text:
    David Gurnee, Resp’t, v. Lewis H. Hutton, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Equitable assignment—Orders drawn on fund.
    One B., who was doing work under contract for defendant, purchased', ahorse of plaintiff and gave him an order on defendant payable “in sums-as mentioned in contract.” This was presented to defendant without-demand for payment, and was not Accepted in writing. Held, that the-order was an equitable assignment of the fund due and to become due under the contract and its delivery bound defendant to apply the fund as-it accrued to payment of the order.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Abram, A. Demarest, for app’lt; William K Oowdey, for resp’t
   Dykman, J.

On the 8th day of August, 1889, Augustus Brinkerhoff made an agreement in writing with the defendant to-construct for him a hot water heating apparatus in his residence-in Nanuet, Rockland county, for $430, to be paid as follows: Three hundred and thirty dollars to Baton, Cole & Burnham Co. thirty days after the material was purchased; twenty-five dollars to Brinkerhoff when the heater was set and the mains run in the cellar; twenty-five dollars to Brinkerhoff when the work was complete and the apparatus was set up as specified; fifty dollars toBrinkerhoff when the apparatus had been tested in first cold weather and found satisfactory.

Brinkerhoff purchased a horse of the plaintiff in this action for $125, and gave him in payment therefor an order upon the defendant in writing, of which the following is a copy:

“Nyack, October 2, 1889.
“ Mr. Louis Hutton, Jr., please pay to the order of Mr. David Gurnee the sum of one hundred and twenty-five dollars in sums as mentioned in contract for erecting hot water heater. By order of A. Brinkerhoff.”

The order was taken to the defendant and left with him a few days after it was drawn.

Brinkerhoff commenced work on the heater in September, and he says there was about fifty dollars due him under the contract, when the order was drawn. He did not complete the work, and he testified that he was prevented from so doing by the defendant, and that there was not more than twenty-five dollars worth of work left undone. He also claimed to have done fifty dollars worth of work beyond the contract, and that there was due him from the defendant on account of the contract $125.

The defendant on the contrary claimed that nothing was due to Brinkerhoff under the contract, and that he had been compelled to expend more than the contract price for the completion of the heater by reason of the failure of Brinkerhoff to perform his. agreement.

The cause was tried at the circuit and submitted to the jury by a charge which was faultless. The trial judge charged the jury that the order constituted an equitable assignment of the fund, if there was a fund upon which it could operate.

That it was an assignment of the money that might become due to Brinkerhoff under the contract to the extent of $125, and that the plaintiff was entitled to recover $125 provided that sum became due from the defendant to Brinkerhoff.

He charged further that as it was conceded Brinkerhoff did not complete his contract, the jury must determine where the fault, was. That if Brinkerhoff was delayed in his work by the condition of the building that would be a valid excuse. But if, on the contrary, he was not delayed, then he never completed the contract, and he was not entitled to his final payment, even though he did some work, because he was bound to complete his contract as an entirety before he could recover the last payment.

Under this charge the jury found a verdict for the plaintiff for $119.70, and we must assume that the facts were found in favor of the plaintiff, and that the defendant was indebted to Brinkerhoff under the contract in the sum of $119.70.

With the facts so settled it becomes necessary to determine the legal effect of the order under the surrounding circumstances and in view of the fact that it never was accepted in writing by the. defendant

If the instrument is to be viewed in the light of a draft to be-paid by the defendant without regard to the source from which, the money for its payment was to be obtained, then even though the fund or source from which the defendant was subsequently to-reimburse himself was ascertained the draft will not operate as an assignment of such fund, and the-plaintiff cannot maintain this-action in the absence of an acceptance of the draft

But as in this case the order was drawn for a valuable consideration as between Brinkerhoff and the plaintiff, if it is to be-considered as drawn upon the defendant to be paid from the-money due, or to become due, from him to Brinkerhoff under the contract for the construction of the heater, then the mere delivery of the order to the defendant operated as an assignment of that fund, and the defendant was bound upon the receipt of the draft to apply the fund as it accrued to the payment of the order. Brill v. Tuttle, 81 N. Y.. 454; Lauer v. Dunn, 115 id., 405; 26 St. Rep., 412.

We think the language of the draft, and the evidence and the circumstances surrounding the parties and the transaction, show clearly that this order was drawn upon the defendant to be paid from the money due, and to become due, under the heater contract, and that there was no intention, or expectation that the defendant would pay the same upon the credit of the drawer and apply the money as it became due under the agreement to his reimbursement.

In the first place, the order itself directs the payment “ in sums as mentioned in contract for erecting hot water heater,” and thus in plain terms evinces the intention of the drawer to have the payments made at different times and in small sums as they became due him under the contract.

Then when the order was presented to him there was no demand for immediate payment, and in the subsequent conversations between the parties there was no expression of intention to procure payment of the draft otherwise than from the money due from the defendant under the contract with the drawer, and even the defense upon the trial proceeded mainly upon the ground that there was nothing due under the contract

All the circumstances point in the same direction. The drawer of the draft had purchased a horse of the plaintiff, for which he desired to pay, and in the expectation that the defendant would soon become indebted to him, he directed him to pay such indebtedness as it became due to the plaintiff instead of himself, and within the authorities cited above all these facts lead to the conclusion that the order operated as an equitable assignment of the fund.

Our conclusion, therefore, is that the exceptions are not well taken, that the record presents no error, and that the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Court of Appeals.
    Filed April 12, 1892.
    Mary Heath, Respt, v. The Broadway & Seventh Ave. R. R. Co., App’lt.

      Henry Thompson, for resp’t; Elihu Boot, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 378.


text:
    The People ex rel. Frank C. Boekell, Resp’t, v. Chas. F. Maclean et al., Com’rs, App'lts.

      Louis J. Grant, for resp’t; W. A. Sweetser, for app’lts.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 42 St. Rep., 690.


text:
    The People, Resp’ts, v. Harry Mortimor Crawford, App’lt.

      John N. Vanderlyn, for resp’ts; G. JD. B. Hasbrouek, for app’lt.
   Judgment affirmed. All concur, except Andrews, J., not voting, and Finch, J., absent.

Affirming 41 St. Rep., 809.


text:
    Allen W. Sellick, Resp’t, v. J. Langdon & Co., App’lts.
   No papers.

Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 37 St. Rep., 511.


text:
    Jas. T. McCormick, Resp’t, v. Geo. W. Venable et al., App’lts.

      William M. Benedict, for resp’t; Hugo Hirsch, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 34 St. Rep., 717.


text:
    Jos. E. Hinds et al., Resp’ts, v. Jas. C. Kellogg, App’lt.

      J. E. 'Ludden, for resp’ts, Isaac N. Miller, for app’lt.
   Judgment affirmed, with costs, and ten per cent damages for delay. All concur, except Finch, J., absent.

Affirming 38 St. Rep., 1024.


text:
    Mary J. Rosevelt, Resp’t, v. The Manhattan R. Co., App’lt.

      William G. Bussey, for resp’t; Samuel Blythe Bogers, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 37 St. Rep., 894.


text:
    Clarence A. Parsons, Resp’t, v. Chas. Robinson, App’lt.

      Edward O. Boar dm an, for resp’t; Delos McCurdy, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 39 St. Rep., 376.


text:
    John Morrison, Resp’t, v. The Press Publishing Co., App’lt.

      Joshua M. Fiero, for resp’t; Joseph M. Keatinge, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 40 St, Rep., 991.


text:
    Joshua P. Demby, Resp’t, v. The City of Kingston, App’lt.

      F. A. Westbrook, for resp’t; G. D. B. Hasbrouek, for app’lt.
   Judgment affirmed, with costs, and ten per cent damages for delay. All concur, except Finch, J., absent.

Affirming 38 St. Rep., 42.


text:
    The Jackson Architectural Iron Works, Resp’t, v. Charles Broadway Rouss, App’lt.

      Carrlisle Norwood, for resp’t; JohnW. Boothby, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 39 St. Rep., 359.


text:
    Mary McC. Hastings, Resp’t, v. John Claflin et al., App’lts.

      S. W. Jackson, for resp’t; Michael A. Quinlan, for app’lts.
   Judgment affirmed, with costs, and ten per cent damages for delay. All concur, except Finch, J., absent.

Affirming 38 St. Rep., 471.


text:
    Chas. H. Kerner, Resp’t, v. Chas. G. Boardman et al., App’lts.

      Charles Fox, for resp’t; Wm. 8. Beaman, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 39 St. Rep., 61.


text:
    Ida G. Richardson, an Infant, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Jno. Gillette, for resp’t; Camp & Dunwell, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep., 616.


text:
    Martha Bennett, an Infant, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Jno. Gillette, for resp’t; J. W. Dunwell, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep., 948.


text:
    Frederick Beiermeister, Jr., et al., App’lts, v. The City of London F. Ins. Co., Resp’t.

      Geo. B. Wellington, for app’lts; O. 8. Lester, for resp’t.
   Judgment affirmed, with costs. All concur, except Maynard, J., not voting.

Affirming 39 St. Rep., 741.


text:
    Filed April 19, 1892.
    In the Matter of the Estate of Peter Cain, Dec’d.
   Ho papers.

Motion to correct return denied; ten dollars costs.

See 42 St. Rep., 145.


text:
    Filed April 26, 1892.
    Warren Rosevelt, Resp’t, v. Alexander McGaw, App’lt.

      Wm. G. Bussey, for resp’t; John Brooks Leavitt, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 41 St. Rep., 955.


text:
    The People ex rel. Alice Stobo, Resp’t, v. Jas. S. Eadie, Pres’t, App’lt.

      James J. Allen, for resp’t; Lemuel Skidmore, for app’lt.
   Order affirmed on opinion below, with costs. All concur, except Gray, J., dissenting.,

Affirming 43 St. Rep., 649.


text:
    Frank Work et al., App’lts, v. Dudley Tibbits, Impl’d, Resp’t.

