author: Learned, P. J.:

text:
    ELIZABETH FAIRLIE, Appellant, v. FRANCES M. BLOOMINGDALE, Respondent, Impleaded with PETER BLOOMINGDALE.

      liability of a married woman on a joint and several note signed by Tier and Tier • husband — right of a married woman to form a business partnership with her husband.

    This action, was brought by the payee, of a joint and several promissory note for $2,000, signed by Peter Bloomingdale and Prances M. Bloomingdale, who was the wife of Peter Bloomingdale. Upon the trial testimony was given tending to show that the consideration of the note was $700 cash, and an old note of $1,300, signed by the same persons; that before lending the $700 the plaintiff saw the defendant Prances, who told her that they wanted the money to get goods, that ,she, Prances, was running the store and would see that the money was paid, that she had as much interest in the store as her husband had; that at the time the $1,300 note was signed similar statements were made by the defendant Prances. A verdict rendered for the plaintiff was set aside by the justice presiding at the trial, upon a motion for a new trial made upon his minutes, upon the ground that as the note was made by the husband and wife, in the course of a partnership business carried on by them, it could not be enforced against the wife.

      Held, that it was error to set aside the verdict as the evidence would justify a finding that the money was borrowed by the wife on her own account, in which case the validity of the note would not be affected by the disposition she might subsequently make of the money received.

      Qucere, as to whether a husband and wife cannot form a business partnership. (Per Learned, P. J.)

      Jt seems, that if it were necessary to decide that question in this case, the cases of Zimmerman v.'ErJim'd (58 How., 11), and Graff v. Kinney (16 Ahh. N. C. 399; affirmed, 37 Hun, 405), sustaining their right so to do, would he followed rather than (Kmtfner v. Shoeffel, 37 Hun, 140) denying it.
    Appeal from an order setting aside a verdict and granting anew trial, entered upon the hearing of a motion for a new trial made upon the minutes of the justice presiding at the trial.
    The action was brought against both defendants, who were husband and wife, to recover the amount due upon a promissory note, of which the following is a copy:
    “ $2,000. Albany, April the 1st, 1876.

      “ One year after date we, or either of us, promise to pay Elizabeth Eairlie or bearer two thousand dollars, with interest, for value received.
    «P. BLOOMINGDALE.
    “ E. M. BLOOMINGDALE.”
    The defendant Peter Bloomingdale made default; the defendant Frances defended.

      George K Killer and Hobart Krvm, for the appellant.

      George K. Stevens, for the respondent.
   Learned, P. J.:

This is an action on a joint and several note, dated April 1,1876, signed by two persons who are husband and wife. The wife defends. After a verdict for plaintiff at the Schoharie Circuit, in October, 1883, the justice who tried the cause granted an order in September, 1881, setting aside the verdict on his minutes. There is no question of excessive damages. „ It cannot be said that the verdict was against evidence. From the opinion of the learned justice it seems that he set it aside because of his refusal to nonsuit and for error in his charge.

There was testimony given on the plaintiff’s behalf that the consideration of this note of $2,000, was $700 cash and a previous note of $1,300. The plaintiff testified that she saw the defendant Frances and talked with her before lending the $700; that Frances said they wanted the money to get goods, that she was running the store and would see the money paid; that she had as much interest in the store as her husband had; that thereupon the plaintiff let them have the $700, and delivered up the $1,300 note and received the note in suit.

The defendants stated that the $1,300 note was lost, and parol evidence was given of its contents. The plaintiff testified that the $1,300 note was signed by both defendants; that defendant Frances, before signing, said they were good for it; that they wanted it to put in goods ; that she said she had an interest in the store the same as her husband had.

The defendants moved for a nonsuit at the close of plaintiff’s case, and then gave evidence tending to contradict the plaintiff’s testimony, The court charged that, if the plaintiff loaned the $700 on the representation and statement of defendant Frances that she was interested in the business of the store, plaintiff could recover the $700 and interest; that, if the prior note was signed by the defendant Frances, she saying at the time that she was interested in the business, plaintiff could recover the whole.

From the opinion of the learned justice we are informed that the question presented on the motion for a new trial was this: “ Are the contracts of husband and wife, professing to be made by them as partners in business, enforceable against the wife % ” As the learned jnstice answered this in the negative, he granted a new trial.

Now it is to be noticed that the note in suit is not a partnership note. No question arises as to the power of one partner to bind another, or as to the preferences of debts of a partnership in respect to partnership property, or the like. Whether these defendants had in fact been acting as partners; whether, if so, they had all the rights and liabilities of partners as between themselves and as to the world; these may be interesting questions, but they are not necessarily involved in this case. The note in suit is joint and several. The liability of the defendant Frances must depend on her acts and doings, and not necessarily on the question whether the arrangement between her and her husband had all the characteristics of a legal partnership.

There are three cases where a married woman may bind herself by contract, which are material here: First. When the obligation was created by her in or about the carrying on her trade or business. Second. When the contract relates to or is made for the benefit of her separate estate. Third. When the debt was created for property purchased by her. (Saratoga County Bank v. Pruyn, 90 N. Y., 250.) This decision was prior to chapter 381, Laws of 1884. The words “ property purchased by her,” includes money borrowed by her. (Tiemeyer v. Turnquist, 85 N. Y., 516.) The liability to pay for goods purchased must include a liability to pay for money borrowed. (Martin v. Roberts, 39 N. Y. Sup. Ct. [30 Hun,], 255.)

Now if a married' woman may borrow money and become thereby liable to pay it, we see no reason why she may not do this jointly with some other person. And it does not matter whether this other person is her husband or not. It would be unreasonable to say that she alone might make a purchase or borrow money, but that she could not do these acts jointly with another. And if with another, then why not with her husband ?

But again, a married woman is liable when the obligation is contracted in carrying on her trade and business. Now if she may carry on a business, may she not employ agents in doing this ? And if she can employ agents, can she not give them an interest in her business? Would she cease to be liable on a contract made in carrying on her business, if it should be shown, by way of defense, that some other person had an interest in the business ? That fact might, or might not,, make the other person hable for the debts of the business; but would it relieve her ? Even if the interest of that other person was such that, as to the world he was a partner, clearly she would be liable still.

There is still another principle. One who is able to contract must be able to estop himself by statements made while contracting. This principle lies at the bottom of fair dealing, and a married woman is as much bound to deal fairly as is anyone else. (Scott v. Otis, 32 Sup. Ct. [25 Hun], 33; Bodine v. Killeen, 53 N. Y., 93; Knowles v. Toone, 96 id., 534.)

This present case was left to the jury on the questions as to the statements made by defendant Frances when she borrowed the money; whethershe borrowed the money, and borrowed it expressly for a business in which she alleged that she was interested. If she was interested in the business (in the sense in which that language was then used), then the business was her’s, even though the other defendant was also interested therein.

