text:
    James Creegan, Resp’t., v. James Robertson, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Sale—Possession.
    A sale, even by written instrument, where there has been no actual or con tinued change of possession, is void as to creditors.
    In such case, a judgment creditor stands as a purchaser in good faith from his debtor.
    Appeal from a judgment in favor of plaintiff.

      Wilton Bennett, for app’lt; O, E, Cuddebach, for resp’t
   Barnard, P. J.

On the 8th of September, 1892, one James Hamilton had in his posesssion four cows and one spring wagon. This property was taken from Hamilton’s possession by virtue of an execution against him, and the plaintiff claims that the title to the property is in him, and he, in his action, seeks to recover the same from the defendant, who has them in his possession. The • plaintiff made a title to the property by a written paper between himself and Hamilton, by which the plaintiff left the property with Hamilton, but providing that until the payment of $283, Creegan was to remain the owner. The property in question had been in the possession of Hamilton for two or three years, and the case shows that on the 4th of April, 1891, Hamilton sold to Creegan similar property. Creegan says that he got this particular property in question of other parties, but this fact is wholly irreconcilable with the long previous possession of Hamilton. The case was, therefore, one for the jury. If the property in question came from Hamilton to Creegan, and there was no actual and continued change of possession, the sale is presumably void. 3 R. S., 7th Ed., Banks, 2328.

The real transaction between the parties, Creegan and Hamilton, is not clear. How the new agreement, so called, being the conditional sale paper, could supersede the bill of sale to Creegan given April 4, 1891, is equally uncertain. Part of the property covered by the bill of sale of April 4, 1891, had been sold back to Hamilton by Creegan, who had given a note to pay for it, and paid the note. A judgment creditor stands as a purchaser in good faith from Hamilton. If this property was bought by Creegan from Hamilton, and there was no change of possession and there is no other explanation, the sale is void as to creditors, and the defendant can hold the property. These questions can be only settled by a jury.

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


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Daniel Miller et al., App’lts, v. Nathan M. Kosch, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Execution—Dobmant.
    A dormant execution in the hands of the sheriff, becomes active and valid, by a notice from the execution creditor, before a subsequent execution is received, to execute it.
    2. Judgment—Confession.
    Where the confession states that, in certain named years, the plaintiff advanced and paid to the defendant, at his request, a certain sum, which the defendant promised to pay and has not done so, in whole or in part, and that the sum is due and owing by the defendant, it is a sufficient statement.
    Appeal from a judgment in favor of defendant

      Snider & Hopper, for app’lts; Arthur'S. Tompkins, for resp't.
   Barnard, P. J.

The sheriff of Rockland county collected, of one Kyne M. Hoffman $417 by virtue of two executions, one in favor of the plaintiff and one in favor of the defendant. The defendant’s execution was first put in the hands of the sheriff. The execution creditors each claimed the money and the sheriff was permitted to deposit the money in court in an action brought by the junior execution creditors and the defendant was made a party. The only question made by the pleadings, is whether the defendant’s, the prior execution, was dormant in the sheriff s hands, or was an execution upon a fraudulent judgment. Both judgments were by confession, and neither was impeached by the testimony on the trial. The question of dormancy rests upon the fact that, after the defendant’s execution was received by the sheriff, the defendant’s attorney requested the sheriff to make no levy and to take no steps to enforce the execution, until further instructions from him. The attorney directed tha sheriff to hold the first lien as against other executions, and when the plaintiff’s execution was received by him, he levied on both executions. The defendant’s attorney makes a full explanation for the request ; that efforts were being made to settle the claim; and shortly after the direction to the sheriff, and before the plaintiff’s judgment was obtained, he directed the sheriff to make a levy at once. The execution if dormant while the sheriff held it not to be executed, the notice, before the plaintiff’s execution was received to execute it, rendered it active and valid, and the levj under it was good. The execution was dormant only while he held it not to be executed. Smith v. Erwin, 77 N. Y., 466.

In the case of Sage v. Woodin, 66 N. Y., 578, the court found the execution to have been dormant under circumstances quite different from a request to withhold a levy pending an effort to settle.

The confession of the defendant's judgment is sufficient. It states the sum for which judgment is to be entered, It states that in 1886, 1887, 1888, 1889, 1890 and 1891, the plaintiff advanced and paid to the defendant, at his request, $1,399.17, which the defendant promised to pay and has not done so, in whole or in part, and that the sum is due and owing by the defendant in the confession to the plaintiff therein. The statement is that the lent money, without interest, amounts to $1,399.17, and that the borrower had repeatedly promised to pay the same. The confession is supported by the case of Freligh v. Brink, 22 N. Y., 418; and by Harrison v. Gibbons, 71 id., 58; and is not in conflict with Wood v. Mitchell, 117 N. Y., 439.

The judgment should be affirmed, with costs.


text:
    William Klein, Resp’t, v. John Wegman, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Contempt—Encroachment.
    Where land covered by an encroachment, is so considerable in extent as to be valuable enough to take, and its removal to be ordered by a judgment, the defendant owes obedience to such judgment.
    2. Judgment—Default.
    The facts presented by'the papers, in this case, were held to be insufficient to excuse the default.
    Appeal from an order denying a motion to open a default.

      Wm. D. Veeder, for app’lt; George F. Murray, for resp’t.
   Barnard, P. J.

The plaintiff and defendant were owners of adjoining property. The defendant erected his building so as to encroach on the plaintiff’s premises. The plaintiff commenced an action to restrain the encroachment and procured a decree that the defendant was required to remove the encroachment within twenty days after service of a certified copy of the judgment and in accordance with its directions. The defendant has not done so. Upon an application to the court to punish him for his contempt, the defendant made no appearance, and an order was made adjudging him guilty and imposing a fine and directing his confinement in close custody until he obey the judgment. The defendant made application to open this default, and this was denied. The appeal is from this order. The order was right. The affidavits excuse by alleging that the encroachment is slight; that the defendant has sold his property and the purchaser will not let the defendant enter upon it to comply with the judgment. That the plaintiff will not permit him to enter upon his property for the same purpose. The defendant has given a bond to indemnify his vendee against the encroachment, and the plaintiff, although he refused at first, notified the defendant before these proceedings were commenced that he could enter on his land to remove the encroachment The extent of the same is not material. If it was so considerable as to be valuable enough to take, and the judgment ordered its removal, the defendant owes obedience to the judgment. If the papers, read upon the motion to open the default, had been read on the motion to punish for contempt, they would furnish no defense for the disobedience of the judgment. A motion to set aside the default would be reached on the merits. The defendant does not seem to be willing to obey the judgment. He put up the house in defiance of the pending suit to restrain it. When sold, gave a bond to justify the obstruction, and then asserts that the purchaser from him will not let him do so.

The order should be affirmed, with costs and disbursements.


author: Dvkman, J.

text:
    John McPhillips, Resp’t, v. John H. Jones, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Notes—Indorsee.
    Where a note, drawn to the order of the payee, is indorsed by a third party, the latter occupies the position of second indorser as to the payee or his assignee.
    3. Same —Presumption.
    This relation is prima facie only, and the presumption may be rebutted by proof that the indorsement was made to give the maker credit with the payee.
    3. Appeal—Reversal.
    A judgment will not be reversed because an erroneous reason was assigned for its rendition nor because it was placed upon untenable grounds.
    Appeal from a judgment entered upon the report of a referee.

      Roger M. Sherman, for resp’t; Wm. Douglas Moore, for app’lt.
   Dvkman, J.

This is an appeal from a judgment entered upon the report of a referee.

The action was a promissory note of which this is the form:

“New York, August 25, 1890.

11 One year after date I promise to pay to the order of John McPhillips one hundred and twenty-five dollars, with interest. At 121 and 125 Bast 22d street, New York City. Value received.

“W. H. Dunn.

“Due 8, 28, ’91.”

The note was indorsed by John H. Jones, the defendant. Before the commencement of this action the instrument was assigned to the plaintiff.

The referee held the defendant liable as an indorser of the note upon his obligation as such, and that was erroneous. The'defendant cannot be made liable as an indorser simply. In this connection it must be borne in mind that the note is payable to John McPhillips, and while it is assigned to the plaintiff, as we have already stated, yet he assumes the same position in respect to the indorser, as that occupied by the original payee.

The defendant, therefore, sustains the attitude of a second indorser, and it would be violative of the legal principles which have always prevailed in relation to commercial paper to allow a preceding indorser to recover against one subsequent. An indorser can never sue his indorsee. Strong v. Sheffield, 66 Hun, 350.

The defendant knew, as we must assume, that his indorsement would be nugatory until the note was indorsed by the payee. Herrick v. Carman, 12 Johnson, 160, and when he made his indorsement he became the second indorser, and that assumed that he would have the responsibility of the payee before him as the first indorser.

The fact that the note was unindorsed when he wrote his name on the back was immaterial. Bacon v. Burnham, 37 N. Y., 614; Coulter v. Richmond, 59 N. Y., 480; Phelps v. Vischer, 50 N. Y., 69.

So we have the concurrence of authority, coinciding with principle that the contract which the law makes for the indorser of a promissory note -is with the subsequent indorser and that he cannot be made liable to prior parties.

Subsequent indorsers of a promissory note are not liable to previous ones. The liability of all parties is from the maker downwards.

