text:
    Catharine Benjamin, App’lt, v. Luther Welch, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Will—Construction op devise.
    In an action of ejectment, the plaintiff sought to recover eight acres of land as devised under her father’s will. The will devised to testator’s wife the use for life of sixty acres of land lying on the east side of the road, and “ 34 acres in the N. ID. corner of 104 acres on which I now reside, said 34 acres bounded on the east by the road running through said 104 acres,” and after his wife’s death he devised to his daughter Sary the said sixty acres, and to his daughter Catharine, the plaintiff, the said twenty-four acres, and to his son Luther, the defendant, all the rest of his real estate. The 104 acres, called the home farm, was in a compact body, the twenty-four acres, with the eight acres in question, being separated from the rest by the roads, although the description of the roads in the will was not quite accurate. The homestead was situated on the eight acres, no other dwelling house being’ on the home farm, and in such home defendant lived. Meld, that the intention of the testator was to give plaintiff only twenty-four acres in the northeast corner of the home farm.
    Appeal from a judgment entered in Tioga county on May 26, 1893, upon a verdict directed by the court in favor of the defendant at the Tioga circuit; also from an order denying a motion on the minutes for a new trial.

      Clark & Tuthill, for app’lt; S. Jay Chart, for resp’t.
   Merwin, J.

This is an action of ejectment. The plaintiff seeks to recover the possession of about eight acres of land in the town of Bichford, Tioga county, as devisee under the last will and testament of her father, Thomas Welch, deceased. The defendant also claims under the same will. At the close of the trial, the defendant asked the court to direct a verdict in his favor, and the plaintiff asked the court to direct a verdict in her favor. The court denied the motion of the plaintiff, and granted the motion of the defendant and directed a verdict in his favor, dismissing the plaintiff’s complaint. The plaintiff did not ask to go to the jury. So that in effect it was agreed that the court should pass upon whatever disputed questions of fact there were in the case. Dillon v. Cockroft, 90 N. Y., 649.

The controversy in this case relates to the boundaries of the devise to the plaintiff.

The will of Thomas Welch is dated January 8, 1873. In it are the following provisions:

“After the payment of my debts and funeral expenses I give and bequeath to my wife Nancy Welch all my household furniture and all my personal property. I also give and devise to my said wife the use of sixty acres of land lying on the east side of the road, being the same that my son Luther now resides on, to be held during her life.

I also give to my said wife the use of twenty-four acres in the northeast corner of one hundred and four acres on which I now reside, to be held by her during her life, said 24 acres bounded on the east by the road, on the south and west by a road running through said 104 acres.

At the decease of my said wife I give and devise to my daughter Sary Helia Welch the said mentioned sixty acres of land lying on the east side of the road. And I direct that she pay to my daughter Catherine Benjamin, one hundred and twenty dollars in two equal annual payments after my decease, which said $120 I give to my said daughter Catherine Benjamin. I also give and devise to my said daughter Catherine, at the decease of my said wife, the said twenty-four acres.

I give and devise to my son Luther Welch all the rest, residue and remainder of my real estate, subject to the payment to be made by him of the sum of seven hundred dollars, to pay the same on a mortgage now on my land of about that amount, and if not so much as that remains due on the mortgage to pay the residue to my executors to be equally divided among my children.

I have heretofore given to my son Rufus, what land I intended for him to have of my estate.

I will and direct that my daughter Sary Mélia have a home and support (so lpng as she chooses to remain with her mother) on and from the property herein given to her mother and herself.

At the time of making the will, the testator had a wife, Nancy Welch and four children, Luther, Catharine, Sarah Amelia and Rufus. All are named in the will. He owned two farms, upon one of which he then lived. This is called in the will 104 acres, but as the evidence shows it contained about 111 acres. The other farm consisting of about sixty acres, was situated east or southeast of the homestead farm, and was on the opposite side of an highway called Harford Mills road. On this sixty acres was a dwelling-house in which his son Luther then lived. After the will was made and before his father’s death, Luther went to live with his father on the home farm. The father died sometime prior to 1885. The widow, Nancy Welch, died December 20, 1885.

The home farm was in a compact body, and north and west lines were substantially straight and nearly at right angles. The eastern boundary was the highway called the Harford road, and its direction was nearly north and south. The southern boundary was an highway called the Harford Mills road. This intersected the Harford road at nearly right angles at the southeast corner of the farm, and then tending somewhat southerly it proceeded to the southwest corner of the farm. From this road, about eighteen rods westerly from the southeast corner of the farm, there, proceeded across the farm a private road. This ran northwesterly some distance and then turned and ran about north to the north line of the farm. The amount of land enclosed within the two highways, the private road and the northern line of the farm, is about thirty-two acres. The plaintiff, after her mother’s death, entered into and is now in possession of twenty-four acres, the northern part of the thirty-two. The eight acres in controversy is the northern part, and on that is the homestead in which the testator lived. There is no other dwelling house on the home farm.

The plaintiff claims that the whole thirty-two acres belongs to her as being within the description contained in the will. The defendant claims that the plaintiff is only entitled to twenty-four acres in the northeast corner of the farm, and that she now has that and is not entitled to the balance.

If the plaintiff’s contention is right, she gets, not twenty-four acres in the northeast corner of the 104 acres, but about thirty-two acres on the east side of the farm. If the defendant’s contention is right, the twenty-four acres is not bounded on the south by a road running through the 104 acres, but by an imaginary line, parallel to the north line of the lot, and connecting the eastern highway with the private road far enough south from the north line to include twenty-four acres. It may be observed that the private road is not the entire southern boundary of the thirty-two acres, it being partially bounded by the Harford Mill road. In this respect, the language of the will, “ on the south and west by a road running through said 104 acres,” and on which the plaintiff relies, is not entirely accurate.

In regard to conveyances it is said by Chief Judge Huger in Brookman v. Kurzman, 94 N. Y., 276, as follows: “The long established rules with reference to the construction of descriptions contained in conveyances require courts to adopt such an interpretation thereof as shall give effect to the instrument according to the intention of the parties, if that is discoverable from legitimate sources of information. Jackson v. Clark, 7 Johns., 217; Buffalo N. Y. & Erie R. R. Co. v. Stigeler, 61 N. Y., 348. In giving effect to such intention it is also their duty to reject false or mistaken particulars, provided there be enough of the description remaining to enable the land intended to be conveyed to be located. Hathaway v. Power, 6 Hill., 454; Wendell v. People, 8 Wend., 189; Loomis v. Jackson, 19 Johns., 452.” So it is said in B. N. Y. & E. R. R. Co. v. Stigeler, 61 N. Y., 351, that when it appears, from the designation of quantity or other elements of description that the courses and distances from a fixed and determined line were intended to control monuments, then the latter should be disregarded; that the intention of the parties as evidenced by the deed is in all cases to determine the location of the premises.

In the present case the question is what was the intent of the testator, and that is to be derived from the will itself, in the light of such surrounding circumstances as may be properly considered. In such a case the court may reject words @,nd limitations, supply or transpose them, to get at the correct meaning. Phillips v. Davies, 92 N. Y., 204. Did the testator intend to limit the devise to twenty-four acres, or did he intend to devise all easterly of the private road including the homestead ?

The testator had two sons and two daughters. To one of the sons he had previously given what he intended him to have from his landed estate. The other son, the defendant, lived with his family in a dwelling-house on the sixty acre farm. One of the daughters lived with her parents, the other, the plaintiff, as it may be inferred, did not. The testator gives to his wife the use of the sixty acres for her life and then gave the same to his daughter Sarah who lived at home, thus providing her with a home. He also gave to his wife for her life the use of “ twenty-four acres in the northeast corner ” of the home farm, and after her death gave the same to the plaintiff. The balance of the home farm he gave to the defendant.

The latter apparently had need of a dwelling house and he was to have the larger part of the home farm. The provisions for the wife are not in lieu of dower. Is it probable that the testator intended that his son Luther should not have either of the houses on his two farms ? If the testator had intended the plaintiff to have the homestead, would, he not have so stated ? On the contrary he says in precise terms “ twenty-four acres. ” The amount is specific and is uppermost in the mind of the testator, as it is first named. It designates so much out of a larger quantity. It is not the case of a description of land followed "by a statement of the quantity, in regard to which it is said by Judge Spencer in Mann v. Pearson, 2 Johns., 41, that “ the enumeration of quantity, after a description of the subject, is superfluous and immaterial and in any view only matter of description.” It is rather the case of inconsistent descriptions, and in such a case that is to be adopted which will carry out the apparent intention. Harris v. Oakley, 2 N. Y. Supp., 305; 17 St. Rep., 198. The designation of twenty-four acres in the northeast corner is certain and definite, and the southerly line can be readily located within the limit of the highway and the private road. Kellogg v. Vickory, 1 Wend., 406.

In Partridge v. Russell, 18 St. Rep., 687, it is said whenever the location of a premises is doubtful, through uncertain, inconsistent or conflicting terms of description in the deed, the proper location of the premises becomes a question of fact to be determined by the jury on all the evidence. In the present case, whatever question of fact there is has been determined adversely to the plaintiff.

Having in view the surrounding circumstances, it should, I think, be held that the intention of the testator was to give to the plaintiff only twenty-four acres in the northeast corner within the limit of the highway on the east and the private road on the west. The will is capable of a construction to carry out this intent and. it should be so construed, as it has been done by the court below.