In tbe opinion given by tbe learned justice in tbis case it is said, that in order to recover on tbis note it was necessary to show that it was given in or about a trade or business carried on by the wife, or that it was for tbe benefit of her separate estate. There is, however, still a third case in which she may be bound, viz., when tbe debt was created for property purchased by her. (Cashman v. Henry, 75 N. Y., 103.) And in Tiemeyer v. Turnquist (ut supra, 522) it is shown, as is above stated, that such “property” may be money.

The argument used by the defendants is briefly that the right of a married woman to deal with her sepa/rate property, to carry on business, etc., on her sole and separate account, and to have her earnings therein as her sole and separate property, prevents her from being a partner with her husband; because parnership implies joint property. But if a married woman borrows money on her own personal obligation, stating that she has a business in which she is interested, and if she puts that money into a business carried on in fact by herself and her husband, does that disposition of the money afford any reason why she should not pay her debts ? “ The law does not dictate what she shall do with the money when it becomes her own.” “It is none the less her separate property because she * * % consumes it for the benefit of others as well as herself.” (Tiemeyer v. Turnquist, ut supra.)

Admit that these defendants attempted to form a partnership; that each put in some money; that both were to share in the profits. Admit too that thereby the defendant Frances lost all she put in, by its being mingled with property of her husband and ceasing to be separate. That is the most favorable position for her. Shall she be permitted to refuse payment of money which she borrowed on. her own credit and on a statement that it was to go into business in which she had an interest ? Certainly not. The defendant Frances says in effect: “ I borrowed this money in my own name. I said it was to go into business in which I had an interest. I put it into that business, but I had no right to go into that business with my husband, and therefore I decline to pay my debt.”

We are not prepared to say that husband and wife cannot form a business partnership. If in point of fact they do this (or attempt o do this), various questions as to their liability to each other and to third persons, may arise; which will be decided when occasion requires. "We are certainly not willing to say that such an attempted partnership would deprive the wife of all of her separate money which she might put in, and that such money would at once become her husband’s. If not, and if she would still retain a right to the money which she had put into the business, it might be difficult to sáy that a partnership to some extent did not exist. It is better to decide on the rights of the husband and of the wife and of third parties as the questions respecting these rights arise, and not to affirm generally that no partnership can be formed.

We suppose that the words '“sole and separate” are intended to exclude the marital power which the husband formerly had. They do not prevent the wife from owning property in common with others, or jointly. Nor do they prevent her from employing her husband as agent, and thus giving him power over her separate property. ¥e should think that two married women might be partners in business, and yet that the property of each could be called “ sole and separate.” And were it necessary to the decision of this case, we should probably agree with the doctrine of Zimmermann v. Erhard (58 How., 11), and Graff v. Kinney (15 Abb. N. C., 399, affirmed, 37 Hun, 405), and not with the doctrine of Kaufman v. Schoeffel (37 Hun, 140).

The case of Coleman v. Burr (93 N. Y., 17), referred to household duties of the wife, and does not bear on the question here involved.

The order should be reversed, with costs.

L AND ON, J., concurred.

Order granting new trial reversed, with costs."


source: Caselaw Access Project

license: Public Domain

text:
    THOMAS H. GREER, JOHN GREER and ALEXANDER GREER, Respondents, v. ISAAC A. ROSA, Sheriff of Montgomery County, Appellant.
    Evidence— statements contained in an inventory filed with a general assignment— not admissible as against a sheriff claiming under an attachment.

    This action was brought to recover the possession oí goods which the plaintiffs alleged that they had been, induced to sell to one McGovern by the fraudulent representations of the latter, from the sheriff who had seized the goods under attachments issued in actions brought by other creditors against McGovern after the latter had made a general assignment for the benefit .of creditors. Upon the trial the plaintiffs were allowed, against the objection and exception of the defendant, to give in evidence the assignment made by McGovern, and the inventory and schedule filed in the county clerk’s office, and to read the contents thereof.

      Held, that although the plaintiffs might prove the fact that McGovern had made an assignment for the benefit of creditors, as tending to establish the charge of fraud, yet as the sheriff did not claim under the assignment it was error to allow the contents of the inventory and schedules to be used as evidence against him.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried.

      Edward, J. Meegan, for tbe appellant.

      H. 8. Lary and Robert J. Sanson, for tbe respondents.
   Learned, P. J.:

Tbe plaintiffs sold goods to one McGovern about December 12, 1883. Afterwards McGovern made a general assignment to one Iiayflinger January 9, 1884. Afterwards creditors of McGovern sued bim, and in such suits issued attachments under which tbe defendant, sheriff, etc., by bis deputy, seized goods, among them those sold by plaintiffs. Subsequently tbe plaintiffs commenced this action of replevin and took tbe goods. But tbe same were retaken and retained by giving tbe usual bond. Tbe ground of plaintiffs’ action, as stated, is that tbe goods were obtained from them by false and fraudulent representations when McGovern was insolvent, with the design of not paying for the same. (Morris v. Talcott, 96 N. Y., 100.)

To show McGovern’s insolvency at the time of the so-called sale of the goods plaintiffs gave in evidence his assignment dated January 9, 1884, and the inventory and schedules dated January 26, 1884, and filed in the county clerk’s office September 27, 1884. To this defendant objected. Plaintiffs read therefrom the amount of indebtedness and of property and also the assignment. To all which defendant objected.

At the conclusion of the charge the defendant asked the court to charge that the inventory did not tend to establish McGovern’s liabilities. The court refused.

We think that the plaintiffs might prove the fact that McGovern made an assignment for the benefit of creditors as tending to show that, at the short time previous, when he bought, he had no intention of paying. The act of making an assignment, whether he was then really insolvent or not, was a fact which might have some influence in deciding whar his intentions were when he bought. Just as if he had sold all Iris property to any other person. But McGovern’s statements in that assignment were not, and still less were the contents of the inventory and schedules, evidence against the defendant of the matters therein contained. These were mere statements made by McGovern, out of court, on the twenty-ninth of January, that on such a day, the ninth of January, he owed so much and had so much property. Neither plaintiffs nor defendant claimed under the assignment. (Tyler v. Brock, 68 N. Y., 418; Turner v. See, 57 id., 667.)

The evidence of fraud in this case is this: plaintiffs asked McGovern how he was getting along. He said he was getting along good — all right. He testifies that at that time he knew he was insolvent, owing $3,600 and having $1,900. And in a month’s time he failed. He testified that he had no intent to defraud plaintiffs when he made the purchase. Of course, the question is whether the purchase was made with the design not to pay. We cannot say that there was no evidence to go to the jury on that point. McGovern’s testimony was contradicted by what he had previously sworn to on another occasion, as to his knowledge of his financial condition when he made the purchase. And this was very material on the question of fraud. Therefore we cannot disregard the error in the admission of evidence above mentioned, an error insisted upon by the defendant in various ways.

Judgment reverse'd, new trial granted, costs to abide event.

LaNdoN, J., concurred.

Present — LearNbd, P. J., and LaNdoN, J.