So much has been written to show that the decision of the referee was placed upon untenable grounds, but yet we find in the record a meritorious cause of action in favor of the plaintiff against the defendant

The evidence that the intention of the defendant, as measured from the instrument in question, was to become liable only as second indorser is prima facie only, and the presumption may be rebutted by proof that the indorsement was made to give the maker credit with the payee. Coulter v. Richmond, 59 N. Y., 478.

Therefore, a recovery may be permitted in favor of the original payee of a promissory note against an indorser who indorsed a paper under an agreement to become surety for the maker and for the purpose of securing credit for him. Moore v. Cross, 23 Barbour, 534; Meyer v. Hibsher, 47 N. Y., 268; Coulter v. Richmond, supra.

Yet such a recovery can only be had under a complaint which sets out sufficient facts to permit the proof. We must, therefore, examine the record and see if we have such a case before us. The plaintiff, after setting out the making and delivery of the promissory note and giving a copy thereof, and stating the demand and refusal of payment, states that it was by and between said Dunn, the maker, and said defendant, at and prior to the delivery of the instrument, agreed that the said defendant should pay said obligation, and that said Dunn should not be liable therefor, and should make no contribution thereto, or thereupon to said Jones, and that said Jones should have no recourse to said Dunn thereupon, but that the proceeds thereof should be and the same were paid to and upon the order of said defendant, for his sole benefit.

Then there is a further allegation, that the plaintiff on the day of the date of the note, loaned to the defendant the sum of twenty-five dollars, which he promised to pay in one year.

Upon the trial, John McPhillips, the payee of the note, testified that when the note was made, Dunn, the maker, owed him twenty-five dollars, and wanted a little more money, and that he understood Jones owed Dunn money. That Dunn said in the presence of Jones that he had $125 of his; that he, McPhillips, gave Dunn $125 on the note, the twenty-five dollars he owed him and $100 in cash.

Dunn, the maker, testified that Jones, the defendant, owed him $125 at the time of the making of the note. That he then ow'ed McPhillips, the payee, some money, for which the latter held a note, that when McPhillips wanted the money he told him he would make arrangements for it, that thereupon he applied to Jones, the defendant, for some of the money he owed him, and Jones told him he could not pay it just then, and thereupon Dunn told him, he, Dunn could obtain the money by Jones indorsing the note.

The defendant upon his examination as a witness testified: “Mr. Dunn asked me'for some money that he wanted to use at home; he said, if you have not got it, I can get it from John McPhillips, if you will indorse my note. He made out the note and I indorsed it.” The complaint was sufficiently comprehensive to admit the foregoing testimony, and the evidence is sufficient to show that the defendant indorsed the note in question under an agreement to become security for the maker for the payment of the money, and to give the maker credit with the payee of the note. The plaintiff, therefore, as the assignee of the note, has a-meritorious cause of action against the defendant upon all the facts of the case.

He is not held upon the implied contract of an indorser, but upon his agreement to become security, and thus secure a credit for the maker. His indorsement is the consummation of the contract. Justice is, therefore, wrought out by the judgment, and it should not be reversed, because an erroneous reason was. assigned for its rendition, nor because it was placed upon untenable grounds.

The judgment should be affirmed with costs.


author: Dykman, J.

text:
    The People ex rel. John Donlon, App’lt, v. The Board of Town Auditors of the Town of Pelham, Resp’t. The People ex rel. Michael J. Lynch, App’lt, v. The Same, Resp’t. The People ex rel. John H. Cochran, App’lt, v. The Same, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Tows auditors—Action.
    Town auditors, in determining as to liability of the town, act judicially.
    2. Same—Pbocedube.
    There is yet no mode of procedure prescribed, by which such board is to take proof or obtain knowledge respecting the validity of any claim, presented for audit.
    3. Same.
    They may act Upon their own knowledge acquired by observation.
    4. Same—Review.
    The appellate court can reverse the determination of the hoard upon questions of fact, only where it finds a preponderance of evidence against it.
    5. Same—Verification.
    The verification of a claim has no obligatory force and may be disregarded.
    6. Same—-Oebtiobabi.
    To secure a review of the action of such board the writ must he obtained while the board retains jurisdiction of the proceedings,
    7. Same—Jurisdiction.
    Its jurisdiction terminates with the delivery of the abstract of accounts to the clerk of the board of supervisors.
    Proceedings to review the action of the board of town auditors of the town of Pelham, in Westchester county, by which the claims of the relators for services as commissioners of highways of that town were disallowed and rejected.

      Michael J. Tiernay1 for app’lt; Isaac N. Mills, for resp’t.
   Dykman, J.

These are proceedings by writ of certiorari to review the action of the board of town auditors of the town of Pelham, in Westchester county, by which the claims of these three relators for services as commissioners of highways of that town were disallowed and rejected.

The facts upon which our decision must be based are undisputed. Those relators each presented a bill to the board of town auditors for services as commissioners of highways. Those bills ■specified the date when the services were claimed to have been rendered, and the charge for each day, but did not specify the particular service or duty performed. As the bills failed to name any place where the services were rendered, and the auditors had knowedge that no appropriation had been made for highway purposes in the years covered by the bills, they were not satisfied that the services for which the charges were made or any of them had been rendered.

Thereupon they passed a resolution requiring their clerk to notify the relators to appear before them on a certain day. They were so notified, and they appeared in pursuance of such notification. They were then examined by the board of auditors in relation to their bills, and requested to specify the places where their services were rendered.

In reply to such request, the relators simply stated that their services were rendered upon the highways of the town of Pelham, and declined to furnish more specific information.

. Thereafter, the board continued the consideration of the bills from time to time until the 22d day of December, 1892, when they passed auditing the bill, and every item thereof, and disallowed each one of the items.

The defendants state in their return, that they disallowed each and every item of the account because they did not believe that any day’s services therein charged had been in fact rendered. That, in so acting upon such bills and account, they intended to' pass upon and audit each and every item thereof upon the merits thereof, and upon the matters of fact and .evidence set forth in the return. ,

They then state that they made and signed a certificate to the effect that the accounts had been wholly rejected by the town board, and filed the same in the office of the towm clerk.

There is no claim here that any legal rule of action or procedure has been violated by the board of auditors, or that they have adopted any erroneous principle in their action. The claim of the relators is that the board has rejected the claim without sufficient reason. We must determine whether they have done so. ,

These relators were commissionérs of highways and their compensation is fixed by-law at one dollar and fifty cents a day, as there were three in the town, Laws of 1892, vol. 2, p. 2264, § 178. Therefore, the only open question for the determination of the board of auditors was the number of days actually and necessarily spent by the relators in the performance of their official duties. With that question, the auditors grappled and struggled. They knew that but little money was expended upon the roads during the period covered by the bills, and they could not ascertain where any labor upon them had required the services of the relators.

These auditors resided in the town and are supposed to possess or require such knowledge as shall be essential to enable them to discharge their duties wisely and justly. All claims against the town must be presented to and audited by the board, and none can be collected or enforced until it is audited and allowed by that body, which is a tribunal created by statute to hear, allow or reject claims presented against the town. Its jurisdiction is original, and, in determining as to the liability of the town, it acts judicially. People ex rel. Myres v. Barnes, 114 N. Y., 323; 22 St. Rep., 164.

The auditing of a claim signifies a hearing on examination and includes its adjustment or allowance, disallowance or rejection. Myres v. Barnes, supra.

While the board of town auditors is a court organized for the auditing of claims presented against the town, there is yet no mode of procedure prescribed by which it is to take proof or obtain knowledge respecting the validity of any claim presented for audit.

It is the habit of such bodies to seek information from any quarter where it is obtainable, and we presume the practice is legitimate: they must acquire knowledge to enable them to act with wisdom in subservience to established rules. They may act upon their own knowledge acquired by observation. Town assessors act in the same way respecting the valuation of property to be assessed.

In this case, the town auditors were in the possession of knowledge which satisfied them that no time had been necessarily spent by the relators, and yet they had laid before them bills, in which the relator Cochran charged for ten days in October, 1891, every week day in November of that year,-except two, every week day in December, 1891, and January and February, 1892, which are months in which no duties are performed in this climate respecting the highways. Twelve days in March, 1892, and almost every week day in April, May, June and September, 1892, and more than half of the days in July, 1892.

The bill of the relator Lynch is made out in about the same way, especially in relation to charges for every week day in December, 1891, after the seventh, and substantially every week day in January and February, 1892.

The bill of the relator Donlon is substantially in the same form down to March, 1892.

The bills were false and fraudulent within the knowledge of the auditors, and when the relators were called before them to give information they only said the services were rendered upon the highways of the town of Pelham. That statement was false, because no work could be done upon such highways during the winter months.

Moreover, the bills of the relators are all for services rendered as commissioners of highways, which means official services, and it was simply impossible for them to spend the number of days for which they have charged in the necessary discharge of their official duties.

Their statement to the board was a confession of falsity; when requested to specify their services, they failed to do so, and such failure resulted evidently from disability. If their claim had been honest, a specification of their services would have been honest.

Under such circumstances, how can we interfere ? While it is true that we can reverse the determination of the board even upon questions of fact, yet we can only do so where we find a preponderance of evidence against it. People v. French, 119 N. Y. 502; 30 St. Rep., 72.