If follows that the judgment should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., concurs; Martin, J., not voting.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    The Elmira Savings Bank, Pl’ff, v. Charles Davis, Receiver, Def’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Banks—Preference in favor of savings banks.
    The words “ any bank,” used in § 130 of the banking law, chap. 689, Laws of 1892, applies to national banks as well as those organized under the state laws.
    2. Same.
    The preferences given deposits of savings banks in solvent national banks by § 130 of the banking law is not a preference in violation of the provisions of § 6242 of the United States Revised Statutes.
    Submission of a controversy under § 1279 of the Code of Civil Procedure.
    The question in difference is stated in the submission as follows:
    Whether the said The Elmira Savings Bank is entitled to recover judgment against the said Charles Davis, as receiver of The Elmira National Bank, for the sum of forty-two thousand seven hundred and four and sixty-seven hundredths ($42,704.67) dollars with interest thereon from May 23, 1893, as a preferred creditor of the said The Elmira National Bank, with costs, recoverable out of any funds which may come into his hands as such receiver applicable thereto, and whether the said Charles Davis, as receiver of said National Bank, shall, after the payment of its circulating notes, if it has any, has been provided for, apply all the property of the said National Bank in the first place to the payment in full of any sum or sums of money deposited in said National Bank by the said The Elmira Savings Bank, as provided under § 130 of the banking law of the state of New York, being chápter 689 of the Laws of 1892, or whether the said The Elmira Savings Bank shall be considered as a general creditor of the said The Elmira National Bank, and entitled only to itsyiro rata dividend of the assets of the said The Elmira National Bank.
    The following is the statement of the facts :
    1. That at the times hereinafter mentioned, the said The Elmira Savings Bank was and still is a domestic savings bank corporation, organized and incorporated under and by virtue of the laws of the state of New York, having its banking office in the city of Elmira, Chemung county, New York.
    2. That the said The Elmira National Bank is a bank organized under the sections of the Bevised Statutes of the United States which authorizes the organization of national banking associations, approved June 22,1874, and of subsequent acts in addition to and amendatory thereto, having its banking office in said city of Elmira, and that the said The Elmira National Bank became insolvent, closed its doors, and ceased to transact business upon the 23d day of May, 1893.
    3. That the said Charles Davis heretofore and on the 24th day of May, 1893, was duly appointed receiver of the said the Elmira National Bank, insolvent, by the comptroller of the currency of the United States, duly authorized thereto, and on the 2d day of June, lb93, the said Charles Davis duly qualified and entered upon the discharge of the duties of his trust as such receiver, and said receivership is still pending undischarged, and the said Davis is in the possession of all the property of the said insolvent bank, as such receiver.
    4. That upon the said 23d day of May, 1893, the said the Elmira Savings Bank had on deposit and to its credit in the said the Elmira National Bank, at the time when the same became insolvent, the sum of $42,704.67, the same having been deposited in said national bank in the usual course of business, and between the 1st day of November, 1890, and the 15th day of May, 1893, both inclusive, and the amount of said deposit did not and does not exceed the amount authorized to be so deposited by the said the Elmira Savings Bank in the said the Elmira National Bank by the provisions of chapter 689 of the Laws of 1893 of the state of New York.
    5. That the payment of all the circulating notes of the said the Elmira National Bank, insolvent, has been provided for.
    6. That the said Charles Davis, as such receiver as aforesaid, has in his possession property of said insolvent bank, consisting of money, exceeding the amount of $42,704.67 and interest thereon from May 23, 1893.
    7. That the said the Elmira Savings Bank has duly and upon June 7, 1893, demanded from the said Charles Davis, as such receiver as aforesaid, the payment of said sum of $42,704.67 and interest thereon from said May 23, 1893, and that the said deposit be recognized by said receiver as a preferred claim under § 130 of the state banking law of the state of New York, being chapter 689 of the Laws of 1892, and that said demand has been refused.
    8. That an actual controversy exists at the time of this submission between the said parties, upon the point hereby presented for decision.
    The plaintiff demanded judgment for the amount of its claim and that it be decreed a preferred claim to be paid in full out of the assets, and for such other and further relief as to the court may seem proper, with costs.
    The defendant demanded judgment that the plaintiff be decreed to be a general creditor and entitled only to its pro rata share of the assets with the other creditors.

      Herendeen & Mandeville, for pl’ff; William A. Beach, for def’t.
   Merwin, J.

By § 130 of the banking law (chap. 689 of the Laws of 1892) it is provided as follows:

'• § 130. Debts due savings banks from insolvent banks preferred. All the property of any bank or trust company which shall become insolvent, shall after providing for the payment of its circulating notes, if it has any, be applied by the trustees, assignees or receiver thereof in the first place, to the payment in full of any sum or sums of money deposited therewith by any savings bank, but not to an amount exceeding that authorized to be so deposited by the provisions of this chapter, and subject to any other preference provided for-in the charter of any such trust company.’’

By § 118 of the same act, it is provided that the trustees of every savings bank “ shall as soon *ts practicable invest the moneys deposited with them in the securities authorized by this article; but for the purpose of meeting current payments and expenses in excess of the receipts there may be kept an available fund not exceeding ten per centum of the whole amount of deposits with such corporation on hand or deposit in any bank in this state organized under any law of this state or of the United 'States, or with any trust company incorporated by any law of the state; but the sum so deposited in any one bank or trust company shall not exceed twenty-five per centum of the paid up capital and surplus of any such bank or company.”

Provisions to the same effect existed in chap. 409 of the Laws of 1882, which was in force up to the passage of the act of 1892.

It is claimed on the part of the plaintiff that § 130 applies to national banks as well as state banks, and was so intended by the legislature. This proposition does not seem to be disputed by the defendant. By § 118 authority was given to make deposits “in any bank in this state organized under any law of this state or of the United States.” Sec. 130 refers to the same subject matter, and the design naturally would be to afford protection to all deposits authorized to be made. The expression used is “ any bank.” This is broad enough to cover national banks as named in the 118th section. The evident object and purpose of the provision would not be obtained unless it did cover them. Taking both sections together, that is, I think, the fair construction.

Assuming then that the provision in question applies to national banks, is there any reason why it should not be operative ?

The argument of the defendant’s counsel is based mainly on the propositions that the state has no authority to exercise in this respect any control over national banks, and that the state legislation is inconsistent with the national legislation on the subject and therefore inoperative.

In Waite v. Dowley, 94 U. S., 527, the question was whether the statute of a state was void as to national banks which required the cashier of each national bank within the state and the cashiers of all other banks to transmit to the clerks of the several towns in the state in which any stockholder of such bank resided a list of the names of such stockholders, the number of shares held by each and the amount actually paid in on each share. It was held that the law was valid although congress had legislated upon the subject in that it had required of each national bank that a list of its stockholders shall be kept posted up in some place in their business office. In the opinion of the court at page 533, it is said: “We have more than once held in this court that the- national banks organized under the acts of congress are subject to state legislation, except where such legislation is in conflict with some act of congress, or when it tends to impair or destroy the utility of such banks as agents or instrumentalities of the United States, or interferes with the purposes of their creation. This doctrine was clearly and distinctly announced in National Bank v. Commonwealth, 9 Wall., 353, and that case has often been referred to since with approval in this court.”

In the case in 9 Wallace, it was held that a state law requiring the national banks to pay the tax which is rightfully levied on the shares of its stock is valid: It is there said, p. 362, “ that the agencies of the Federal government are duly exempted from state legislation, so far as that legislation may interfere with, or impair their efficiency in performing the function by which they are designed to serve that government. Any other rule would convert a principle founded alone in the necessity of securing to the government of the United States the means of exercising its legitimate powers, into an unauthorized and unjustifiable invasion of the rights of the states. * * * So of the banks. They are subject to the laws of the state, and are governed in their daily course of business far more by the laws of the state than of the nation. All their contracts are governed and construed by state laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on state law. It is only when the state law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional.” This doctrine is reiterated in W. U. Tel. Co. v. Mass, 125 U. S.. 551.

Applying these principles to the present case, it is difficult to see how the state act interferes with the utility of the national bank as an agent or instrumentality of the general government. No possessory right is given until after the bank by reason of its insolvency has ceased to be of any utility as an agent or instrumentality of the government, and after its circulating notes are provided for. The logic of the case in the 9th Wallace will uphold the law in question here unless it is in' conflict with some provision of the United States statutes on the subject.

Upon this line it is argued that the state act is in conflict with those provisions of the national act which provide for a pro rala distribution of the assets and prohibit preferences. These provisions are §§ 5286 and 5242 of the United States Revised Statutes and are as follows:

“ § 5236. From time to time, after full provision has been made for refunding to the United States any deficiency in redeeming the notes of such association, the comptroller shall make a ratable dividend of the money so paid over to.him by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further dividends on all claims previously proved or adjudicated'; and the remainder of the proceeds, if any, shall he paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held,
“ § 5242. All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use, of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one of the creditor to another, except in payment of its circulating notes, shall be utterly null and void, and no attachment injunction or execution shall be issued against such association or its property -before final judgment in any suit, action or proceeding in any state, county, or municipal court.”

In Scott v. Armstrong, 146 U. S., 499, the ordinary doctrine of equitable set-oE in case of insolvency was applied against the receiver of an insolvent national bank. It was there argued that the sections above quoted forbid it, because they required that after the redemption of the circulating notes had been provided for, the assets should be ratably distributed among the creditors and that no preferences given or suffered, in contemplation of or after committing the act of bankruptcy should stand, and it was insisted that the assets of the bank existing at the time of the insolvency, included all its property, without regard to set-offs. To this the court say:

“We do not regard this position as tenable. Undoubtedly, any disposition by a national bank, being insolvent or in contemplation of insolvency, of its dioses in action, securities or other assets, made to prevent their application to the payment of its circulating notes, or to prefer one creditor to another, is forbidden; but liens, equities or rights arising by express agreement, or implied from the nature of the dealings between the parties, or by operation of law, prior to insolvency and not in contemplation thereof, are not invalidated. The provisions of the act are not directed against all liens, securities, pledges or equities, whereby one creditor may obtain a greater payment than another, but against those given or arising after or in contemplation of insolvency. Where a set-off is otherwise valid, it is not perceived how its allowance can be considered a preference, and it is clear that it is only the balance, if any, after the set-off is deducted which can justly be held to form part of the assets of the insolvent. The requirement as to ratable dividends, is to make them from what belongs to the bank, and that which at the time of the insolvency belongs of right to the debtor does not belong to the bank."

