favor of the plaintiff rendered by a justice of the peace.
    The action was brought to recover for meals and lodgings furnished by Gamble & Richardson, proprietors of one of the hotels in Watkins, in entertaining a party of representatives of the press, and directed to be so furnished by the board of trustees of defendant, by resolution duly passed by the board acting as such. The demand, on which the action was brought, was assigned to the plaintiff by Richardson, the surviving partner.

      Hurd <& Fletcher, for the appellant.

      B. W. <& O. M. Woodtoa-rd, for the respondent.
   Per Curiam:

The defendant’s motion for a nonsuit, on the ground that plaintiff had failed to make out a cause of action, is sufficient to present here the question as to the power of the defendant to contract the alleged debt. This goes to the merits of the action, and does not raise an objection which further proof might have obviated.

We think that the defendant had no power to appropriate money for the entertainment of a company of editors visiting the place. (Hodges v. Buffalo, 2 Denio, 110.) That is not a duty for which the municipality was created. It is said that-the expenditure has been repaid by the effect on the village of subsequent editorial puffs. But it is not proper for village trustees to hire editors to praise the attractions of the place.

If it bad been shown that the editors were paupers, then, under the duty of a village to take care of the poor, there might have been some propriety in keeping them from starving.

The judgment appealed from should be reversed with costs-

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment of County Court and of justice of peace reversed; with costs.


source: Caselaw Access Project

license: Public Domain

text:
    GEORGE B. STACY, as Receiver, etc., Respondent, v. GILBERT DESHAW and GEORGE DESHAW, Appellants.

      Evidence — Transfer—Fraudulent as to creditors —what admissible to disprove — Judgds charge — Payment of debt by transfer of property:

    On the trial of an action brought by plaintiff, as receiver, under supplementary proceedings, against the defendant Gilbert Deshaw, to set aside the assignment of a contract for the purchase of a lot of land, executed by Gilbert to GeorgeDeshaw on the ground that it was made to hinder and defraud creditors, the answer denying such fraudulent-intent, the defendants offered to prove that at the time of the assignment Gilbert Deshaw believed that a note on which the judgment was obtained against him, and the supplementary proceedings were based, had been paid, which was excluded. Held, that the evidence was admissible; that the question of -fraud is one of fact for the jury. While his evidence on this point might not be conclusive, such belief might have some influence on the question whether he meant to defraud.
    The question was asked by defendants what the premises were worth, which was objected to and excluded, as also the offer to prove that at the time of the transfer they were not worth $400, although there was due upon them $468. Held, that it should have been admitted, as it might have been shown that Gilbert’s interest in the premises was of little or no value; and the value of the assigned property is always important on the question of fraud.
    Defendants had given evidence, that at the time of the assignment from Gilbert to George the former was indebted to the latter in. the sum of sixty dollars, and that, in consideration of the transfer of said contract, the debt was discharged. The judge charged the jury that there was no valuable consideration from George to Gilbert for the assignment. Held, erroneous; that the assignment of the contract to George was the payment of the debt, and such payment was a valuable consideration; that it was not unlawful for a debtor to pay a debt by a transfer of property, and the acceptance of property in payment of a debt was a valid transaction.

      Appeal from a judgment, entered upon the verdict of a jury, and from an order denying a motion, to set aside the verdict for insufficient evidence and upon exceptions taken and for a new trial upon the minutes of the judge.
    The action was brought by the plaintiff, as receiver, appointed in proceedings supplementary to execution, to set aside an assignment of the interest of the defendant Gilbert Deshaw, in a certain land contract, to his son, the defendant George Deshaw, upon the ground that it was fraudulent and void as to creditors; and the appeal is mainly based on exceptions to the refusal of the judge to allow the admission of certain evidence, by the defendants.

      Swift & Sanford, for the appellants.

      E. A. Chaffee, for the respondent.
   Per Curiam:

This is an action brought by the receiver of Gilbert Deshaw, appointed in proceedings supplementary, to set aside the assignment to George Deshaw, of a contract for the purchase of a lot of land. The plaintiff recovered upon the trial, and the defendants .appeal. The allegations of the complaint are that the assignment was made with the intent to hinder, delay and defraud creditors, of whom Myron Hoadley, the plaintiff in the original judgment, was one. The fraudulent intent was denied by the answer.

The defendants offered to prove that, at the time of the assignment, the defendant Gilbert Deshaw believed that the nofe on which the judgment of Hoadley was recovered, had been paid ; this evidence was excluded, and defendants excepted.

The question of fraud is one of fact for the jury. If Gilbert Deshaw believed that the note was paid (as it was an accommodation note), such belief might have some influence on the decision of the question whether he intended to defraud Hoadley. His evidence on this point might by no means be conclusive on the question, but it was admissible.

Again, the question was asked by the defendants, what the premises were worth at the time of the transfer from Gilbert to George. This was objected to and excluded, and the defendant excepted. And again, tbe defendant offered to prove that the premises at the time of the transfer were not worth to exceed $400. This was objected to and excluded. It appeared that at that time there was due upon the contract $468. If the evidence had been admitted, therefore, it might have been shown that Gilbert Desliaw’s interest in the premises was of little or no value.

The value of the assigned property is always important on the question of fraud. It is difficult to understand how creditors can be defrauded by an assignment of property which is worth nothing.

The plaintiff insists that the evidence was not admissible under the pleadings. But the answer contains a general denial except as admitted; and the only admission bearing on this point is, that while Gilbert Deshaw was in possession, the premises were improved but not to any considerable amount. As there is no allegation in the complaint of their previous value, there is no admission in the answer which should exclude this evidence.

The court further charged the jury that there was no valuable consideration from George Deshaw to Gilbert Deshaw for the assignment of the contract; to which the defendants excepted. Evidence had been given by the defendant that at the time of the assignment Gilbert Deshaw was indebted to George Deshaw in the sum of sixty dollars for work, labor and services, and that by mutual agreement between them George Deshaw did cancel and discharge said claim, as the consideration for the transfer of said contract; that the transfer was on that consideration, and the said debt was then discharged. If this were so, then the assignment of the contract to George Deshaw was the payment of the debt. Such payment was a valuable consideration. It is not unlawful for a debtor to pay a debt by the transfer of property, and the acceptance of property in payment of a debt, is a valid transaction.

Without examining any other objection, it seems, from what is above said, that the order denying a motion for a new trial must be reversed, the judgment set aside, and a new trial granted, costs to abide the event.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment reversed, new trial granted, costs to a,bjde event.


author: Learned, P. J.:

text:
    ORRIN O. HORTON, Respondent, v. THE TOWN OF THOMPSON, Appellant.

      Town bonds, illegally issued — subsequent legislation giving them validity, constitutional— Laws of 1868, chap. 558 — Laws of 1869, chap. 96 — •Laws of 1871, chap. 809.
    Bonds, purporting to be issued by the defendant under chapter 558 of Laws of 1868, and chapter 96 of Laws of 1869, were issued, although the consents given to the bonding of the town did not state the name of the company in whose stock the proceeds were to be invested; the bonds, also, were not sold for cash, hut were exchanged directly with the company for stock. The act, chapter 809 of the Laws of 1871, ratified the acts of the commissioners in issuing these bonds and exchanging them for stock, and declared that no bonds held, owned or possessed by any person in good faith for a valuable consideration, should be void by reason of the consents not stating the name of the company, provided that the exchange of bonds for stock was made at the par value of the stock. The plaintiff was a bona fide holder for value, and the bonds were exchanged at par for stock.
    Held, that the latter act was constitutional, and the plaintiff entitled to recover.

      Rogers v. Smith (12 N. Y. S. C. [5 Hun], 475) followed; In the Hatter of the Buffalo and Jamestown B. B. Go. (id., 485) distinguished.
    Appeal from a ¡judgment entered upon the report of a referee.
    This is an action upon two coupons, for tliii’ty-five dollars eaeb, being for the interest on a $1,000 bond, purporting to be issued by the defendant under a bonding act. (Laws of 1868, ch. 553, and Laws of 1869, ch. 96.) The grounds of defense are: First. That the consents given to the bonding of the town did not state the name of the company in whose stock the proceeds were to be invested. Second. That the bonds were not sold for casb, but were exchanged directly with the company for stock.

      T. F. Bush, for the appellant.

      J. L. Binson, for the respondent.
   Learned, P. J.:

There is no doubt that there are very important questions involved in this case. So far, however, as this court is concerned, many of them are settled. In the case of The People ex rel. Kilbourne v. Benedict (not reported), tile General Term of the third district decided that these bonds (not being in the hands of holders ignorant of the objections thereto), were unlawfully issued by reason of the omission to name the company. This should determine that point in this court.

But, again, chapter 809 of the Laws of 1871 ratifies the acts of the commissioners in issuing these bonds, and in exchanging them for stock; and declares that no bonds held, owned or possessed by any person in good faith, and for a valuable consideration, shall be void by reason of the consents not stating the name of the company, provided that the exchange of bonds for stock was made at the par value of the bonds.

There is no dispute that the plaintiff is a bona fide holder for valuable consideration, or that the bonds were exchanged at par. If, then, this act is valid and constitutional, there can be no- question remaining in .this ease.

In the case of Rogers v. Smith (12 S. C. N. Y. [5 Hun], 475), the question of the validity and constitutionality of a similar act was argued The law there under discussion was chapter 638, Laws of 1874. It is of the same character with the act now under consideration, and was passed for the ratification of similar bonds illegally issued.