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


author: LeaRNed, P. J.:

text:
    AMBROSE SPENCER and JOHN R. KNAPEN, as Administrators, etc., of WILLIAM D. SPENCER, Deceased, Appellants, v. OLIVER H. P. STRAIT, as Executor, etc., of ESTHER SPENCER, Deceased, Respondent.
    Will— when a gift of the ‘remainder is valid, although the tenant for life has power to dispose of the principal.

    A testator gave to Us wife all Ms “ property, both real and personal, for her to use, occupy and possess, sell or dispose of, in any way that she may deem proper for her own use and benefit; * * * and it is my will that all the property that Esther, my wife, shall possess at the time of her death, both real and personal, shall be disposed of in the following manner: Let one-half be given to her heirs, or to whom she may see fit to bequeath it. Let the other half be divided between ” relatives of the testator named in the will. Esther had separate property of her own.

      Held, that the wife was at liberty to enjoy the income and use the principal, if she desired to do so, but that if she did not use all the principal, then whatever remained at the time of her death should go as provided in the will.

      Wager v. Wager (96 3ST. Y., 164) followed.

      Qiuea’e, as to whether the legatees in remainder, or the executors or administra tors of the husband, should bring the action to recover the residue of the principal.
    Appeal from a judgment dismissing the complaint, entered upon the report of a referee.

      James Lamsing and JS. M. Townsend, Jr., for the appellants.

      Mdga/r L. Fursmam,, for the respondent.
   LeaRNed, P. J.:

Tbe plaintiffs are administrators with tbe will annexed de bonis non of William D. Spencer, deceased. Tbe defendant is executor of Esther Spencer, deceased, wbo was tbe widow and executrix of William D. Tbe plaintiffs seek in tbis action to recover certain assets, alleged to be unadministered assets of tbe estate of William D. Tbe referee reported tbat tbe complaint should be dismissed and tbe plaintiffs appeal.

It was not shown tbat there were any unadministered assets in tbe defendant’s bands. Tbe referee does not find that there are any in defendant’s bands, and tbe proof does not show any. Tbe defendant’s inventory included a pass book in tbe Troy Savings Company in tbe name of William D. But tbe money which stood to bis account has been paid by tbe company to tbe plaintiffs.

There was another Savings bank book which showed a credit of some $639 to William D. But tbat amount bad been drawn out by Esther during her life. There is no evidence what she did with tbe money. ' As by tbe will of William D. she had tbe undoubted right to use and dispose of the property for her own benefit, tbis amount received by her and apparently used is not unadministered assets of bis estate.-

Tbe complaint was, therefore, properly dismissed on tbe ground thus shown. But tbe parties have discussed another question and desire a decision. That is whether under tbe will of William D., Esther took tbe whole estate, or whether there is a remainder in others. William D. bad no children and owed no debts. His will gave her all my property both real and personal for her to use, occupy and possess, sell or dispose of in any way that she may deem proper for her own use and benefit.” Then it proceeded: u And it is my will tbat all tbe property tbat Esther my wife shall possess at tbe time of her death, both real and personal, shall be disposed of in tbe following manner: Let one half be given to her heirs or to whom she may see fit tq bequeath it. Let tbe other half be divided between,” etc., naming relatives of the testator and making quite elaborate provisions. Esther had separate property, and a peculiarity of the will may be noticed, that the testator assumes to dispose of her property as well as his own. It seems from the testimony that there may have been some understanding between the husband and wife that the whole of the property of both should be divided equally between the relatives of each. And this may explain the peculiarity of the will.

it is remarked in Campbell v. Beaumont (91 N. Y., 464), that “ courts do not agree in their interpretation.” The truth of that remark is manifest on a comparison of that case with Wager v. Wager (96 N. Y., 164). It is there said that Campbell v. Beaurmont, “property considered,” does not conflict at all with the decision in that later case. Probably the court meant “ properly reconsidered/” since the court gave no explanation how the two cases could be reconciled. Without the benefit of such explanation, we are unable to see that harmony in the two decisions which gives certainty to the law. At the present, however, we suppose the views expressed in Wager v. Wager should govern. That is, that the scope and tenor of the instrument should control, what is called “the inexactitude of expression.” And the present case is also very closely similar to that of Terry v. Wiggins (47 N. Y., 512), where the same views are expressed.

The very careful provisions made by the testator as to the half of his property which he devised to go to his own relatives ought not to be disregarded. It can hardly be doubted that the meaning of the testator was that his wife should use and possess the property for her own use and benefit. That is, she was at liberty to enjoy the income, and to use the principal if she desired to do so. But if she did not use all the principal, then what she should possess at the imne of her decease, that is, whatever remained, not actually used by her, was to go as provided in the following clause. Half of it was to be hers absolutely, inasmuch as it was to go to her heirs or legatees. The other half was to go according to the careful provisions of the will to his relatives. This makes all the clauses of the will consistent and carries out the testator’s wishes.

Another point may be suggested which was not discussed on the argument. In Smith v. Van Ostrand (64 N. Y., 278), a case somewhat similar to the present, the court held, at page 285, that the action should be brought by the legatees in remainder and not by the executors or administrators of the deceased.

Whether the circumstance that Esther had taken and held possession of the pass-book in the Troy Savings Company brings this case within that decision we leave without deciding.

The judgment should be affirmed, with costs.

Land on, J., concurred.

Present — Learned, P. J., and Landon, J.

Judgment affirmed, with costs.


text:
    ELIZABETH B. GERE and Others, suing in their own Behalf and in Behalf of all Other Stockholders of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.

      Injunction — motion to vacate, without notice, at General Term — Code of Civil Procedwe, sec. 626 — in what cases such a motion can he made.

    In this action, brought in the fifth judicial district to have a contract, entered into between the defendant corporation and other persons, declared void, and to restrain the defendant from purchasing the property, assets or franchises of another railroad company at a sale, upon the foreclosure of a mortgage given thereon, an injunction was granted restraining the defendant from bidding at such sale, accompanied with an order to show cause why it should not he continued during the pendency of the action. The order was dated November twenty-first, and was made returnable at a Special Term to be held in Syracuse on November twenty-eighth. It required the papers to be served on or before November twenty-fifth. On November twenty-fifth the defendant moved, ex pmde, at a General Term of the Supreme Court of the Third Department, held at the city of Albany, for an order vacating the injunction.

      Held, that the case was not one in which such an application might, under section 626 of the Code of Civil Procedure, he made at the General Term without notice, and that the motion should he denied without expressing any opinion upon the merits.
    That section confers the privilege of making such a motion only in special cases, where there is necessity for immediate action, and where delay would cause evil which could not he remedied.
    Motion by the defendant corporation to vacate an injunction.
    This action was brought by stockholders of the defendant, The New York Central and Hudson River Railroad Company, in behalf of themselves and all other stockholders, to restrain the defendant from executing, or accepting the execution, of a lease of the New York, West Shore and Buffalo Railway, or of any of its property, assets or franchises, and from carrying into effect certain contracts alleged to have been made by the defendant with reference to the leasing of the said road, and to giving a guaranty as to certain of its bonds.
    On November 21, 1885, an injunction was issued restraining the defendant from executing or accepting the said lease, or purchasing the New York, West Shore and Buffalo Railway, or any of its property, assets or franchises, upon the sale under a decree foreclosing a mortgage thereon, or from bidding at the sale. The sale was to be held on November 24, 1885. The defendants were also required to show cause at a Special Term of the Supreme Court to be held at the court-house, in the city of Syracuse, on November 28, 1885, why the injunction should not be continued until the hearing and determination of the action; the papers to be served on or before November twenty-fifth.