In Casey, Receiver, v. La Societe de Credit Mobillier, 2 Woods, 77, it was held that the preference of one creditor by a national bank, mentioned in § 5242 of the Revised Statutes, is a preference given to the creditor to secure or pay a pre-existing debt; that when a national bank receives a loan on condition that the lender shall be secured therefor, and security is accordingly given by pledging a part of the assets of the bank, this is not a preference within the meaning of § 5242, although the bank is then in an embarrassed state; that the fact that the assets pledged were changed from time to time as they fell due and others substituted in their stead, according to the contract between the bank and the pledgee did not make the pledge of the substituted assets void; that the title of the receiver is the same as that of an assignee in bankruptcy and is subject to all equities.

In Clark v. Iselin, 21 Wall, 360, it was held that the giving by a debtor of a confession of judgment for a consideration of equal value passing at the time is not an act of bankruptcy though such confession be not entered of record, but kept in the creditors custody and its existence unknown to others. In the opinion it is said that the question whether a transfer of securities is a preference depends on whether it was a transfer of property for a present sufficient consideration, or was a transfer to satisfy or secure an antecedent debt or liability; that the fact that years before the entry of the judgment the debtor contemplated the possibility that a judgment might be obtained, and by the confession of judgment put it in the power of the creditor to obtain one without his knowledge or subsequent assent, was wholly impertinent to the inquiry whether the debtor intended an unlawful preference at the time of the entry of the judgment, and that the intention at that date was the material question. In Matter of Craft, 2 Benedict, 221, it is said by Judge Blatchford that the words “incontemplation of bankruptcy,” as used in the act of 1867, mean in contemplation of committing what was made by the act an act of bankruptcy, or of voluntarily applying to be decreed a bankrupt.

In the present case it must be presumed that the national bank when, from time to time, it received the deposits from the savings bank, knew of the law which authorized such deposit, and provided for the preference. The savings bank was not bound to deposit in that particular bank, nor was the latter bound to receive the deposit. But if the one made and the other received the deposit, it must be assumed that both parties then intended that the security provided for by the statute should at the proper time be operative. There was then in effect a contract that if the deposit or loan was made, the security should be given. This was a part of the transaction in each case of deposit. It was not a case of a security for prior indebtedness, but it was a case where on each occasion a consideration passed of equal value with the security or right given. In this view, and within the rulings in the cases above referred to, there is not "a preference in violation of the 'provisions of § 5242.

By virtue of the state act, and the conduct of the parties, the savings bank had at least an equitable lien which is effective within the principles laid down in Scott v. Armstrong, and is not antagonistic to the pro rata distribution provided for in § 5236. The receiver took subject to any valid liens or equities. The bank that he represents received the deposits subject to the condition imposed by the state statute, and whether it be said that a trust was impressed, or a lien imposed, the statute bound the bank and its assets when they passed to the receiver, and interfered with no rights of the government. The principles laid down in the Scott case are quite applicable, and justify the claim of plaintiff to a preference. The right of the plaintiff to a preference was preserved within the' principles laid down in that case, and was not, therefore, in conflict with the national law.

The foregoing considerations lead to the conclusion that the plaintiff is entitled to judgment against the defendant for the amount claimed, and that the same be decreed a preferred claim, to be paid in full out of the assets which have or may come into the hands of the said receiver, and may be paid by said receiver, or by him certified to the comptroller, to be paid as a preferred claim in due course of administration.

Judgment for the plaintiff, as stated in the opinion, with costs.

Hardin, P. J., ana Martin, J., concur.


text:
    Francis Bonneford, Resp’t, v. Emma H. De Russy, Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Appeal—Case.
    Where on appeal to the general term, there is nothing to show on the papers that the case was ever settled by the referee, or ordered to be filed, although a stipulation is attached made by the attorneys for the respective parties that certification be waived, and consent to policy given, and there is no certificate of the clerk or stipulation of the attorney under § 3301 of the Code, the case should be sent back for settlement and certification.
    Appeal from a judgment entered in Delaware county, June 13, 1892, upon the report of a referee in favor of plaintiff for $2,708.23, besides costs.

      Talcott & Meyer, for app’lt; J. I. Foote, for resp’t.
   Merwin, J.

The papers in this case include w'hat purports to be a case of exceptions. There is, however, nothing to show that the case and exceptions were ever settled by the referee as required by § 997 of the Code, or ordered to be filed as required by Rule •85. There is a stipulation over the names of the attorneys for the respective parties stating that “ certification of the above and foregoing case and exceptions is hereby waived, and it is consented that the same be filed.” This does not cure the defect The provision that the case should be settled by the judge or referee who tried the cause, is a wholesome one. Reese v. Boese, 92 N. Y., 632, and should be enforced. Dwight v. Elmira C. & N. R. R. Co., 29 St. Rep., 250; McNish v. Bowers, 30 Hun, 214. Nor is there any certificate of the clerk under § 1353 of the Code, nor any stipulation of the attorneys under § 3301 as amended in 1882 •and 1890. The case should be sent back for settlement and certification.

Case sent back to be properly settled and certified.

Hardin, P. J., and Martin, J., concur.


text:
    Lewis W. Terwillegar, Resp’t, v. The Ontario, Carbondale & Scranton Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Sale.
    Upon the trial of an action to recover the agreed price of railroad ties sold defendants, there was no dispute as to the value, and the defendant admitted receiving, accepting and using the ties, and it was found on sufficient evidence that plaintiff owned them and delivered as his own to defendant, and that defendant knew of such delivery. No agreement as to price was found. Held, that a judgment for the value of the ties was warranted.
    3. Same—Defense of payment to another—Statute of frauds.
    In such action, defendant’s defense that it had paid W. for the ties, W. having a right to the avails under a verbal agreement with plaintiff Was not material as such agreement, if made, was within the statute of frauds, etc., and therefore the referee’s refusal to pass upon the question whether such agreement was made, did not injure the defendant.
    Appeal from a judgment entered in Delaware county on the 25th of August, 1892, upon the report of a referee in favor of plaintiff for $624.91 damages besides costs.
    In the complaint it is alleged that in or about the months of February and March, 1890, the plaintiff sold and delivered 471 chestnut railroad ties at the agreed price of forty cents each, and 753 oak ties at the agreed price of fifty-five cents each; that the ties were taken and used by the defendant in the construction of its road; that they were counted and accepted by defendant on or about April 5, 1890, at which time the amount therefor $602.55 became due and payable and no part thereof has been paid.
    The defendant interposed a general denial, and also in an amended answer set up that at or about the time alleged in the complaint it 'bought the ties from one Marvin D. Wheeler, and fully paid him for the same and that the ties were the property of Wheeler and he had full authority and right to sell and receive the pay. It was also alleged that the plaintiff for a good and valuable consideration authorized Wheeler to sell the ties to the defendant and receive the pay to his own use and that Wheeler did thereafter sell the same to defendant and receive the pay.
    The referee found as matter of fact that previous to and on or about October 1, 1889, the plaintiff had cut aud was the owner of and in possession of the ties in question; that about October, 1889, the plaintiff had a conversation with one Edward Canfield, the chief engineer of the defendant, in which Canfield informed the plaintiff that the defendant would take such ties as were sound; that relying on this statement the plaintiff' thereupon delivered the said ties to the defendant upon the line of its road; that they were afterward inspected by E. L. denies, one of the defendant’s engineers, and returned to the defendant as the ties of the plaintiff, on April 1, 1890; that subsequently thereto the defendant took and used them in the construction of its road ; that the oak ties were worth fifty-five cents each, and the chestnut ties thirty-seven cents each ; that the defendant has not paid the plaintiff therefor.
    As matter of law the referee found:
    “ First There was much evidence given upon the trial of this action as to a verbal agreement claimed to have been made between the plaintiff and one M. D. Wheeler, under which the plaintiff authorized the said M. D. Wheeler to sell the said ties to the defendant and receive the avails thereof, and apply the same in payment for certain timber and ties cut by plaintiff on said Wheeler lands. Without passing upon this conflicting question of fact, I hold as-ma tier of law that if such agreement was made as testified to by the defendant’s witness, it was a contract void by the statute of frauds and constituted a mere license and was revocable at any time before its consummation, and that the acts of the plaintiff and the return of the ties as plaintiff’s to defendant by its engineer asset forth in the finding of facts herein, done subsequent to the making of the alleged agreement, was a repudiation and revocation thereof; that the acts of the plaintiff as so found was sufficient notice to the defendant of such revocation.
    “ Second. That the plaintiff is entitled to judgment against the-defendant for five hundred and eighty dollars and forty-two cents, with interest thereon from the first day of April, 1890, and the costs of this action.”
    It appeared at the trial that in 1889, there was an unsettled account between the plaintiff and Wheeler for timber cut by plaintiff on Wheeler’s lot. Among the requests of the defendant: for findings was the following:

      “ 26. That said M. D. Wheeler then liad a contract with defendant to furnish it ties to build its road, of which he informed plaintiff. That plaintiff then and there informed said Wheeler that they were large ties (Brie), and he wanted Brie prices, and requested and authorized said M. D. Wheeler to sell said ties to defendant if he could get Eric prices, less the difference in hauling, and then and there agreed if said Wheeler could sell said tics he could have them at such prices, and apply them on the balance due from said timber, and requested said Wheeler to dispose of such ties under such arrangement to the defendant, and take and apply the proceeds thereof. on said timber, and credit plaintiff therewith and account to him therefor.”
    To this request the referee replied: “Not found.”