The General Term of the court in the fourth department decided, in that case, that the legislature was competent to pass such a law, and they sustained its validity. On such a question as this we should follow the decision already made, where the cases áre almost precisely the same.

We are referred to the case of The Buffalo and Jamestown Railroad Company (12 S. C. N. Y. [5 Hun], 485), where the same court held that section 11, article 8 of the Constitution has repealed the bonding acts, except so far as they relate to existing contracts. It is manifest, however, that the court did not consider that that section of the Constitution took away the effect of such a ratifying act as the one under consideration ; because they refer to that section in their opinion in Rogers v. Smith, and hold the ratifying act to be valid. Following, therefore, the opinion of that General Term, I think the judgment should be affirmed with costs.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment affirmed with costs.


author: Learned, P. J. :

text:
    OLIVER PEAKE, Appellant, v. CALVIN H. BELL, Respondent.

      Practice — motion to set aside verdict as against evidence — when not maintainable.

    The failure of a defendant to move for a nonsuit, or to ask the court to direct a verdict for the defendant, is an admission that there is sufficient evidence to go to a jury, and the defendant is thereby precluded from moving to set aside the verdict as against evidence.
    Appeal from an order made at the Circuit, upon the minutes of the court, setting aside a verdict for the plaintiff, and directing a new trial.
    This action was tried at the Circuit before a judge and jury. The jury found a verdict for the plaintiff. On the defendant’s motion, then made upon the judge’s minutes, to set aside the verdict and for a new trial, an order was made that a new trial be. granted “on the ground that the verdict of the jury in favor of the plaintiff is against evidence.” From this order the plaintiff appeals.
    There was no motion made for a nonsuit at the close of the plaintiff’s evidence, or at the end of the trial. Nor was there any motion made by the defendant that the court should direct a verdict for the defendant.
    A motion was made at the close of the trial by the plaintiff that the court should direct a verdict for the plaintiff. This the court refused, saying that the case was one for the jury

      D. D. Niles, for the appellant.

      C. H. Bell, for the respondent.
   Learned, P. J. :

It has been repeatedly held that a failure to move for a nonsuit, or to ask the court to direct a verdict for the defendant, is an admission that there is sufficient evidence to go to the jury; and that the defendant is thereby precluded from moving to set aside the verdict as against evidence. (Barrett v. Third Ave. R. R. Co., 45 N. Y., 628; Sickels v. Gillies, 45 How., 94; Rowe v. Stevens, 12 Abb. [N. S.], 389; St. John v. Skinner, 44 How., 198; Ross v. Colby, 10 S. C. N. Y., 546.)

The order appealed from should therefore be reversed with costs.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order setting aside verdict reversed, with ten dollars costs and printing.


text:
    JAMES ARKELL, BENJAMIN SMITH and ADAM SMITH, Respondents, v. THE COMMERCE INSURANCE COMPANY, Appellant.

      Policy of insurance —gasoline — waiver of conditions by agent, as to use of— waiver by parol, though policy provides for indorsement thereof— “ Contiguous ” — definition of.

    A policy of insurance contained a condition that “ Lights: The generating or evaporating within the building or contiguous thereto of any substance for a burning gas, or the use of gasoline for lighting is prohibited, unless by special agreement indorsed on this policy,” and the insured being desirous of putting up works for making gasoline and lighting their building therewith, applied to the agents of the insurance company for permission so to do, and said agents consented that the insured might put in such works, provided the tank was placed fifty feet from the building, and were present and saw the tanks put in: Held, that that distance had been established by the company through their agents, at which the tanks might be put in and not be deemed " contiguous.” That they thus gave a definite meaning to the indefinite word “ contiguous,

      Held, also, that general agents of an insurance company, such as these were, could waive by parol a condition inserted in a policy for the benefit of the company, even although the policy provides that such condition can be waived only in writing.

      Held, also, that as it was apparent that the tank and apparatus were put up for the purpose of generating gas out of gasoline, and were connected with the building; it would be unreasonable to say that the defendant consented to the construction of the tank and of the necessary apparatus for lighting the building with gasoline, but did not consent to their use.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

    This is an action to recover on a policy of insurance. The defense is, that there was a breach of certain conditions of the policy. The reply of the plaintiffs is, that whatever they did was by the express consent of the defendant’s agent.
    There are several clauses under which the defense is alleged to arise.
    Brown Stafford & Son were the agents of the defendants who issued the policy. In the spring of 1873 the plaintiffs applied to Brown Stafford & Son, the agents of the defendants, in regard to patting up works for making gas from gasoline, for lighting their building; and said agents consented that plaintiffs might put in such works, provided the tank was placed fifty feet from the building.
    The referee finds that Brown Stafford & Son fixed and determined that distance, as that, at which the tank .might be placed, without being deemed “contiguous.”
    That the plaintiffs had no knowledge of the specific authority of these agents, but knew that they were taking risks, issuing policies and doing business as insurance agents for the defendants.
    That on the 12th of September, 1873, these agents surrendered their appointment as such and closed up their business.
    That the plaintiffs were ignorant of this discontinuance of the agency until after the fire, and that Brown Stafford & Son continued to treat with the plaintiff as such agents down to and including the putting in of the gasoline works; and that Brown Staff ford was present when the gasoline tank and apparatus was put in, and approved of the same.
    In November, 1873, the plaintiffs put into the building pipes and apparatus for the purpose of lighting it with gas manufactured from gasoline. They put a tank on the lands upon which the building stood, and pipes conducting from the tank to the building.

      Daniel S. Monell, for the respondents.

      George W. Miller, for the appellants.
   Learned, P. J.:

Under the decisions in Whitwell v. Putnam Fire Ins. Co. (6 Lans., 166); Pechner v. Phœnix Fire Ins. Comp, (id., 411); Van Allen v. Farmers' Joint Stock Ins. Co. (4 Hun, 413); Parker v. Arctic Ins. Co. (1 N. Y. S. C., 397, affirmed in Court of Appeals ; see case last previously cited), it must be cousidered as settled that a general agent of an insurance company, (such as Brown Stafford & Son were), can waive by parol a condition inserted in a policy for the benefit of the company; even although the policy provides that such condition can be waived only in writing.

The clause of the policy which is most directly in point is the following: “Lights. The generating or evaporating within the building, or contiguous thereto, of any substance for a burning gas, or the use of gasoline for lighting, is prohibited unless by special agreement indorsed on this policy.”

Now we have the consent of the company, through their agent, to the generating of a substance for a burning gas. They fix the distance and thus give a definite meaning to the indefinite word “ contiguous.” Their agents are actually present when the tank is put in, and approve of it.

But it is urged by the defendants, that even if the agents did consent to the generating of a substance for a burning gas, yet he did not consent to the “ use of gasoline for lighting.” It was, however, apparent that the tank and apparatus were put up for the purpose of generating gas out of gasoline. They were connected with the building; and it would be most unreasonable to say that the defendants consented to the construction of the tank and the necessary apparatus for lighting the building with gasoline, but did not consent to their use.

The objection that the agent did not waive the provision, requiring any waiver to be indorsed on the policy, seems to be overruled in the case of Parker v. Arctic Fire Insurance Company, cited above. It is true that in that case the waiver was by the secretary, while here it was by the general agent of the company at Canajoharie. But the doctrine of Pechner v. Phœnix Insurance Company, above cited, and of Standard Oil Company, v. Triumph Insurance Company (10 S. C. N. Y. [3 Hun], 591), seems to establish the power of such general agent to waive this condition.

The plaintiffs appear to have acted in good faith. They told the agent that they would not put in the gas works unless they had the permission of the companies. He gave them such permission provided the tanks were fifty feet from the building, and they complied with that requirement. He was present and saw them putting it in. It would certainly be unjust that the agent of the defendants should lead the plaintiffs into doing an act, under the assurance that it would not affect their policy ; and then that the defendants should defeat a recovery, by reason of that act.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.


text:
    ALEXANDER H. BECKER and JOHN M. BECKER, Plaintiffs, v. ISAAC C. WINNE, Impleaded with JOHN C. STEFFEN, Defendants.

      Gommission — irregularities in — must be corrected by motion before trial — Evidence —previous statements of witness examined on commission contradicted — without Ms attention being first called to them.

    Irregularities in tlie return to a commission to examine a witness sliould be taken advantage of on motion before trial, when there is abundant time.
    Consent to the issuing of a second commission to examine the same witness is not a suppression of the first.
    Where, on the trial, the defendant gave in evidence, the evidence taken under the second commission, and then the plaintiff gave in evidence, under objection, the evidence taken under the first, held, that the evidence under the first commission was not open to the objection, that the witness could not be contradicted by previous statements made by him, without his attention being first called to them.
    Motion for anew trial ou a case and exceptions, made by defendant Winne, ordered to be heard in the first instance at the Geueral Term.

      E. Countryman, for the plaintiff.

      Lynes d¿¡ Bowen, for the defendant.-
   Per Curiam:

A commission to examine a witness in this case was issued on the part of the defendant, and returned with the answers to interrogatories and filed. Subsequently another commission to examine tlie same witness was issued, also on the part of the defendant, and returned. On the trial the defendant gave in evidence the evidence taken under the second commission. Then the plaintiff gave in evidence, under objection, the evidence taken under the first. There were three objections :

1. Certain irregularities in the return. Advantage should have been taken of these by motion before the trial, as there was abundance of time.

2. That consent to a second commission was a suppression of the first. By no means. Further evidence might be desired. There was no order for suppression.