Here we find ovewhelming evidence against the claim. No appellate court would interfere with the verdict of a petit jury with such evidence behind it. The verification of the claims has no obligatory force and may be disregarded. Bentley v. Whaten, 5 Wkeely Digest, 410.

The case of The People, ex rel. TheTown Auditors of Elmira, 82 N. Y. 82, is much like this, and the teaching of the decisions is favorable to the determination of the defendant here. In that case the auditors allowed the relator a gross sum without .allowing or disallowing any specific item of the account and without deciding that any definite and particular days were not necessarily spent in the service of the town.

The court held that such action was not a legitimate performance of the duty of the board and that a claimant was entitled to the judgment of the board of auditors upon each item of his claim.

• That is just what these relators have received, the board of auditors audited, examined and disallowed each and every item of the accounts presented by these relators, and it is entirely evident they could have justly reached.no other conclusion.

Instead of finding their determination erroneous and unsupported, we think the facts and circumetances within the knowledge of the auditors, and disclosed by the record before us would justify no other conclusion.

The falsity of the bills is stamped upon their very face, and the auditors have performed a meritorious service in protecting the taxpayers against the imposition of a just burden.

We have thus examined and determined the case upon the merits because we thought it due to the parties interested and the questions involved, but we have not overlooked a legal obstruction in the path of the relators which we deem insurmountable.

To secure a review of the action of a board of town auditors by certiorari, the writ must be obtained while yet the board retains jurisdiction of the proceedings. Such jurisdiction terminates with the delivery of the abstract of accounts to the clerk of the board of supervisors, which is the last act of the board of auditors. Laws of 1892, vol. 2, page 2261, § 170.

After such delivery, therefore, the writ will be ineffectual and fruitless. Osterhoudt v. Rigney, 98 N. Y., 230; People v. Auditors, 65 Hun, 418; 47 St. Rep., 567; People v. Supervisors of Queen's Co., 82 N. Y., 277.

The board of town auditors of the town of Pelham delivered the abstract of the accounts and claims presented to and audited by the board to the clerk of the board of supervisors of Westchester county on the 16th day of January, 1893.

The amount allowed was levied and included in the warrant of the town collector before February 27, 1893. Such warrant was delivered to the collector and he was engaged in its execution before the 15th day of April, 1893, when the application was made for this writ of certiorari. The certiorari therefore brought nothing up for review because the jurisdiction of the board of town auditors over these claims had terminated and nothing remained before that body. The People v. Supervisors of Queen's Co., 1 Hill, 198.

The determination of the board should be affirmed, with costs against the relator in each case.


author: Barnard, - P. J.

text:
    John Cunningham, App’lt, v. William B. Davenport, Public Administrator, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Gist—Tbtjst.
    A deposit, in a savings bank, to the credit of the depositor in trust for another operates to transfer the fund to the beneficiary prima facie and, in the absence of other proof showing a contrary intent, the self-constituted trustee holds the fund as trustee for the benficiary.
    Appeal from a judgment in favor of defendant

      J. Stewart Boss, for app’lt; Charles TI. Otis, for resp’t,
   Barnard, - P. J.

The plaintiff, in 1869, opened an account in his own name with the Bowery Saving’s Bank in New York, He made deposits from time to time, and, in 1881, he directed the bank to open a new account to the credit of “ John Cunningham in trust for Patrick Cunningham, his brother,” and to transfer the old account standing in his own name to the new account, which was done. The plaintiff never delivered possession of the book, Patrick Cunningham died on the 14th of April, 1890, and on the 17th of April, 1890, the plaintiff drew out the money and applied it to his own use. The question presented is whether the gift to Patrick Cunningham is made out. The court of appeals in the case of Martin v. Funk, 75 N. Y., 134, held that a deposit, in the form in which this deposit was made, operated to transfer the fund to the beneficiary prima facie, and in the absence of other proof showing a contrary intent, the self-constituted trustee held the fund as trustee for the beneficiary.

The principle decided in this case has been recognized and followed by the court of appeals in the case of Mabie v. Bailey, 95 N. Y., 206 ; Willis v. Smyth, 91 N. Y., 300; Matter of Crawford, 113 N. Y., 560; 23 St. Rep., 722.

In the ease of Mabie v. Bailey, the court intimates that the mere form of the deposit does not, of itself, determine a gift; but the surrounding circumstances may be proven to aid or repel the fact of the gift. The case of Beaver v. Beaver, 117 N. Y., 421; 27 St. Rep., 405, is not in conflict with the case presented by this appeal. In that case a father deposited money in the name of his minor son. There was no delivery of the book to him, but the father retained the book for nearly twenty years. The father signed the request to the bank to open the account and to receive the deposit from him. He also drew on one occasion from the account himself, and the son never knew of the deposit, but all the dealings in respect to the bank book were transacted with the father only, and this continued for some sixteen years after the son became of age.

The judgment should, therefore, be affirmed, with costs.


text:
    In the Matter of the Probate of the Will of Myra C. Gaines, Deceased. William W. Christmas and Rhoda B. Kennedy, nee Christmas, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Appeal—Taking testlmonv-
    While the general term has power to permit the taking of further testimony upon an appeal to it in a probate case, such power should not be exercised after the lapse of considerable time since the decree was entered, especially when no evidence upon the issue was produced by the appellant before the surrogate.
    Application to take further evidence in general term on appeal from surrogate’s court.

      W. T. Houston, for app’lts; W. T. Gilbert, for resp’t William H. Wilder; John A. Grow, for resp’ts Perkins and Evans; William H. Ford, special guardian for Zulime Whitney; John G. Clark, special guardian for James M. Christmas.1
   Barnard, P. J.

Mrs. Myra G. Gaines died on the 9th of January, 1885, at the city of New Orleans, state of Louisiana. Two papers, which purported to be her last will, were offered for probate. One was rejected as not being the will of testatrix and the other was rejected as informally executed under the laws of the state of Louisiana. The same two papers were presented to the surrogate of Kings county for probate in November, 1889. The will which was rejected as forged, was again rejected for the same reason, and the other will was proven and admitted to probate. The proponents of the rejected will appeal from the entire decree. William W. Chestner and Bhoda B. Chestner appeal from the part of the decree which admitted the will of January 8, 1885. There was proof given before the Kings county surrogate tending to show that the deceased was a resident of Kings county when she died, and the surrogate so decided. The application to take further evidence should be denied. The question of residence was presented by the objection to the probate, and was withdrawn ; but the proof of the probate of the will occupied some sixteen days. The jurisdiction of the surrogate depended on the record before him; andwhile the power exists under § 2586 of the Code, it should not be exercised after such a lapse of time since the decree was entered, and especially to open the case in this court, where no evidence as to the residence of testatrix was produced by the contestants before the surrogate. On the contrary, there was a strong appearance of an abandonment of the issue of residence. The parties should, therefore, be confined to the record appeal. There were five attesting witnesses to the will, who were each presented to the surrogate, examined and cross-examined.

No case is, therefore, made for an order to take further testimony, and the motion should be denied, with costs.


text:
    Ann Eliza Wilcox Resp’t, v. Charles J. Quinby et al., Individually and as Executors of the Will of Egbert Quinby, Deceased, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Trustees—Accounting.
    Where a referee has been appointed to take the accounts of trustees and report them to the court, they should be charged with interest only to the date of the report.
    8. Same.
    Where the trustees have invested all the proceeds of the sale of real estate with great promptitude, they are not chargeable with interest on such- investments, when not due.
    Appeal from a judgment in favor of plaintiff.

      M. M. Silliman (William P. Fiero, of counsel), for app’lts ; James Flynn (F. 11. Benn, of counsel), for resp’t.
   Dykman, J.

This action was commenced by the plaintiff, who was one of the beneficiaries under the last will and testament of Daniel Quinby, deceased, against the executors and trustees of such will, alleging that they had omitted and neglected to perform their duties under the trust created by the will, and demanding judgment for their removal and the appointment of new trustees in their place.

Upon the trial of the action the complaint was dismissed, but upon appeal to the general term from a judgment entered upon that decision, that judgment was modified in so far as it dismissed the complaint, and in the judgment of the general term it was ordered that the executors should forthwith sell the real property for the best price they could obtain, unless they had already sold the same, and that they should render an account of their proceedings, and the proceeds of the sale of the real property, and the use, rents and profits of the land, and all property so held by them as executors, and a referee was appointed to take such accounts and report the same to the court, the entry of such judgment on appeal to be postponed until the coming in and confirmation of the report of such referee. The real estate was sold pending the litigation. The referee so appointed to take and state the account proceeded in the performance of his duty, and made his report,' by which he found that the balance of cash on hand for distribution according to the provisions of the will was $3,031.51, as shown by the account as filed with him and submitted with such report. But he also found that to the $3,031.51 should be added the sum of $131.31, making $3,162.82, from which should be deducted the sum of $166.50, leaving a net balance of $2,996.32 of cash in the hands of the executors and trustees.

A motion was made at special term, May 25, 1893, for the confirmation of the report of the referee, and for final judgment thereon. When the court made an order upon which judgment was entered which made certain modifications in the report, whereupon the defendants appealed from such order and judgment. The order and judgment from which the appeal ig taken, make the total sum of $9,675.88 in the hands of the executors, to he divided into three equal parts; or being $3,225.29 each at the date of the ordei', May 25, 1893, instead of the total sum of $2,996.32 for each as found by the referee at the date of the report, February 20, 1893. The difference in amount for distribution between the order and judgment and the referee’s report is caused by charging the executors with the interest on the total proceeds of the sale of the real estate to the date of the order and judgment, several months beyond the proper time as stated in the account and report. There are some small items of the account charging certain payments against the principal instead of the income of the estate.