      A. Taylor, for app’lt; Arthur More, for resp’t.
   Merwin, J.

In the complaint it is alleged that the ties were sold and delivered at an agreed price. No agreement as to price is found, but the value is found, and judgment for that is ordered. The appellant claims that under the complaint a judgment for the value is not warranted. In Taylor v. Pinckney, 3 St. Rep., 158; S. C., 12 Civ. Pro., 107, it was held that one may declare on a special contract, and failing to prove such, may recover on a quantum meruit. In Sussdorf v. Schmidt, 55 N. Y., 320, it was held that under a complaint to recover an alleged agreed compensation for services, a recovery upon proof of and for the value of the services is sustainable; that, at most, it is but a variance between the pleadings and the proof, which may be disregarded unless it appear that it misled the defendant. See also, Smith v. Lippincott„ 49 Barb., 398. In the present case the defendant’s rights were fully protected as, in view of the evidence of value, it was allowed to amend the answer, and the subject was fully considered in the evidence. The rule, therefore, laid down in Romeyn v. Sickles, 108 N. Y., 650; 13 St. Rep., 864, and invoked by the defendant, would not apply. In fact there was no dispute as to the value, and the defendant admitted receiving, accepting and using the ties. It was found on sufficient evidence that the plaintiff owned them, and delivered them as his own to the defendant, and that defendant knew of such delivery. It is quite clear that the judgment for the value was authorized by the pleadings and proof.

A more serious question is presented by the claim of the defendant that it was entitled to have the referee pass upon the question of the existence of a verbal agreement as referred to by the referee in his first finding of law. The response of the referee to the defendant’s request which apparently covered the subject was “not found.” This ordinarily would be deemed sufficient in form to indicate that the request was passed upon. Davis v. Leopold, 87 N. Y., 621. It is, however, argued that the statement in the first finding of law indicates that it was not, and that the rule is that in case of inconsistent findings of fact the defeated party is entitled to the benefit of those most favorable. Schwinger v. Raymond, 83 N. Y., 192, should apply. Assume this to he so, the question is whether a finding that in or about June, 1889, there was a verbal agreement between the plaintiff and Wheeler by which the plaintiff authorized Wheeler to self the said ties to the defendant and receive the avails thereof and apply the same in payment for certain timber and ties cut by plaintiff on Wheeler’s lands, would help the defendant in view of the other facts as found or that the evidence authorizes to be found.

At the time of such agreement there was nothing paid and no part of the property was delivered. The agreement to apply the proceeds on a prior debt was not a payment within the statute. Walrath v. Richie, 5 Lans., 362; Brabin v. Hyde, 32 N. Y., 519. Wheeler therefore had no valid interest in the property itself by reason of the claimed verbal agreement. He claims that he after-wards, in pursuance of this agreement, made a sale to the defendant. It was, however, verbal and nothing then paid or delivered. So that no valid contract of sale was made by Wheeler, assuming he did have authority from plaintiff. The only delivery was afterwards and by the plaintiff and it is found that his delivery was not in pursuance of any bargain that Wheeler had made. There is evidence that subsequent to the delivery by plaintiff the defendant paid Wheeler for the property. This is sought to be justified upon the theory that if the agreement was made between plaintiff and Wheeler as suggested, it was an authority to Wheeler to receive the proceeds which would operate to protect the defendant, although there was no valid contract of sale between' defendant and Wheeler.

In the negotiations between Wheeler and Mr. Draper, the purchasing agent of defendant, Wheeler claimed to own the ties. He was not dealt with as being the agent of plaintiff. The plaintiff delivered the ties under the direction of the engineer of defendant who however was not authorized to purchase. It was his duty to inspect, and the return which he made to the defendant of his counting and inspection was in the form of a bill or account in favor of plaintiff against defendant, in which was stated the quantity and kind of ties, the date and place of delivery, and the price and aggregate amount. Under this account, the engineer certified that the ties included in the account were delivered at the place stated, bad been inspected and measured by him and that the quantity and price were correctly stated. Draper, on receiving this return, erased the name of plaintiff and inserted the name of Wheeler, thereby changing the account from one in favor of plaintiff to one in favor of Wheeler.. After this, the defendant used the ties and paid Wheeler. No notice of the change in the account was given to plaintiff and no information of the intended payment to Wheeler.

The defendant had notice that the plaintiff delivered the ties and claimed to own them. Its agent had no right to change the account It was not bound to accept the ties as delivered by plaintiff, but if it did it could not repudiate the claim of plaintiff without notice to him and without any inquiry as to his rights. There is no evidence that defendant’s agent made any inquiry about plaintiff’s rights, and he does not testify that he relied on any supposed agency of Wheeler, or that he was not fully acquainted with plaintiff’s claims.

The verbal agreement if made, would not help the defendant unless there was a delivery in pursuance of it, and as this did not occur it was not material in the case. The referee in effect finds that the defendant had notice that the plaintiff repudiated any such agreement if one was made. The evidence authorizes this conclusion.

It follows that the defendant is not injured by any refusal of the referee to pass upon the question whether such an agreement was made.

There is no other question that calls for special consideration. The judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J„, and Martin, J., concur.


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    David P. Lester, Resp’t, v. The Delaware, Lackawanna & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 3, 1893.)

    Carriers—Conversion—Wrongful delivery.
    In an action against a railroad company for conversion of personal property, it appeared that plaintiff entered into a written agreement with M. whereby plaintiff was to furnish M. a furnace attachment at a certain price per set, M. to sell same and turn over a certain portion of the proceeds as collected, the title to the property to remain in plaintiff until paid for. While this agreement was in force plaintiff shipped to M. by defendant, a quantity of the goods, but before their arrival telegraphed defendant “ goods consigned to M. belong to me, deliver only on my written order.” Thereafter, M. produced the bill of lading or shipping bill, paid the freight, and received the goods from defendant. M. sold a portion of the goods so received and remitted to plaintiff, after the action was begun, his share of the proceeds. The agreement by its terms could be terminated at pleasure. Held, that it clearly appeared that the agreement was considered in force by plaintiff after defendants' delivery, and therefore he had no right to treat the delivery as a conversion.
    Appeal from a judgment entered in Oswego county on December 2,1892, in favor of the plaintiff for the sum of $105.75 besides costs. The case was tried before the court without a jury at the Oswego circuit in April, 1892.
    This action is brought for the conversion of a quantity of personal property. In the complaint it is alleged that the defendant is a common carrier, and that as such in December, 1889, it received into its possession a quantity of goods, consisting of about forty-one sets of “Norcross governors and fixtures,” the property of the plaintiff, to be shipped from some point within this state to Norwich, N. T., and consigned to “ Williams & O’Donnell; ” that the defendant transported the goods to Norwich, and while it there held them the plaintiff notified the defendant that he was the owner of the property and that the defendant must not deliver the same except upon plaintiff’s written order; that thereafter and on or about January 18, 1890, the defendant wrongfully and unlawfully delivered the goods to Williams & O’Donnell, and thereby converted the said property to its own use.
    In the answer it is admitted that the defendant is a common carrier and that as such in December, 1889, it received into its possession certain goods' to be delivered to “ Williams & O’Donnell,” and transported the same to Norwich, N. Y., and that a delivery of said goods was made to Williams & O’Donnell. The other allegations of the complaint are denied.

      William Kernan, for app’lt; D. P. Lester, for resp’t.
   Merwin, J.

On the 1st day of November, 1889, the plaintiff and one P. O’Donnell entered into a written agreement under seal as follows:

“ This agreement, made this 1st day of November, 1889, between D. P. Lester, of Oswego, N. Y, of the first part, and P. O’Donnell, of the same place, party of the second part, witnesseth: That the party of the second part hereby agrees to sell for the party of the first part, for such length of time as shall be mutually agreeable, a furnace attachment, known as ‘Norcross Furnace Governor ’ and fixtures, acting as the agent for party of the first part to the extent and in the manner herein stated, and in such places as party of the second part may desire, on the following conditions, viz.:
“ Party of the first part is to furnish party of the second part with said governors at $4.50 apiece, or set, and discs, dampers, bars, tubes, etc., at reasonable market value, the party of the second part paying expense of packing, carting, shipping, and the said property to remain the party’s of the first part until paid for. Party of the second part is to pay over to party of the first part, as fast as collected, the moneys received for the sale of such governors, etc., on the basis aforesaid, retaining the balance for his own use and for services in making such sales, and to become personally responsible to party of the first part for the collection of all goods sold by him, guaranteeing the payment thereof, and to render an account every thirty days to the party of the first part, showing amount sold, amount of goods on hand, and names and addresses of parties to whom sold, including persons to whom sold or delivered on approval. All sales to be for cash. The freight on all goods returned to Boston or elsewhere not sold is to be paid by party of the second part.
“D. P. Lester, [l. s.]
“P. O’Donnell, [l. s.] ”

H. D. Trask & Go. of Boston were the proprietors and manufacturers of the Norcross furnace governors. With them, the plaintiff, about the 1st November, 1889, made an arrangement by which they on November 11, 1889, shipped to O’Donnéll at Fort Plain, N. Y., fifty sets. These reached O’Donnell at Fort Plain about the middle of November and they were received by him under and in pursuance of the agreement between him and plaintiff. Of these O’Donnell sold twenty sets at Fort Plain and received the pay therefor. The balance was shipped by him to' Norwich about the 23d December, and this is the shipment referred to in the complaint. The consignors and the consignees in the shipping bill were “ O’Donnell & Williams. ” Williams was a man in the employ of O’Donnell.