S. The witness could not be contradicted by previous statements without calling his attention to the matter. But the evidence taken by the first commission was evidence given on the trial. That is, it was direct evidence in the case; not hearsay or secondary. It was just as if the defendant had called and examined a witness and the plaintiff had cross-examined. And then the plaintiff had, recalled the witness and examined in chief. It is a matter of discretion at the trial.

The motion for a new trial should be denied, and judgment ordered on the verdict, with costs.

Present — Learned, P. J., Bockes and Boardman, JJ.

Motion for new trial denied and judgment ordered on verdict, with costs.


author: Learned, R. J.:

text:
    WILLIAM H. BLOOMINGDALE, Respondent, v. FREDERICK J. BARNARD, Appellant.

      Junior mortgagee — right to subrogation — to assignment— to injunction.

    Where a party holds a third mortgage, the two prior ones being held by another, who has obtained judgment of foreclosure and sale on them, he cannot, as such, claim to be subrogated to the first., nor is he entitled to a stay of the sale by injunction. If he had any ground to equitable relief, he should have set it un on the foreclosure. As mere third mortgagee his rights as such are pron cu-ii jy the opportunity to purchase at the sale or pay up beforehand.

      Where a party holds a second mortgage, and his equity of redemption has been cut off by the foreclosure of the first, he may sometimes have the right of subrogation, or even he entitled to an assignment, but it will depend on circumstances showing its equity, and he will not he entitled to a stay of the sale by injunction, without clearly showing that the payment of the first or Us foreclosure or sale will work him injustice.

    A party in possession under an agreement with the mortgagor to pay off such incumbrances, as it may be necessary to pay to protect the title, in consideration that he is to receive the profits of the land for a certain time, does not occupy the position of a surety, nor is he entitled to an injunction to stay the sales on the mortgages foreclosed, to which actions both he and the mortgagor were parties.
    Appeal from an order made at Special Term granting a temporary injunction.
    This is an appeal from an order restraining tbe defendant from proceeding with a sale on two judgments of foreclosure.
    Tbe facts were that, in 1861, Orson Richards mortgaged for $2,000 a piece of land called, for convenience, on this motion, number one. In 1815, the assignee of that mortgage foreclosed it and perfected judgment, making tbe plaintiff, with others, a party defendant.
    In 1812, Orson Richards and another gave a note for $1,000 for the purchase-price of a piece of land called number two. In 1815, tbe payee commenced an action to enforce tbe lien of this note on that land, making the plaintiff, with others, a party defendant, and judgment was had for the sale of the land.
    These two judgments were assigned to the defendant, and the plaintiff seeks to restrain the sale under the same.
    Premises number one are the principal piling grounds of a sawmill. Premises number two are used for a railroad track from the mill to number one, and these circumstances give an enhanced value to these pieces of land.
    In 1866, Orson Richards executed a mortgage to tbe defendant to secure $100,000, on which is due and unpaid $53,000. This mortgage covers number one, together with other property. It is in pi-oeess of foreclosure, and the property is largely insufficient to pay the amount. The plaintiff and the trustees of Samuel W. Barnard are parties to the foreclosure, and a motion therein is pending to restrain the plaintiff from committing waste.

      In 1874, Orson Richards executed to the plaintiff a mortgage to secure more than $50,000, which is unpaid. This mortgage covers number one and number two. It is not averred to cover any thing more.
    On the 1st of May, 1875, after the two judgments of foreclosure aforesaid, the plaintiff entered into an agreement with Orson Richards, and with certain trustees of the estate of Samuel W. Barnard, by which he agreed to pay such portions of the incumbrance on number one, and number two, as might be necessary to protect the title and he was to have the use of the real estate for three years and seven months, and to apply the profits to the liquidation of his claims, and meantime to insure the safety and title of real estate.
    The plaintiff has tendered the defendant the principal, costs and charges on the judgments, and demanded an assignment -thereof and of his claims, mortgage, note and judgments. The defendant is willing to receive payment and to discharge the claims, and says that he purchased these judgments to protect his own interests.
    There are no liens on number one, subsequent to the $2,000 mortgage and prior to defendant’s mortgage. The owner of that mortgage held, as collateral thereto, notes of the defendant and of Samuel W. Barnard.

      U. G. Paris, for the appellant.

      Isaac Lawson, for the respondent.

       See Dings v. Parshall, post, p. 522. — [Rep.

   Learned, R. J.:

The plaintiff appears to rest his right to the injunction on two propositions: one that he is a subsequent incumbrancer; the other that he has the use of the real estate for a certain time, and has agreed to apply the profits to the liquidation of his claims and to pay portions of the incumbrance.

First, then, as subsequent incumbrancer; and in that view, as to piece number one. The defendant holds a judgment of foreclosure and sale for $2,000, to which the plaintiff was a party; the defendant holds the next lien, a mortgage which is unpaid, $53,000. The plaintiff holds the third mortgage, given to him before the foreclosure was commenced, and in respect to which undoubtedly he was made a party to the foreclosure. The equity of redemption was cut off by the foreclosure. If he had any defense or ground equitable relief he should have set it up in that action. As a mere third mortgagee there is no reason why he should stay the sale. The same person holds the first and second mortgages. The holder of the third mortgage clearly cannot as such claim to be subrogated to the first. If he could, then, after he asserted that claim the holder of the second mortgage could claim the same right and could be subrogated back again. As mere third mortgagee, especially after a judgment of foreclosure to which he was a party, his rights are protected by the opportunity to purchase at the sale or to pay up beforehand.

Next, as to piece number two. Here the plaintiff holds the second incumbrance. But in this case also his equity of redemption has been cut off by the foreclosure and judgment. We have then the case simply of a second mortgagee, who has been made a party to the foreclosure of the first mortgage and against whom, with the other defendants, a judgment of foreclosure and sale has been perfected. Such a mortgagee claims to be subrogated, and for that purpose seeks to stay the sale. There is no doubt of his right to redeem. (Jenkins v. Cont. Ins. Co., 12 How., 66.) Assuming even that lie may sometimes have the right of subrogation, and even of an assignment, as necessary thereto (see Ellsworth v. Lockwood, 42 N. Y., 89), this right must depend on circumstances showing its equity. (Jenkins v. Cont. Ins. Co.) Now in this case the plaintiff, as second mortgagee, does not show that the payment of the first mortgage by him, or the foreclosure or the sale will work him any injustice. If the first and second mortgages did not cover the value of the property, and there were a third mortgagee who would receive the benefit of a discharge of the first mortgage, some equity would be shown. But nothing of that kind appears. And from the fact that the $1,000 note was the purchase-price of this number two, it seems improbable that there can be any value remaining beyond the second mortgage. Furthermore it is shown by the defendant’s affidavit that number two is especially valuable in connection with number one. There should, therefore, besóme strong reason shown for depriving the defendant of his present judgment of sale against both.

Secondly. The plaintiff claims as a party in possession who has agreed to pay the incumbrances, or some part of them. There is nothing in the papers which shows that Wilkinson & Peters, trustees of Samuel W. Barnard, had any right or interest whatever in the matter or that they ever had any estate in the premises. The only facts then, material to this motion are, that after the judgments of foreclosure the plaintiff, by agreement with the mort gagor, was to pay such portions of the incumbrances as were necessary to protect the title, and he was to have the use of the land for three years and seven months, and to apply the profits to the liquidation of his claims. If the mortgagor, after his equity of redemption had been foreclosed, could make any valid agreement of this kind, still this difficulty appears, that so far as can be judged from the papers, the plaintiff did not stand in the position of a surety. He was to receive the profits for a certain space of time, and, as it would seem, he was for that consideration actually to pay off such incumbrances as it might be necessary to pay, in order to protect the title. He is not a tenant, paying rent, but he appears to be one who has purchased a term of years for the consideration of paying off certain incumbrances. That is, he agreed with the mortgagor to pay off these incumbrances, in consideration that he might have the use and profits for a.certain time. If he should only take an assignment of the mortgages he would have paid the mortgagor nothing for the term leased to him. The only ground of Averill v. Taylor (8 N. Y., 44) is, that the mortgagor and lessor was bound to protect his lessee against the mortgage. Here the lessee has assumed to pay the mortgage instead of leaving that duty to rest on the mortgagor. Indeed, the very circumstance that this agreement (or lease) was made after a foreclosure, and by persons parties thereto, indicates that the mortgagor did not thereby assume to protect the lessee; but rather the lessee, the mortgagor.

To these considerations must be added those which have been already stated, touching the rights of the defendant as intermediate mortgagee of number one, and touching the value of number two, in connection with number one.

And it may be said generally, that a very strong case should be made to induce the court to stay proceedings after a foreclosure and sale, in behalf of a person who was himself a party to that foreclosure; especially when such stay is asked upon transactions which have taken place between parties defendant to that foreclosure, since the judgment therein was granted.

Under all the circumstances of this ease I think that the order appealed from should be reversed, with costs, and the motion for an injunction denied with costs.

Present — Learned, P. J., Bockes and Boardman, JL

Order reversed with ten dollars costs, and printing, and motion denied with ten dollars costs. Order to be entered as of January Term.


author: Per Curiam :

text:
    EDWARD LEONARD, Appellant, v. CHRISTOPHER C. FOSTER, Respondent.

      Justice’s court — Answer — amendment of, during trial — right to — absolute or discretionary — Statute of limitations — Pleading.