In our view the modification is not justified, and the referee’s report should have been confirmed, without change.

In the first place it appeared that the executor had rendered an account to the surrogate of Westchester county in 1883, and it appears by the referee’s report that the total receipts since the accounting of 1883, amounted to $91,185.07, whereas the order of the special term státes these as making the sum of $90,868.03, being a difference of $317.04, which arises in the items of rent and interest, the report stating it as received “ From rentals and interest shown in schedule H., $5,917.04, while at the special term it is erroneously stated that the executors and trustees have charged themselves with only $5,600, as received from rents and nothing for interest. Instead of leaving the interest at the date of the report of the referee, the special term carries it forward to the date of the order which improperly anticipates the accounting hereafter to be made in the surrogate’s court. It appears from the report of the referee that the executors sold bank stock of the Mechanics & Traders’ Bank, $343.43, of the Central Bank of Westchester county, $500, and received from Bridget Lyon the amount of a mortgage, making a total of $993.33, which is the $943 stated in the special term, and this is charged against them as recited in the account.

The referee finds that the executors and trustees appropriated this $943.33 to the payment of $500 legacy to Maria Quinby, given by the will of Daniel Quinby, and other property which is set forth in his schedule B., or in other words that they have in every regard properly accounted for it, and it is difficult to understand how it can now be claimed that the executors and trustees should have first paid and discharged the $849.91, being the balance found due to them from the estate by the surrogate’s decree of February 26, 1883, and because they had not done so, they should be charged with the difference between $849.91 and $943.33 being $93.42.

It has been urged by the respondent that the balance of $849.91 carried an interest charge while the legacy did not; but the answer to that proposition is that the legacy in the will was payable when the legatee became twenty-one, and in the meantime interest was to be payable. The following is the language of the will: “ To Maria, the wife of my son Egbert, and their son, Henry Quinby, each the sum of $500. My executors are to retain said $500, so given to said Henry Quinby in their hands invested on interest and pay and apply the interest in the meantime to his education and support until he arrives at the age of twenty-one years and then pay him said legacy.”

The direction of the testator was obeyed by the executors and the referee’s disposition of the account in this respect should be confirmed.

The next item in the order of the special term charging an account and referee’s report thereon is: “ That he also be charged with interest from December 1, 1888, to this date on the $750, received by him from the city of Hew York for the-' Bronx river award.”

The insertion of this provision was doubtless an oversight on the part of a judge, for if the account had been carefully examined it would appear that interest on the Bronx river award had been credited the estate and charged against the executors and trustees to the date of account and report, to wit, the amount received was $700, and not $750, and the interest was charged in the account from October 19, 1889, each year to October, 1892, forty-two dollars each year, making the total of interest for four years of $168, all the interest up to the date to which the, executors were chargeable.

The referee refers to this matter in his opinion in the following language, “ As to the $700 net proceeds of the Bronx river award, the counsel for the Executor Quinby advised that he had no right to apply it to the amount of arrears due him on the prior accounting, and for that reason he did not so apply it, but allowed the estate interest on the amount of that award and properly charged interest on the account due him under said surrogate’s decree on said former accounting, for the reason that he could not pay the sum due to himself and at the same time pay the current expenses of the estate from the income of the estate which was not sufficient for both purposes.”

The account and report of the referee show that until the sale of the real estate in 1892, there was no cash balance on hand on which the executors should be charged with interest, and it is exceedingly doubtful whether the interest on the Bronx river award heretofore considered, could have been claimed from them.

The next item in the charge is interest from April 25, 1892 on $3,000 of the purchase money of the farm. The facts in relation to that are these. The total purchase price of the farm was $83,-295. The executor Quinby, entered into a contract to sell the farm in December, 1892, and received only $500 on account. 'On the 1st of February, 1892, he received $4,500 on account of the purchase money, and on the 1st of July, 1892, the ssle was fully consummated and purchase money given for $67,343 and $10,852, was paid in cash. From the cash so paid $15,952 on account of the purchase price of the farm, the defendant Quinby paid the expenses of the sale $2,404.88, survey $174 and other expenses. He loaned therefrom to Maria Quinby, April 25, 1892, $3,000 on bond and mortgage payable one year from that date with interest at six per cent. He also loaned Susan E. Quinby, $8,000, July 5, 1892, on her bond and mortgage payable in five years at five per cent, the balance of the cash so received is in the account fully accounted for and is not questioned. The executors, therefore, invested all the proceeds of the sale of the farm with great promptitude and have fully accounted therefor.

It is sought under this order to charge the executors with interest at six per cent, on the Maria Quinby mortgage from April 25, 1892, its date, until the date of the order. ■ But that is erroneous, as at the time of the accounting nothing was due on the mortgage. Ho interest had been received, it being payable annually, and the executors and trustees can only be charged with this investment as in their hands, the principal and interest of which they are to account for hereafter. The interest on the balance of the purchase money of the farm, $80,295, to the date of the order, at the rate of five per cent., amounts to $3,613.28, and is also improperly inserted in the special term order. The contention of the counsel for the plaintiff that the entire purchase price of the farm should be considered as so much cash in the hands of the executors and trustees, instead of investments and cash, as found by the referee, cannot be allowed.

We have thus examined in detail some of the modifications of the referee’s report made by the order of the special term, and the judgment entered thereon, which are plainly erroneous, and our conclusion is that the judgment and order appealed from should be modified so as to confirm the report of the referee precisely aS it was made, without modification, and as so modified affirmed, with costs of this appeal to the appellants, to be deducted from the estate.

A motion was made to dismiss the appeal, because the defendant had taken the benefit of the judgment and order, and was, therefore, concluded by. the same.

We do not find the fact to be as claimed by-the respondent, and the motion is, therefore, denied, with ten dollars costs and disbursements, to be retained by the appellants from the funds in their hands.


text:
    Christopher O’Conner, Resp’t, v. Oscar Edward Phillipsen et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Compromise—Disputed claim.
    Where there is an actual dispute as to the amount due from one to another party, a settlement for a less amount than claimed is binding upon them.
    Appeal from a judgment in favor of the plaintiff.

      Wilson Brown, Jr., for app’lt; Thomas W. Butts, for resp’t,
   Barnard, P. J.

Patrick McCarty gave a deed of land to the defendant, Philipsen. The description in the deed consisted of two pieces of land, one of twenty-five and one of fourteen acres. The consideration for the deed was $2,250. There was a mortgage of $800 on the property and judgments against the grantor, which were liens on the land. Philipsen took subject to the mortgage and also subject to the judgments and gave the mortgage in question for $680. The sale was made for McCarty through one Sweeny, a real estate broker. In April, 1891, McCarty agreed with Philipsen to take two promissory notes for $100 each and forty dollars in cash for a full satisfaction of the bond accompanying the mortgage. The cash was paid and the notes given and the bond was delivered to Philipsen with a receipt, in writing, on it that the same was paid in full. The first note was paid subsequently, but when the second became due and payment tendered, it was refused and this action brought by McCarty’s assignee alleging that the settlement was procured by fraud. There is an entire failure of proof to show fraud in the settlement. The mortgagor, McCarty, was accompanied by his friends, one Wimbenny and Scanlon. They both testify to a fair agreement to settle the claim. That Philipsen claims misrepresentation as to the quantity of the land ' sold and as to its power to produce. It appears on all sides that the agreement stated the land to be over one hundred acres, that the deeds did not give the real amount of land. It appeared that an actual survey developed an area of fifty-eight or fifty-nine acres only. The land is proven to be worth twenty-five to thirty-five dollars an acre. The farm was bought for agricultural purposes and the'purchaser had the right to claim damages for this deficiency of forty or more acres' Schumaker v. Mather, 183 N. Y., 590; 44 St. Rep., 754 ; Paine v. Upton, 87 N. Y., 327; Keeenan v. Bird, 60 Hun, 175 ; 39 St. Rep., 22. It was under this state of facts that the parties settled. A man may settle a disputed claim and the settlement be good and bind both parties. Philipsen constantly claimed that he had been cheated both in quality of the land and in the misrepresentation as to the amount of it. The settlement was good. Dunham v. Griswold, 100 N. Y., 224; Kromer v. Heim, 75 id., 574; Babcock v. Bonnell, 80 id., 244; Wilson v. Randall, 67 id., 538; Brooks v. Moore, 67 Barb., 393; Beach v. Endress, 51 id., 570.

The facts of the case differ entirely from the facts in cases where it is held that an agreement to pay a portion of an admitted debt in settlement of the entire claim is invalid. The case does not stand upon this principle but on a principle held without deviation, that where there was actually a dispute as to the amount due from one party to another, the parties may settle the controversy for themselves.

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


text:
    The Germania Savings Bank, App’lt, v. The Village of Suspension Bridge, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Bosds—Stolbs.
    Bonds, stolen before delivery, are Invalid in the hands of a bona fide purchaser for value.
    2. Same—Issue.
    The term “issue,” as applied to negotiable paper, means its delivery for use and circulation. . .
    Appeal from a judgment dismissing the complaint entered upon the decision of the court without a jury.