      E. Wwislow Paige, for the motion.
   Learned, P. J.:

In this action an injunction was granted November twenty-first, with an order to show cause why it should not be continued during the action. This order was returnable at a Special Term in Syracuse, November twenty-eighth, and the papers were to be served on or before November twenty-fifth. They were served on some of the defendants, as we understand, before November twenty-third. The place of trial of the action is Onondaga county.

The defendant now moves (November twenty-fifth) ex parte before this General Term to vacate the injunction. This motion is made on the summons, complaint and affidavit on which the injunctiod was obtained.

We are of the opinion that the privilege given by section 626 of the Code of Civil Procedure to make such a motion before the General Term ex parte was intended to afford an opportunity to obtain relief in special cases, where there was necessity for immediate action and where delay would cause evil which could not be remedied.

It is to be assumed that no judge grants an injunction without carefully considering the matter and determining in his own mind that this remedy is necessary. When he makes an order to show cause why the injunction should not be continued, he affords an opportunity for the hearing of both sides and for a more fair investigation than he can give on an ex parte hearing. If on that hearing either party is dissatisfied, an appeal lies in an orderly manner to the General Term.

As the judge who grants an injunction may have acted injudiciously, the Code provides that on an ex parte application he may vacate this injunction, thus giving an opportunity for the aggrieved party to show to the judge the mistake he may have made. But very wisely such ex pa/rte application cannot be made to another judge, else there would be a conflict of authority.

Now while the section provides also that an ex párete application to vacate may be made to the General Term, it is evident that that court should not interfere, unless there be some pressing necessity. To say, without hearing the other side, that the injunction should be vacated, is almost to censure the judge who grantedrit.

The whole plan of the judiciary system shows that the General Term is, with few exceptions, to be a court of review, and that, in the first instance, matters are to be heard before a single justice. The reasons for exercising the exceptional power given by this sec tion must be more than the alleged error of the court below, and more than the magnitude of the interests involved. There must be peculiar circumstances which almost compel immediate action. We have in one instance vacated exponte an injunction. And we are satisfied that our action then was proper. But the case was unusual. In that case the defendants were enjoined, under peculiar circumstances, from holding an election. Unless it were held on the day appointed, it might be difficult to hold it again for a long time. And the vacating of the injunction only permitted an election, without deciding on its effect. There were other facts which made that a case that plainly demanded the relief which we granted.

In the present case the injunction restrains the performing of a contract into which, it is alleged, that the defendants, or some of them, have entered. W e are not shown that the contract must be performed on any certain day in order that the contract shall remain binding.

It may be that loss will be caused by the delay. But only three days (now one day) will elapse before both parties can be heard on the return of the order by the learned justice who granted the injunction. Then, on a fair hearing of all that can be said on each side, and on a presentation of all the facts of the case, we hare no reason to doubt that a just decision will be made. To vacate the injunction now might be deemed to indicate a distrust of the fairness and ability of the tribunal before which the matter will then come.

In our opinion, then, this is not a ease in which we ought to vacate the order. In saving this, we express no opinion whatever upon the merits of the case. We place our refusal entirely on other grounds; that is, on those above specified.

We may also suggest that the appeal which will lie from the decision made on the return day will come before the General Term of another department. Probably under section 626 we have jurisdiction. But the fact above mentioned makes it still less proper for us to interfere. The motion is denied.

Present — Leaiíned, P. J„ Bookes and Landon, JJ.

Motion denied.


text:
    ALBERT VANDERWERKEN, Appellant, v. WILLIAM K. BROWN, Respondent.

      Costs — on appeal from a judgment of a Justice’s Court— Code of Civil Procedure, ■sec. 8070 — to what cases it applies.

    The plaintiff, having been defeated in an action brought by him in a Justice s Court to recover damages for the killing of his dog, appealed to the County Court and demanded a new trial, and upon such new trial he recovered a verdict of three dollars.

      Eeld, that he was entitled to recover costs. (Bocees, J., dissenting.)

      Quirk v. Wixon (£7 Hun, 593), and Snyder v. Hughes (Id., 874), followed.
    Section 8070 of the Code of Civil Procedure, regulating the right to recover costs on appeals from judgments of Justice's Courts, does not apply to cases such as this where a party who has been wholly defeated in a Justice's Court succeeds in the County Court.

      Appeal from an order of the County Court of Schoharie county, denying a motion for a retaxation of the costs allowed by the clerk in this action.

      J. H. Clute, for the appellant.

      A. H. Goons, for the respondent.
   Learned, P. J.:

The plaintiff sued in Justices’ Court for killing his dog and was beaten. He appealed to the County Court demanding a new trial and recovered three dollars. The clerk taxed costs in plaintiff’s favor. The County Court refused to set aside the taxation, and the defendant appeals. The question is upon the part of section 3070 of the Code in these words: If an offer is not made and the verdict, report or decision upon the appeal is more favorable to the appellant by the sum of ten dollars than the verdict or decision of the court below” * * * “the appellant is entitled to recover costs upon the appeal, otherwise the respondent is entitled to recover costs.” Does the clause fairly apply to a case where in the County Court there is not simply a reduction, or an increase, of the recovery below, but where the recovery is for the party who was defeated below ?

In Quirk v. Wixon (27 Hun, 592) the plaintiff recovered eight dollars in Justices’ Court. The defendant appealed, and on a new trial in County Court the plaintiff was beaten. It was held that defendant was entitled to costs. The same was decided in Snyder v. Hughes (27 Hun, 374), in a similar case.

We are referred to no other cases on this point. These should control us. They are like the present case, except that in the cases cited there was a recovery for the plaintiff below and a failure to recover above. Here it is the reverse. But the principle is the same. And we think the decisions are sound. A party who recovers one sum in the court below and a somewhat larger sum above has only increased his damages. And if he has not increased them by ten dollars, he may properly be required to pay costs.

But one who was beaten in the court below, and then recovers in the court above has established that lie was right in bringing the action, and that tbe defendant was in the wrong. The words- “ more favorable to tbe appellant ”, imply that tbe decision in tbe court below bad been somewhat favorable to bim; not that sucb decision was against bim altogether.

It may be very reasonable to require a party to be contented witb damages wbicb are insufficient by not more than ten dollars. But it is not reasonable to require bim to be satisfied witb entire defeat, when be bas a good cause of action.

Again, suppose tbe plaintiff’s whole claim is four dollars and be is unjustly defeated in tbe court below, can be not appeal without tbe certainty of having to pay tbe costs in any event?