The plaintiff lived at Oswego and a day or two before the 6th January, 1890, he had a talk with Mr. Taylor, the freight agent of the defendant at that place, about the goods in question, and Taylor declined to take any responsibility in the matter. Thereupon on the 6th January the plaintiff sent to the freight agent of the defendant at Norwich a telegram as follows: “ (roods consigned to Williams & O’Donnell belong to me. Deliver only upon my written order. D. P. Lester.”

This was received at Norwich the same day. Upon its receipt Mr. Boyce, the agent at Norwich, sent a telegram to Mr. Taylor, freight agent at Oswego, in substance directing him to inform Lester that they could not hold the goods if demanded by Williams & O’Donnell on the bill of lading. This notice or telegram did not, according to the evidence of the plaintiff, reach him till the evening of the 9th January. On the 10th January the plaintiff mailed a letter to Mr. Boyce stating that1 he was the owner of the goods and desired them to be reshipped to Oswego and that he would advance the freight if desired. He also offered to furnish evidence of his right to have possession. This letter reached Mr. Boyce on the-11th January.

In the meantime, and on the 7th or 8th January, O’Donnell & Williams called at the freight office for the goods and were told that they would not be delivered unless they produced the bill of lading or shipping bill. They were also told by the freight agent that he had received from D. P. Lester,' of Oswego, a telegram to hold the goods, and they replied that they had had some difficulty with him but they would pay for the goods or the matter would be all straightened out. Afterwards, and on the 8th January, O’Donnell & Williams produced the bill of lading or shipping bill, delivered it to the defendant’s agent, paid the freight, and the agent thereupon delivered to them the goods. This was before the letter of plaintiff of 10th January was received. O’Donnell, or O’Donnell & Williams, upon receiving the goods went to selling at Norwich and sold and delivered there twelve sets and the balance O’Donnell took to Syracuse and sold them there later on in the winter or spring. This action was commenced on January 22, 1890. On the 18th February, 1890, O’Donnell paid the plaintiff $144 in payment for the thirty-two sets sold by O’Donnell at Fort Plain and Norwich. This sum is arrived at by taking the price stated in the contract. That left eighteen sets unaccounted for. The recovery here is for the value of those at five dollars a set, with interest from January 10,1890.

In Western Transportation Co. v. Barber, 56 N. Y., 552, it is said by Judge Grrover that “ a bailor can confer on his bailee no better title than he has himself, except in cases of negotiating bills of lading and like cases. If the owner demands the property of the bailee and he refuses to deliver it to him, he is at once liable to him in an action for its conversion.” A similar view is taken by other authorities. Angelí on Carriers, § 335 ; Hutchinson on Carriers, § 407; Story on Bailments, § 450; Wilson v. Anderton, 1 Barn. & Adolph, 450; Rogers v. Weir, 34 N. Y., 471. In some of the authorities it is said that the remedy of the bailee for protection against different claimants is through a bill of interpleader.

Assuming then that if the plaintiff was the owner and entitled to the possession of the goods it was the duty of the defendant to deliver them to him though consigned to a different party, the question then is, has the plaintiff shown himself to have been the owner and entitled to the possession at the time he gave the notice on 6th January ? There is evidence tending to show that the plaintiff was the owner, but was he entitled to the possession ? The goods were received by O’Donnell under the agreement of November 1, 1889. He then became the possessor for the purposes of the agreement and the possession was necessary in order to carry out the evident purpose of the agreement. This agreement, for aught that appears, was in full force on the 6th January, 1890, when plaintiff sent the telegram to defendant’s agent. O’Donnell, who was a witness for plaintiff, testifies that it was then and afterwards in force and this the plaintiff in his evidence does not deny. O’Donnell immediately after receiving the goods from defendant went on and in his usual way sold and delivered twelve sets, and these the plaintiff on the 18th February received the pay for from O’Dopnell at the price named in the agreement although the value in fact was more. This clearly indicates that the contract was considered to be in force after the defendant’s delivery. That being so, the plaintiff had, I think, no right to treat the delivery by, the defendant as a conversion. The plaintiff had a right to terminate at pleasure the agreement but he had not done so.

The defendant is not chargeable with any notice to be derived from statements made by the plaintiff to defendant’s freight agent at Oswego before the plaintiff sent the telegram on the sixth of January. The agent at Oswego had nothing to do with the goods at Norwich. That matter was not within the scope of his agency or employment.

The plaintiff in his telegram did not demand possession, and the letter of plaintiff was not received until after the delivery to O’Donnell.

We think that the plaintiff failed to show a conversion by the defendant, and, therefore, the judgment should be reversed.

The judgment reversed and new trial ordered, costs to abide the event.

Hardin, P. J., and Martin, J., concur.


author: McCarthy, J.

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    Henry C. L. Peetsch, App’lt, v. William H. Quinn, Resp’ts.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    Appeal—Entry op order op affirmance after death of party.
    A decision of affirmance of a judgment was filed on the same day that the defendant died, and the order was there entered in the names of the original parties. Eeld, that in the absence of positive proof as to the exact time of filing the decision, the presumption would be that it was filed during the lifetime of defendant, and hence the order was proper.
    (Corbett v. Twenty-third St. R. R. Co., 114 N. Y., 579; 24 St. Rep., 538, distinguished.)
    Appeal from order denying motion to vacate an order of affirmance.

      Johnson & Johnson, for app’lts; Michael H. Curran, for resp’t.
   McCarthy, J.

This is an appeal from an order denying a motion to vacate an order of affirmance in the action on the ground that the same was entered in the names of the original parties to the action although the defendant had died five days before the entry of such order.

The decision of the general term was handed down and filed on November 16, 1891, and the defendant died the same day about ten A. M.

According to the papers used on this motion, no time is stated when the decision was filed.

The order of affirmance was entered November 20, 1891.

In the absence of positive proof as to exact time of filing the decision of general term, the presumption is, it was filed during the lifetime of the defendant.

The order entered on November 20, 1891, was therefore proper and in accordance with § 763’ of the Code of Civil Procedure. This is supported by Long v. Stafford, 103 N. Y., 281; 3 St Rep., 87.

The case cited by appellants, Corbett v. Tweuty-third Street R. R. Co., 114 N. Y., 579 ; 24 St. Rep., 538, does not apply.

In that case a non-suit has been granted and an appeal taken and the general term reversed the order and granted a new trial.

Follett, Ch. J., in that case says: “ Neither a verdict nor a report has been rendered in this action. The word 1 decision ’ as used in this section, refers to a decision made by a court upon a trial of issues without a jury. Code of Civil Procedure, § 1343, subd. 5.

“ This action was not tried by the court without a jury, and the non-suit is not a decision within the meaning of § 764.

“ The order of the general term reversing the judgment entered on the non-suit was ¿ot made upon the hearing or trial of the issues, and is not a decision within the meaning of the section last cited.

In the case at bar, it was an affirmance made upon the hearing and trial of the issues.

Order is therefore affirmed, with costs.

Van Wyck, J., concurs.


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    Charles L. Strong, Resp’t, v. The Prentice Brown Stone Co., App’lt.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    Brokers—Commissions.
    Plaintiff brought about a contract for the sale of stone by defendant, for which he was to receive a commission based upon the difference between the cost at the quarry and the contract price. The first delivery of stone under the contract was not of the proper grade or quality as called for by the contract, and the purchaser declined to accept it or proceed further. Held, that plaintiff was not affected by the failure to perform the contract; that liis duty liad been performed when he brought the parties together and the contract was made.
    Appeal from judgment in favor of plaintiff.

      Warren Higley, for resp’t; Niles & Johnson, for app’lt.
   McCarthy, J.

This is an appeal from a judgment in favor of the plaintiff, and is an action to recover commissions for the sale of certain stone to one Hickox under a contract marked Exhibit J.

The plaintiff brought about this contract, and was to receive commission for same. See Exhibit I.

The commissions to be paid were to be the difference between fifty cents costs per cubic foot at the quarry and any higher price the plaintiff should secure for the defendant.

It being understood that the purchaser should also agree to pay the freight.

The cost of the freight as shown was 12-|- cents per foot. The contract secured by the plaintiff for the defendant fixed the price at 70 cents per foot which, after deducting the 62i- cents, left the commissions to which the plaintiff was entitled at 7-g- cents per cubic foot.

It is in evidence that the quantity to be used under contract was 9042 feet, which at 7j- cents amounts to $678.37.

After the making of the contract the defendant for the purpose of carrying out the same, sent a quantity of stone to Hickox the purchaser, who declined to accept it on the ground it was not of the proper grade and quality as called for in the contract, and thereupon refused to proceed any further.

It appears by the evidence that the defendant was in fault and did not in the first shipment send to the purchaser, Hickox, the grade and quality of stone called for.

This did not affect the plaintiff, his duty had been performed when he brought the minds of the parties together and the contract was made.

He had produced a purchaser who was ready, willing and able to enter into a contract upon the defendant’s terms. 61 N.Y., 410 ; 83 id., 378, 381 and 382.

The cases approving this are so numerous that it is unnecessary to cite them.

We think the charge of the justice under the evidence in the case was fair and proper, and find no error.

Judgment should, therefore, be affirmed, with costs.

Van Wyck, J., concurs.


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    Court of Appeals.
    Filed November 28, 1893.
    Wm. H. Warner, Assignee, etc., App’lt, v. Clarence H. Lake, Sheriff, etc., Resp’t.

      Moses Shire, for app’lt; Adelbert Moot, for resp’t.
   Judgment affirmed, and judgment absolute ordered for defendant, with costs. All concur.

Affirming 46 St. Rep. 964.


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    Johanna Moskovitz et al., Adm’rs, etc., Resp’ts, v. Chas. Lighte et al., App’lts.