    In an action on a note dated March 1, 1858, brought in a justice’s court, the defendant answered by a general denial and plea of payment and alleged further: “That the note is of no legal or binding force or validity if it had not been paid eleven years ago.” After an adjournment for dinner the defendant’s counsel asked leave to amend the answer by setting up payment, by applying certain goods that had been sold and delivered to the payee of the note; also by pleading the statute of limitations. The justice allowed the former and rejected the latter. Held, that, whether or not the right to such amendment was absolute or discretionary, the answer sufficiently set up the statute to justify and require the amendment if necessary.
    Appeal brought by the plaintiff from the judgment of the County Court of Chenango county, reversing a judgment rendered by a justice of the peace in favor of the plaintiff.
    This action was commenced in a Justice’s Court, in 1875, on a note made by the defendant and dated March ' 1, 1858. The defendant appeared in person and answered by a general denial and plea of payment, and alleged “ that the note is of no legal or binding force or validity if it had not been paid eleven years ago.” After an adjournment the defendant, at the opening of the court, appeared by counsel who asked leave to amend the answer by setting up payment, by applying certain goods and chattels which had been sold and delivered by the defendant to Cole (payee of the note), and by pleading the statute of limitations. The justice allowed the amendment as to the payment in goods, etc., and. rejected that as to the statute of limitations. Judgment was rendered for the plaintiff, which, on appeal to the County Court, was reversed on the ground of the refusal of the justice to allow the amendment of the answer asked for, by setting up the statute of limitations.

      George W. Bay, for the appellant.

      Stephen Holden, for the respondent.
   Per Curiam :

Without deciding whether or not the right to amend an answer in a Justice’s Court during the trial is absolute, or is discretionary with the justice, we think that, under the loose modes of pleading allowed in such courts, the answer sufficiently set up the statute of limitations to justify and require the amendment if necessary.

It is true that the language is not that of a lawyer. But, when we take into account that the note sued upon had been due sixteen years, and that the answer avers payment, and then adds that the note is of no legal or binding force if it had not been paid, we can see that the defendant intended to rely on some defense, which needed no other facts than those which appeared on the note. He did not say why it had no legal force. But the reason was apparent to any one who read the note, and the plaintiff must have been aware of it.

The judgment of the County Court should be affirmed with costs.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment of County Court affirmed with costs.


text:
    WILLIAM YOUMANS, Jr., Appellant, v. GEORGE W. SIMMONS, Respondent.

      Assessor — malicious acts by — Entry of value on roll — Acts judicial, and ministerial.

    An act, judicial in its nature, does not cease to be such, when it is wrongfully and maliciously done.
    A false determination by assessors of the value of property at less than the sum which they knew it to be worth, is judicial. A mere determination, evidenced by no outward act, is not judicial, and its declaration ministerial, so that an action vrill lie for the latter, e. g., for a wrongful entry of the value of property on an assessment roll; for a mere mental opinion not announced is no determination, it is the formal announcement which is the judicial act.
    Appeal by tlie plaintiff from a judgment entered on the decision of the justice, on a trial without a jury, dismissing the complaint with costs.
    The action was for damages for fraudulently, wickedly, willfully and maliciously assessing real estate by the board of assessors of the town of Kortright, Delaware county, under the direction and procurement of the defendant (one of the assessors), at one-third of its value; and with like fraudulent, wicked and malicious intent omitting and refusing to assess $470,000 of personal property, all in order to oppress, cheat and defraud the plaintiff, and to compel him to pay more than his proportion of taxes. It is also alleged that the plaintiff applied to the board of assessors for relief, but they declined, and that the taxes were collected and plaintiff had sustained $1,000 damages, for which he demanded judgment.

      D. D. Niles, for the appellant.

      Gleason da Murray, for the respondent.
   Learned, P. J. :

The plaintiff’s counsel on the argument of this appeal admitted two points: First, that the action of the assessors in determining the value of real and personal property is judicial; secondly, that for a judicial act, even when maliciously done, an action does not lie.

There remains the question, whether the act of the assessors in entering upon the assessment roll the value of such real and personal property, after they have determined the same, is ministerial, and can be so separated from the act of determination that an action will lie for a wrongful entry.

No one can doubt that the defendant in this case grossly violated his duty. And unfortunately the same kind of violation of duty is the general practice throughout the State. And the blame for this rests as much on the people who are assessed, as on the assessors themselves.

The statute (1 R. S., [m. p.] 390, § 9), requires the assessors to prepare a roll in one column of which they are to set down the full value of such land; ” in another “ the full value of all the taxable personal property” etc. Section 17 (m. p. 393), directs that: “All real and personal estate liable to taxation shall be estimated and assessed by the assessors at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor.”

Now the plaintiff claims that the act of estimating and assessing is one thing, admitted to be judicial; while the act of entering in the roll is another, claimed to be ministerial. But it is difficult to see what judicial act takes place until the final entry of value in the roll and its completion. Prior to that every thing is incomplete, liable within certain restrictions to be modified. (Sec. 20, etc.)

Several cases are cited by the plaintiff which need to be examined. In Christopher v. Van Liew (57 Barb., 17), a justice of the peace, in a case tried before him, “ adjudged and determined ” that the plaintiff was entitled to judgment against the defendant. By mistake he entered in his docket a judgment for the defendant against the plaintiff. Subsequently, knowing this error, he gave the defendant therein a transcript, and the plaintiff in that action was compelled to pay. He thereupon sued the justice and was allowed to recover. But it mnst be noticed that the court, in their opinion, say: “ He had reduced his judgment to form by his official act, and then made the mistake.” . So that the court assumed that there had been something more than a mental act. Further, the court say that it is probably unnecessary to hold that the action could be maintained upon the carelessness; because it would lie upon a promise made by the justice. Thus nothing was decided which touches the question in the present case.

Hall v. Tuttle (6 Hill, 38), was a case where a justice of the peace had failed to enter the verdict of a jury. In that case the judicial act was done by the jury; and it only remained for the justice to do the ministerial act of entering the judgment.

So in Stephens v. Santee (49 N. Y., 35), there was a verdict of a jury; and the court held that, after that, the entry by the justice was ministerial. But this qualifying remark is made: that in the exercise of judicial functions the case is different; that when the case is tried by a-justice without a jury he is judicially to determine the amount of recovery, and must do this and make an entry within the time fixed by statute.

In the case of People v. Jefferds (2 Hun, 149 ; or more fully, 4 N. Y. S. C., 398), commissioners had determined to lay out a highway; they had thereupon applied to the County Court for the appointment of commissioners to assess the damages; such commissioners had been appointed and acted. It appeared, however, that the commissioners of highways had neglected to make and file the certificate of this decision. They were required to do so by mandamus. Now in that case there appeared to be not only their mental determination, but, further, the decisive action thereon of applying to the County Court for the appointment of commissioners of assessment. So that the determination of the commissioners must have been stated in writing and produced to the County Court as the basis of its action ; and that court must have acted thereon. "Very properly, therefore, the mere certificate was held to be ministerial; for, in another form, their determination had been declared, and had been made authoritative by the County Court.

In the case of People v. Fowler (55 N. Y., 252) the point decided was, that courts do not sit to compel men to take false oaths ; and the court refused to compel assessors to make the statutory affidavit, on its appearing that they could not do this truthfully. In the opinion in that case it is said : The entry of a sum in the roll as the value, although the assessors agreed to regard it, for the purpose of assessment, as the true value, was not, in any proper or legitimate sense, a decision by them that the sum inserted was the true or full value. The assent of the judgment to the conclusion reached was wanting; which is of the very essence of a judicial determination.” I understand these remarks to indicate the reason why the making of an affidavit could not be compelled. But I do not understand by them, that an act which is judicial in its nature ceases to be such when it is wrongfully and maliciously done. ( Weaver v. Devendorf, 3 Denio, 117; Buff, and State L. v. Supervisors., 48 N. Y., 93.) Under that doctrine, admitted by the plaintiffs counsel, if the assessors knowingly and falsely determined the value at less than the sum which they knew it was worth, still, I think that this was a judicial determination. Just as if a jury, under the influence of improper motives, were to give a decision contrary to what they knew to be just, still their act would be judicial. The act does not cease to be judicial because improper motives have been permitted to have an influence.

I cannot see, therefore, that we can say that there is any other judicial determination made by the assessors, than that which consisted in making and signing the roll. And in none of the cases cited by the plaintiff has a mere mental determination, evidenced by no outward act, been considered as judicial; while the formal declaration thereof has been considered ministerial. A mere mental opinion, not announced, is no determination. It is the formal announcement which is the judicial act. I do not think, therefore, that the distinction which the plaintiff claims can stand; and while I fully appreciate the great wrong and violation of duty done by these assessors, I do not think that it can be remedied in this way.

There is another objection to the plaintiff’s right of action which I suggest, without passing upon it, and that is the well known doctrine of Roosevelt v. Draper (23 N. Y., 318), and other similar cases. The defendant’s alleged wrongful act injured every tax-payer in the State in the same manner, although not to the same extent, that it injured the plaintiff. If he can recover, so may every taxpayer in a similar action. He seems to have no individual interest distinct from that which belongs to every ” tax-payer.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


author: Boardman, J.

text:
    EDWARD SIMMONS and FREDERICK W. GROSS, Respondents, v. THOMAS CLOONAN and THE CITY OF KINGSTON, Appellants.

      Oonveyance — in pursuance of contract — relates bach to date of contract — what appurtenant — Water power — Mili site — condition and use of property at time of conveyance — effect of, on rights of grantee — Distinction in rights of parties, where an easement is united to property by tenant and by owner.