      F. F. Marbwry, for app’lts; Fsek Cowen, for resp’t. '
   Order affirmed, with costs. All concur.

Affirming 41 St. Rep., 165.


text:
    Luiz Diaz Govin, Resp’t, v. Luciana Govin De Miranda et al., App’lts.

      Benjamin N. Cardozo, for resp’t; Edward K. Jones, for app’lts.
   Appeal dismissed, with costs. All concur.

See 44 St. Rep., 386.


text:
    Filed May 3, 1892.
    Jas. Van Camp, for himself and others, legatees, Resp’t, v. Albert Fowler, Ex’r, et al., App’lts.

      William M. Boss, for resp’t; Ceylon H, Lewis, for app’lts.
   Judgment affirmed on opinion of Judge Merwin, below, with costs. All concur.

Affirming 41 St. Rep., 80.


text:
    In the Matter of the Estate of James P. Shedd, Dec’d.

      Frank IT. Stevens, for app’lt; Obed Edson, for resp’t.
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 38 St. Rep., 310.


text:
    Paul W. Latham, Resp’t, v. Patrick B. Delany, Appl’t.

      William C. Davis, for resp’t; E. Louis Loioe, for app'lt.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 369.


text:
    Catherine Crowther, Resp’t, v. The City of Yonkers, App’lt.

      James M. Hunt, for resp’t; Joseph F. Daly, for app’lt.-
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 748.


text:
    Wm. D. Mackey et al., App’lts, v. Benj. Rausch et al., Ex’rs, Resp’ts.

      Chas. Bulkley Hubbell. for app’lts; Benj. Rausch, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 232.


text:
    In the Matter of the Application of George W. McLean, Rec’r of Taxes, to enforce, etc.

      Sutherland, Tenney, for app’lt; John G. H. Meyers, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 38 St. Rep., 893.


text:
    Alex. G. Calder, App’lt, v. Percy Jenkins, Resp’t.

      Jesse Johnson, for motion to dismiss; S. M. Meeker, opposed.
   Appeal dismissed, with costs.

See 42 St. Rep., 38.


text:
    Richard Bishop, Adm’r, Resp’t, v. Helen E. Hendrick, App’lt.

      Lawrence Russell, for motion; Edwin M. Holbrook, opposed.
   Motion to dismiss appeal denied; ten dollars costs.

See 42 St. Rep., 296.


text:
    The People ex rel. Ebenezer G. Blakslee, App’lt, v. The Commissioners of the Land Office, Resp’ts.
   No papers.

Motion to dismiss granted, unless an undertaking as required by § 1326 of Code of Civil Procedure be given within twenty days.

See 39 St. Rep., 642.


text:
    In the Matter of the Will of Wm. J. Logan, Dec’d.

      Wm. D. Veeder and Edward Winslow Paige, for motion; Stitt & Phillips, opposed.
   Motion for re-argument denied; ten dollars costs.

See 43 St. Rep., 667.


text:
    Albert M. Crouter, App’lt, v. Annie E. Weinstein et al., App’lts.

      Wm. Henry Arnovae, for motion; Henry A. Foster, opposed.
   Motion for re-argument denied; ten dollars costs.

See 44 St. Rep., 316.


text:
    Filed May 6, 1892.
    Cora Chase, Resp’t, v. The Jamestown St. R’way Co., App’lt.

      Frank W. Stevens, for resp’t; O. R. Lockwood, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 954.


text:
    Chas. Griesa et al., Resp’ts, v. The Massachusetts Benefit Ass’n, App’lt.

      J. F. Parkhurst, for resp’ts; J. K. Hayward, for app’lt.
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 39 St. Rep., 1.


text:
    Stephen D. Barnes et al., Adm’rs, Resp’ts, v. Ann L. McDonald, App’lt.

      Albert B. Boardman, for resp’ts; Samuel G. Mount, for app’lt.
   Judgment affirmed, with costs. All concar.

Affirming 37 St. Rep., 899.


text:
    Victor Rider et al., Resp’ts, v. Robert Foggan, App’lt.

      Arthur JR. Moore, for resp’ts; Adelbert Moot, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 438.


text:
    In the Matter of Widening of Washington St., Po’keepsie.

      Horace ü. Hufcut, fcr app’lt.; Chas. B. Herrick, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 38 St. Rep., 346.


text:
    Wm. Alexander, Adm’r, Resp’t, v. The State, App’lt.

      Tracy C. Becker, for resp’t; S. W. JRosendale, for app’lt.
   Award affirmed, with costs. All concur, except Earl, Oh. J., not voting, and Maynard, J., not sitting.


text:
    Samuel Pelen, Jr., App’lt, v. Albert Smith, Resp't.

      Albert G. McDonald, for app’lt; John F. Brush, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 967.


text:
    The Lawrenceville Cement Co., App’lt, v. S. Wilber Parker et al., Resp’ts.

      Wm. Henry Arnoux, for app’lt; Michael H. Can-dozo and Wilson Brown, Jr., for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 864.


text:
    Wm. H. Haydn Miller, Resp’t, v. Wm. H. Curtiss, App’lt.

      Marshall P. Stafford, for resp’t; John Brooks Leavitt, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 383.


text:
    The Merchants’ Nat. Bank of Whitehall, Resp’t, v. S. Edward Chapin et al., App’lts.

      J. Sanford Potter, for resp’t; 0. A. Dennis, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 701.


text:
    Orville T. Jarvis, Resp’t, v. The Brooklyn El. R. R. Co., App’lt.

      M. L. Towns, for resp’t; William H. Cohen, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep., 825.


text:
    Caroline J. Cammerer, Resp’t, v. Clemens Muller, App’lt.
    ’ Eugene H Lewis, for resp’t'; Robert H. Griffin, for app’lt.
   Judgment affirmed, with costs, on opinion of Van Brunt, J., in general term. All concur.

Affirming 38 St. Rep., 583.


text:
    Rachael Pollock, Resp’t, v. The Brooklyn Crosstown R. R. Co., App’lt.

      David Tim, for resp’t; Thomas S. Moore, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 568.


text:
    In the Matter of the Petition of John Newton, Com’r, for Appointment of Com’rs under chap. 490, Laws of 1883.

      James A. Deering, for app’lt; Arthur H. Masten, for resp’t.
   Order affirmed, with costs, on the opinion of the commissioners. All concur.

Affirming 42 St. Rep., 952.


text:
    Maunsell Van Rensselaer v. Edward S. Bull et al.

      Eugene L. Burke, for app’lts; James E. Chandler, Robert P, Hao'low and Jno. Alex. Beall, for resp’ts.
   Order affirmed on opinion in general term, with costs. All concur, except Andrews and O'Brien, JJ., not voting.

Affirming 43 St. Rep., 340.


text:
    The People ex rel. Edward Luckemeyer, App’lt, v. Michael Coleman et al., Com’rs of Taxes, Resp’ts.

      II. Charles Ulman, for app’lt; I). J. Bean, for resp’ts.
   Order affirmed, with costs. All concur.

Affirming 41 St. Rep., 100.


text:
    The People ex rel. Isaac P. Martin, App’lt, v. Theodore W. Myers et al., Board of Revision of New York, Resp’ts.

      James A. Beering, for app’lt; B. J. Bean, for resp’ts.
   Appeal dismissed, with costs. All concur.


text:
    Second Division.
    Filed April 19, 1892.
    The City of Buffalo, App’lt, v. George H. Chadeayne, Resp’t.
   No papers.

Motion to restore cattse to calendar granted, without costs.

See 27 St. Rep., 60.


text:
    Myrton Maury, Resp’t, v. Alfred B. Post, App’lt.
   No papers.

Motion to revive the action and substitute the executor of the deceased defendant in his stead granted. The application to adjudge that the defendant’s attorney have a lien for his services and disbursements is denied, without costs, and without prejudice to make a motion on notice.

See 29 St. Rep., 827.


text:
    Herman Hahlo et al., Resp’ts, v. Hugh J. Grant, Sheriff, et al., App’lts,

      Morris J. Hirsch, for resp’ts; Bavid McClure, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 919.


text:
    George J. Grossman, Resp’t, v. Ephraim M. Kantrowitz et al., App’lts.

      Abram Kling. for resp’t; 8. F. Kneeland, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 921.


text:
    Edward Avery, Resp’t, v. The N. Y. Mutual Ins. Co., App’lt.

      John A. Mams, for resp’t; John Berry, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 116.


text:
    William Jenkins, App’lt, v. The Mahopac Iron Ore Co., Resp’t.

      Qeo. W. Belano, for app’lt; Wm. C. Holbrook, for resp’t.
   Judgment affirmed, with costs. All concur, except Haight, J., absent.

Affirming 32 St. Rep., 866.


text:
    John Thompson, Resp’t, v. P. Sanford Ross et al., App’lts.

      J. Edward Swanstrom, for resp’t; E. C. Benedict, for app’lts.
   Judgment affirmed, with costs. All concur, except Vann and Haight, JJ., absent.

Affirming 35 St. Rep., 273.


text:
    The Town of Southampton, Resp’t, v. Edwin Post, App’lt.

      Thos. Young and Thos. F. Bisgood, for resp’t; Timothy M. Griffing and James H. Tuthill, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 22 St. Rep., 823.


text:
    Clara L. Doty, Resp’t, v. The N. Y. State Mut. Benefit Ass’n, App’lt.

      Isaac B. Garfield, for resp’t; T. K. Fuller and Chas. U. Peck, for app’lt.
   Judgment affirmed, with costs. All concur, except Vann, J., not voting.

Affirming 29 St. Rep., 896.


text:
    The Illinois Watch Co., Resp’t, v. May L. Paine et al., Impl’d, App’lts.

      Franklin Bien, for resp’t; L. Lafiin Kellogg, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 967.


text:
    The State of N. Y. Nat. Bank, App’lt, v. Samuel D. Coykendall, Impl’d, Resp’t.

      F. L. Westbrook, for app’lt; A. T. Clearwater, for resp’t.
   Judgment affirmed, with costs. All concur, except Parker and Landon, JJ., not sitting.