      Edgar J. Nathan, for resp’ts; J. Aspinwall Hodge, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 52 St. Rep., 216.


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    Francis Higgins, Rec’r, etc., Resp’t, v. Neil O’Donnell, Impl’d, App’lts.

      Durnin & Hendrick, for resp’t; E. L. Collier, for app’lts.
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 52 St. Rep., 226.


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    Cincinnati Nat. Bank, App’lt, v. Myron H. Tilden, Jr., Thos. Brown, Impl’d, etc., Resp’t. Thos. Brown, Adrar., etc., Resp’t, v. Myron H. Tilden, Jr., Cincinnati Nat. Bank, Impl’d, etc., App’lt.

      E. M. Ashley, for app’lt; Joseph W. Taylor, for resp’t.
   Orders affirmed, with costs. All concur.

Affirming 50 St. Rep., 366.


text:
    Henry H. Skinner, Admr., etc., Resp’t, v. Prospect Park & C. I. R. R. Co., App’lt.

      Chas. J. Patterson, for resp’t; Samuel D. Morris, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 51 St. Rep., 554.


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    The Same v. The Same.
   Same as above.

Affirming 51 St. Rep., 554.


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    Agnes Zoliewski, Admrx., etc., Resp’t, v. N. Y. C. & H. R. R. R. Co., App’lt.
    Wm. Armstrong and Edward T. Durand, for resp’t; Charles E. Pooley, for app’lt.
   Judgment affirmed, with costs, and ten per cent, damages for delay under section 3251 of the Code. All concur.

Affirming 51 St. Rep., 54.


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    Jennie L. Meek, Admrx., etc., Resp’t, v. N. Y. C. & H. R. R. R. Co., App’lt.

      J. Newton Fiero, for resp’t; Hamilton Harris, for app’lt.
   Judgment affirmed, with costs. All concur.


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    Annie J. Parshall, Admrx., etc., Resp’t, v. N. Y., L. E. & W. R. R. Co., App’lt.

      W. F. O’Neil, for resp’t; Lewis E. Carr, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 50 St. Rep., 502.


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    Wm. H. Scott, Exr., etc., Resp’t, v. Metropolitan El. R. Co. et al., App’lts.

      L. H. Arnold, Jr., for resp’t; Arthur O. Townsend, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 50 St. Rep., 214.


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    Mortimer Mansfield, Resp’t, v. Wilhelmina Raab et al., Exrs., App’lts.

      Chas. DeKay Townsend, for resp’t; L. Laflin Kellogg, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 50 St. Rep., 510.


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    Wm. B. Davenport, Pub. Admr., etc., v. Nickels Davids, App’lt.

      George G. Reynolds, for resp’t; Thomas S. Moore, for app’lt.
   Judgment affirmed, with costs. All concur.


text:
    Chauncey St. John, App’lt, v. Howard W. Coates et al., Exrs., etc. Resp’ts.

      Louis F. Post, for app’lt; John H. Post, for resp’ts.
   Judgment affirmed on opinion below, with costs.

Affirming 45 St. Rep., 481.


text:
    Filed December 5, 1893.
    Margaret Egan, Resp’t, v. City of Rochester, App’lt.
    No one appeared for resp’t; Louis Marshall, for app’lt.
   Appeal dismissed on argument, with costs.

See 52 St. Rep., 285.


text:
    Jonathan D. Condict, Resp’t, v. Jane H. Cowdrey, App’lt.
   Motion for reargument denied, $10 costs

No papers.

See 46 St. Rep., 896.


text:
    In re Settlement Account of Emily A. Smith, Trustee, etc.
   Motion to amend remittitur granted and remittitur ordered to be recalled and amended so as to allow the executor and the guardian ad litem, respondent, separate bills of costs to be paid by appellant personally.

No papers.

See 52 St. Rep.; 772; 54 St. Rep., 930.


text:
    Fred'k J. Lancaster, Resp’t, v. Amsterdam Improvement Co., App’lt.
   Motion to advance granted.

No papers.

See 55 St. Rep., 69.


text:
    Jas. W. Holloway, App’lt, v. Chas. F. Southmayd et al., Resp’ts.
   No papers.

See 54 St. Rep. 676.


text:
    The Same v. Delano.
   Motion for re-argument denied, $10 costs.

See 54 St. Rep., 686, 687.


text:
    Geo. A. Stonebridge, Jr., Recr., v. Geo. T. Perkins et al.

   Motion to put on calendar granted.

No papers.

See 50 St. Rep., 221.


text:
    Jennie Mitchell, Resp’t, v. Broadway & Seventh Ave. R. R. Co., App’lt.
   Motion to dismiss denied, $10 costs.

No papers.

See 51 St. Rep., 116.


text:
    Julius Robertson, Resp’t, v. National S. S. Co. (Limited), App’lt.
   Motion for re-argument denied, $10 costs.

No papers.

See 54 St. Rep., 689.


text:
    Jens Kaare, Resp’t, v. Troy Steel & Iron Co., App’lt.
   Motion for re-argument denied, without costs.

No papers.

See 54 St. Rep., 653.


text:
    People ex rel. Hamilton Park Co., App’lt, v. Edward Wemple, Compt’r, etc., Resp’t.
   Motion for re-argument denied, $10 costs.

No papers.

See 54 St. Rep., 623.


text:
    Filed December 12, 1893.
    Wm. E. Sinn, App’lt, v. Cora S. Sinn, Resp’t.

      Thos H. Troy, for app’lt; Robert H. Griffin, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 57 St. Rep., 855.


text:
    Leonora S. Gray, Resp’t, v. Wm. T. Baker et al., App’lts.

      David J. Newland, for resp’t; Henry F. and James Coupe, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 52 St. Rep., 604.


text:
    In re Application of Bridget Collins, for appointment Comrs., etc.

      Edgar T. Brackett, for appt; Wm. H. McCall, for resp’t.
   Order affirmed, with costs, on opinion below. All concur.


text:
    Dirck Dode, Resp’t, v. Manhattan R. Co. et al.

      Henry A. Forster, for resp’t; Frederick Allis, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 54 St. Rep., 286.


text:
    Horace W. Garland et al., Resp’ts, v. Cortlandt S. Van Rensselaer, Impld., etc., App’lt.

      Chas. P. & J. A. B. Cowles, for resp’ts; Isaac N. Miller, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 54 St. Rep., 74.


text:
    The Breckenridge Co. (Limited), Resp’t, v. Jas. D. Perkins et al., App’lts.

      Wm. B. Bristow, for resp’t; Chas. Edward Souther, for app’lts.
   Order affirmed, with costs. All concur.


text:
    Filed December 19, 1893.
    Fredk. C. Friess, by Guard., Resp’t, v. N. Y. C. & H. R. R. R. Co., App’lt.

      D. F. McLennan, for resp’t; Frank Hiscock, for app’it.
   Judgment affirmed, with costs. All concur, except Finch, J., not sitting.

Affirming 51 St. Rep., 391.


text:
    Edithe W. Austin, Admrx., etc., Resp’t, v. Long Island R. R. Co., App’lt.

      Louis Claude Whiton, for resp’t; Wm. J. Kelly, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 52 St. Rep., 746.


text:
    Edward H. W. Mason, Admr., etc., v. Atlantic Ave. R. R. Co., App’lt.

      James D. Crane, for resp’t; Frank H. Platt, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 53 St. Rep., 454.


text:
    In re Anna Seebeck.
   Motion to amend remittitur granted by allowing appellant costs in this court and in the General Term, to be paid out of the estate.

No papers.

See 55 St. Rep., 377; rev’g 50 St. Rep., 936.


text:
    Katherine Palmer, Resp’t, v. Geo Jones et al., App’lts.
   Motion to dismiss appeal granted, with costs, and $10 costs of motion Ho papers.

See 54 St. Rep., 935.


text:
    Chas. P. Bowditch, Trustee, etc., v. Florence Ayrault et al.
   Motion for re-argument denied, without costs.

Ho papers.

See 52 St. Rep., 330.


text:
    Filed December 22, 1893.
    In re Application of Charles James Phalen, for revocation, etc.
    -Joseph JET. Ohoate, for app’lt; John J. Macklin, for resp’t.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 47 St. Rep., 44.


text:
    Peter H. McNulty, Resp’t, v. Chas. Urban et al., Exrs., etc., App’lts.

      Wm. J. Gaynor, for resp’t; Howard A. Sperry, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 50 St. Rep., 565.


text:
    Sam’l Johnson, Exr., etc., Resp’t, v. Simon Feist, App’
    Wm. J. Gaynor, for resp’t; Chas. J. Patterson, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 47 St. Rep., 930.


text:
    Herbert Pattison, by Guardn., etc., Resp’t, v. Niagara Machine Co., App’lt.

      Geo. W. Cothran, for resp’t; Frank E. Sickels, for app’lt.
   Judgment affirmed, with costs. All concur.


text:
    Mary L. Lefurgy, Admrx., etc., v. Jas. Stewart et al., App’lts.

      John Brooks Leavitt, for resp’t; Joseph F. Daly, for app’lts.
   Judgment affirmed, with costs, and five per cent, damages for delay. All concur.