      William D. Veeder (Tracy G. Becker, of counsel), for app’lt; William M Willey, for resp’t.
   Dykman, J.

This is an appeal from a judgment dismissing the complaint of the plaintiff with costs entered upon the decision of a judge after a trial at special term without a jury.

The action was for the recovery of interest upon certain bonds of the defendant, and the defense was that the bonds from which the interest coupons were cut were never issued, and never had any inception as such, but were stolen and put upon' the market feloniously. The trial judge, after finding the fact of the' incorporation of the plaintiff, and that the defendant was a municipal corporation, and that the board of water commissioners of the defendant was a board legally constituted under the provisions of the statutedn relation to the organization of water companies to furnish pure and wholesome water to the inhabitants of villages, made the following specific finding: Fourth. The said board of water commissioners caused to be lithographed, signed and sealed, the four bonds upon which this action is brought, and which bonds were numbered respectively, 284, 235, 236 and 237, and were each of the denomination of $500, with interest payable semi-annually, at the rate of four per cent, per annum ; that said bonds were never delivered or intended to be delivered by the said board of water commissioners for sale.

That said board of water commissioners after the lithographing, signing and sealing of said bonds as aforesaid, directed the same to be destroyed, and believing the same had been destroyed thereunder, caused to be issued bonds of the same denomination and number, but having a larger rate of interest, which said last mentioned bonds were issued and sold by said board of water commissioners in the place and stead of said bonds upon which this action is brought

Fifth. The said bonds numbered 234, 235, 236 and 237, upon which this action is brought, were stolen and feloniously abstracted from the custody of said board of water commissioners, and were sold without the authority and consent, knowledge or intention of said board to have the same delivered or sold, and no part of the proceeds thereof were received by or came into possession of said board of water commissioners, or of the defendant, nor were said bonds negotiated or sold in the name of said board of water commissioners or of the defendant in this action.

Sixth. That said bonds upon which this action was brought were never delivered, or intended to be delivered, by said board of water commissioners for sale; the same were stolen and negotiated without the knowledge, permission or consent of the said board of water commissioners or of the defendant

Seventh. The plaintiff is the bona fide purchaser for value of the bonds for which the action is brought.

As conclusions of law, the judge decided, first, that the defendant is not liable upon said bonds, numbered 234, 235, 236 and 237 set forth and described in the complaint herein, and directed judgment accordingly for the defendant against the plaintiff for a dismissal of the complaint upon the merits, with costs. It may be stated as a general proposition of law that delivery is essential to the validity of all written instruments. Promissory notes, bills of exchange and bonds are all included in that general rule of law. The mere act of signing a note or bond and retaining it in the hands of the maker forms no contract. Before the instrument can be operative there must be a delivery as an evidence of a subsisting debt and until such delivery the paper has no legal inception, and is inoperative. Marvin v. M' Cullum, 20 Johns., 288 ; Hall v. Wilson, 16 Barb., 548 ; Eastman v. Shaw, 65 N. Y., 528.

The foregoing principle applied to this case seems to be decisive of the appeal.

These bonds never had a valid inception. They were stolen before delivery, and so were destitute of that essential element of validity, they were neither property nor the subject of ownership. It is a general principle in the law of contracts that no valid obligation can be created by the perpetration of a wrong or a felony. There is an exception to this rule in favor of commercial paper by which a holder of negotiable paper may under certain circumstances recover upon it, notwithstanding any infirmity in the title of the person from whom he derived it but that supposes a case where the maker had voluntarily parted with the instrument, and. it had a valid inception.

In this case, the decision is placed upon the absolute invalidity of the bonds for want of delivery. The defendant here has not voluntarily placed a paper where it could be used in a wrongful manner. They had no more validity than the undelivered note of an individual. Coddington v. Gilbert, 17 N. Y., 489.

The distinction is between paper which never was delivered, and never had any legal beginning or binding force, and instruments which have been valid and have been delivered.

In the first ease the instrument has no binding force, and imposes no liability, it never was an operative contract, because it had not been delivered to any person as evidence of a subsisting debt. It never was a subsisting security and had no preexisting value. It was in the similitude of a legal obligation, but no holder of it was ever entitled to maintain an action upon it, if it had been due.

In the second case, the first honest holder could maintain an action upon the paper, if it was due, and so may any subsequent bona fide holder sue upon it, even though it came to him through a thief.

The underlying principle is obvious. In the second case the paper at one time imposed liability, and in the first case it never did.

A note made to be discounted at an usurious rate of interest, and indorsed for the accommodation of the maker, falls within the first class, and is void, 15 Johnson, 355, and any note or instrument, void as between the parties for usury, is void in the case of a bona fide holder1. That is another case where the void note cannot be validated.

In relation to the claim of the plaintiff that those bonds were all actually issued, it is to be said that the position is untenable. The term “ issue ” as applied to negotiable paper, means its delivery for use and circulation, and in that sense these bonds never were issued.

Three of these bonds, numbered respectively 234,' 235 and 236 were delivered to the contractors, who were creditors of the village, under this resolution: “ August 11,1884, on motion Phillips & Young were allowed two thousand ($2,000) in bonds to be redeemed by the board on January 1, 1885, at four per cent.” The three bonds were then delivered to Phillips & Young in pursuance of this resolution and used by them as collateral security and redeemed by the board, and re-delivered to it in January, 1885, and Houran, the treasurer was directed to destroy them. Instead of obeying that direction he sold them. There was no agreement that Phillips & Young should take the bonds in payment of their indebtedness, and-the board had no authority to deliver the same to them for any other purpose.

By the statute under which these bonds were issued, the commissioners were clothed with authority to borrow money and execute bonds to secure the payment thereof, but the money so borrowed was directed to be appropriated to supplying the village with water, and of course could, be used in no other manner. Laws of 1875, chap. 181, § 8.

Phillips & Young, therefore, never had any title to the bonds so delivered to them. The other bond, No. 237, never was delivered to any one by the board. We have, therefore, disposed of the case under the theory that these bonds never were issued.

It is unnecessary to inquire or determine whether the members of the board of water commissioners were careless or negligent in failing to insure the destruction of the bonds in question, because the defendant cannot be charged with liability upon that ground, they could only impose liability upon the defendant in the manner prescribed by the law which created them. Horton v. Tower, 7l N. Y., 513.

This remark is not to be taken as an intimation that there was carelessness, because the board directed the destruction of the bond, and was informed that they had been destroyed.

There were manv objections by' the defendant to the introduction of testimony during the trial, but they are mostly frivolous, and none of them present any error.

The ’’udgment should be affirmed with costs.


author: Barnard, J.

text:
    Elizabeth D. DeLancey, Resp’t, v. Henry Piepgrass, App’lt, Impl’d with John Hunter, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.
    Contempt—Ejectment.
    The court can, in an action of ejectment, prevent interference with the due and orderly execution of its process, by proceedings for contempt.
    Appeal from an order restraining the defendant from all resistance to the enforcement of an execution in this action.

      Oeo. A. Blach, for app’lt; Walter D. Edmonds, for resp’t, De Lancey; John Hunter, Jr., for resp’t, Hunter.
   Barnard, J.

On the 26th of June, 1893, by virtue of an execution in this case, the plaintiff was put into the possession of certain premises at City Island in Westchester county. On the 17th of July, 1893, the defendant, Piepgrass, entered upon the premises by force, removed a structure erected for the shelter of plaintiff’s employes, and threw it in the waters of Long Island sound. Violent threats preceded this seizure of the possession, and followed it. On this state of facts the court, upon notice, granted an inj unction restraining Piepgrass from all resistance to the enforcement of the execution herein, and from interfering, in any way, with the possession of the premises in question, The appellant, Piepgrass, claims that the order restraining the appellant was unauthorized by law, and that the plaintiff has no remedy to enforce a judgment, except by an execution. The execution failed to answer his purpose, and the question is whether a new action in ejectment is necessary, which would be endless, or whether the court can prevent, in this action, interference with the due and orderly execution of its process. The execution would be sufficient in ordinary cases, but here it is not permitted to have its effect. The court has power to prevent a failure of justice and can punish for a contempt, any disobedience to its process. Why not make an order that a party desist from interference with process and that he reinstate a possession given under it, before enforcing obedience to the process by punishment?

The order shoul" therefore, be affirmed, with costs and disbursements.


text:
    Charles S. Mott et al., App’lts, v. William Underwood et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Oystebs—Tenants in common.
    An action cannot be maintained by the licensee of one tenant in common of a natural oyster bed to dispossess by injunction the other tenant in common.

      Appeal from a judgment in favor of defendant

      Strong & Spear, for app’lts; Nicholl Floyd, for resp’t.
   Barnard, P. J.

There is a natural bed of oysters in the great South Bay in the town of Brookhaven, Suffolk county, known by the name of “ Beef and Swash.” The right to take oysters from this bay is owned by the town of Brookhaven and by the heirs of Robert B. Smith, deceased, equally, as tenants in common. By an agreement between the owners the control and management of the common property was committed to the town in 1767, and this management was acquiesced in until June, 1892, when the owners were restored by, a judgment of this court to their individual rights. Before the filing of the judgment the Smith heirs executed a lease of a portion of the joint property. In August, 1892, the town gave leases of the right to take oysters from the common property. This action is brought by the licensees of the town to enjoin the defendant from taking oysters from the Beef and Swash ” oyster bed. Such an action will not be supported. The right of each tenant is to the use and enjoyment of the common property. The right can only be qualified by an agreement between the parties that one of the joint owners "may occupy exclusively the whole or a portion of the common property. Zapp v. Miller, 109 N. Y., 57; 14 St. Rep., 77; LeBarron v. Babcock, 122 N. Y., 153; 33 St. Rep., 285.