Affirming 34 St. Rep., 432.


text:
    Filed April 26, 1892.
    Alexander Armstrong, Resp’t, v, The Agricultural Ins. Co. of Watertown, App’lt.

      Calvin Frost, for motion; A. H. Sawyer, opposed.
   Motion for re-argument denied, with costs.

See 42 St. Rep., 555.


text:
    The Chemical Nat. Bank of N. Y., Resp’t, v. Augustus W. Colwell, App’lt.
   No papers.

Motion for re argument denied, with costs.

See 43 St. Rep., 876.


text:
    Johanna Reichel, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.
   No papers.

Motion for re-argument denied, with costs.

See 42 St. Rep., 510.


text:
    Filed May 3, 1892.
    Catherine Cowan, Resp’t, v. The Third Ave. R. R. Co., App’lt.

      James A. Bñggs, for resp’t; Wm. H. Band, Jr., for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 145.


text:
    Filed May 6, 1892.
    Nathan S. Starr, App’lt, v. Sarah M. Starr et al., Resp’ts.
   No papers.

Motion to amend remittitur denied, without costs.

See 43 St. Rep., 556.


text:
    Theodorus B. Woolsey et al., Ex’rs, Resp’ts, v. The New York El. R. R. Co. et al., App’lts.
   No papers.

Motion for re-argument granted, with costs to abide event, and case to be placed on the calendar for the next session according to its number.

See 43 St. Rep., 474.


text:
    John Avery, App’lt, v. Manly B. Mattice, Resp’t.

      Sidney Crowell, for app’lt; John A. Griswold, for resp’t.
   Judgment affirmed, with costs. All concur, except Landon, J., not sitting.

Affirming 29 St. Rep., 706.


text:
    Naomi Dunsback, Resp’t, v. William H. Hollister, App’lt.

      J. F. Crawford, for resp’t; Boyle & Fitts, for app’lt.
   Judgment affirmed, with costs. All concur, except Landon, J., not sitting.

Affirming 17 St. Rep., 461.


text:
    William Wills, App’lt, v. The Union Bottling Co., Resp’t.

      N. F. Warren, for app’lt; Andrew Byfcher, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 1100.


text:
    Thomas Collins, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Frank Brundage, for resp’t; James F. Gluck, for app’lt.
   Judgment affirmed, with costs. All concur, except Follett, Ch. J., dissenting, and Haight, J., not voting.

Affirming 33 St. Rep., 569.


text:
    Supreme Court—General Term—First Department.
    Filed February 18, 1892.
    William Foerster et al. v. Joseph Gallinger et al.

   Motion denied, with ten dollars costs.


text:
    Ruth Torbett v. Parke Godwin. Jessie Watson v. Parke Godwin.
   Motion denied, with ten dollars costs.


text:
    Stephen K. Stanton, Resp’t, v. William H. M. Sistare et al., App’lts.
   Motion granted, with ten dollars costs.


text:
    Francis E. Johnson, Individually, etc., Resp’t, v. The New York El. R. R. Co. et al., App’lts.
   Judgment affirmed, with costs.


author: Per Curiam.

text:
    Gilbert M. Husted, Resp’t, v. Augustus Cruikshank, as Trustee of the Estate of Benjamin Lord, App’lt.
    Appeal from an order vacating order for security for costs, and an order denying motion to vacate order for examination of defendant.

      A. Edward Woodruff, for resp’t; Edward Van Ness, for app’lt.
   Per Curiam.

We are of the opinion that the plaintiff should be required to file security for costs, and that the order appealed from, relating to such security, should be reversed. „

We are also of the opinion that the order for the examination of the defendant should be reversed, with costs and disbursements to the appellant.

Van Brunt, P. J., and Lawrence, J., concur.


text:
    The People ex rel. Charles Putzel, Resp’t, v. John Simonson et al., App’lts.
    Re-argument as to costs.

      O'has. T. Haviland, for app’lts; Archibald L. Sessions, for resp’t.
   Per Curiam.

It was the intention of the court, upon the previous reversal, to grant only motion costs, which would amount to twenty dollars and disbursements. Ordered accordingly.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.


text:
    The People ex rel. Robert McCully, App’lt, v. The Commissioners of Excise of the City of New York, Resp’t.
    Appeal from an order of the special term denying appellant’s application for a writ of mandamus, etc.

      Ezra A. Tuttle, for app’lt; Edward Browne, for resp’t.
   Per Curiam.

Our examination of the record in this case satisfies us that the justice who heard the application at the special term was right in refusing to grant the writ of mandamus for which the relator asked.

The order below will, therefore, be affirmed, with costs and disbursements.

Van Brunt, P. J., and Lawrence, J., concur.


author: Patterson, J.

text:
    Lewis Seasongood et al., Ex’rs, Resp’ts, v. The New York El. R. R. Co. et al., App’lts. Lewis Seasongood et al., Resp’ts, v. The New York El. R. R. Co. et al., App’lts.
    Appeals from judgments in favor of plaintiffs, entered on reports of referee.

      Sackett & Bennett, for resp’ts; Basies <6 Sapallo, for app’lts.
   Patterson, J.

The appeals in these actions are from judgments entered upon the "eports of a referee and may be considered together. The only matter requiring particular examination is the correctness of the refer, e’s findings as to the amount allowed for damages to the rental value of certain premises; these being common law actions to r>. cover for alleged loss of rents in consequence of the construction, maintenance and operation of an elevated railroad in front of the premises mentioned in the complaint.

On an examination of the referee’s reports we do not find any error in the principle upon which he awarded damages or in his conclusions as to the amount of damage sustained. He has expressly considered the subject of the property having been benefited by the railway structure being built in front of it and the location of the station, and he found as matter of fact that special benefits had accrued to the property in consequence thereof and that as matter of law they must be set off against the damages sustained and with that fifiding of fact and conclusion of law in each case he directs judgment for specific amounts which on all the testimony we think he was justified in adopting as the fair balance of damages to which the plaintiffs were respectively entitled.

Judgments affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    General Term—Second Department.
    Filed February, 8, 1892.
    John W. Felter v. John E. Walsh.
   Judgment affirmed, with costs, for non-submission of papers, according to stipulation.


author: Dykman, J. Barnard, P. J.

text:
    Michael T. Daley, Resp’t, v. Theodore Hellman et al., App’lts.
    Motion for re-argument.

      Eugene Beligman, for motion; Howard A. Sperry, opposed.
   Dykman, J.

There is no reason for a re-argument of the appeal from the order in this action. All the questions involved were examined, and nothing was misunderstood or overlooked.

The motion should be denied, with ten dollars costs and disbursements.

Pratt, J., concurs.

Barnard, P. J.

(dissenting).—This action is brought under §§ 1900 and 1901 of the Code of Civil Procedure. By these sections it is provided, that if a person vexatiously or maliciously, in the name of another, commences or continues an action or special proceeding in any court, the adverse party shall have an action on his part to recover damages, and treble damages are given.

By § 983 of the Code, actions for penalties must be tried in the counties where the offense arose. The offense in this case was committed in the city of New York. The case of Veeder v. Baker, 83 N. Y., 156, holds that the action is one for a penalty, and that the defendants had an absolute right to have a motion granted for a change of the place of trial.

The order should be reversed, with costs and disbursements, and the motion granted with ten dollars costs to abide event.


author: Dykman, J.

text:
    Fanny R. Holland, Resp’t, v. Arthur Brown, App’lt.
    Appeal from judgment in favor of plaintiff.
    Action to reform a deed on the ground of fraud.

      Goodrich, Beady & Goodrich {John F. Foley, of counsel), for app’lt; Henry A. Monfort, for resp’t.
   Dykman, J.

This is an equitable action for the reformation of a deed of conveyance of real property. The cause was tried before a judge at special term, and he has found all the facts constituting the fraud in favor of the plaintiff and the testimony fully sustains his finding.

All the questions of law were properly disposed of and we find no error.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Pratt, J.

text:
    James Kent et al., Ex’rs, Resp’ts, v. The Church of St. Michael, App’lt.
    Appeal from judgment decreeing specific performance of a contract for the sale of land.

      John J. Belany, for app’lt; Tillotson & Kent, for resp’ts.
   Pratt, J.

We think that Baker v. Lorillard, 4 N. Y. 266; Moore v. Littel, 41 id., 82; Jenkins v. Fahey, 73 id., 355, support the decision at special term and determine the cause in favor of the plaintiff.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


text:
    General Term—Third Department.
    Filed March 15, 1892.
    Alvah J. Zimmer, Resp’t, v. The New York Central & Hudson River Railroad Company, App’lt.
   Motion to amend order of previous general term granted.


text:
    Fred A. Bradt, Resp’t, v. James T. Scott et al., App’lts.
   Order opening default on payment of costs.


text:
    James M. Smith, Ex’r, App’lt, v. Frank Pelott, Resp’t.
   Motion for re-argument of appeal from order granted.


text:
    Tiburga Geaninei v. Sarah J. Jackson.
   Motion to strike appeal from calendar denied, with ten dollars costs.


text:
    Caleb Sherman, Resp’t, v. Hattie E. Barber, App’lt.
   Appeal dismissed for non-service of papers.


text:
    Peter Keane, Resp’t, v. The Village of Waterford, App’lt.
   Appeal dismissed, with costs.


text:
    In the Matter of the Appointment of Referee to Examine Accounts of County Treasurers.
   Ordered, that James J. Farren of the city of Albany, be and hereby is appointed a referee to examine county treasurers' accounts. Order to be settled and entered by Herrick, J.


text:
    Filed April 4, 1892.
    Alfred Schimpf, Resp’t, v. Alonzo Sliter, App’lt.
   Re-argument ordered.


text:
    City Court of Brooklyn—General Term.
    Filed January 23, 1892.
    The People ex rel. Philip Krieger, Resp’t, v. The Board of Excise, App’lt.
   Per Curiam.