    Appeal from a judgment granting a perpetual injunction entered upon the report of a referee.
    The Court of Appeals, when this ease was formerly before it (47 N. Y., 3), reversed the judgment in favor of the plaintiffs, and granted a new trial. It appeared that one Hasbrouck, the owner of a piece of real estate known as “ the old mill ” in his individual right, and adjoining property and a dam and reservoir near thereto, as trustee, sold “ the old mill ” property to one Brown, with the right to use the water of the reservoir for mill purposes, with a condition that in ease the mill should not be kept in use the water privilege, etc., should revert to him, Hasbrouck. Afterward Hasbrouck became the owner of the property held by him as trustee. Subsequently Hasbrouck contracted with Brown to sell him a piece of the real estate adjoining “the old mill,” the contract making no mention of any water privilege. Brown erected a mill on the last mentioned piece and took the water from the reservoir for its use, abandoning the old mill. Brown assigned his contract to one Smith, to whom Hasbrouck conveyed the rights which, by his contract, he was bound to convey to Brown. Smith conveyed to the plaintiffs. Hasbrouck conveyed the land covered by the reservoir to the defendant Cloonan who commenced' filling up the same, having entered into a contract with the city of Kingston to repair a sewer at the point in question. The Court of Appeals held that the deed of Hasbrouck to Smith related back to the date of his contract with Brown, and was not a contracting between the parties to the deed, in reference to the condition of the property at its date, and, as a consequence, the right to the use of the reservoir, dam, etc., did not pass as an incident or appurtenant to the premises conveyed.
    On a new trial before a referee, with but slight change in the facts, he found in favor of the plaintiff.
    On appeal therefrom, the court at General Term say: If Hasbrouck, being the absolute owner of the mill site and the reservoir, had applied the water power as it has been done by Brown, and then sold the site, the water power would have passed as an appurtenant. (Lampman v. Milks, 21 N. Y., 505.) But if Hasbrouck had leased to Brown, and he had made the same application, and during the lease Hasbrouck had sold the site, the deed would not have carried the rights to water and reservoir. So held by Popham, Ch. J., in Nicholas v. Chamberlain (2 Oroke R., 121), a leading case upon which Judge Selden relies in Lamp-man v. Milks {ante). “ If a lessee erects a conduit and afterwards the lessor during the lease sell the house to one, and the land whereon the conduit is to another, and after the lease determines, he who hath the land wherein the conduit is, may disturb the other in the using thereof, and may break it because it was not erected by one who had a permanent estate, or inheritance nor made one by the occupation and usage of them together by him who had the inheritance.”
    In this case Hasbrouck had not a permanent estate or any estate in the new mill lot, except a naked title in trust as security, nor did he occupy or use the two pieces of property together.
    There never was a conjunction of title occupation or usage of the water power, as applied to the new mill site in Hasbrouck, and therefore the principle contended for by the plaintiffs does not apply.
    The decision of this case when in the Court of Appeals is still applicable, notwithstanding the very slight change in the facts proved.

      Recognizing that as controlling authority, the judgment should be reversed and a new trial granted, with costs to abide the event.

      8. L. Stebbins, for the appellants.

      Wm. Lounsbery, for the respondents.
   Opinion by

Boardman, J.

Present — Learned, P. J., Boardman and Bookes, JJ.

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


text:
    EDWARD J. McCLOSKEY, Respondent, v. THE CITY OF ALBANY, Appellant.

      Municipal corporation — what acts of its officers incapable of ratification — Contract — when implied, from use of materials— Custom — acts of agents — effect of ratification of— Quantum meruit.

    Appeal from a judgment entered upon the report of a referee, in an action brought to recover for a quantity of cord wood sold by the plaintiff to the superintendent of the alms-house belonging to the defendant. It was the duty of the defendant to suj>ply such wood for the' alms-house, but it is claimed by the defendant that the contract of the superintendent was made without the requisite authority required by the ordinances of the city authorities.
    The referee found and the evidence showed a sale and delivery of the wood ; the use of the wood by the alms-house; the custom of the superintendent for years to make such purchases; the knowledge of defendant, through its common council, mayor and chamberlain, of such purchases and ratification’s thereof, by use of the articles purchased and payment therefor; the direction by the chairman of the alms-house committee which was the proper committee to authorize such, contract to be made; a demand of payment from the chamberlain for a large part of the wood, and a refusal to pay.
    The court at General Term say: “ Where the act done is ultra vires, or in violation of positive restraining statutes, it would be void and incapable of ratification. (Brady v. Mayor, etc., 20 N. Y., 312; Dillon on Corp., §§ 381,749, and No. 1.) Many opinions in such cases seem to be broad enough to control in this case, but when carefully considered there is a broad distinction.
    If we should concede that the superintendent had no authority to make the contract, the action may still be maintained upon the implied contract, arising from the possession and use of the wood by the city, and from its obligation to supply wood for such use. Dillon (§ 385),says: “Implied contracts cannot be raised against a corporation where, by its charter, it can only contract in a prescribed way, except it be a promise for money received or property appropriated under the contract.” Again (§ 385): “A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers which are within the corporate powers.” It must be conceded the purchase of wood for the alms-house was within the corporate powers.
    This distinction is very fully discussed in The Harlem Gas-light Co. v. Mayor, eto., of New York (3 Robt., 124; affd. in Court of Appeals, 33 N. Y., 309). It is there held that a municipal body is subject, like au individual, to liability for benefits enjoyed Under an executed contract, although voidable or even void. In the Superior Court, the authorities are reviewed by Judges Monell, Monoriee and Robertson. In their opinion, all agree in sentiment, though Judge Robertson dissents, out. of respect to a former decision of the same court. (MeSjpedon v. Mayor, 1- Bosw., 608.) Judge Denio, in Brady v. Mayor (ante), says : “ It is not necessary to deny that one who has bona fide performed labor under a contract which is void from a failure to comply with the statutes, may maintain an action against the city to recover on a quantum meruit, where the work has been accepted by the city and gone into use for public purposes.” For similar reasons Judge Porter says (33 N. Y., 323) : “ From the facts conceded, * * * the law implies a contract between the parties, which it is the duty of the court to enforce, unless- the liability be one of those which the municipal authorities are disabled from incurring * * * by some statutory prohibition.”
    In the case under consideration, it was the duty of the defendant to furnish wood to the alms-house. The act was administrative in its character. It was accomplished, not, perhaps, according to the strict letter of its ordinances, but the end was attained. Plaintiffs wood was received and burned up by the city for its corporate purposes. In any view of- these facts, I think the city liable under an implied contract for the payment of the value. Any other conclusion would be equivalent to saying, our agent has broken the law in making a contract with plaintiff, and therefore we will not pay for plaintiff’s property, which we have had and used under such contract. It would be taking advantage of the breach in one law to avoid liability under another.
    Moreover, the original contract was valid. This course of dealing in the purchase of supplies by the superintendent had been of long continuance, and uniformly ratified by the city. Both the plaintiff and the defendant knew of such course of dealing. When we add to that the direction of the chairman of the proper committee to make the purchase, a case is made, from which the referee very properly found the superintendent authorized to make the contract. (Wood v. Auburn, eta., R. R., 4 Seld., 160; Ba/nlc of Auburn v. Putnam, 1 Abb. Ct. of App. Dec., 80; Exchange Bomb v. Monteath, 26 N. Y., 505.)

      Grenville Tremain, for the appellant.

      Samuel Rand, for the respondent.
   Opinion by

Boardman, J.

Present — Learned, P. J., Boardman and Bocees, JJ.

Judgment reversed and new trial ordered, and referee discharged, costs to abide event, unless plaintiff) in twenty days from notice of this decision, stipulates to reduce judgment to $1,155.42, in which case judgment so reduced is affirmed without costs.


text:
    ADELAIDE WOOL, Appellant, v. JOHN W. HUBBELL, JOEL W. GRAVES and CURTIS BACKMAN, Trustees of School District No. 2, Town of Chazy, Respondents.

      School teacher —contract foi' services of— Trustees of school district — action of Board of — evidence of — what sufficient to go to a jury.

    Appeal from a judgment in favor of the defendant, on a nonsuit at the Circuit. The action was brought to recover upon contract, for services as school teacher at the contract-price; the plaintiff alleging a contract, an offer to perform and continued readiness on her part, expiration of the time of engagement and failure to pay by the defendants. The contract was denied by the defendants. A contract was originally made in September between the plaintiff and the defendant Hubbell, for the hiring of the plaintiff to teach their school for the winter term at one dollar a day, or five dollars a week, which was invalid because only one of three trustees was a party to it, and the trustees could only act as a body. At a meeting in November such contract was reported to the other trustees, when Hubbell then told them that he had hired plaintiff to teach the school, and agreed with her upon the price and time. Graves was opposed to the hiring. Hubbell was in favor of it, and Backman said in effect, I shall agree with Hub-bell in hiring plaintiff. Hubbell then said: “ Then the question is settled there is no use of more talk.” The next morning Hubbell saw plaintiff’s husband, and told him they should consider his wife engaged to teach the winter school, and to tell her so, which was done.
    Held, that, treating this testimony in the light most favorable to plaintiff— as the court were bound to do on a motion for a nonsuit — there was evidence from which a valid contract might fairly be inferred, and so it became a question of fact for the jury, and should have been submitted.

      S. A. Kellogg, for the appellant. D. S. MeMaston, for the respondents.
   Opinion by

Boardman, J.