We think that tbe order appealed from should be affirmed, with ten dollars costs and printing disbursements.

LaNdoN, J., concurred; Bookes, J., dissented.

Order affirmed, witb ten dollars costs and printing disbursements.


author: LearNed, P. J.: BocKes, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HOWARD N. CORNELL, Respondent, v. GROSVENOR A. KNOX, Appellant.

      Action to fry title to office — Code of Civil Procedure, secs. 1948, 1988 — effect of not denying unnecessary allegations in a complaint— title to office can only be questioned by the people.

    The complaint in this action alleged that the defendant had been elected to the office of town clerk of the town of Hillsdale, and that he had entered upon the discharge of the duties of his office, but that he was not eligible to the office because he had not been an inhabitant of the town for the year next preceding the election; that by reason of his ineligibility a vacancy in the office of town clerk existed, to fill which the relator had been lawfully elected.

      Held, that although the people need not have alleged the defendant’s election and his inability to hold the office, but might have simply alleged that he had intruded into the office unlawfully, and have called upon him to show by what authority he claimed to hold it, yet, as these allegations were in fact made, the defendant by not denying them admitted them to be true and thereby established his own incapacity to hold the office.
    That as it was admitted by the defendant that he was not entitled to hold the office, he could not appeal from a judgment declaring the relator elected thereto, as no one but the people could question the right of the latter to hold the office. (Bocees, J., dissenting as to this proposition, hut concurring in the result, upon the ground that the relator’s right to the office was admitted by the pleadings.)
    Appeal from an order made at Special Term, August 25, 1885, giving to the plaintiff a judgment for the relief demanded in the complaint on the ground of the frivolousness of the answer, unless the defendant within ten days should serve an amended answer and pay costs of motion.
    The action was brought to have the defendant ousted from the office of town clerk and to have the relator declared elected thereto. The complainant alleges that the defendant was elected to the office of town clerk of the town of Hillsdale at the annual town meeting March 3, 1885, but that he was not eligible to said office by reason of not being an elector of said town, not having been an inhabitant of said town for one year next preceding said election. This fact was not denied by the answer. The complaint also alleged that the relator had been elected to fill the vacancy in the office at a special town meeting held in May, 1885.

      A. Frank B. Chace, for the appellant.

      Denis O'Brien, attorney-general, and John CaJman, for the respondent.
   LearNed, P. J.:

We have no doubt that, upon the merits, this case was properly decided. The defendant was not eligible to the office and could not lawfully hold it. The only other questions are matters of pleading. In the old information in the nature of a writ of quo wa/rranto, the people alleged, simply that the defendant intruded into the office unlawfully, and they called on him to show by what authority he claimed to hold the office. The defendant pleaded, setting up his title; but the information did not allege either how the defendant claimed title, or what were the defects of his claim. We think that the Code (§§ 1983, 1948) makes no change in the mode of pleading, and that a complaint following the old form would be proper. (See Appendix, Burrill’s Pr., § 1045.) Put in the present case the people have done more; they have alleged the defendant’s election and also his incapacity by reason of not being an elector. And now, on tbis argument, tbe defendant insists that as tbe people need not have set np the defendant’s election and incapacity, these allegations were surplusage and it was not necessary for him to deny them; that a defendant need deny only what is properly alleged in the complaint. "While the defendant may be logically correct in this, yet the allegations of the election and incapacity by reason of not being an elector were alleged in the complaint, and these were facts material to the issues, and there was no motion to strike out these allegations. As they thus remain in the pleading and are not denied by the defendant, we think they stand admitted.

Another question of pleading is raised. The people are permitted in the Code, as could have been done previously (2 R. S., 582, §§ 31, 32), to set up, not only the intrusion of the defendant but the right of a relator to the office. And judgment may be rendered accordingly. (Sec. 1949.) It is usually the case, in regard to elective officers, that the contest has been between the relator and defendant at the polls, and that the same proof which on the trial shows that the defendant was not elected shows that the relator was. That is not the present case. The people claim that the defendant was incapacitated ; that therefore there was a vacancy and that the relator was elected to fill that vacancy. No question arises that he was elected. The answer, so far as it denies the relator’s right, depends only on the fact that no vacancy existed. That is the real meaning of the answer when the whole of it is examined. And such is all that is really intended. This explanation is needed that we may understand the exact condition of the controversy. •

The right to office, whether by a town election, or a State election, or by appointment, comes from the people. Hence it is only the people who can contest the right which any one asserts to an office. No individual can bring an action to remove, or disturb, another in the enjoyment of an office. As long as the people do not complain against any intruder, he may hold his office and no individual can dispute his right. (People ex rel. Judson v. Thacher, 55 N. Y., 529.)

Hence it follows that, if this defendant is not rightfully in the office which is in question, it is no business of his whether the relator was elected or not. The people assert that the relator was elected. They asserted this, first through the returns of the canvassing officers. Now they assert it by action. It does not lie with defendant, any more than with any other individual, to dispute this; after it has been decided that he is an intruder. If the defendant were ousted, then Cornell (even if he were not relator) would, or could, step into the offi.ee by virtue of the returns of the canvassing officers. And unless the people should assert by action that Cornell was not lawfully elected, he would hold the office. lie would not (if he were not relator) be required to prove his right as against the defendant who had been ousted, but could take possession without action. He is in no worse case from the fact that lie is relator. The question whether Cornell was duly elected, or not, is one not in issue between the people and the defendant, after it has once been established that the defendant is an intruder. "Whether, or not, the court shall require the people to present formal proof of the relator’s election is not any concern of the defendant, after he has been adjudged an intruder. If the people, through their attorney-general -and the court, choose to dispense with such proof, the defendant cannot complain.

We think then that defendant’s denial of the relator’s due election (which vn, fact was only a reassertion that there was no vacancy) does not prevent the court, after the defendant has been ousted, from adjudging the relator entitled to the office. "Whether so adjudged or not, he can take the office by virtue of his election. Or to state the matter in another form, if the defendant was rightfully ousted, as we think he was, he has no standing to appeal from a judgment putting Cornell into office, whether that judgment be formally right or not. If that judgment putting Cornell into office were wrong, the defendant cannot be reinstated, because he has no right to the office. And if he cannot be reinstated, he has no more right than any other private person to complain that Cornell is put into possession of the office.

The order should be affirmed, with costs.

L AND ON, J., concurred.

BocKes, J.:

I concur in the result that the order appealed from should be affirmed. I think it plain on the facts stated and admitted in the pleadings, tbat tbe defendant was ineligible, bence tbat tbe order as regards bis right to tbe office is correct. But I do not agree tbat tbe defendant, although tbe case was against him as to bis right, could not contest tbe plaintiffs ayerments in tbe complaint as to tbe right of tbe latter to tbe office, by a general denial or other sufficient answer. I am of tbe opinion, however, tbat tbe Special Term was right in bolding that tbe ayerments were not put in issue by tbe answer.