The relator applied to the board of excise for a saloon license. Upon mandamus proceedings had before the special term of this court under Laws 1886, chapter 496, the trial judge decided on the proofs that the application was made to the board in due form, and that the board arbitrarily and without good cause, reason or excuse, refused and still refuses to grant such license. After careful examination of the case, we see no reason to dis^ turb these findings of facts, Order must be affirmed, with costs.


text:
    William S. Gridley, Resp’t, v. The College of St. Francis Xavier, App’lt.

      (Supreme Court, General Term, Second, Department,

      Filed February 8, 1892.)

    Appeal—New trial.
    Where the motion, for a new trial on the minutes does not specify the grounds on which it was made, and. no order is presented to furnish such, grounds, there is nothing before the appellate court for review as to such, motion.
    Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial on the minutes.

      George Bliss, for app’lt; Howard A. Sperry, for resp’t.
   Dykman, J.

The story is simple and easily told. Ann Owens had a life-estate in the land and premises known as 53 Wooster street in the city of New York, ana her daughter Ann Eliza Owens was the •owner in fee of three-fourths of the property.

On the 14th day of April, 1888, Ann Owens executed and delivered to John Vosteen a lease of the premises for five years from May 1, 1888, at a yearly rent of $950.

On the 27th day of May, 1873, Ann Eliza Owens was judicially •declared to have been an idiot from her birth, and totally incapacitated from taking care of herself or her property, and a committee of her person and estate was then appointed.

On the 1st day of July, 1890, Ann Eliza Owens executed and •delivered to the defendant a deed of conveyance of all her right, title and interest in the property.

Ann Owens died on the 29th day of July, 1890, and her daughter Ann Eliza Owens died a few days before, intestate and without children.

John J. Oody collected the rent from the tenant Vosteen for Ann Owens during her life-time, and after her death he collected the rent, for the defendant, and received $79.16 .each month from August 1, 1890, to March 1, 1891, and that is the money which the plaintiff claims to recover in this action as the assignee ■of John Vosteen, the tenant

Upon the trial the defendant raised no question respecting the validity of the inquisition which adjudged Ann Eliza Owens "to be an idiot, but rested the defense upon the claim that the rent was paid by Yosteen under circumstances which rendered the payment voluntary.

That question was accordingly submitted to the jury under a charge to which there was no exception, and the jury returned a verdict in favor of the plaintiff for the full amount claimed.

The defendant’s counsel then moved for a new trial on the minutes of the court without specifying any grounds for his motion, and it was denied and he excepted.

■ The case does not contain an order denying the motion for a new trial, and there is nothing to show that the case contains all the testimony.

As therefore the motion of the defendant for a new trial on the minutes specifies no ground upon which a review can proceed, and no order is presented to furnish such grounds, there is nothing before us for review so far as the motion for a new trial is concerned. Dresser v. Ins. Co., 47 Hun, 153.

Independent of that difficulty, however, we have carefully examined the case to see if there is evidence to sustain the verdict, and we find^it fully justified and supported. The judgment and order denying the motion for a new trial should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Gerald McMurray, App’lt, v. Andrew McMurray et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Mortgage—Presumption of payment.
    In an action of foreclosure the plaintiff produced a certified copy of the record of the mortgage, and it appeared that the mortgagor fifteen years before his death had delivered the bond and mortgage to the landlady of a hotel to keep for him, and that she sent the same to the widow on his death. Held, that the great lapse of time that the mortgagor remained in undisputed possession of the bond and mortgage, and the fact that no effort had ever been made to collect either principal or interest, created a strong presumption that the same had been satisfied.
    2. Foreclosure—Evidence.
    Testimony of the mortgagee as to whether any payment on the mortgage had been made to him by the mortgagor, now deceased, is inadmissible under § 829 of the Code.
    Appeal from judgment dismissing the complaint.
    Action to foreclose a mortgage, alleged to have been assigned to plaintiff by the mortgagee, The facts appear fully in the opinion.
    On the trial the following questions put to the mortgagee were excluded:
    “Have you ever been paid the consideration of the mortgage,” and “ Did you ever receive any money on account of that mortgage ? ”

      Geo. F. Eschbach (G. A. C. Barnett, of counsel), for app’lt; Horace D. Hufcut, for resp’ts.
   Pratt, J.

This action was brought to foreclose a mortgage .given May 26, 1873. by Bartholomew McMurray and wife to Andrew McMurray to secure the payment of $2,000 upon 26th May, 1878, interest to be paid annually, June 1, each year, at the rate of seven per cent A bond for such sum accompanied the mortgage with condition as above.

The complaint shows that the mortgagor and bis wife were •each deceased at the time of the trial and the defendants in the action were the children of the mortgagor. The mortgagor died three or four years since, and subsequently his wife died. The defendants are all infants and children of the mortgagors except defendant Edmonds, a tenant, and Richard Barrett, who is the grandparent of the infants and their general guardian.

It appears that Bartholomew McMurray was in the habit of .stopping at the New York Hotel, in the city of Poughkeepsie, and that some fifteen years or more prior to the trial (1891), he (the mortgagor) gave to Mrs. Gallagher, the landlady, some papers to keep for him. She kept them for fifteen years or more, and when she heard the mortgagor was dead sent them by mail to the mortgagor’s widow at Dover Plains, and when she died Richard "Barrett, her father, found them in the house. The mortgage and bond were in form assigned by Andrew McMurray, the original mortgagee, to Gerald McMurray, February 11, 1890, who is the plaintiff in this action.

The great lapse of time that the mortgagor had been in the undisputed lawful possession of this bond and mortgage, and that bo effort had ever been made to collect either interest or principal by the mortgagee, affords a very high degree of evidence that if the mortgage and bond ever had any validity it had long been .satisfied. Giles v. Baremore, 5 Johns. Ch., 545 ; Jackson v. Sackett, 7 Wend., 94; Hill v. Gayle, 1 Ala., N. S., 275; Levy v. Merrill, 52 Howard, 360; Jackson v. Pratt, 10 Johns., 387; Clark v. Hopkins, 7 id., 556.

The question put to the mortgagee clearly called for testimony .of a personal transaction with the deceased mortgagor, and fell within the prohibition contained in § 829 of the Code of Civil Procedure.

The evidence in this case points to but one conclusion, to wit, ■that the mortgagor and his wife being dead an attempt is made to collect this bond and mortgage from their children, who are assumed to be entirely ignorant of the circumstances surrounding the transaction.

The conduct of the mortgagee is utterly inconsistent with any honest claim in this suit. Bergen v. Urbahn, 83 N. Y., 49. He had no bond and mortgage for fifteen years and never made any •claim for principal or interest during all this time, although, so far as appears, the mortgagor was amply responsible.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J,, not sitting.


text:
    Susan Walters, Ex’rx, Resp’t, v. Albert E. Kraemer, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Appeal—Lis pendens—Person not a party.
    In an action for a debt plaintiff procured an attachment and filed a notice of pendency of action, which was indexed against defendant and also against his wife, who was not a party but who owned the property, which she subsequently sold. She then moved to vacate the notice as to her, which motion was denied. Held, that as she was not a party to the action and had no interest in the property, she had no standing to enable her to appeal from the order.
    Appeal by Fredericka Kraemer from an order denying her motion to discharge a notice of pendency of action.
    The' plaintiff, on June 7, 1890, commenced an action against-one Albert E. Kraemer to recover the amount due on certain promissory notes. She also caused a notice of pendency of action to be filed in Queens county clerk’s office, July 2, 1890, and obtained a warrant of attachment. The property described in said notice of pendency of action, on July 2, 1890, belonged to Fredericka Kraemer, not a party to the action. The said Fredericka Kreamer, who is the appellant on this motion, subsequently conveyed the premises to one Hicks.
    The said Fredericka Kraemer, appellant, afterwards ascertained that the notice of pendency of action was on file and indexed against her name, although she had no notice of the fact, not being a party to the action. On December 0, 1890, she caused a. motion to be made in the supreme court, special term, for an order directing the county clerk of Queens county to discharge-said notice of pendency of action from record. Judge Bartlett, sitting at special term, denied the motion, “ on the ground that, the moving party had no standing to make the motion after having conveyed away her property.”

      George Wallace, for app’lt; Albert W Seaman, for resp’t.
   Pratt, J.

The plaintiff had a right to attach • whatever interest the defendant had in the property levied on under the-attachment.

It is immaterial whether it was proper for plaintiff to file a notice of pendency of action and index it against Fredericka Kraemer upon this motion, as she has no standing in court sufficient, to enable her to bring this appeal. She is neither a party to the suit, nor, so far as appears, has any interest in the subject-matter of the action, nor is she aggrieved by the order appealed from. Matter of Watson v. Nelson, 69 N. Y., 539; Code, § 1294; Chautauqua Co. Bank v. Risley, 19 N. Y., 375; Bergen v. Carman, 79 id., 146.

Order affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    Abbot L. Dow, Trustee, App’lt, v. Margaret H. Dow et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Trustees—Accounting.
    Where a mother was accustomed to let her children spend the summer with their paternal grandfather on his farm, on which she held a mortgage, under a tacit understanding that the interest should go against their board, her husband, the trustee under her will, is justified in continuing such arrangement, and is not chargeable with interest on such mortgage.
    2. Same—Removal.
    Losses upon loans on real estate which, but for the failure of others, would have been wise and advantageous to the estate, and which failure could not have been foreseen, are not sufficient cause for the removal of the trustee.
    (Dykman, J., dissents.)
    Appeal from decree made by the court upon the coming in of a referee’s report upon the accounts of the plaintiff as trustee.
    Said decree charged plaintiff with interest upon a certain mortgage ; with profits realized on the purchase and sale of real estate, and removed him and appointed the Franklin Trust Co. as his successor.
    Wm., G. Low (Thos. S. Moore, of counsel), for app’lt; William D. Davenport, guardian ad litem, for resp’ts.
   Barnard, P. J.