Affirming 53 St. Rep., 931.


text:
    Jacob Crouse et al., App’lts, v. Dorothea Edgarita Wilson, by Guardian, et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Will—Action tor construction.
    Uncertainty as to whether certain parties are within a certain class to whom a bequest was made does not constitute any ground for invoking the equity jurisdiction of the supreme court; upon distribution of the estate in the surrogate’s court, that court has full power to determine the question.
    Appeal from an interlocutory judgment entered in Ononuaga county on the 26th July, 1898, upon the decision of the court at special term sustaining the demurrers of the defendants, Wilson and Kosterli tz, to the complaint.
    In the complaint it is alleged that on the 21st November, 1892, Daniel E. Grouse, of Syracuse, N. Y., died, leaving a will and testament of both real and personal property; that he left him surviving no wife or child, and that the plaintiffs are heirs-at-law and next of kin of the testator; that said will was duly admitted to probate by the surrogate of Onondaga county, on February 1, 1893, and letters testamentary duly issued to the defendants, Graves and Nottingham, named in said will as executors, and they have duly qualified and are now such executors; that said testator owed no debts of any considerable amount; that he owned real estate worth at least the sum of $250,000, and he owned personal property which passed under the will into the hands of the executors of the value of at least $8,500,000; that by the provisions in the will he gave and devised to different persons named therein certain specific legacies, amounting in the aggregate to $530,000; that then in the will there came the following provisions the construction of which is sought in the action:
    “ 13. All the rest, residue and remainder of my estate, both real, personal and mixed, and wheresoever situate, I hereby direct my executors hereinafter named, to pay over and distribute among my heirs and next of kin, in the same proportion that is provided by the laws of the state of New York in cases of intestates.

      “ 14. I hereby authorize and empower my executors hereinafter named, to sell, convey and lease until sold, all real estate owned by me at the time of my decease, for such price and upon such terms as they shall see fit.
    “ 15. I hereby nominate, constitute and appoint said Maurice A. Graves and Jacob A. Nottingham to be the executors of this my last will and testament.
    It is further alleged that, by the terms of the will and as provided therein the remainder of the personal estate, after the payment of the specific legacies passed to the said executors, and they now hold the same as trustees and in trust for the plaintiffs, the heirs and next of kin of the deceased, and that each of the plaintiffs is an heir-at-law and next of kin of the deceased, and the persons referred to in the 13th clause and each entitled to a share in the residue of the personal-estate; that the said Daniel E. Crouse was never married and no child was ever born to him in lawful wedlock ; that the defendant Kosterlitz claims that she was the wife of said Crouse and is now his widow, and as such has an interest in the personal estate; that the defendant Wilson is a minor, and on her behalf it is claimed that she is a child of the marriage of said Crouse with said Kosterlitz, and that she is the only and the sole heir of said deceased and entitled under the residuary clause to the whole of the remainder of the estate, and that the plaintiffs have no right therein, and that the executors hold the same in trust for her and the said Kosterlitz. It is alleged that by reason of the claims of Kosterlitz and Wilson it is impossible to determine except by a judgment of'’this court who are the beneficiaries included in the term “ heirs and next of kin ;” that said Kosterlitz and Wilson did not intervene and become parties to the special proceedings before the surrogate and presented no claim to said personal estate, and still they now claim as widow and next of kin to be entitled to the whole; that in order that the trust devolving on the executors may be properly executed it is necessary to settle and determine whether the plaintiffs are the heirs and next of kin, or the defendants Kosterlitz and Wilson.
    Judgment is demanded “for the construction of said 13th. clause of said will, and adjudging who are entitled to take the residue of said estate' under the 13th clause in said will as the surviving heir or heirs and next of kin of the said deceased, Daniel E. Crouse; and that it be also adjudged and determined that the said plaintiffs are the legal heirs and next of kin of the said Daniel E. Crouse, and' as such are entitled to take each respectively his proper proportion and share of the residuum of said personal estate under said thirteenth clause of said will.
    “ And that it be further adjudged and determined that said Eula Henrietta Kosterlitz was not the wife and is not now the-widow of the said Daniel E. Crouse, and that she is not entitled to take any part of said personal estate ; and that the defendant called Dorothea Edgarita Wilson is not the child of the said Daniel E. Crouse and the said Eula Henrietta Kosterlitz, born in lawful wedlock, and is not an heir of or next of kin to said Daniel E. Crouse, and that she has no right, title or interest in said personal estate, or any part thereof.
    “ And for such other and further relief as to the court may seem just.”
    The defendants Kosterlitz and Wilson separately demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

      Kennedy, Tracy, Mills <£• Ayling for app’lt; Steele, De Friese & Dickson, for resp’t Kosterlitz; W. S. Andrews, for resp’t Wilson.
   Merwin, J.

The main argument of the learned counsel for the plaintiffs seems to be based on the theory that the action is for the construction of a will. The character of the will does not sustain this theory. There is no doubt about the intention of the testator. The residue is given to his “heirs and next of ldn, in the same proportion that is provided for by the laws of the state of New York in cases of intestates.” No construction is needed to carry out this provision. The statute regulates the subject. It is not claimed that the action is for an accounting. The complaint is not on that basis. From the record before us it appears that the action was commenced February 2, 1893, which was the day after the proof of the will. In some cases it has been held that a court of equity may in its discretion entertain an action against executors for an accounting. The plaintiffs are not in a position to get the benefit of such cases. There is no allegation that the estate is in danger or that the executors desire any instructions from the court.

It is very evident that the object of the motion is to obtain beforehand a determination that the defendants who claim to be the widow and heir of the testator are not such widow and heir. Will an action in equity lie for such purpose ? No precedent is cited that sustains the action. On the contrary there are many cases looking the other way.

In Garlock v. Vandevort, 128 N. Y., 374 ; 40 St. Rep., 418, it was said that an uncertainty as to whether a certain party was within a class to whom a bequest was made, did not constitute any ground for invoking the equity jurisdiction of the supreme court. In Hobart College v. Fitzhugh, 27 N. Y., 130, a legacy was payable at a certain time on the performance of certain conditions, and it was said that an action would not lie in advance of the time of payment, to determine whether the conditions had been properly performed. In 1 Perry on Trusts, § 17, it is said that a bill in equity cannot be maintained wholly to establish the fact of a trust, no other relief being sought, even where its existence is denied. Upon the distribution of the estate in the surrogate’s court, that court has full power to determine to whom the legacies or distributive shares are payable. Riggs v. Cragg, 89 N. Y., 490; In the Matter of Verplanck, 91 id., 439.

The questions involved in this case and the authorities on the subject are fully and very satisfactorily discussed in the opinion of Mr. Justice Vann delivered at special term and it is not necessary to refer to them further. We see no good reason for disturbing his conclusion in the matter. The judgment should be affirmed.

J udgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    Catharine D. Sullivan, Resp’t, v. The Industrial Benefit Association, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Benefit societies—Judgment.
    The by-laws of a benefit association provided tbat in case of contest of a claim and judgment in favor of the claimant, the claim should be placed in and paid pro rata with the claim of the pool then forming. At the close of the evidence in an action at law on such a claim, the court stated that in view of the above provision it would allow the action to stand as an equity action, and take the advice of the jury on a certain question of fact, and asked the counsel for defendant if there was any other question of fact he wished submitted to the jury, and the reply in substance was that there was not. The jury found in favor of plaintiff, and the court then made its decision, and judgment according to the above provision was entered. Held, that although the relief granted was not the relief asked, the court had power to grant it.
    2. Same—Acceptance of application.
    In an action upon a policy of life insurance there was evidence tending to show that when the application for insurance was received by the company it was marked “approved ” by the proper officer, but afterwards the approval was erased and it was marked rejected. The premium paid was received, and no offer to return it was made until after the death of the insured, nor was the return of the policy demanded or the beneficiary informed that the application was rejected before the death of the insured. Held, that the finding of the jury that the application was not rejected should be sustained.
    3. Same—Payment of pkemiums.
    When the beneficiary in such policy receives no notice as required by the by-laws, that a premium is due, but at the proper time calls on the agent of the company to whom she had made the last payment, and is told by him that he has no receipt for her from the company and can not take her money, she is not required to send the premium to the home office on pain of forfeiture.
    Appeal from a judgment entered in Broome county on March 1, 1893, and from an order denying a motion on the minutes for a new trial. The ease was tried at the Broome circuit before the court and a jury.

      Walter S. MacGregor, for app’lt; Carver, Deyo & Jenkins, for resp’t.
   Merwin, J.

This action is based upon a policy or certificate of membership, issued by the defendant and bearing date August 28, 1891, by which the defendant, “ for and in consideration of the representations and warranties made to it in the application for this certificate and the sum of four dollars and seventy cents to it in hand paid, and the agreement to pay a like sum every two months during the balance of the first year, and then four dollars and seventy cents every two months thereafter,” constituted Mary O’Brien a member of class B. of the association, with the provision that the beneficiary therein named should receive two shares of the mortuary fund collected for the pool so called in which the proof of death of the member is approved by the association the maximum value of each share being $250. The certificate also provided that all premiums paid on account of certificates terminated by death and approved in any pool in this class should be returned to the claimants thereof out of and before the distribution of the mortuary fund. The plaintiff, Catharine D. Sullivan, the daughter of the member, was named as the beneficiary, and the certificate was stated to be issued on the conditions and stipulations stated in the application and upon the conditions and agreements contained in the by-laws of the association.

Mrs. O’Brien died on the 12th November, 1891. In the bylaws there is a provision that “ in case the payment of any claim is contested by the association and a judgment is rendered in favor of the claimant, the said claim shall be placed in and paid pro raía with the claims of the pool then forming.” By the judgment in this case it is “ ordered and adjudged that the defendant shall include the plaintiff’s claim in the pool forming at the time of the service upon the attorney for the defendant of a copy of this judgment and notice of its entry, and from such pool the defendant is directed to pay to the plaintiff the proportionate amount thereof that she should be entitled to under the certificate which she holds and the by-laws of the company.