Judgment affirmed, with costs.


author: LeabNed, P. J.:

text:
    DAVIS W. SHULER, Respondent, v. MARGARET L. MAXWELL and Others, Appellants.

      Appeal — it cannot be taken by a new attorney without substitution — a party not interested cannot object to the manner of conducting a judicial sale.

    In this action, brought to foreclose a mortgage executed by the defendant Margaret Maxwell, she appeared and answered by an attorney, Mr. Q-. B. White. After a judgment of foreclosure had been entered, and two days before the sale was completed, there was served upon the plaintiffs’ attorney a notice of appeal from the judgment, with an undertaking to stay proceedings thereon, signed by Ed. J. Maxwell, as attorney for Margaret Maxwell. The notice was at once returned with an indorsement declining to recognize him a3 attorney for the said defendant, and on the day appointed the sale was completed.

      Held, that as the appeal could not be taken by the new attorney until he had been properly substituted in the place of the former attorney, the service of the notice was ineffectual to stay the proceedings and a motion to vacate the sale was properly denied.
    The motion to set aside the sale was made upon the further ground that the premises were not sold in parcels.

      Held, that as it appeared that the appellant was not the owner of the premises, and that there was no deficiency, she could not raise the objection.
    Appeal from an order, made at a Special Term, refusing to set aside a sale of premises under a decree of foreclosure.
    Tbe motion was made upon tbe grounds, among others, tbat tbe mortgaged premises were not sold in separate parcels, and tbat an appeal was pending at tbe time it was beld, by wbicb tbe proceedings in said action were stayed. Final judgment was entered in tbe action April 7, 1885. The premises were advertised for sale on the 27th day of May, 1885. On tbe twenty-seventh day of May the premises appear to have been sold to Elizabeth Maxwell, she paying ten per cent of the amount bid, and the sale was then adjourned to the twelfth of June, the fifteen days within which the sale was to be completed expiring on June eleventh. On June twelfth the referee stated that he was ready to deliver a deed of the premises to the former purchaser on her paying the balance of the purchase-money. No response being made to this announcement, the premises were then put up for sale again and sold to James A. Miller.
    On June tenth, the plaintiff’s attorney was served with a notice of appeal from the judgment, accompanied with an undertaking to stay proceedings pending the appeal, which notice was signed b^ Ed. J. Maxwell, as attorney for Margaret Maxwell. Margaret $$taxwell had theretofore appeared generally in the action by G-eo. B'. White, and answered by the same attorney. The plaintiffs attorney at once returned the notice of appeal, with an indorsement declining to recognize Ed. J. Maxwell as attorney for Margaret Maxwell, until he had been regularly substituted. The sale took place on the adjourned day, and James A. Miller became the purchaser. The purchaser paid the amount of his bid and received the referee’s deed. The referee made his report and the sale was confirmed.
    The motion to vacate the sale was made in behalf of Margaret Maxwell, who appeals.

      Ed. J. Maxwell and Ed. P. White, for the appellants.

      M. I. Stover, for the respondent.
   LeabNed, P. J.:

One important question is whether an appeal from a judgment can be taken Dy a new attorney without substitution. Sections 1300 and 1302 of the Code of Civil Procedure show that the notice of appeal from a judgment is to be served upon the attorney for the adverse party if he is living. Therefore it follows that the power of the attorney to receive a notice of appeal extends beyond the judgment. By analogy the power to serve a notice of appeal should extend in like manner. And if the power to serve a notice of appeal does extend beyond the judgment by virtue of the previous retainer, tben it follows tbat another attorney cannot serve the notice until he has been substituted.

To this same effect is rule 4 of the Court of Appeals. Although that is a different court from the court from which an appeal is taken, yet that rule says that, the attorneys and guardians ad litem of the respective parties, shall be deemed the attorneys and guardians in that court until others are appointed and notice thereof given. That rule, therefore, declares that on appeal to that court from another court the power of the attorneys continues, although judgment below has been entered. So that, if the present were an attempted appeal to that court, the appeal would not be well taken. Certainly the principle is stronger when the appeal is to the General Term of the Supreme Court. The action is there pending in the same court, and its rule 10 would apply.

The old writ of error was the beginning of a new action, often with a change in the position of the parties. An appeal is not, although in some earlier cases the old views seem to have continued in the language of the opinions.

The point discussed is decided in favor of the plaintiff’s views by Justice HardiN in Miller v. Shall (67 Barb., 447). The same view is incidentally stated by the court in Fry v. Bennett (7 Abb., 352 at page 355), as well as by Judge HoffMAN at page 362. It is favored by the opinion in Bathgate v. Haskin (59 N. Y., 535).

In Parker v. Williamsburgh (13 How., 250) service of notice of judgment on the defendant’s attorney was held good, although his official term had expired, his successor not having caused himself to be substituted. The case of Lusk v. Hastings (1 Hill, 656) when examined carefully, shows that on a motion to set aside proceedings the court held that the authority of the attorney for the defendant continued long after judgment against him.

We have examined all the cases referred to by defendant’s counsel and we And none which really affect this case in the points decided.

In this action of foreclosure especially the duty of the defendant’s attorney plainly continues after judgment. Often one of the important acts is to see that the property is sold in a legal matter and for a good price. The sale is to be confirmed on notice to the defendant’s attorney, wbo may have occasion to oppose such confirmation or to ask for a resale.

We may take notice of tbe fact tbat of litigated actions few stop with tbe first trial. Appeals are taken in a large number, and those appeals are taken by the attorneys wbo have conducted tbe previous proceedings. And tbe convenient and orderly disposition of business favors tbe view tbat, if another attorney is to be employed, a regular substitution should be bad.

Tbe defendant in this case was promptly notified of tbe defect of her notice. She might very possibly have bad an amendment or have served a new notice. But she did not. The time when tbe notice was served gives some force to tbe plaintiffs claim tbat it was not in good faith. But we do not pass on tbat. Nor do we decide .whether or not tbe defendant may still amend tbe notice by leave. Tbe only question is whether tbe Special Term should have set aside tbe sale.

Tbe judgment in this case is stated to have been entered by tbe consent of all tbe defendants. Perhaps a valid appeal may be taken from sucb judgment, and may be in force until dismissed. But tbe appellant does not stand in a strong position when she uses sucb an appeal as a ground to set aside a sale.

Another ground of tbe motion is tbat tbe sale was not in parcels. It appears that Margaret L. Maxwell, tbe appellant here, is not tbe owner of tbe premises, and tbat her liability is only for a deficiency if any should arise. It appears by tbe affidavits tbat there is no deficiency, and tbe appellant’s counsel asserts nothing to the contrary. She therefore has no interest in tbe sale and is not affected even if the property did not bring as much as it might have done. Those wbo are interested do not complain.

We are of opinion tbat tbe motion was properly denied.

Order affirmed, with ten dollars costs.

LaNDON, J., concurred.

Present — Learned, P. J., and Landor, J.

Order affirmed, with ten dollars costs and printing disbursements.


author: Learned, P. J.: LahdoN, J.:

text:
    RICHARD OAKLEY, Plaintiff, v. ABRAM HEALEY, Defendant.