The plaintiff is the trustee of the residuary estate of Cornelia S. Dow, deceased, who was the wife of the trustee and mother of the defendants, who were the children of the trustee and the testatrix, his wife. When Mrs. Dow died she held a mortgage on a New Hampshire farm, the title of which was in the father of the plaintiff. No interest was paid upon the mortgage, and in the summer the plaintiff and his children visited for two or three months their grand-parents upon the farm. There was no express agreement, but it was tacitly understood that the interest should go against the board of the children. This arrangement existed in the lifetime of testatrix, and was only continued by the trustee afterwards. The trustee was allowed $Í0,000 a year for the support of the children. The decree so far as it compels the trustee to make good the interest on the mortgage is not supported by the facts. The estate was large, and the whole income was given for the infants’ support. The trustee was-justifled by the custom existing in his wife’s lifetime in providing a home outside of a large city whereby the health of the children would be benefited, and it should not be deemed part of the $10,000 for which no account was to be given. The mortgage produced nothing, and the trustee should not be charged with the interest as if it had. The charge against the trustee for profits on land purchased is improper. He made the contract as an individual. He was advised that he could not buy the land from the estate. The trustee agreed to loan money for the estate for the purposes of building. The land realized a profit The evidence fails to show that the profit was obtained by reason of the loan, but was the result of a rise in value of the land. The loan was not ill considered and was made in good faith. The case shows no material loss in mortgages on real estate; none at all on the principal sum of the trust. The loan account upon the houses was increased by the failure of the builders to complete. The failure could not be foreseen, and the referee finds good faith in the advances, and that they were made to protect the trust estate.

It follows that there is no sufficient cause to remove the trustee, lie was chosen by the mother of the children and he is their father. He has done no intentional wrong, and but for a failure of the builders the loan on the real estate in question would have been wise and advantageous to the estate. The loss of interest account to the estate is due to causes outside of the acts of the trustee. It is more and more difficult to obtain interest at the legal rate. The best real estate security will not bring a return of over five per cent, and out of this is to be paid the tax upon the fund. A net return, as shown upon this estate, of two' and three-fourths per cent is not unreasonable, and is fully up to the average of estates of such a considerable amount

The portion of the decree appealed from should be reversed, with costs to appellant out of the estate.

Pratt, J., concurs; Dykman, J., dissents.


text:
    Harriet A. Lavasseur, App’lt, v. The Village of Haverstraw, Resp’t

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Municipal corporations—Negligence.
    Plaintiff: was injured by the upsetting of a sleigh driven by her husband while turning into a street running along a side hill. The accident was caused by the sleigh sliding against an open brick gutter which was flush with the street. There was no proof that the gutter was improperly constructed or out of repair. Held, that the village was not liable.
    Appeal from judgment of the Rockland county court dismissing the complaint, and from order denying motion for a new trial.

      Irving Brown, for app’lt; Alonzo Wheeler (George W. Weiant, of counsel), for resp’t
   Barnard, P. J.

Allison avenue in the village of Haverstraw runs north and south and it is crossed by Main street running east and west. On the north side of Main street a gutter is constructed across the foot of Allison avenue entirely made of brick; the same are flush with the street at the beginning and end of the gutter. The gutter is three feet wide and level at the center some five inches. Allison avenue at or near the junction with Main street slopes a very little to the east The plaintiff while being driven in a sleigh by her husband when the streets were somewhat slippery with snow and ice in turning the corner of Allison avenue into Main street was upset and thrown out of the sleigh and injured. The upset was caused by the sliding of the sleigh against the brick gutter. There was no proof that the gutter was improperly constructed or out of repair. The grade of Allison avenue has been as it was at the time of the accident for eighteen years and is at a very much traveled point. It cannot be expected that a street running along a side hill intersected by a street coming down the hill at right angles will not be at times smooth and slippery by reason of the constant turning of vehicles around a corner so situated. If the gutter way is clear and the brick free from ice the slipping will stop suddenly unless caution is used in turning the corner slowly. Urquhart v. The City of Ogdensburg, 91 N. Y., 67.

The defendant’s trustees were not shown to have omitted any rule of prudence by which the accident could have been prevented.

The judgment and order denying new trial should be affirmed., with costs.

Dykman and Pratt, JJ., concur.


text:
    Isidore J. Beaudrias, Resp’t, v. Ambroise Walck, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Bills and notes—Pleading.
    The complaint set forth certain instruments in the form of promissory notes which stated that they were given for certain property, and that title to said property was to remain in the vendor and not to pass until all the notes were paid; that payment was demanded and refused when they became due and an assignment thereof to plaintiff. On demurrer, Held, that as there was no stipulation in these instruments for the performance of any act by either party upon which liability to pay them was dependent, an allegation of performance was not necessary, and that the complaint stated facts sufficient to constitute a cause of action.
    Appeal from judgment of the county court of Westchester county, affirming judgment of the city court of Yonkers overruling demurrer to complaint
    Action upon certain instruments designated as promissory notes. Defendant demurred to the complaint on the ground that it does not state facts constituting a cause of action, and claims that such instruments are conditional contracts for the purchase of property, and that performance should be pleaded in addition to setting out the instruments.

      Walter J. Donohue, for app’lt; Ellis & Harrigan, for resp’t.
   Dykman, J.

This action was commenced in the city court of Yonkers upon four written instruments which the plaintiff denominates promissory notes. They are precisely alike except the dates of payment, the first being payable July 1, 1890, after date, and the last October. 1,1890, after date, all being dated April 18, 1890.

The first reads as follows:

$20. _ Yonkers, 1ST. Y, April 18, 1890.
_ “ Bor value received July 1, 1890, after date, I promise to'pay to the order of James W. Tufts twenty dollars with interest six .per cent The consideration of this and other notes is the following described soda water apparatus; one 8-3 L. Tem. Puffer Cottage, No. 532, which I have received of said James W. Tufts.
“ Nevertheless it is understood and agreed by and between me and the said James W. Tufts that the title to the above mentioned property does not pass to me, and that until all said notes are paid the title to the aforesaid property shall remain in the said James W. Tufts, who shall have the right, in case of non-payment at maturity of either of said notes, without process of law, "o enter and retake, and may enter and retake immediate possession of the said property, wherever it may be, and remove the same. Due July 1, 1890.
“Ahbroise Walck,
“108 New Main street.”

The complaint states that the defendant for value made and delivered to James W. Tufts four certain promissory notes and then sets out copies of the notes in full.

Then it is further alleged that when the notes became due payment of them was demanded and refused, and the defendant has not paid them, and further that before the commencement of the action the notes were sold and assigned to the plaintiff, who is now the owner and holder thereof.

The defendant demurred to the complaint on the grau-.d that it did not state facts sufficient to constitute a cause of action.

The demurrer was overruled in the city court with leave to the defendant to answer on payment of costs, and an interlocutory judgment was entered in pursuance of that decision, from which the defendant appealed to the county court of Westchester county where the judgment was affirmed, and the defendant has appealed to this court from such judgment of affirmance.

It is not necessary to give a name to the instruments set out in ihe complaint. They each contain a promissory note, with a specific statement of its consideration. Then they each contain a statement that the title to the property for which the notes were given did not pass to the purchaser, but remained in the vendor until the notes were paid.

There is no provision in the instruments to abridge the rights of the payee of the notes, or to limit their operation ; on the contrary their payment is contemplated and that event is to determine the time when the title to the property becomes absolute in the purchaser.

There is no stipulation in these instruments for the performance of any act'by either of the parties upon which the liability to pay the note is dependent, as there was in the case of Austin v. Burris, 16 Barb., 643, and therefore-that case has no application. The other cases cited by the appellant are unlike this in their facts, and we find no authority incompatible with the views wb have expressed.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Charles L. Wright, Resp’t, v. Henry E. Burritt et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Venue—Change of.
    Where all the transactions out of which the cause of action arose were had and the witnesses who know the material facts live in a county other than that which is named as the place of trial, the venue should be changed to that county, and a denial of a motion therefor is not cured by requiring a stipulation that certain witnesses will testify as stated in the moving papers.
    Appeal from order denying motion to change the place of trial from Kings county to the county of Cayuga.
    Action to recover the amount of a check given by the Rhea-bottom & Teall Mfg. Co. to the plaintiff, drawn on defendants, who are bankers at Weedsport, IST. Y. Plaintiff alleges that a special deposit was made to meet this check; that defendants protested the check when presented, and returned it unpaid, and diverted the special deposit by crediting it upon them account against the said company. The answer denies the making of such special deposit and conversion of the same.
    It appeared that the drawer was a domestic corporation, located at Weedsport; that Rheubottorn, its president, was the principal witness for plaintiff. The motion was made on the ground of convenience of witnesses, defendants claiming that seven witnesses named would testify to the bad character of Bheubottom.
    The motion was denied on condition that plaintiff stipulate said witnesses would testify that the character of Bheubottom was bad, and that they would not believe him under oath.

      Chester M. Elliott, for app’lts; William E. Stewart, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion made by the defendants to change the place of trial from Kings county to the county of Cayuga, upon condition that the plaintiff make a stipulation respecting the testimony of certain witnesses named by the defendant in the moving papers.

The case is a Cayuga county case. íhe transactions out of which the cause of action arose were all there; all the persons who knew any of the material facts are naturally located there, and we think the moving papers made a casé requiring the removal of the cause to that county.

The court evidently hesitated over the denial of the motion absolutely, and required the plaintiff to stipulate that certain witnesses of the defendants would testify as the defendants stated they would in their moving papers. Such a stipulation, however, is a poor substitute for the actual presence and testimony of the witnesses before the jury, and the defendants might well hesitate to rely upon such a stipulation without producing the witnesses.

We think the defendants are entitled to an opportunity to try the cause in the usual way, and to have the trial in the county of Cayuga.

The order should be reversed, with ten dollars costs and. disbursements, and the motion should be granted, with ten dollars costs to defendants to abide the event.

Barnard, P. J., concurs; Pratt, J., not sitting.


text:
    In the Matter of the Application of Frederick Wood For a Peremptory Writ of Mandamus.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Taxes—Apportionment—Correction of mistake.
    Petitioner was the owner of land on which a tax had been laid. He sold a small portion to one H., who procured an apportionment of the valuation and tax, but a clerk in making a certificate thereof 'transposed the ■valuations so that petitioner would pay only the smaller part. The collector was compelled by mandamus to correct this mistake. Feld, that the error was a clerical one, and was properly corrected, and that petitioner was not entitled to a mandamus to cancel the change so made.
    Appeal from order directing a peremptory mandamus to issue compelling the collector of taxes and registrar of arrears to cancel and discharge a certain tax upon petitioner’s property.