No misstatement or fraud is charged, and there is no dispute as to the amount or form of recovery in case the plaintiff is here entitled to recover at all. The defendant claims (1) that th'e court erred in refusing to grant a non-suit on the ground that under the by-laws of the defendant the plaintiff was not entitled to maintain an action at law to recover money damages on the certificate; (2) that the court erred in holding that the policy ever had a valid inception ; (3) that the court erred in refusing to grant a non-suit on the ground that no application was made by Mary O’Brien for the issuance of the certificate; (4) that the court erred in holding that the policy was not lapsed for failure to pay the premium due November 1, 1891.

1. The complaint sets out the making of the certificate or policy, stating its effect, and a copy is attached. It is alleged that all the conditions of the contract to be performed by the plaintiff or Mrs. O’Brien have been performed or their performance waived by defendant. The death is alleged and notification thereof in due time to the defendant and that defendant waived proofs of death. It was then alleged that at the time of Mrs. O’Brien’s death and since that time the monies collected in the mortuary fund for the pool, out of which the plaintiff should be paid the benefit under the certificate, were sufficient to pay the plaintiff the maximum amount of the shares, being altogether $500, no part of which had been paid. Judgment for that sum was demanded. In the certificate it is stated that it is issued and accepted upon the conditions and agreements contained in the by-laws of the association.

The case was tried at the circuit before the court and a jury. At the close of the evidence, in view of the provision of the bylaws that, in case of contest of a claim and judgment in favor of the claimant, the claim should be placed in and paid pro rata with the claims of the pool then forming, the court stated and held that it would allow the action to stand as an equity action, and take the advice of the jury on the question of fact as to whether the application was rejected by the medical director of the defendant on the 28th August, 1891. The court asked the counsel for the defendant if there was any other question of fact that he desired to have submitted to the jury, and the reply in substance was that there was not. The question of fact as above suggested was then submitted to the jury, and the verdict was that the application was not rejected by the medical director on the 28th of August, 1891. The court then made its decision embodying findings of fact and law, and in accordance with such decision the judgment appealed from was entered.

The relief granted was not demanded in the complaint, and the defendant claims that in this action the court had no right to grant it. An answer having been interposed, the court may permit the plaintiff to take any judgment consistent with the case made by the complaint, and embraced within the issue. Code, § 1207. The fact that the wrong relief was asked is not important. Murtha v. Curley, 90 N. Y., 377. The judgment was based upon the cause of action as alleged and proved. The form and amount of the recovery is regulated by the by-laws which are referred to in the certificate which is a part of the complaint. The judgment was certainly embraced within the issue and was also consistent with the case made by the complaint. It was fixed by the certificate and the by-laws. It is not claimed that the judgment is wrong if the court had the power to grant it. Smith v. People’s Mut. Ben. Society, 64 Hun, 534; 46 St. Rep., 10. We think that the court had the power. It is to be observed that the defendant had opportunity to go to the jury on all questions that it desired to. It in effect consented that the court pass on all" the questions of fact aside from the one submitted and render the proper judgment. It is not material whether it be called a trial at equity or law.

2. The theory of the defendant on the second proposition is that the application was not approved by the company and the policy was, by mistake delivered to the plaintiff. There is evidence showing that Mr. Sperry, the agent of the defendant, saw the plaintiff on the subject of transferring to the defendant a policy she was carrying on the life of her mother in the Flower City Insurance Company, and which she was willing to transfer to the defendant; that soon after this Mr. Mahar, w'ho seems to have been acting for defendant at the request of Mr. Sperry, called on the plaintiff and delivered to her the policy in question, she paying him therefor the premium of four dollars and seventy cents, and receiving .therefor the receipt of Mr. Sperry for the defendant; that on the same occasion Mr. Mahar wrote out the application, and it was signed by plaintiff, and she also signed the name of her mother. This was forwarded to the defendant, and there is evidence tending to show that at first it was marked approved by the proper officer or the defendant, but afterwards the approval was erased and it was marked rejected. The premium, paid by plaintiff was received by the defendant and there was no return of it or offer to return it until after the death of Mrs. O’Brien, nor was the return of the policy demanded or the plaintiff informed before the deatli that the application was rejected. The court submitted to the jury the question whether the application was rejected by the medical officer of the defendant upon its receipt by it on the 28th August, 1891, and they found that it was not. This finding the court, in its subsequent disposition of the case, adopted, in effect determining that the policy was delivered by the defendant as and for a good and valid policy. We find no good reason for disturbing this conclusion.

8. But it is said that the application was not in fact signed by Mrs. O’Brien. She was not present at the time the application was made out by the agent of the defendant and the policy delivered. The agent asked the plaintiff to sign her mother’s name and she did so. The plaintiff testifies that her mother knew of the application being made; that she spoke to her beforehand about it. There is in the answer no allegation that the plaintiff did not have authority to act for her mother. On the contrary it is affirmatively alleged that Mrs. O’Brien made the application. So far as this question is concerned, we think the nonsuit was properly denied.

4. Was the policy forfeited by reason of the failure to pay the premium due November 1, 1891 í The plaintiff a short time before this date called on Mr. Sperry who had given her the receipt for the first premium, and offered to pay the premium soon becoming due. lie declined to receive it, saying that he had no receipt from the company for her among the receipts that had been sent him, and therefore could not accept her premium. The plaintiff replied she didn’t understand it, and the result was he promised to call the attention of the company to the fact of her call and see what there was of it, Apparently the plaintiff heard nothing farther about it, and the death occurred on the 12th November.

Mr. Sperry was employed by the defendant to assist in obtaining transfers from the Flower City Company to the defendant, and in that matter to the knowledge and assent of defendant he gave receipts for the defendant in his individual name for the premiums paid at the time of the transfer. The plaintiff had such a receipt for her first premium. The defendant knew that Sperry had been accustomed to receive the premiums in the Flower City, and they also employod him to act as their collector. He, however, for any premiums after the first, had in fact no authority to collect except upon receipts furnished by the company.

The by-laws of the defendant provided that premiums should be payable at the home office of the association ; “ but if for the sake of convenience or otherwise any premiums are paid to collectors or agents of the association, such collector or agent shall be deemed and held to be the agent of the members so paying, unless the agent or collector shall furnish the members so paying a receipt for said premium, signed by the secretary of the association, or enter the same in the member’s individual receipt, book; otherwise, no payment to any such agent or collector shall be binding upon the association until received and accepted by it.” One clause of the application stated where and to whom. “ notices of premiums due ” should be sent. In one of the bylaws which related to the class of policies in which was the plaintiff’s, there is a provision that “ a notice of premium due shall be mailed to the last known post office address of each member of this class, during the first ten days of February, April, June, August, October and December of each year, and will fall due and must be paid on or before the first business day of the month, following the date of notice, and any certificate upon which premium is not paid on or before the date it falls due, will be subject to the penalties provided in article five of these by-laws.” The article as to the penalties is not printed in the case, but the inference from the application is that failure to pay when due was made a cause of forfeiture of the certificate and the previous payments. It may be inferred from the evidence that the notice above referred to was never mailed to the plaintiff, though she was named in the application as the person to whom notices should be sent, and her address was given.

There was evidence tending to show, and the court found,, that at the time when the second premium would have become due under the certificate the company disowned its obligation under it and failed to send to their agent Mr. Sperry a receipt, on the ground that the certificate was not an existing obligation upon their part.

If prior to 1st November the defendant repudiated its contract, mailed no notice to the plaintiff and sent no receipt to its agent for the plaintiff, although it did for others according to its custom, it should not be permitted to say that there was a forfeiture by reason of the nonpayment. The plaintiff saw the agent of the defendant, with whom she had personally dealt, with the approval of the defendant, and paid the first premium. She had a right to-believe that he would know what the defendant wanted, and in the absence of the notice called for by the by-laws she was not required to send the premium to the home office on pain of forfeiture. Ordinarily a tender is not necessary when the acts- and conduct of the other party indicate that it will be futile. Baumann v. Pinckney, 118 N. Y., 604; 30 St. Rep., 60; Manhattan Life Ins. Co. v. Smith, 44 Ohio State, 157. A company cannot take advantage of a forfeiture that it encourages by a failure to give its accustomed notice before the premium is due. Helme v. Phil. Life Ins. Co., 61 Pa., 167. No tender was necessary after the death, as by the terms of the certificate the premiums paid were to be returned to the insured.

These considerations lead to the conclusion that the court below correctly held that the defense of forfeiture was not made out. It follows that the judgment should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


author: Rewburger, J.

text:
    Maximilian Lewinson et al., Resp’ts, v. Lorenz Reich, App’lt.

      (City Court of New York, General Term,

      Filed November 27, 1893.)

    Contract—Direction of Verdict.
    In an action upon contract, where there is a dispute as to whether plaintiffs had performed all the work required under the contract before they would be entitled to the payment demanded, that question should he submitted to the jury, and it is error to direct a verdict for plaintiffs.
    Appeal from judgment in favor of plaintiffs, entered upon verdict directed by the court.

      William R. Keese, for resp’ts; Vanderpoel Chiming & Green., for app’lt.
   Rewburger, J.

This action was brought to recover from defendant an installment claimed to be due on a contract between the parties to this action wherein the plaintiffs contracted to erect certain fire-escapes upon property of defendant in a good, workmanlike and substantial manner to the satisfaction and under the direction of the building department of the city of New York.

The installments were to be paid at different stages of the work.

The answer of the defendant denied all of the material allegations of the complaint, and set up a counterclaim for damages by reason of the unskillful manner in which the work was done by plaintiffs.

At the close of the testimony, the plaintiff moved for a direction, which was granted.

The trial justice erred. There wás a dispute as to whether the plaintiffs performed all the work required under the contract before they were entitled to the payment demanded, and that question should have been submitted to the jury for their determination.

For these reasons, the judgment must be reversed, and a new trial granted, with costs to abide the event.

Van Wtck and McCarthy, JJ., concur.