      Tax sale — when the desoription of the premises is too mgm.

    In a deed executed by tbe comptroller to a purchaser of lauds at a sale for nonpayment of taxes, tbe premises were described as “in tbe county of Sullivan, Minisink patent, division one (1), lot twenty-eight (28), four hundred and fifty-five (455) acres, more or less, bounded north and south by the lot lines east try resident land, and west by the town of Eorestburgh.”

      Held, that the description was defective in that the east boundary was too vaguely defined.
    Motion for a new trial, on exceptions ordered to be beard in th& first instance at tbe General Term, after a verdict directed by tbe court in favor of tbe defendant.

      Butts dh Merritt, for tbe plaintiff.

      T. F. Bush, for tbe defendant.
   Learned, P. J.:

Tbe complaint alleges that tbe plaintiff is owner in fee and entitled to possession of certain land, describing it, that tbe defendant wrongfully entered and cut and converted wood, etc., and asks damages or possession of tbe wood, averring that plaintiff is owner of tbe wood and entitled thereto. Tbe answer denies plaintiff’s title to tbe land and to tbe wood, etc.

On tbe trial tbe plaintiff, to prove bis title to tbe land, gave in evidence three deeds given on tax sales; two by tbe county judge and treasurer of Sullivan county dated respectively in 1856 and 1858 and one by tbe comptroller dated in 1879. Tbe plaintiff relies principally on tbe last deed. The defendant’s main objection to that is that the description is insufficient. It is as follows: “ Tbe following piece,” etc., “ in tbe county of Sullivan, Minisink patent, division one (1), lot twenty-eight (28), four hundred and fifty-five (455) acres, more or less, bounded north and south by tbe lot lines, east by resident land and west by tbe town of Forestburgh.”

Tbe first defect is that tbe west boundary describes nothing. By chapter 299, Laws of 1837, the line between lots 28 and 29 is tbe town line between Forestburgh and Thompson, so that no part of Forestburgh lies west of any of the lands in lot 28. It is replied to this by plaintiff that this land was in the town of Mamakating, and that it is publicly known that Forestburgh does not join Mamakating on the west; that the word Forestburgh should therefore be changed to Thompson. The town of Mamakating is not, however, named in the conveyances. Therefore, so far as the conveyances go, there is nothing which shows that Forest-burgh is not the correct term.

The other defect is in the opposite boundary: East by resident land.” Now assuming that this means “ land owned by residents of the town,” and taking also the proof that the town intended was that of Mamakating, this description still fails to identify the land intended to be conveyed. It will be seen by examination of the statute (1 ft. S., 390, § 9), that the taxable inhabitants of the town are to be assessed for all the land owned by them severally in the town. And it is the land owned by non-residents which is provided for by section 11 and following sections. “Resident land” then does not mean land actually occupied by residents of the town, but land owned by such residents. And this boundary is made to depend on the ascertaining what persons were taxable inhabitants of Mamakating at the time (say 1864) of the assessment and what lands they then owned. This is altogether too vague to comply with the statute under Tallyman v. White (2 N. Y., 71), Colman v. Shattuck (62 id., 361), In re New York Central and Hudson River Railroad Company (90 id., 342), Dike v. Lewis (4 Denio, 237).

The duty of the assessors is set forth plainly in section 13, subdivision 4 and section 12, subdivision 5. Whether we understand that lot No. 28 of the Minisink patent is subdivided into lots or not, the description is defective and fails to comply with the letter and spirit of the statute. It is suggested by the plaintiff that there is no evidence in the papers as to the description in the non-resident assessment-rolls. But it is said in reply that this evidence was given on the trial, and by stipulation was not printed in the case. And certainly we have no reason to assume that the description in the assessment-roll is other than that in the deed.

¥e think that the motion for a new trial should be denied, with costs.

LahdoN, J.:

I concur in result. I think the north, south and west lines are exact. The boundary line of Thompson is the west line. But the east line is “resident lands,” and that means lands the assessors assessed as such. The plaintiff did not locate this east line and therefore did not show that his deeds covered the locus m quo.

Present — Learned, P. J., and LaNdoN, J.

Motion for a new trial denied, with costs.


author: LeaeNed, P. J.:

text:
    HEWITT BOICE, Respondent, v. THE THAMES AND MERSEY MARINE INSURANCE COMPANY (Limited), of Liverpool, London and Manchester, England, Appellant.

      Marine insurance —power of an agent to make an oral agreement to issue a policy — ■ when the customa/ry mode of loading a cargo ca/n he proved — what is a waimm' of a right to object to a failme to serve proof of loss.

    The defendant, a marine insurance company, issued to Preston & Co. its open policy, dated March 1,1884, and also a commission authorizing them to receive proposals for insurance and to issue certificate therefor to attach under the said open policy. On Saturday, March 29, 1884, between five and six p. m. , the plaintiff’s bookkeeper, acting under the plaintiff’s instruction, telephoned to Preston and asked him to put an insurance of $1,500 on a cargo of blue stone on the sloop Carver. Preston said he would and asked where the sloop was going. The bookkeeper replied New York, and also stated that the sloop was then at Rondout, and was told by Preston that it was all right and that they would take it. Preston made a minute of the instructions on the telephone card and told his partner to “put it on the Thames and Mersey” (the defendant). That night the partner made a memorandum in lead pencil on the stub of the book of certificates, in which, after the loss, however, the words “on deck or on board” were written. The sloop left Rondout that night in a tow and was lost in a storm the next morning.
    Jn this action, brought to recover the amount of the insurance:

      Held, that Preston & Co. had power to make an oral agreement to issue a policy, and that the agreement made by them with the plaintiff was binding upon the defendant.
    That the fact that the rate of the premium was not fixed did not affect the validity of the agreement, as it was shown that the plaintiff and the agente liad dealt together for some years and knew the rate of the premium, and that the agents were in the habit of giving credit to the plaintiff for the premium upon the policies issued to him.
    Evidence was received, against the objection and exception of the defendant, tending to show that the plaintiff was accustomed to load on deck; that this was the customary mode of loading, and that the defendant’s agents knew this to be so.

      Held, that as the evidence was not intended to explain or modify any terms actually written in a policy, but only to show what must have been the understanding of the plaintiff and the agents when the verbal agreement was made, it was admissible.
    A witness called by the defendant was asked whether, in his judgment, the vessel and cargo could have been saved by cutting her loose from the tow.

      Held, that the court properly refused to allow the witness to answer, as the question was objectionable in form.
    It was claimed by the defendant that the plaintiff’s failure to furnish proofs of loss, as required by the terms of the defendant’s policy, should prevent a recovery by him.

      Held, that the necessity of furnishing them was waived by a letter from the defendant’s general agent admitting the receipt of proofs of loss and denying all liability upon other grounds.

      Brink v. Hanover Mre Insurance Company (80 N. Y., 108); O’ Mel v. Buffalo Insurance Company (3 id., 122), followed; Devens v. Mechanics and Traders’ Insurance Company (83 id., 169) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.