      William T. Gilbert, for app’lts ; F. P. Bellamy, for resp’t.
   Pratt, J.

Wood’s lot was originally liable for $2,506.64 taxes for 1888. It was valued át $90,000, and the tax became fixed without his complaint. He sold a little piece of it to Havemeyer, who applied for apportionment. The board of assessors apportioned this valuation and tax, $7,000 against the Havemeyer lot, with $194.96 tax, and they left $83,000 of their original valuation, and $2,311.68 of the original tax against the part of the original lot which Wood kept. The board entered this official action on its records. Wood knew of this change, and it is fairly to be presumed from the papers was satisfied therewith. This was the official action which fixed the rights of the city against each lot. But when a clerk in the employ of the board came to prepare the certificate of this official action for the collector so that he might correct his books, there was, by this clerk’s mistake, a transposition of these valuations and taxes. Wood found out about this mistake, and well knowing that it was a mistake, ran and paid the $194.96 before the collector knew of the mistake, and before the assessors themselves discovered it. By and by Havemeyer came to pay his taxes. The- error was discovered. He applied to the board to correct this mistake. The board made a new certificate which truthfully stated its official action in the premises. The collector declined to make the change, and the city court of Brooklyn by mandamus required him to make the corrections. The result was that Wood appears to be in arrears, and he has now obtained an order for a peremptory mandamus to cancel this change, which the collector made pursuant to the judgment of the city court. We think Wood was not entitled to this order, and, therefore, reverse it with costs and disbursements.

This is not the case of an error in fixing valuations originally, nor in fixing taxes. They were fixed, and the taxes became a lien long before this apportionment. There was an apportionment justly and fairly made and truthfully entered. It is charged that Wood knew of it, and never objected to it So, too, it is charged that he knew of the error in transcription, and hurried to pay Havemeyer’s tax, intending to take advantage of this error. He does not deny this charge. His attitude is really a demurrer to it He is simply striving to evade his just share of the public burden. We think this error was purely clerical. The case is not like that of Forrest, 96 N. Y, 544. That was an error in the performance of the final oficial act which fixed the valuation. There was no error in that respect in this case. The error was merely in transcribing and certifying that official judgment to the collector.

No harm has resulted to Wood. He has lost no rights. He did not complain of the real apportionment, and was, therefore, satisfied with it He had full opportunity to assert and correct any mistake or injustice therein if he wished to allege it. But he did not allege any injustice: on the contrary, he discovered this error in his favor afterwards and strove to take advantage of it There is no justice or equity in his position.

■ If he is right, then Havemeyer’s tax was $2,311.68, which is an absurdity. The city court has so adjudged, and, we think, properly. If the city was bound by this error then Havemeyer was bound by it also; and so he would have been obliged to pay $2,117.02 more than the city could, with good clear conscience, have received or kept Would not a court of equity have relieved him as against the city’s claim for this unconscionable demand ? If so, could a court of equity ever have relieved Wood ? And yet his remedy by mandamus can be no greater than his remedy by action.

This case, even if well founded, is not one where the remedy is exclusively by mandamus. It is one where the remedy by action is no answer to the remedy by mandamus. But the measure of right and relief is the same under either form of remedy.

Judgment reversed, with costs and disbursements.

Barnard, P. J., and Dyioian, J., concur.


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    In the Matter of the Probate of the Will of Adeline D. Bernsee, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Will—Probate—Failure to produce corroborating witness.
    Where the attesting witnesses to a will contradict each other as to the formalities of execution, a failure on the part of the proponents to call one of their number who was present at the time to corroborate their witness discredits such witness and strengthens the presumption that the testimony of the other witness is true.
    2. Same—Undue influence.
    Testatrix had made a former will by which she left her property to her two sons and two daughters. The will in question was made while she was living with her sons, during which time she refused to see her daughters, and by it she gave the property to her sons, and made declarations as to unfilial conduct of the daughters, which were shown to be unfounded. At the time of making the will she was nervous and excited. Held, that these facts were sufficient to show the existence of undue influence.
    (Barnard, P. J., dissents.)

      Appeal from decree of the surrogate of Kings county, admitting will to probate.

      William G. De Witt, for app’lts; William B: Syme and Daniel Daly, for resp’t.
   Pratt, J.

It is plain that these contestants cannot be deprived of their rights in the property of which Adeline D. Bern-see died seized, unless the will under consideration is in law valid.

The first question is whether a due execution was sufficiently ' proven.

The subscribing witnesses only were called upon this branch of the case, one George H. Black, a brother-in-law of one of the two beneficiaries under the will, the other Dr. Bellows, who had previously prescribed for the testatrix and attended the family of one of the two beneficiaries, and also the husband of one of the daughters of the testatrix, who was positively cut off from any share in her property.

The will was witnessed in the office of Dr. Bellows, to which testatrix, Mr. Black and Christian D. Bernsee, son óf testatrix, went together from the house of Mr. Bernsee, at which testatrix was residing at the time.

Mr. Black testified positively that testatrix told Dr. Bellows that she came there to have him witness her signature to the will which she took out of her satchel; that she signed it at the doctor’s desk, and said: “ I declare this to be my last will and testament,” and then signed it; that she requested him to sign the will as a witness, which he did; that she requested the doctor to witness the will, which he did; that both he and the doctor stood side by side looking over the shoulder of the testatrix at the paper when she signed the will.

This testimony clearly proved all of the statutory requisites for a due execution of a will.

But this witness testified with equal positiveness that Christian D. Bernsee during all of this time sat in a chair in the same room; that he did not at any time say one word about the purpose for which they came there or to the doctor about his witnessing the will. _ _ '

_ _ Dr. Bellows testified equally positively that Christian D. Bernsee produced the will; that he told him that they had come there for the purpose of having him witness his mother’s will; that he asked him (the doctor) to sign his name twice, saying that it was all right to do so; that the clause attested (meaning the attestate clause) was a regular attachment; that he took the will to the doctor’s desk, and he signed it then; that he did not read the attestate clause ; that the testatrix sat at the time in her seat in his office; that he did not see any signature of testatrix on the paper; that her name was not on the paper when he signed his name; that testatrix said nothing to him ; that she did not, according to his recollection, leave the rocking chair where she sat while in his office; that she was extremely nervous and excitable; said that she was nervous; that she did not ask him to sign the will and that her son did; positively that he did not look over her shoulder, but over Mr. Black’s shoulder; that he has no recollection of seeing her sign the will or getting out of her chair.

This testimony, contradictory in almost every particular of Mr. Black’s, if truej clearly proves that the will was not duly executed. Under these circumstances, the proponents of the will were plainly called upon to corroborate the testimony of. Mr. Black by other testimony, if within their reach. Christian D. Bernsee was credibly present during all of the interview at Dr. Bellows’ office; he was a competent witness to disprove, if he ■could, the testimony of Dr. Bellows as to his producing the will; as to his declaring the purpose for which they went there; as to his request to Dr. Bellows to witness the will; to sign in two places; as to seeing him looking over the shoulder of testatrix while she sat at his desk.

These were in no sense prohibited by § 829 of the Code of Civil Procedure. And it is doubtless correct to say that he was a competent witness to testify as to testatrix declaring to the subscribing witnesses that it was her will, and that she went to the desk and signed it. Pinney v. Orth, 88 N. Y., 447; Simmons v. Havens, 101 id., 428; Petrie v. Petrie, 25 St. Rep., 309.

This witness was not even offered as such by proponents; non constat, if he had been, the contestants would not have objected but trusted to their opportunity to develop a case of undue influence.

The failure to call this witness by proponents to corroborate Mr. Black in reality strengthens the presumption that Dr. Bellows’ testimony was true; for it must be remembered that Mr. Black was asked in his cross-examination whether Christian D. Bernsee said anything more on that occasion than to introduce him to the doctor; he said, “Nothing more.”

“ Q. You will swear to that positively ? A. Yes, sir.

“You are just as certain of that as of anything else that you. have testified to? A. I am positive of it; I will swear to it.”

If, therefore, Mr. Bernsee was competent to corroborate Mr. Black in this matter, upon which he was flatly and positively contradicted by Dr. Bellows, and he clearly was, his not being called leaves no reasonable doubt of the truth of Dr. Bellows’ testimony, and if so, Mr. Black is to be discredited upon this point, and as he is equally positive in this as in his other statements,, lie ought to be discredited in what he. says about the signing o£ the will by testatrix, without which the execution of the will was not proved

2(1. Was the will framed by undue influence?

While this fa°ct is to be proved, not presumed, the undisputed, facts tend strongly to the conclusion that such was the case.

A prior will which divided the property equally between the children of testatrix, two sons and two daughters ; uninterrupted affectionate relations between testatrix and at least one of the daughters ; her residence with the sons at the time of the making of the will; her refusal, or, at least, neglect to see either daughter .after she took up her residence with the sons; the refusal of the daughters to recognise the alleged wife of one of the sons as not married to him; the declaration in the will of unfilial conduct of the daughters against the uncontradicted proof; the failure to call the draughtsman of the will; the presence of the son at the time-of the execution, when, if Mr. Black is to be believed, he had nothing to do and did nothing; her nervous and very excited condition at the time, which is not disputed; her entire disinheritance-of her daughters and the giving of her entire estate to her sons, with whom she lived, all unexplained tend powerfully to show undue influence.

These circumstances called strongly upon the surrogate for the-exercise of his discretion in calling for the draughtsman of the-will to ascertain who prompted it and the conditions surrounding its preparation.

Upon the facts, therefore, the judgment should be reversed. There were several rulings of the surrogate in the rejection and striking out of testimony which appear to have been erroneous,, but which it is unnecessary to consider.