The planting of oysters in the Swash gave the plaintiffs no right greater than the Smith heirs could exercise themselves without the assent of the town authorities. Bone such is claimed in the case. The plaintiff’s- lease therefor gave them no exclusive right to take oysters from the property in question even though he had expended money and labor in making the oyster bed productive. The town had uniformly refused to give any exclusive right of fisheries in and upon the bed. The cases of Hand v. Newton, 92 N. Y., 88; and Robins v. Ackerly, 91 N. Y., 98, do i-not hold that a lease by one tenant in common of a natural oyster bed excludes one who is an owner in common without his consent. A right of action for a proportion of rents received by one owner who receives it for all without relevency upon the question whether such owner hiay be dispossessed by injunction-without his consent. If the possession of the plain tiffs’‘licensees was proven it was a possession of a moiety only. Wood v. Phillips, 43 N. Y., 152.

The case of LeBarron v. Babcock, 122 N. Y., 153, only holds that where a tenant in - common who occupies a farm exclusively with the assent of his co-tenant, owns the products from it while he occupies. Under the case if the plaintiffs licensees had gathered oysters from the leased premises, he could not be held liable for the same at the suit of a co-tenant in common.

The judgment should, therefore, be affirmed with costs. _


text:
    The Troy Waste Manufacturing Co., Resp’t, v. Ellen Harrison, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Submission of controversy—Judge.
    There is no authority, it seems, for the submission of a question to a judge.
    S. Same.
    Such submission must, it seems, be made to the court, upon a case containing a statement of facts, and so accompanied by the prescribed affidavit.
    3. Appeal—Decision.
    An appeal cannot it seems, be taken from the mere decision of a judge.
    4. Assignment for creditors—Corporation.
    A manufacturing corporation, organized under the act of 1848, cannot, it seems, in contemplation of. insolvency, make a general assignment for the benefit of creditors, without preference.
    Appeal by defendant from the decision of the judge in pursuance of a right so to do reserved in a stipulation between- the parties.

      W. G. Anthony, for app’lt; Merritt & Ryan, for resp’t
   Dykman, J.

In pursuance of a written stipulation an abstract question of law involving the construction of an obscure statute was submitted to a justice of the supreme court.

The stipulation was not accompanied by a statement of facts upon which a controversy was dependant, nor by an affidavit that the controversy was real; and it did not appear that there was any controversy or that the submission was for the purpose of determining the rights of the parties.

The judge decided the question and wrote an opinion, but no order or judgment has been entered upon such decision, but the defendant has appealed from the decision of the j udge, in pursuance of a right so to do reserved in the stipulation.

Upon this statement the proceeding is plainly extra-judicial.

There is no authority for the submission of a question to a judge. By § 1279 the parties to a question in difference which may be the subject of an action may agree upon a case containing a statement of the facts upon which a controversy depends and present a wi’itten statement thereof to a court of record, but the case must be accompanied by an affidavit that the controversy is real, and that the submission is in good faith for the purpose of determining the rights of the parties.

Hone of these requirements received compliance in this case, and the submission was not to the court.

There was, therefore, no case in court. The parties agreed to request a judge to answer a legal question, and he complied .with their solicitation.

Even less have we any jurisdiction. This is an appellant tribunal and cases come to us upon appeal from orders or judgments in actions or special proceedings.

There is no statute or practice to our knowledge authorizing an appeal from a mere decision.

We can make no judgment upon this appeal that can be enforced, and courts do not act as advisory tribunals,

However, as the question of jurisdiction or irregularity was not raised upon the argument, and the parties may abide by our opinion, we have concluded to examine the question submitted, which is this: Under the law of New York as it stood in September, 1891, could a manufacturing corporation, organized under the act of February, 1848, in contemplation of insolvency, make a general assignment for the benefit of creditors without preferences ?

The answer to this question depends upon the interpretation to be placed upon § 48 of chapter 564 of the Laws of 1890, which is this:

“No corporation which shall have refused to pay any of its notes or other obligations when due, in lawful money of the United States, nor any of its officers or directors shall assign any of its property to any of its officers, directors or stock-holders, directly or indirectly, for the payment of any debt, and no officer, director or stock-holder thereof shall make any transfer or assignment of its property or any stock therein, to any person in contemplation of its insolvency ; and every such transfer or assignment to such officers, directors or other person, or in trust for them or for their benefit, shall be void.”

This statute must be construed so as to effectuate the intention of its framers, and obviate the evils anticipated by. the legislature.

At the head of the section preceding the lines quoted are these words: “Certain transfers of stock and property prohibited.” Then follows the language quoted. The first part of the section applies to corporations as bodies politic, and the second to the officers and stockholders of such bodies. Both paragraphs commence with negative and prohibitive words. The first prohibits-corporations which have refused to pay their obligations when due, and their officers and stock-holders from assigning any of its property to its officers, directors or stockholders for the payment of any debt. So far all is plain and no effort at interpretation can make it more perspicuous.

The question for our solution' springs from the second paragraph which prohibits officers and stockholders of a corporation from making any transfer or assignment of its property or any stock therein to any person in contemplation of its insolvency.

The contention of the appellant is that while this portion of the section prohibits an assignment by the officers and stockholders of a corporation from making an assignment of the corporate property and stock, yet the prohibition does not extend to the body corporate and it may yet make such an assignment.

We cannot yield our assent to such a construction of this portion of the section. In our view it was the intention of the legislature to prohibit an assignment of the property of an insolvent corporation to any person in contemplation of insolvency. Corporations are artificial, intangible bodies, and can only act through their officers or agents, and as the officers-are prohibited from acting it was the plain intention to prohibit the action.

While it is conceivable that a corporation may exist without officers, and may act by agents who are not officers, yet it is inconceivable that the legislature would prohibit an assignment by officers, and yet entertain a latent intention to permit such assignment by the corporation in some unusual and undefined manner.

If the legislature intended to permit an assignment by a corporation in contemplation of insolvency it was an idle ceremony to prohibit the execution of the instrument in the usual manner by the officers of the company.

The statute must be allowed a wider range. Its design was to prevent the transfer of corporate property in fraud of creditors, and it would be poor protection to them to prohibit an assignment by officers and allow it by the corporation.

Without further pursuit of the question, we concur in the views of Mr. Justice Parker, and conclude that the question submitted should be answered in the negative.


author: Dykhan, J.

text:
    Frank P. Ward, App’lt, v. Charles Isbill et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Recording act—Priority.
    In order to secure precedence and priority over a mortgage, it must appear that the deed was for a valuable consideration, taken in good faith and first recorded.
    2. Same—Presumption.
    Where the deed expresses a valuable consideration and acknowledges the payment of the same by the grantee, it is prima facie evidence that he is a purchaser in good faith within the recording act.
    3. Same—Burden.
    In such case, where the deed is first recorded, the burden rests upon the mortgagee to rehut this presumption.
    4. Same—Subsequent grantee.
    Subsequent purchasers from such grantee are entitled to such preference, though they purchased with notice of the mortgage.
    5. Same—Subject clause.
    A recitation in the deed that the premises were subject to mortgages, without specifying them, where other mortgages were found on the premises sufficient to answer such statement, does not have the effect of notice of the unrecorded mortgage,
    Appeal by plaintiff from a judgment rendered in an action for the foreclosure of a real estate mortgage.

      Archibald G. Shenstone, for app’lt; Randolph E. Gole, Albert G. McDonald, F. J. McGrossin, J. W. Peeked, Fisher & Yoltz, and George W. Brower, for resp’ts.
   Dykhan, J.

Thisis an appeal by the plaintiff from a judgment rendered against him in an action for the foreclosure of a mortgage upon real property.

The material facts are these: On the 29th day of January, 1875. James Carson Brevoort made his promissory note in writing for $5,520.87, payable thirty days after demand to Wingfield Gf. Burton. Such demand of payment was made on the same day, and the note became due on the 3d day of March, 1875.

On the 17th day of May, 1877, the maker of the note Brevoort, made and executed to the payee Burton, a mortgage upon real property as collateral security for the payment of the note, and the mortgage recites the fact that it was so given.

The mortgage was recorded in the office of the register of Kings county, on the 6th day of May, 1878, nearly one year after its execution and delivery.

This action was commenced for the foreclosure of that mortgage.

James Carson Brevoort sold and conveyed the premises described in the mortgage to Henry W. Brevoort by deed of conveyance bearing the date of April 24, 1878, and recorded in the office of the register of Kings county, on the 25th of April, 1878, eleven days before, the recording of the mortgage in suit.

The deed conveyed other property, and stated that it was subject to mortgages and taxes, but no reference was made to this mortgage.

The consideration for the conveyance was $18,000, which was expressed therein.