Present — Learned, P. J., and Boardman, J. Bocees, J., taking no part.

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


author: Bockes, J.

text:
    PETER P. WINTERMUTE, Respondent, v. JAY COOKE and JAMES STINSON, Appellants.

      Contract — public policy — Bonds — contracted, to be delivered — presumption as U pa/r value — Bes adjudicata — Identity of grounds of defense, not identity of subject-matter, the test.

    Appeal from a judgment entered on a trial before, and decision by Mr. Justice Boardman, at the Special Term in favor of the plaintiff and the defendant Stinson, against the defendant Jay Cooke for $61,163.50.
    The action was brought by the plaintiff against the defendants, to recover the sum of $50,000 alleged to be due to the plaintiff and defendant Stinson from the defendant Cooke, upon a contract entered into by said plaintiff' and said defendants, and for an accounting between plaintiff and Stinson. Cooke denied his liability ; Stinson admitted the contract and the liability of Cooke thereon to the amount claimed, but denied that the plaintiff was entitled to any part thereof, asserting that the same, belonged to him, and that in all matters relating to said contract the plaintiff acted as his agent. The issues between the plaintiff and defendant Stinson, and the taking of an account between them, were referred to Hon. George B. Bradley to take the testimony in regard thereto and report the same to the court with his conclusions thereon, all other questions being reserved.
    The contract on which the action was brought was made January 28th, 1870, between Stinson & Wintermnte of the first part and Jay Cooke, trustee, of the second ; and recites that S. & W. are among the incorporators of the Northern Wisconsin Railway Company, and in consideration of $50,000 cash and $50,000 in bonds of the Northern Pacific Railroad Company, sell to Jay Cooke, trustee, “ all their right, title, interest and estate, of, in and to the said charter.” That they will also, at a future meeting of the incorporators, have appointed such commissioners to open books and receive subscriptions of stock as shall be named by the party of the second part; and that they will also “ assist the party of the second part in obtaining the necessary legislation in Congress and the State of Wisconsin, in relation to land grants, corporate privileges, and all other matters needful to contribute to the success of the enterprise.” At the time the contract was made $50,000 was paid in cash, and there was indorsed on the contract a receipt therefor, signed by S. & W., in which they stipulate that the remaining payment of $50,000, N. P. bonds, should not be made, until “ they comply with the conditions for organization of the Northern Wisconsin Railway Company as set forth; it being understood and agreed that the consideration paid and agreed to be paid is for vesting the title of said Northern Wisconsin Railway Company in Jay Cooke, trustee, or such party as he may designate.”
    . The referee, who took the evidence, found, and the court approved, that, as to the allegatiou of Stinson, that the plaintiff was his agent merely in the subject-matter of the contract, having no right whatever as principal to the funds arising from its performance by Cooke, that this question had been decided against Stinson in an action in the Court of Common Pleas in and for the county of Ramsay, State of Minnesota, wherein W. was plaintiff and S. defendant, and was, therefore, res ad/judieata. The record in that case'was put in evidence, and jurisdiction of the parties and the subject-matter was undisputed. It did not appear from the pleadings in that case that the question here raised was necessary to the determination of the issues there presented ; but, attached to the roll, and forming part of it, was a case .containing the evidence given on the trial, from which it appeared very conclusively that such question was litigated in that suit and was submitted to the jury, and that the decision of that case was made to depend on that question alone. The oral proof put in before the referee tended to the same conclusion. The jury found for Wintermufe, and judgment was entered in the action on the verdict. That the defense of Stinson on the proof in that suit being the same here pleaded, he must be held concluded thereby; the evidence here given showing the question there litigated was competent. The fact could be established by oral proof.
    Held, as against the appellant Cooke, that the contract was not void as being against public, policy.
    That the judgment was properly against Cooke for money, the pleadings and proof showing conclusively a demand for the bonds, and his non-compliance therewith.
    That the presumption was also that the bonds were of par value, in the absence of all evidence to the contrary.
    That the contract was based on a good and sufficient consideration, viz., the obtaining the control of the organization, and the right to use and enjoy the franchises of such railroad, which was obtained through the active interposition of S. & W., in pursuance of the contract.
    Reid, also, that a judgment in a former suit will be conclusive in a second action between the same parties on the same question, although the subject-matter may be different. In such case the question is not on the identity of the cause of action, but on the identity of the grounds of defense set up in the former action, with those relied on in the present suit.

      Thomas R. Rubbard and G. I. Smith, for the appellant Cooke. Murdoch & Stephens, for the appellant Stinson. J. McGuire, for the respondent.
   Opinion by

Bockes, J.

Present — Learned, P. J., and Bocees, J. Boardman, J„, taking no part.

Judgment affirmed.


author: Gilbert, J.:

text:
    JOHN M. LAMKIN, Appellant, v. JOHN B. STARKEY, Respondent.

      Service of summons —protection of witnesses against— 2 JR. S., 402, § 51, et seq.

    The court has power, independently of the statute, to protect its officers, suitors and witnesses from molestation by means of process of the court.
    Appeal from an order of the Special Term setting aside the service of the summons as irregular and void, because served upon the defendant while voluntarily in this State for the purpose of attending court a,s a witness.

      John Yan Yoorhies, for the appellant.

      J. A. Shell, for the respondent.
   Gilbert, J.:

The order made in this ease is in excess of the privilege granted to witnesses by the statute. (2 R. S., 402, § 51, et seq.) But the .court has power, independently of the statute, to protect its suitors, officers and witnesses. Such protection is afforded for the sake of public justice. By the common law parties to a suit, and their attorneys and witnesses, were protected from arrest in coming to, attending upon and returning from the courts. (Tidd’s Pr., 195.) The same reasons wliicli induced the protection from arrest, require that witnesses, at least, shall be protected against molestation, by-means of the process of the court, in any form. For this reason we think the practice of extending such protection a good one, and ought to be upheld. (Seaver v. Robinson, 3 Duer, 622; Merrill v. George, 23 How. Pr., 331.)

The .order is affirmed, with ten dollars costs and disbursements.

Smith, J., concurred.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order affirmed, with ten dollars costs and disbursements.


author:
E. Darwin Smith, J.:
      Gilbert, J.

text:
    LEWIS GAYLORD, Respondent, v. RICHARD JONES, Appellant.

      Supplementary proceedings — examination of judgment debtor — Gontempt.

    A creditor cannot have two orders for tlie examination of a judgment debtor in force at the same time, and the defendant cannot be held to obey both.
    Where a judgment debtor refuses to obey an order in supplementary proceedings, and a second order for his examination is obtained which supersedes the first, he cannot be punished for his contempt of the first order.
    Appeal from an order of the county judge of Oneida county, punishing the defendant for contempt in failing to obey an order to appear and be examined in proceedings supplementary to execution. On the return day of an order in supplementary proceedings the defendant appeared and was sworn, and the examination was adjourned. On the adjourned'day the defendant, having raised certain objections, refused to submit to the examination, and the parties left. On the same day the plaintiff obtained a second order for the examination of the defendant, which was served upon him, and, upon the day named in the second ordei;, lie failed to appear at the time and place mentioned. Upon the return of an order to show cause, the county judge ruled that the defendant was in contempt for disobeying the first order, and that he appear before a referee at a time and place mentioned and be examined.
    Risley, Stoddard <& Matteson, for the appellant.

      Richardson <& Adams, for the respondent.
   E. Darwin Smith, J.:

When, on the 21st of November, 1874, after the defendant hadl appeared before the referee appointed by.the county judge, and, objected by his counsel to the proceeding, and refused to be' examined under the order of the ninth of November, on the-grounds then specified, the plaintiff did immediately, and on the' same day, on a new and original affidavit, apply to the same judge-who granted the former order, of the ninth of November, and obtained a new order requiring the defendant to appear and be examined before a referee therein named,- on the eleventh of December, thereafter, the said order of the ninth of November-should be considered, and all proceedings under the same, as entirely abandoned and discontinued. The plaintiff could not have two orders to the same effect, running and in force at the same time, and the defendant could not be held to obey both orders. The second order superseded the first, and it was therefore irregular, afterward, to proceed to punish the defendant as for a contempt, in not submitting to an examination under said order of the ninth of November. But as the order to show cause and the proceedings for the contempt were under both orders nominally, the defendant might properly be held to obey the order of the twenty-first of November, the examination under the same having been suspended by the proceedings in bankruptcy.

The order appealed from, so far as it adjudges the defendant in contempt, and imposes a fine upon him, should therefore be reversed, and so far as it directs him to appear before a referee and be examined and answer on oath concerning his property, should be affirmed, and the said defendant be required to appear before such referee at such time and place as shall be fixed for that purpose by the county judge making the said supplemental order, without costs of appeal to either party.

Gilbert, J.

(dissenting):

A creditor cannot have two orders for the examination of a judgment debtor, supplementary to execution upon one judgment at the same time. The second order being wholly inconsistent with the first one, necessarily superseded it, and the latter may be treated as having been abandoned.

The defendant may have been guilty of a contempt for not obeying the order of the 21st November, 1874, but we think he could not be legally convicted of a contempt for disobeying the order of the 9th November, 1874, after the subsequent order had been made and served.