Decree reversed

Dykman, J., concurs; Barnard, P. J., dissents.


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    William B. Mann, Resp’t, v. The City of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Vebdict—Conflicting evidence.
    In an action to recover the value of bonds, which are claimed by defendant to have been stolen, the evidence as to whether plaintiff was a bona fide holder for value was conflicting. Feld, that this question could only be determined by the- jury, and that their decision thereon would not be disturbed where there is evidence to support it.
    Appeal from judgment in favor of plaintiff, entered on verdict.
    Action to recover the amount of two municipal bonds known as “ permanent water loan bonds ” Nos. 3848 and 3850, payable-July 1,1886. Plaintiff became the holder of the bonds in the-following manner:
    The plaintiff was largely interested in real estate transactions, and to assist him therein he obtained a large number of -loans-from one W. I. Stevenson, a broker of Philadelphia, giving him judgment notes therefor. In January, 1884, he applied for a still further loan from Stevenson, who loaned him the bonds in question to raise money thereon. These bonds the plaintiff pledged to the Guarantee Trust Company, in January, 1884, and paid the interest on the loan up to December, 1887, when the trust company sent him notice that the bonds were being redeemed by the city of Brooklyn. He then paid back the loan,- and received the-bonds on or about the 25th of December, 1887.
    Prior to this date, and prior to the date of the maturity of. the bonds (July, 1886), the plaintiff, on or about the 26th day of May, 1885, on a settlement of his account with Stevenson, became the owner of these bonds, paying therefor a premium on the; face value.

      In July, 1888, plaintiff demanded payment of the comptroller, which was refused.
    . The defendant claimed that the bonds were stolen from the true owner, and that the plaintiff was not an innocent purchaser for value without notice.
    A witness, Jansen, testified that the bonds in question had been stolen from him in September, 1874, and that that fact was published in the papers on or about that date.
    The plaintiff testified that in 1888 he first knew that there was anything wrong with the bonds, when he received word from his counsel that the comptroller had refused payment

      A. F. JenJcs (Horace Graves, of counsel), for app’lt; Jas. W, Bidgway (Henry B. Twombly, of counsel), for resp’t
   Pratt, J.

This case in its trial involved only one question of fact about which there could be any substantial dispute, to wit, whether the plaintiff purchased the bonds in question for full value and before due without any notice of infirmity of the title to them in the person from whom he purchased them, or, in other words, we will, in place of the last clause, say without any notice whatever that the bonds had been stolen, or an innocent purchaser for value.

This question could only be determined by a jury, and even though the decision of that tribunal was different from what we would have found on the whole evidence, we are not at liberty to set it aside if there is sufficient evidence to support it.

The testimony was somewhat conflicting, and we are not able to say that it was not quite equally balanced; indeed it was one of those cases where different men of honesty and intelligence might have drawn different conclusions from the evidence as to the issue presented. It is not necessary, therefore, to pass upon the question raised by the plaintiff in his brief, based upon the fact that there appears to be no order denying a new trial upon the minutes, or exception to the granting of such an order.

We think the charge was accurate in law, and clearly and fairly presented the issue upon the facts to the jury.

.The exceptions taken by defendant, from one to thirteen inclusive, do not appear to be now urged upon the defendants’ brief; but if we are to consider them they are either without merit in fact, or are so general as to fail to raise any material point wherein the defendant was prejudiced.

The exceptions to request to charge from one to four inclusive have no merit, and were either covered by the charge or related to matters clearly within the province of the jury to decide.

The fifth request was also fairly covered by the charge.

The seventh and eighth requests were not warranted by the state of the evidence.

The same is true of the ninth request. The tenth was charged and the eleventh was properly refused, and so of the twelfth, besides it was substantially charged.

We have carefully examined all the exceptions and find non© that contain any error sufficient to warrant a reversal of the, judgment

Judgment affirmed, with costs.

Barnard, P J., and Dykman, J., concur.


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    Watson Van Benthuysen, App’lt, v. The Central New England & Western R. R. Co. et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Railroad—Mortgage—Foreclosure—Tender.
    A holder of bonds of a railroad lias the right to bring an action to foreclose the mortgage given to secure them in case of refusal by the trustee, and a tender of interest is not sufficient to arrest such action unless it is a tender of all interest on the bonds which have not agreed to postpone their claim to interest.
    :2. Same—Receiver.
    In such case it is not material whether the affairs of the road are properly managed, but the bondholders are entitled to take possession by a receiver even if the management is honest and capable.
    Appeal from order denying motion for a receiver.
    Action brought by plaintiff as holder of ten bonds of the defendant railroad, for himself and other bondholders, to foreclose the mortgage given to secure the same, after a refusal of the trustee to sue on the ground that the request to do so should be made by a majority of the bondholders. After the commencement of the action the railroad company tendered to plaintiff the amount of his unpaid coupons and taxable costs, and on the trial produced an affidavit of a committee appointed by a majority of the bondholders in opposition to a receivership, and stating that an agreement had been entered into waiving the default.
    Judge Pratt held this tender to be insufficient as to the costs, but ordered that upon the railroad company depositing with the clerk of Dutchess county the amount of the plaintiff’s unpaid coupons and interest thereon, $612.90, with $600 as costs and allowance, the motion should be denied as to the railroad and real estate of the company, and reserved his decision as to the appointment of the receiver of the stoch until after the hearing before the general term.

      Geo. W: Wingate, for app’lt; Milton A. Fowler, for railroad, resp’t; Thomas Thacher, for resp’t, Fidelity Ins. Trust & S. D. Co.
   Barnard, P. J.

The plaintiff had the right to bring the action in case of a refusal by the trustee.

The tender was not sufficient to arrest the action unless it was a tender of all the interest upon the bonds which had not agreed to postpone their claim to interest. Assuming a default and the plaintiff’s right to sue, it is not material whether the affairs of the defendant are properly managed. The bondholders are entitled to take possession by a receiver and manage the property. The-present management has no right in such a case, even if honest .and capable.

The order refusing a receiver should be reversed, with costs .and disbursements, and the receiver appointed.

Dykman, J., concurs; Pratt, J., not sitting.


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    Louis T. Duryea et al., App’lts, v. William C. Vosburgh, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Brokers—Action for moneys retained by—Evidence.
    In an action against an agent alleged to have" been employed by plaintiffs to purchase an interest in a business to recover the difference between the amount paid by plaintiffs and that for which defendant purchased the interest and which he retained, where defendant claims that he sold the interest to plaintiffs for the owner, under an agreement that he should have that sum for his services, it is proper to show on cross-examination of one of the plaintiffs that he was informed by a calculator that the interest was worth more than they paid for it.
    2. Same.
    In such an action it is proper to ask defendant for whom he acted. The question does not call for an opinion, but for a fact.
    3. Same—New trial—Newly discovered evidence.
    Evidence of admissions by defendant that he had sold the interest to plaintiffs for a greater amount than he paid for it is not important in such a case, as it is not controlling on the question as to whom defendant was acting for, and cannot be made the basis for a new trial on the ground of newly discovered evidence.
    Appeal from judgment for defendant, entered on verdict and from order denying motion for a new trial on the minutes, and also from order denying motion for a new trial on the ground of newly discovered evidence.

      O. N. & F. T. Payne (Herman H. Shook and Geo. G. Reynolds, of counsel), for app’lts; B. F. Tracy and D. W. Northup, for resp’t.
   Barnard, P. J.

The issue in this case was fairly tried. The plaintiffs aver that the defendant was employed or undertook to obtain the lowest price for which the interest of Edwin S. Peck in the partnership of N". G. Yosburgh & Go. could be bought by the plaintiffs. That defendant bought the interest for $6,000 less than the sum which plaintiffs paid for the interest and kept the $6,000 himself. The defendant says that he sold to plaintiffs for Peck, and under an agreement with Peck that he should have $6,000 for his services and also for his consent that plaintiffs should be admitted as partners in the firm. The testimony of the parties to the transaction differs as widely as the averments in the pleadings. The two Duryeas, plaintiffs, and their deceased brothers and Peck testify in favor of the plaintiffs. _ The defendant denies these statements, and gives evidence tending to-support his claim. • Evidence was given tending to impeach the. general character of Peck and also to support his character.

The charge was fair, and left the precise issue to the jury. There was very little evidence of much weight outside of the evidence of the parties in support of the claim of either party» There was no error committed on the trial It was competent on cross-examination of Louis T. Duryea to show that he was informed by a calculator that what he was buying was worth $52,000. The introduction of the agreement, Ex. C., in respect to the formation of an incorporation to take the title after the plaintiffs purchased, even if immaterial, hurt no one, and the admission is insufficient to reverse a judgment upon.

The real value of the property was important in determining the question presented. It. was proper to ask the direct question of Yosburgh for whom he acted. It was not an opinion, but a fact which was called for. If the ruling was not cured by the subsequent rejection of the question, it must be upheld as a proper question. Collins v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 243; 14 St. Rep., 783.

There was no error in the charge. It was not wrong for defendant to agree with Peck fora compensation of $6,000 if he sold the interest It was wrong to deduct $6,000 from the price, if the defendant was acting in the transaction for plaintiffs. There can be no mistake in the fact that the jury were told the precise issue and where the wrong consisted. If the price was $51,750 and the defendant was acting for plaintiffs and he paid but $45,750 to Peck, the plaintiffs were entitled to recover and the jury were so instructed. The verdict negatives the fact and establishes the contrary fact, that defendant was acting for Peck only, under an agreement with him for the compensation.

The motion for a new trial on the ground of newly discovered evidence was properly denied. It rests entirely on the affidavit of John C. Cassidy. He says that defendant told him that he had bought out Peck for $45,000 and had sold to plaintiffs for $51,000. Cassidy makes an affidavit for defendant that he told the fact to plaintiffs or one of them soon after. In view of -the facts proven on the trial the evidence itself is not very important. It is not very controlling upon the question as to whom the defendant was acting for. The amount he received is admitted by the defendant. The issue was whether Peck agreed with defendant to give him all he could get over $45,000 and whether defendant was free from any duty in respect to the purchase which he owed to the plaintiffs whereby he was to return the $6,000 to them. The issues have-been passed upon and the finding should bind the appellate court. No new light will be .added by the testimony of Cassidy.