On the 10th day of December, 1888, Henry W. Brevoort sold and conveyed the premises in question to the defendant, Joanna E. McCrossin, by deed of conveyance bearing date on that day, and recorded in the office of the register of Kings county on the 13th day of December, 1888. The consideration named in the deed was $350, but the grantee paid over $1,900 for taxes. That deed made no reference to this mortgage, and the other defendants derive their title and their liens from the grantee therein.

There was no evidence to show that Henry W. Brevoort had knowledge or notice of the mortgage, and none to show that he had not. The mortgage was assigned to the plaintiff.

The question for determination is whether Henry W. Brevoort took the title to the premises free from the lien of the unrecorded mortgage, or in other words whether the mortgage was void as against him.

The statutory provision is that “every such conveyance not so recorded shall be void against any subsequent purchaser in good faith, and for a valuable consideration of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.”

Both the deed and the mortgage are conveyances with the recording act, and to secure precedence and priority over the mortgage, it must appear that the deed was for a valuable consideration, taken in good faith, and recorded first. Two of these facts are beyond dispute. The deed was for a valuable consideration, and it was first recorded.

It is upon the question of good faith that the.parties differ, as we have said there was no proof that Henry W. Brevoort had or had not notice of the mortgage.

The theory of the plaintiffs is that the burden of proving want of notice rested upon the defendants, while they insist that the presumption of law is in their favor and sufficient for their protection until overcome by testimony.

So the final determination of this appeal depends upon the location of the burden of proof.

The deed to Henry W. Brevoort expressed a valuable consideration, and acknowledged the payment of the same by him, and that was prima facie evidence that he was a purchaser in good faith within the recording act. Wood v. Chapin, 13 N. Y., 509; Lacustrine Co. v. L. G. & Fer. Co., 82 id., 477.

Where a consideration is so expressed no proof of actual payment is requisite. Jackson v. Alexander, 3 Johns., 484; Wood v. Chapin, supra.

The presumption of good faith arising from the payment of a valuable consideration by the grantor of these defendants is sufficient for their security and protection until it is overcome by proof.

They could, therefore, rely upon such presumption without the production of proof. The burden, therefore, rested upon the plaintiff to rebut the presumption, and as he made no effort in that direction the demands of the recording act are all satisfied and the deed takes precedence and priority over the mortgage.

The fact that the defendants are chargeable with constructive notice of the plaintiff’s mortgage is immaterial and does not aid the plaintiff, because, as we have concluded, their grantor was protected by the recording act against the unrecorded mortgage of the plaintiff. That being so the defendants as purchasers from him are entitled to such protection nothwithstanding their purchase with notice. Wood v. Chapin, supra; Griffith v. Griffith, 9 Paige, 315.

The recitation in the deed that the premises were subject to mortgages and taxes was sufficient to give notice to the purchaser of the mortgages which were subsequently found 'and they were sufficient to answer the reference in the conveyance. The clause cannot have the effect of notice of the mortgage in suit, and does not, therefore, destroy the presumption of good faith to which we have alluded.

The judgment should, therefore, be affirmed, with costs.


text:
    Ella G. Jamieson et al., Respt’s, v. The Kings County Elevated Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Evidence—Elevated Railway.
    In an action against an elevated railway to restrain its operations and for damages, proof of the situation of other and rental value of other property contiguous to that immediately involved and near the defendant’s structure, is competent.
    Appeal from a judgment entered upon the decision of the court.

      Bussell, Poste & Percy, for app’lt; Theo. B. Gates, for resp’ts.
   Dykman, J.

This is an action to restrain the operation of the elevated railway of the defendant in front of the premises of the plaintiff in Fulton street in the city of Brooklyn and for the recovery of the damage resulting from such operation to the said property. .

The cause was tried before a justice of the court at special term without a jury. The evidence sustained the allegations of the complaint and entitled the plaintiff to the relief demanded therein.

The trial judge found the facts in favor of the plaintiff and judgment was entered upon such findings from which the defendant has appealed to this court.

The case of Stock v. N. E. R. Co., 131 N. Y., 514; 43 St. Rep., 730, is sufficiently like this to be a controlling authority in favor of the plaintiff, and that the decision in that case justifies this judgment.

That case also justifies the admission of proof of the situation and rental value of other, property contiguous to that immediately involved and near the defendant’s structure.

Upon the authority of that case and other similar cases in the court of appeals the judgment should be affirmed, with costs.


text:
    Edward Miller, Resp’t, v. The Manhattan Railway Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Tbial—Postponement.
    The absence of a material witness is not good cause for the postponement of a trial, where the party manifests no earnest wish to subpoena him.
    2. New tbial—Cumulative.
    A new trial will not be granted where the additional evidence is only cumulative.
    Appeal from an order denying a new trial.

      Davies, Short & Townsend, for app’lt; Charles J. Patterson, for resp’t.
   Barnard, P. J.

This action was at issue and was upon the circuit calendar for trial and announced to be ready by both parties on the 23d and 24th of January, 1893. It was postponed by the court to the 26tli of January, 1893, when the case was ready, except that defendant’s counsel was absent. The case was postponed on this account until the next day, with "the .announcement by the court that no further delay would be given. On the next day, January 27, 1893, the case was again ready, except that the counsel who was to try the case was about to try a case in New York. This excuse was overruled and the plaintiff was told to take an inquest. The defendant’s representative asked a further adjournment until the 30th of January, 1893. The parties differ as to whether or not an absolute promise to be ready, was made by defendant. On the 30th of January, 1893, application was made to postpone the case on account of the absence of the guard who was supposed to be the person who shoved the plaintiff off the platform of the defendant’s car and for which act the action was brought. This guard, Hopper, lived in Brooklyn and the proof fails to show any earnest wish to subpoena him as a witness. He was not subpoenaed during the days when the case was ready for trial without him, and his place of residence was known to the defendant and that he worked for a doctor in Hew York. He left his home very early in the morning and returned very late at night. He could not have escaped any real effort to subpoena him. The defendant went to the house when he was away and was satisfied to take Hopper’s mother’s statement that he had moved away and that she did not know of his address. The defendant knew on the 27th and 28th of January, that Hopper still lived with his mother. The witness, Hopper, had made a statement of the occurrence and had named two persons as witnesses, who saw the transaction. These witnesses were called on the trial and gave evidence tending to show" that the plaintiff pulled back himself so suddenly and with such force as to throw himself down. Hopper will give but cumulative evidence, and a new trial will not be given for evidence which is but an addition to evidence of the same kind, which was given on the trial. The witness, Hopper, can testify to nothing beyond or additional to the witnesses the defendant called on the trial.

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


text:
    Edward Miller, Resp’t, v. The Manhattan Railway Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Negligence—Railboads.
    Where the carrier receives a passenger when the car is so overcrowded that there is difficulty in opening and shutting the gates, the guard cannot, without notice to him in some way, throw him off the car to remedy the overcrowding.
    8. Evidence—Negligence.
    Where the complaint, in an action for negligence, states that the plaintiff was disabled from his labor and suffered a loss of power to labor, proof of the wages he was earning before, and since the accident, is proper.
    3. Witness—Cbedibility.
    Where the testimony of a witness is false, it is not the rule that the jury must, though they may, disregard his whole statement.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial

      Davies, Short & Townsend, for app’lt; Charles J. Patterson, for resp’t.
   Barnard, P. J.

The case shows that the plaintiff is a man of over sixty-eight years of age; that on the 10th of May, 1891, he was carried as a passenger by the defendant to the City Hall station. The car was crowded on the inside and the plaintiff stood upon the platform, because he could not get in the car. Upon an arrival at a station, the platform passengers crushed up so as to let the train deliver and receive passengers. At one of the stations, either Eighteenth or Fourteenth street, the defendant’s guard suddenly, and without notice, gave the plaintiff a violent push that carried the plaintiff off the train upon the platform and threw him violently down so as to throw him upon the back of his head. The guard did this in closing the gate. The plaintiff did what he could to crowd himself away from the gate, but the pressure was so great, that he could not do so. The act of the guard- has no justification. The carrier received him as a passenger and overcrowded the car so that there was difficulty in opening and shutting the gates. The guard could not, without notice in some way to the passenger, throw him off the car to remedy the effects of the overcrowding. The defendant was liable for his act. Dwinelle v. N. Y. C., etc., R. R. Co., 120 N. Y., 117; 30 St. Rep., 578.

The damages are not excessive. The plaintiff was a shoemaker and was earning $25 per week. He was prevented, by his injuries, from doing his work for some five weeks, and he was confined to his bed for ten days. His earning power is reduced from $25 per week to $7 and $8 a week. The proof of the wages the plaintiff was earning before the accident and since was proper. The complaint states that the plaintiff was disabled from his labor and suffered a loss of power to labor. The evidence is directly in support of the complaint.

The admission of the testimony of Dr. Woodworth was not erroneous under the case of Strohm v. N. Y., etc., R. R. Co., 96 N. Y., 305.

The evidence of the expert was not to the effect that the results of the injury were possible or contingent. The medical opinion was clear that the tenderness of the muscles, which he found on plaintiff, was the result of the injury in question. The charge was free from objection. If the plaintiff was correct in his narrative of the injury, there was no defense for it. If he refused to get out of the way of the gate when he could do so, he could not recover. There was proof from which the jury could find that the guard intended to pvush the plaintiff, and the statement of the judge that it was not justifiable to do that, was proper under our view of the testimony. Tire request, in respect to an intentional endeavor by plaintiff to make the company liable-for ailments which existed before the accident, was proper. It is not the rule in such a case that the jury must disregard his entire statement. The jury were told that if the witness was false they might discredit his testimony entirely.