The order appealed from must, therefore, be vacated, with ten dollars costs and disbursements.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order, so far as it adjudges defendant in contempt, etc., reversed, and, so far as it directs the defendant to appear before referee and be examined, affirmed, and defendant required to appear before •said referee, and be examined at such time and place as shall be ■fixed by the county judge.


author: E. Darwin Smith, J.: Mullin, P. J., Gilbert, J.

text:
    JOHN B. MANNING, Respondent, v. GEORGE WINTER, as Survivor of Himself and WILLIAM ECKERT, Deceased, Appellant.

      fflyidence — Pleading — answer, general denial — what can he given in evidence undev— New matter — Code, § 149.
    In an action for goods sold and delivered, -when the answer is a general denial, the defendant can give evidence that the plaintiff had contracted to deliver certain merchandise, and had only delivered part thereof.
    New matter, as the phrase is used in section 149 of the Code, means matter extrinsic to the matter set up in the complaint, as the basis of the cause of action.
    Appeal by defendant from a judgment in favor of the plaintiff, entered upon a verdict of a jury, under direction of the court.

      Jacob A. Gross, for the appellant.

      H. G. Day, for the respondent.
   E. Darwin Smith, J.:

The plaintiff, in his complaint, claimed to have sold and delivered to the defendants barley malt at and for the price, and of the value of $378.78, for which the defendants agreed to pay.

At the trial, the plaintiff gave evidence sufficient, prima facie, to entitle him to recover for 250 bushels of barley malt delivered to the defendants, and rested.

The defendants then, under the general denial of their answer, offered to prove the contract under which said barley was delivered, and to show^that it was part of 5,000 bushels of barley malt which the plaintiff had agreed to sell to the defendants; and that, after the delivery of said 250 bushels of said barley, the plaintiff refused to deliver the residue of said barley.

The circuit judge held that although the evidence so offered tended to establish a valid defense, yet such defense was not admissible under defendants’ answer of a general denial, and overruled such offer, and directed a verdict for the plaintiff for $413.17, to which ruling and decision-the defendants’ counsel duly excepted.

This ruling, I think, was error. The defendants’ proof was simply directed to disprove the plaintiff’s cause of action, and to meet the plaintiff’s evidence. Where a plaintiff shows a part of a transaction or contract, or gives evidence sufficient in respect to it to authorize a vérdict, or to imply a contract, the defendant must be entitled to prove the whole transaction under his general denial, and to show that the plaintiff has no cause of action.

Evidence simply directed to repel a presumption, or to show an express contract to displace an implied one, set up and proved, is not evidence to prove new matter.

New matter, as this phrase is used in section 149 of the Code, means matter extrinsic to the matter set up in the complaint, as the basis of the cause of action.

The defendants in this case sought to show the whole contract between the parties in respect to this barley malt; and that, by the terms and force of such contract, the plaintiff had no right of action.

His right to do so, under his general denial of the plaintiff’s cause of action, seems to me quite plain, and is supported, I think, by abundant authorities, among others, by Andrews v. Bond (16 Barb., 633); Schermerhorn v. Van Allen (18 id., 29); Beaty v. Swarthout (32 id., 293); and Boomer v. Koon (13 S. C. N. Y. [6 Hun], 645).

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

Mullin, P. J.,

concurred in the result upon the principle of stare deeisis, having reference to the case of Boomer v. Koon (supra), and the case of Carr v. Jackson (decided at the last January Term). In that, case the action was brought in a Justice’s Court to recover for the value of a load of hay. The plaintiff proved the delivery and receipt of the load of hay and rested; and the defendant sought to prove that the hay was delivered and received, upon an agreement that the same should apply upon a subscription for his services as a minister. This evidence was excluded on the ground that it was inadmissible under the general denial of the defendant’s answer, and the facts should have been set up as a defense; and judgment was rendered for the plaintiff, which, on appeal to the County Court, was reversed. On appeal to this court the judgment of the County Court was affirmed on the report and opinion of Gilbert, J.; Mullin, P. J., and Smith, J., concurring.

Gilbert, J.

(dissenting):

The complaint avers a sale and delivery of barley of a specified value. The answer is a general denial. The evidence given by the defendants established the sale and delivery of the barley sued for, and if allowed to stand, its only other effect would have been to avoid the liability arising therefrom, by showing that the barley was sold and delivered pursuant to a special contract, which the plaintiff had broken, and that the defendants had sustained damages by reason of such breach. That was new matter constituting a defense, and the Code (§ 149) requires that it shall be pleaded. Putting the facts proved into the answer, they would have amounted to a simple confession and avoidance of the allegations contained in the complaint, instead of a denial thereof. It would have been unfair and a surprise to the plaintiff, to permit such a defense to come in under a general denial.

I think the ruling of the judge at Circuit on this point was correct, and that it is abundantly sustained by authority. (McKyring v. Bull, 16 N. Y., 297; Kniffen v. McConnell, 30 id., 285; Paige v. Willet, 38 id., 28.)

Nor can I discover any error in the refusal of leave to amend the answer. The amendment sought would have substantially changed the defense.

The judgment and order must be affirmed, with costs.

Present — Müllin, P. J., Smith and Gilbert, JJ.

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


text:
    MARY LITTELL, General Guardian, etc., and others, Respondents, v. JOB SAYRE and NATITAN W. SAYRE and others, Appellants.
    Pleading— Practice — 'Demurrer — Joinder of parties, and causes of action — Account — action for, against Imrs and executors, ¡jointly.

    Where different persons are interested in an account, although not in the same right, they may, and in most cases should, all be joined.
    Where the complaint sets forth facts, sufficient to show the liability of the defendants who demur, they cannot raise the question of the sufficiency of the complaint, as respects the other defendants.
    The rule that an action cannot be maintained against heirs or devisees and the executor or administrator, jointly, does not apply where the creditor has established his demand before the surrogate, and the personal estate of the deceased has been concealed or wasted.
    Appeal from an order overruling a demurrer to the complaint.
    The complaint alleges that Henry Sayre was appointed general guardian for three infant plaintiffs in 1853, received a large amount of their property, and died intestate in 1860, leaving real and personal property, sufficient to pay all his debts, and the defendants Job and Nathan Sayre, and others, his children and heirs at law. IIis widow and son William administered upon his estate, and, after bis death, Mary Littell was appointed general guardian for two of the infants, and the plaintiff Charles S. Baker for the other infant. The accounts of the administrators were finally settled before the surrogate of Yates county, and the amounts due the infants from the estate of Henry Sayre were allowed, and a dividend of about fifty-six per cent was ordered to be paid them as their share of the personalty, leaving a large balance unprovided for. The dividend was never paid; the administrators had no property from which it could be collected. George, another son of Henry Sayre, died in 1864, leaving defendants Harriet Sayre, his widow, and Wheeler G., his son. The defendant Albert T. was, in 1866, appointed administrator of George’s estate. William Sayre died in 1872, leaving defendants William H., Frederic and Alice, his children, and defendant Job Sayre was appointed administrator of his estate. The heirs at law of Henry Sayre have sold all the real estate which descended to them, except a village lot worth $400, which is much less than the amount due to the infants from the estate of Henry Sayre. The defendants Anthony C. Harpending and John T. Andrews are sureties on the bond of Henry Sayre, as guardian of the infants. The defendant Supplee is the surviving surety of the administrators of Henry Sayre. The complaint prays judgment: 1. For an account of the funds in hands of defendant Job Sayre, as administrator of Henry Sayre, which should be applied, on the surrogate’s decree, in favor of the plaintiffs. 2. For an account of the funds in hands of administrators of Henry Sayre, and they be ordered to pay the amount on plaintiffs’ claim. 3. That defendants Andrews and Anthony O. Harpending be decreed to pay the amount due plaintiffs from Henry Sayre as guardian, after applying thereon amounts to be collected from administrators of estate of Henry and William Sayre, or the heirs at law of Henry Sayre. 4. That the rights of parties respectively be decreed. 5. That any necessary account may be taken. 6. For other or further relief. The defendants Job and Nathan demur to the complaint on the grounds that: 1. It does not state facts sufficient to constitute a cause of action against them. 2. It includes causes of action which cannot be joined. 3. It includes causes of action in favor of some of the plaintiffs and against some of the defendants, in which the other defendants have no interest.

      David B. Prosser, for the appellants.

      Charles S. Baker, for the respondents.
   Gilbert, J.:

We think the demurrer in this case was properly overruled. The reasons which appear in the opinion of the court below are satisfactory. It may be added that the action is for an account. No other cause of action is set forth in the complaint. When different persons are interested in an account, although not in the same right, they may, and in most cases should, all be joined. (Story Eq. Pl., § 219; Richtmyer v. Richtmyer, 50 Barb., 55.) The causes of action against the several defendants are consistent with each other, and they all arose out of transactions connected with the same subject of action, namely the liability of Henry Sayre, deceased, as guardian of the infant plaintiffs. (Code, § 167.)

The complaint sets forth facts sufficient to show the liability of both defendants who demur, to account. They cannot raise the question of the sufficiency of the complaint as respects the other defendants. (Richtmeyer v. Richtmeyer, supra.)

It is a sufficient answer to the objection that an action cannot be maintained against heirs or devisees and the executor or administrator of a deceased person, jointly, under the provisions of the Revised Statutes, that such rule does not apply where the creditor has established his demand before the surrogate, and the personal estate left by the deceased has been concealed or wasted. In such a case the executor or administrator may be called to account in a court of equity, and the heir or devisee has a direct interest in the taking of such account.

The remedy for the omission to describe the lands which descended to the heirs, is by motion to make the complaint more definite and certain, and not by demurrer.

We think the order should be affirmed, with costs.