The judgment and order denying new trial on the ground of newly discovered evidence should all be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


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    In the Matter of the Petition of John Newton, Com’r. In re Isaac Armstrong.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Eminent domain—Awabd.
    An award in procee lings to condemn land will not be set aside for alleged inadequacy unless the inadequacy be gross or palpable, or unless the commissioners proceeded upon an erroneous principle; nor will it be vacated for errors in the admission or rejection of testimony, unless such errors show an error of principle in estimating the damages.
    2. Same—Evidence.
    In a proceeding to condemn land used as a mill site evidence as to the amount of the business done „by the owner at the mill and the profits derived by him is irrelevant and is properly excluded.
    Appeal by Isaac Armstrong from order - confirming report of commissioners of appraisal in proceedings to condemn lands for the new aqueduct.
    Isaac Armstrong was the owner of Parcel No. 80 designated in this proceeding. The parcel in question consisted of 484-1000 of an acre of land located on the east branch of the Groton River, Upon the property were situated factory buildings used as a grist mill and a sash and blind factory, and also an icehouse, used by Mr. Armstrong in the conduct of an ice business. He also owned the right of flowing one-half of the river and pond above the dam, contiguous to the said premises. His ice was gathered from the mill-pond and river, of which he owned one-half, stored in his ice house upon his premises, and was delivered in proper season to persons at Brewster and vicinity, within one mile of the ice house.
    Upon the proceedings before the commissioners, upon the application of the petitioner’s counsel, the commissioners refused to allow any evidence as to the profits made by the appellant in the running of his grist mill and the prosecution of his sash and blind factory. They also refused to allow any evidence as to the ice business conducted by him upon the premises condemned by the city of New York in this proceeding.
    The commissioners made a report allowing as compensation for the property taken and injuries sustained the sum of $9,378.23.

      Abram j. Miller, for app’lt; Wm. H. Ciarle, for resp’t.
   Pratt, J.

This is an appeal from an order confirming an award of commissioners for lands acquired for the new aqueduct of the city of New York.

The difficulty of reviewing such an award is manifest, and has been so often recognized by judicial decisions that it is but necessary to state the general principles relating to such reviews without citing the authorities.

The award of commissioners will not be set aside for alleged inadequacy,, unless the inadequacy be gross or palpable, or unless the commissioners proceeded upon an erroneous principle, for the commissioners act not only upon the evidence before them but on their own knowledge and experience. Evidence is to guide, not control their judgment. Nor will the award be vacated for errors in the admission or rejection of testimony, unless such errors show an. error of principle in estimating the damages.

The whole of the landowner’s premises are taken by this proceeding. The sole question was, therefore, what was the value of the property ? The evidence as to such value is very conflicting. The testimony for the owner varied from $15,000 to $30,000; while that on behalf of the city placed the value at less than $7,000.

In this conflict of testimony the commissioners awarded the ■owner $9,378.23. After examining the evidence we cannot say that this award is erroneous or inadequate. The evidence for the ■city seems much more accurate and reliable than that of the landowner. The cost and value of the structure is given in detail. In fact the great variance in- the estimates of value recurs not as to the improvements, but as to the land and water privileges. This last the owner estimates at $15,000. He paid for it, however, ■some years before only the sum of $500. We do not see that any injustice has been done him.

On the hearing the owner sought to prove, as showing the value of the property, the amount of business done by him at the mill, and the profits derived by him. This was excluded, we think properly. The testimony did not properly tend to prove the value of the mill. The size and capacity of the mill and the extent. of the water of course were relevant. But an inquiry into the owner’s business involved other elements; the owner’s business skill, the price of labor, the absence'or presence of competition, which did not affect the value of the property. The same is true of the. ice business carried on-by him.

The question before the commissioners was the market value of the property; and to this question they rightfully confined the ■evidence.

The order appealed from should be affirmed, with costs.

Cullen, J., concurs.


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    The Prentiss Tool & Supply Co., Resp’t, v. Frank G. Schirmer, Sheriff, App’lt.

      {Supreme Court, General Term,, Second Department,

      Filed February 8, 1892.)

    1. Fraud—Jury.
    A mere charge of fraud does not create a question for the jury; to do sc there must be legal evidence, and whether there is such evidence, and it is of sufficient weight to sustain a verdict, is a question, for the court.
    3. Bill op sale—Chattel mortuaob.
    A bill of sale of goods in payment of a previous indebtedness which exceeded the value of the goods cannot be converted into a chattel mortgage by admissions drawn out by counsel by leading questions that it was received as “security for a debt.”
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial
    Action to recover for the conversion of goods levied on as the property of one Cora E. Florence under an attachment in favor of one Donnelly. Some of the property so seized was claimed by plaintiff under a bill of sale from said Florence, and some under conditional sales to her. Defendant claimed that such bill of sale and conditional agreements were made in pursuance of a conspiracy to defraud Donnelly.

      Ralph R. Prime, for app’lt; John M. Perry, for resp’t.
   Pratt, J.

There was no error of law committed upon the trial.

It does not follow that because one party makes a charge of fraud against another there must be a question for a jury. Fraud is a question of fact, but to go before the jury there must be legal evidence and whether such evidence exists and if it does whether of sufficient weight to sustain a verdict is a question for the court.

The court below properly refused to submit the question to the jury.

There is no foundation for the claim that the instrument was a mortgage. The goods were sold to pay a precedent debt, and it was not difficult for counsel by putting the words into the mouth of the witness to get him to say he received them as “ security for a debt.”

There was no possibility of a surplus. The transaction was a .sale and not a mortgage.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


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    In the Matter of the Will of Robert T. Walker, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    1. Trusts—Deposits—Rights op cestuis que trust.
    Moneys deposited by a person as trusts for certain beneficiaries become at liis deatli the property of such persons and they are entitled to receive from his executors the bank books, and the fact that the will bequeaths such moneys as moneys deposited in trust to the persons for whom the deposits were made does not render them a part of the estate disposed of by the will.
    2. Same—Chaxge op deposit.
    The trustee by depositing the money does not thereby abandon all control of the fund, and as long as that is preserved for the benefit of the cestui que trust, he does not become personally liable by merely changing the fund from one bank to another.
    Appeal from decree of the surrogate of Kings county, admitting will to probate and construing the same.
    The will makes bequests to the Home for Old Men and Aged ■Couples and to the Protestant Episcopal Church Missionary Society for Seamen, and bequeaths to his several children the sums theretofore deposited in trust for them. Claim is made by Catherine E. Bond for moneys withdrawn by testator from her trust account amounting to $7,651.04,- but it appeared that he had during the same time advanced to her and made deposits to the amount of $7,999.71.

      Daniel Seymour, for app’lt Bond; J. A. K. Steele, for app’lt Home for Old Men ; Edmund L. Baylies, for appl’t Missionary Soc.; Benjamin T. Ripton, for resp’t Walker; Dana & Clarlcson, for resp’t Jane Ann Chambers ; Francis E. Dana, special guardian, for other resp’ts.
   Pratt, J.

This is an appeal from a decree of the surrogate of Kings county, made in tne above-entitled matter, settling the rights under the will of the various parties interested in said-estate.

We think the decree is entirely right That the moneys deposited by the decedent as trusts for certain beneficiaries became,, at his death, the property of such persons, is too familiar to require comment Martin v. Funk, 75 N. Y., 134; Boone v. Citizens Sav’gs B’k, 84 id., 86; Minor v. Rogers, 16 Am., 69; Mabie v. Bailey, 95 N. Y, 206; Young v. Young, 80 id., 422; Macy v. Williams, 125 id., 767; 36 St. Rep., 1011.

It follows from this proposition that such persons are entitled to receive from the executor the bank-books, and from the banks such deposits.

It also follows that these moneys should not be considered as a part of the estate disposed of by the will.

It is true the will mentions these moneys, but only to show that such deposits had been made in the manner described.

■ The finding, therefore, that the estate only amounted to the sum of $26,464.50, to be disposed of under the will, was correct, and such finding fixed the rights of the Home for Old Men and Aged Couples, and the Protestant Episcopal Church Missionary Society for Seamen. Laws of 1860, chap. 360; Laws of 1848, chap. 319 Hollis v. Drew Theol. Sem., 95 N. Y., 166.

As to the claim of Catherine E. Bond, I think it is clear that the sums withdrawn by the testator were so withdrawn with the consent and approval of said Catherine and for her benefit; but even if that were not the case it does not follow absolutely that where one deposits money for another in his name as trustee he abandons all control of the fund. So long as the fund is preserved intact it is not material that it is withdrawn from one bank and deposited in another. The main matter to be considered is the fund, and as long as that is preserved for the benefit of the cestui gue trust the trustee does not become personally liable by merely changing the fund from one bank to another. Suppose the case of a man depositing one-quarter of his estate in trust for one of his children and changing the deposit three times, then, under the theory urged by Catherine, that child would take the whole estate.

However, I think the evidence warrants the conclusion that whatever moneys the testator withdrew which had been deposited for Catherine was done as her agent and paid over to her, as the evidence is undisputed that the cash payments made to her together with the deposits made for her exceeded' the amounts withdrawn.

It would be in the highest degree prejudicial to cestui gue trusts and unjust to other heirs and legatees to hold that a trustee lost all discretion and control over a fund he had deposited as trustee.

Take this case, where, in some instances, the deposit made reached the interest drawing limit; was it not the duty of the-trustee to withdraw the. money and deposit where it would draw-interest ?

The claim of Catherine was not only without foundation in law but was unjust to other claimants in the estate.

It is absurd to suppose that the trustee would continue to make ■gifts to Catherine while he owed her large amounts for money fraudulently converted to his own use.

The decree should be affirmed,_ with costs to the respondents to be paid out of the estate.

Barnard, P. J., andDYKMAN, J., concur.