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


text:
    Sophia M. Onderdonk, Resp’t, v. The New York & Sea Beach R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    I. Negligence—Railroads—Duty.
    The company is bound to provide a reasonably safe place at which the passengers can leave the car and to wait long enough for a diligent passenger to be able to do so.

      3. Same.
    A passenger is bound to exercise a prudent caution to escape danger.
    Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial

      Charles G. Boiheroe, for app’lt; William P. Pickett, for resp’t.
   Barnard, P. J.

The plaintiff, on the 30th of July, 1890, was a passenger on the defendant’s railroad. She was traveling from Coney Island to Brooklyn city. Her station was Third avenue and Sixty-fifth street. On account of her failure to hear the station called by the conductor, she was carried by her station and went to the ferry terminus of the road. The conductor told her to get on a return train, which she did. She was directed to take the first car on the return train, which she also obeyed. When the cars got to her station, the engine and first car were carried so far into a tunnel, that it was not possible to leave the cars in the usual way. The car was beyond the platform. There was not sufficient room to alight on the platform side of the station between the car and the side of the tunnel. There was no conductor near her. She attempted to get from the car on the left side of the track. As she put her hand to the guard of the car platform and attempted to put her foot upon the ground, the car started and threw her heavily upon the rough, gritty soil, ashes and cinders, which made the surface of the ground where she fell, and was seriously injured. There is no difficulty in upholding the verdict of the jury that the accident was occasioned by the defendant’s-negligence. The company was bound to provide a reasonably safe place at which the passengers could leave the car, and to wait long enough for a diligent passenger to be able to do so. The defendant failed in both respects. A safe place was provided; but the car ran by it, so that the plaintiff could not avail herself of it. In attempting to leave on the only side of the car which was available to her, the car started so as to throw her down before she got upon the ground. The case is fully supported by the court of appeals in McDonald v. The L. I. R. R. Co., 116 N. Y., 546: 27 St. Rep., 481.

• The question of the negligence of the plaintiff which contributed to the accident, was one for the jury. She was bound to use a prudent caution to escape danger, and the evidence fails to show that, under the situation in which she was placed, she failed in this duty. At all events, it was for the jury to say. McClain v. Brooklyn City R. R. Co., 116 N. Y., 459 ; 27 St. Rep., 49.

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


text:
    The People ex rel. John F. Dobson, Appl't, v. John Ennis, Fire Commissioners, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Brooklyn—Hire department.
    Chapter 710 of 1893 did not repeal the provisions of the charter of the city of Brooklyn in respect to the compensation of members of the fire department.

      John A., Quintará, for appl’t; Almei F. Jenhs, for resp’t.
   Barnard, P. J.

The relator is a member of the fire department of the city of Brooklyn. By the charter of the city, chap. 583, Laws of 1888, the compensation of the relator was provided for; sec. 5 and 6, title 13. In 1892, the legislature passed this act.

Chapter 710.

An act in relation to the compensation of the officers of the department in all cities of the state having, according to the last census, a population exceeding nipe hundred thousand.

Afpboved by the governor, May 80, 1892, Passed, three-fifths being present.

The People of the State of New YorJc, represented in Senate and Assembly, do enact as follows :

Section 1. The board of fire commissioners in all cities of the state having, according to the last census, a population exceeding 900,000, are hereby authorized and empowered, with the approval of the board of estimate and apportionment, to fix and determine, from time to time, the salary of the members of the fire department; the chief of the department whose salary shall not be more than $6,000 nor less than $5,000, and the two deputy chiefs whose salary shall not be more than $4,500 nor less than $3,500, and the chiefs of battalion whose salary shall not be less than $2,750 nor more than $3,500; and to captain or foreman of the department whose salary shall not be more than $2,500 nor less than $1,800, and to assistant foreman or assistant captain whose salary shall not be more than $1,800 nor less than $1,500.

2. The pay or compensation mentioned in the foregoing section shall be paid monthly to each person entitled thereto, subject to such deduction for and on account of lost sick time, disability, absence or fines, as the said board may by rules and regulations, from time to time, prescribe and adopt.'

3. All. acts and parts of acts, inconsistent with this act, are hereby repealed.

4. This act shall take effect immediately. . -

This law does not repeal the provisions of the charter in respect to the relator. Such is the general rule. McKenna v. Edmundstone, 91 N. Y., 231.

There was a lien law in this state applicable to New York county only. Subsequently a general lien law was passed applicable to the cities of the state. The court of appeals held that the local law was not repealed by the general law governing a lien in the cities of the state, The state rule was approved in Van Denburgh v. The Village of Greenbush, 66 N. Y., 1. Buffalo Cemetery Association v. City of Buffalo, 118 id., 61; 27 St. Rep., 749. The act of 1892 was a general statute. Matter of Evergreens, 47 N. Y., 216.

It purports to apply to all cities having a certain population in the state. There is legislative intent to repeal the charter contained in the language of the law. By chapter 218, Laws of 1887, a law was passed in the same general terms applicable to cities of over 900,000 population. That act recited correctly the officers in the city of Hew York, which was the only city, in fact, having that population at that time. The law of 1892 denotes correctly the officers of the Hew York fire department and fails to declare the Brooklyn city officers who govern and operate that department. Brooklyn has no board of fire commissioners, but one commissioner of fire. There are no deputy chiefs or captains or assistant captains in Brooklyn, and no board of estimate or apportionment. There is a board of estimate only. There exists .a foreman in Hew York and Brooklyn, but this is entirely insufficient to compel the execution of a law clearly applicable in all its parts to Hew York only.

The order should be affirmed, with costs and disbursements.


text:
    Ann Eliza Wilcox, Resp’t, v. Charles J. Quinby et al., Individually and as Executors of the Will of Egbert Quinby, Deceased, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

      1. Trustees—Repairs.
    Wliere there is no evidence as to the character of the repairs which are entered in the account of a testamentary trustee, it will be presumed that they are ordinary repairs, which are chargeable to the life tenant.
    2. Same—Interest.
    A trustee will not be charged with more interest that he actually receives, where he invests the money of the estate within a reasonable time.

      M. M. Silliman (William P. Fiero, of counsel), for app’lts; James Flynn (F. H. Benn, of counsel), for resp’t.
   Dykman, J.

This is no controversy as to facts. The plaintiff is entitled, under her father’s will to one-third of the net income of the residue of the estate after payment of legacies. The estate of the life tenant must bear the burden of the taxes and ordinary-repairs, and the payment of the interest upon the liens, if any exist. The defendant Quinby .is the trustee under the will, and his account confounds the income derived from the estate and the charges thereon with the principal or corpus of the estate; and the judgment appealed from does not seem to have made the proper distinction between the two accounts. The referee, in stating the account of the defendant as executor and trustee, has charged him with all moneys received, whether on account of the principal or interest, and has credited him with all moneys paid, without regard to the fact whether the payment was on account of the fund or income. In figuring the amount for which the trustee is liable to the plaintiff he should first be charged with the amounts received by him for rents, which, according to his account, after deducting the rent belonging to Mrs. Quinby, was $5,591.54.

From this must be deducted the amount paid by him during the same time for repairs and insurance, which is, $3,752.28; leaving a net income of $1,839.26. As there is no proof respecting their character, we must assume that they were ordinary repairs, which are chargeable to the life tenant. As the trustee was liable to be called upon for the net income at any time, and was under an obligation to pay it to the life tenant whenever it was demanded, and as the account was running and uncertain, he , should not be charged with interest thereon. From the above balance, $1,839,26, must be deducted the commissions of the trustee on the total amount' received, $5,591.54, which amounts to $164.78, making the amount due to life tenant $1,674.48, of which the plaintiff is entitled to one-third. As to the principal of the fund, the plaintiff is to be charged with the amount received by him from the sale of stock and the rent collected, $943.33. From this is to be deducted the amount adjudged to be due by the surrogate’s decree, $849.91; leaving $92.42 in his hands belonging to the trust fund. To this sum must he added the amount re-, ceived for stone and dirt sold, $279,70, with the damages received for diverting the water of Bronx river, $750, which makes $1;123.12. Out of this he paid $500 legacy, leaving $623.12 belonging to the trust funds. He is also chargeable as trustee with the amount he received upon the sale of the farm, which, after making the deduction for the land included in Sound View avenue, was $83,295.

Hpon this he is to be credited with $2;316.38 for the amounts paid for commissions on the sale of the farm, for the survey, and for legal services; leaving chargeable to him on this account $80,978.62. Add this to the above amount, $623.12, and we have the total amount of the trust fund, $81,601.74. As the money was invested within a reasonable time by the trustee, he should not be charged with more interest than he has received ; and as, at the time of the accounting, this interest was not due, he should not be charged with interest up to that time. The judgment should be modified in accordance with this opinion without costs to either party on this appeal. Order to be settled by Justice Dykman.

A motion was made to dismiss the appeal because the defendant had taken the benefit of the judgment and order, and was therefore concluded by the same. We do not find the fact to be as claimed by the respondent, and the motion is therefore denied, with ten dollars costs and disbursements, to be retained by the appellants from the funds in their hands.