Smith, J., concurred. Mullin, P. J., did not vote.

Order affirmed, with costs.


author: Gilbert, J.: Mullin, P. J.,

text:
    FRANCIS M. BURDICK as Assignee in Bankruptcy, etc., Appellant, v. IDA J. JACKSON and others, Infants, Impleaded with others, Respondents.

      Mortgage — Parol agreement to execute mortgage — when it creates a Men — Statute of frauds — Guardian — Bankruptcy —fraudulent preference.

    An agreement, based upon a valuable consideration, to give a mortgage, -will be treated in equity as a mortgage. And if such agreement be made -with, tbe guardian of infants, it is weE executed by a mortgage to them. Even if the agreement was within the statute of frauds for the reason that it was not in writing, yet when the mortgage is acluaEy delivered, all objection on that ground i's removed.
    A parol agreement in respect to lands cannot be avoided in equity because it is not in writing, when there has been a part performance of it.
    An assignee in bankruptcy stands in the shoes of the bankrupt, and takes the transfer of the bankrupt’s estate, subject to the liens upon it; and a mortgage given by a bankrupt eighteen days before the filing of the petition, if given pursuant to a parol agreement so to do, made fifteen months before, and based upon a good consideration, is not a fraudulent preference which wfll be adjudged void under the provisions of the bankrupt act.
    If the guardian, of infants violates his duty toward them in making an agree ment, it is for them alone to disavow the authority of the guardian.
    .Appeal from a judgment entered on the report of a referee disiinissing tbe complaint.
    Tbe action was brought by tbe plaintiff, as assignee in bankruptcy, to set aside a mortgage given by tbe bankrupt to bis nieces, :tlie defendants Ida J. Jackson and Carrie A. Jackson, on. tbe ground that it was a fraudulent preference under the bankrupt act. The mortgage was executed eighteen days before the filing of tbe petition in bankruptcy, but was given in pursuance of a parol agreement between the bankrupt and the guardian of tbe infants more than fifteen months before.
    Tbe action was originally brought in tbe United States Circuit Court, but was afterward, for tbe convenience of both parties, removed to this court with tbe understanding tbat no jurisdictional questions should be raised.
    This appeal was argued at tbe January term, 18J5, and a reargniment ordered at -the "October term following.

      Alfred C. Coxe, for the appellant,
    cites Swarthout v. Curtiss (1 Seld., 302) ; Putnam v. Ritchie (6 Paige, 390); Smith y. Dibrell (31 Tex., 239); also, see Mortimer v. People (49 111., 473); Smith y. Gilmer (64 N. 0., 546); Powell y. Boon (43 Ala., 459); Houston y. Deloach (id., 364); Hall y. Hall (id., 448); White y. Nesbitt (21 La Ams., 600); 4 Kent, 151, and cases cited, note O.; 2 Story Eq., § 1020; Hooper, ex parte, 19 Yesey, 477; 11 id., 403; 12 id., 192; Coote on Mortgages, 147, 163; 1 Powel on Mortgages, 74 (100 Boat, ed.); Van Doren y. Todd (2 Green Oh., 397); 1 Hill, on Mortgages, 626; Glabaugh y. Byerly (7 Gill, 354); 3 E. S. (5th ed.), 220; Marquot v. Marquot (7 How., 417); Hill v. Smith (2 McLean, 446); Gookingham y. Morgan (5 B. B., 133); Maloney y. Horan (53 Barb., 29); Keeting v. Keeper (5 B. B., 133) ; Hildreth y. Sands (2 Johns. Oh., 35); Worsley y. DeMattos (1 Burr., 467); Hungerford v. Earl (2 Yern., 261); Lewkner y. Freeman (2 Free., 234); Constantine y. Twelves (29 Ala., 607); Barker v. Barker (2 Law Times, 388; reported also 12 Bank Beg., 474); Brayley v. Greenleaf (7 Wheat., 46); Gann y. Chester (5 Yerg., 305); In re Wright (2 B. B., 155); In re Arnold (id., 61); White y. Rafferty (3 id., 53); Scammon y. Gole (5 id., 257); Hall v. Wager (id., 181); Wilson y. Stoddard (4 id., 76); Warren y. Bank (10 Blatch., 493); Buchanan y. Smith (8 id., 153); affirmed 7 Bk. Beg., 205); Vogle y. Lathrop (4 id.,’ 439); In re McKay (7 B. B., 230); In re Connor (1 Lowell, 532); In re Leland (10 Blatch., 503); Arnold y. Maynard (2 Story, 349); Forbes y. Howe (102 Mass., 427); Graham y. Stark (3 B. B., 99).

      C. D. Adams, for the respondents.
    The agreement to give this mortgage was a specific lien on the land (1 Paige, 124; id., 279; 3 N. Y., 185; 21 id., 581); not within statute of frauds (Willard’s Eq., 284 ; 4 Kent, 451; 1 Story Eq., § 761, 762, 764; 3 Barb. Oh., 407; 34 N. Y., 307-311; 43 id., 34-38; 1 Story Eq. Jur., § 64, g). The plaintiff as assignee in bankruptcy, only succeeds to the place of Morgan P. Jackson. (Bankrupt act, § 15; 6 Nat. Bankr. Beg., 10; 8 id., 447 ; 7 id., 230 ; 45 N. Y., 175; 50 id., 214; Bump’s Bankruptcy [5th ed.], 480, 481; 102 Mass., 427; Cook v. Whipple, 55 N. Y., 150; also, 9 Bankr. Beg., 274; 10 id., 173; 52 N Y., 274.)
   Gilbert, J.:

"We concur fully with the referee in his conclusions of fact and of law. One of the first principles of equity is that it looks upon things agreed to be done, as actually performed. Acting upon this principle, courts of equity in England and in this country have held, that an agreement based upon a valuable consideration to give a mortgage, will be treated in equity as a mortgage. That doctrine has been acted upon so frequently and for so long a period of time that it may justly be regarded as forming a part of the law of the land. (Story Eq. Jur., § 553; Russell v. Russell, 1 Bro. C. C., 269, and notes to that case in 1 Lead. Cases Eq., 541; Read v. Simons, 2 Desauss., 552; Welsh v. Usher, 2 Hill Eq., 167; Dow v. Ker, 1 Spen. Esq., 414; Bank v. Carpenter, 7 Ohio, 21; In re Howe, 1 Paige, 125; Chase v. Peck, 21 N. Y., 581; Willard Eq. [Potter’s ed.], 441, et seq.) If therefore, the agreement of December, 1871, had been made directly with the defendants Ida and Carrie, there can be no question that it would have given them a specific, equitable lien upon the land in controversy, which would have been prior and paramount to the title of the plaintiff, and to the general liens of the judgment creditors whom he represents. Having been made with their guardian while they were infants, it inured to their benefit and was well executed by the mortgage to them. Conceding that while the agreement remained executory it was within the statute- of frauds, and so not enforceable, for the reason that it was not in writing, yet, when the promissor actually executed the agreement, by a delivery of a formal mortgage, all objection to its validity, on that ground, was removed, and the agreement became as effectual for all purposes, as if it had been reduced to writing originally. (Siemon v. Schurck, 29 N. Y., 598; Dodge v. Wellman, 1 Abb. Ct. App. Dec., 512; In re Howe, supra; White v. Carpenter, 2 Paige, 217; Arnold v. Patrick, 6 id., 310.) Under our statute a parol agreement, in respect to lands, cannot be avoided in equity, because it is not in writing, where there has been a part performance of it. (Freeman v. Freeman 43 N. Y., 34.) A fortiori, it cannot where it has been fully executed. The plaintiff is not a tona fide purchaser, but stands in the shoes of the bankrupt. He cannot, therefore, assert any better right than the bankrupt himself. The execution of the mortgage gave tlie defendants a lien, which took effect, by relation, as against the' bankrupt and purchasers from him with notice, at the time the agreement to give it was made. (Auth. Sup.) The plaintiff, not being a bona fide purchaser, took the transfer to him subject to that lien. That being so, no question of fraud or of a preference in violation of the provisions of the bankrupt act has arisen, and-the evidence precludes any inference of other kinds of fraud. It is unnecessary to review the cases cited on behalf of the appellants, for none of them seem to us to conflict with the foregoing views.

The plaintiff is not in a position to raise the objection that the agreement to discharge the old mortgage, and to receive the new one in lieu of it, was invalid because the guardian violated his duty and transcended his power in making such an agreement. Such a transaction is not absolutely void, but is voidable only, at the election of the infants on coming of age. It being obviously for the benefit of the infants that the lien shall be established and upheld, we will give effect to the intendment, that their ratification will be forthcoming at the proper time, and to the rule that no one but themselves can disavow the authority of their guardian to make the agreement. (Co. Lit., 2 b; 2 Kent Com., 236; Keane v. Boycott, 2 H. Bl., 511; U. S. v. Bainbridge, 1 Mason, 82.) The plaintiff has no claim to be the champion or protector of the infants, and can acquire no rights b} assuming that character.

Some objections to the admission of evidence were taken by the plaintiff. ¥e think they were properly overruled.

The judgment should be affirmed, with costs, to be paid out of the estate of the bankrupt, if that is sufficient; otherwise by the plaintiff personally.

Smith, J., concurred.

Mullin, P. J.,

concurred solely on the ground that it was shown on the trial that the defendants were not at the time of receiving the mortgage aware of the insolvency of the mortgagor, and that the mortgage, as to them, was in fraud of the bankrupt law.

Judgment affirmed, with costs.