      Norris Morey, for the appellant.

      Howard Ohypp, Jr., for the respondent.
   LeaeNed, P. J.:

The defendant issued to George -C. Preston & Go. its open policy dated March 1,1884. It also issued a commission of the same date to the same parties, authorizing them to receive proposals for insurance ; to give receipts therefor; to countersign and issue certificates of insurance signed by the officers of the company attaching under open policies.

Between five and six p. m., Saturday, March 29, 1884, plaintiff’s bookkeeper, under plaintiff’s instruction, telephoned George 0. Preston & Co. Mr. Preston answered, and the bookkeeper asked him to put an insurance of $1,500 on a cargo of blue stone on the sloop Carver. Preston said he would, and asked where the sloop was going. The bookkeeper said to New York, and asked if he had got it. Preston said yes, it was all right; and, as he testified, they would take it. The bookkeeper told him the Carver was at plaintiffs dock at Rondout. Mr. Preston made a minute of the insurance on the telephone card on the wall. In a few minutes his partner, Mi-. Causland, came in. Preston told him of the application and he said: “Put it in the Thames and Mersey.” That night Mr. Causland made a memorandum in lead pencil on the stub of the book of certificates. In that memorandum the words “ on deck or on board ” were written by Mr. Causland some time subsequently to the loss.

The Carver was completely loaded the evening of March twenty-ninth'and started in a tow about eight p. m. She was wrecked the next morning in Haverstraw bay in a severe gale. On Monday George C. Preston & Co. issued a certificate to the plaintiff. This, of course, was after the loss. The premium had not then been paid. In the certificate are the words on dock and on board.”

The commissions authorized G. C. Preston & Co. to receive proposals for insurance, to receive premiums and to issue certificates of insurance. A letter of instructions of date of March 22, 1884, states that the company has forwarded a complete set of supplies for doing a general inland marine business in the T. and M. I. Co.” At the time, then, of the alleged agreement between plaintiff and defendant, G. C. Preston & Co. were authorized to insure plaintiff in defendant’s company, and to bind defendant without any consultation or correspondence with its officers. Under the decisions in Post v. Ætna Insurance Company (43 Barb., 361), Ellis v. Albany City Fire Insurance Company (50 N. Y., 402), Angell v. Hartford Fire Insurance Company (59 id., 171), G. C. Preston & Co. could therefore make a verbal contract to insure or to issue a policy which contract would bind defendant. (Train v. Holland Purchase Ins. Co., 62 N. Y., 598.) Although the rate of premium was not expressed, yet the plaintiff and the agents had had dealings for some years and the rate of premium was known to them. (Bodine v. Exchange F. Ins. Co., 51 N. Y., 117; Fabbri v. Phœnix Ins. Co., 55 id., 129.) The agents too were in the habit of giving credit to plaintiff. This, of course, was at their own personal risk, as they became liable to defendant the same as if the premium had been received. The issue of the certificate after the loss had occurred very possibly did not aid the plaintiff. The agents had no authority to make such a contract after the loss, and the plaintiff’s case must rest upon what occurred on Saturday.

Evidence was received, under defendant’s objection, tending to show that plaintiff was accustomed to load on deck; that this was the customary mode and that the agents knew this. The defendants claim that proof of usage was not admissible and cite Wood v. Poughkeepsie Mutual Insurance Company (32 N. Y., 619). But the evidence is not directed to the explanation or modification of any terms actually written in the policy. It is intended to show what must have been the understanding of the plaintiff and the agents when they made the verbal agreement. If by that agreement it was fairly to be understood that the goods might be carried on deck, then the agents should have made the proper indorsement on the policy. The plaintiff cannot lose the benefit of his agreement by their failure to do this. (Van Schoiek v. Niagara F. Ins. Co., 68 N. Y., 434; see, also, in this connection, Allen v. St. Louis Ins. Co., 86 id., 472.)

The question whether, in the judgment, of a witness, the vessel and cargo could have been saved by cutting her loose, etc., was in that form objectionable. The question at issue was whether there was ordinary care and skill in navigating. Possibly the event showed that cutting loose would have saved the vessel. Yet it did not follow that to do so would have been good navigation or ordinary care. The question in issue was what was good navigation or ordinary skill as the matter then appeared. That question had been already answered by the witness.

Nothing in the views above stated conflicts with De Grove v. Metropolitan Insurance Compamy (61 N. Y., 594), cited by defendant. That case holds that a receipt given by an agent entitles the party to nothing more than a policy in the usual form, for instance, in that case, that suit must be brought in twelve months. But, in the present case, it was within the authority of the agents to give plaintiff a certificate expressing that the cargo might be on deck, etc., and, if the agreement was for such a certificate, the agent should have given it. Therefore plaintiff’s claim does not seek to gc beyond the agent’s authority, as it did in the case last cited.

Tbe next point made by defendant is that proofs of loss were not furnished. The court held that the necessity was waived by a letter of Crosby and Gunning. That letter admits service of proof of loss and denies the defendant’s liability on other grounds. This case comes within Brink v. Hanover Fire Insurance Company (80 N. Y., 108), O’Niel v. Buffalo Insurance Company (3 id., 122). The letter clearly showed that defendants made no objection to the proof of loss which had been presented. If objection had been made, the defect could have been remedied. This is not like Devens v. Mechanics and Traders’ Insurance Company (83 N. Y., 169). There the defense on the trial was a breach of a warranty in the policy. That was not a defect which could be remedied when notice of loss was served, and therefore failure to state it was held to be no waiver. On the contrary, in the present case the letter of Crosby and Gunning must have given plaintiff to understand that the proof of loss was satisfactory. It states two defenses and denies all liability.

It is urged by defendant that certain questions should have been submitted to the jury. On this point there might seem at first some room for doubt. But upon the whole we feel satisfied with the course taken by the learned justice as explained in his remarks in denying the motion.

Judgment affirmed, with costs.'

L AND ON, J., concurred.

Present — Learned, P. J., and Landón, J.

Judgment affirmed, with costs.


author: LEARNED, P. J.:

text:
    ABIGAIL H. BENNETT, Respondent, v. H. LOUISA AKIN, Appellant, Impleaded with ELIHU G. AKIN and Others.
    Will— cllarge of legacies upon lañé — the lien thereof, is superior to the claim of an owner for improvements — right to have a home and, support onafa/rm — duty of the owner.

    A testator gave a life interest in a farm owned by Mm to Ms widow, with remainder to Ms son Edward, charged, in case the personal property was insufficient, with the payment of $500 to each of the four daughters of the testator one year after the death of the widow, if the daughters were then twenty-one years old, if not, then on their respectively arriving' at that age. During the lifetime of the widow Edward conveyed Ms interest in the farm to Ms brother Elihu, who rebuilt the dwelling-house, which had been burned, and rebuilt fences, at a cost of $1,412.39. He also received $819.13 from a railroad company, as damages for a portion of the farm taken by it.
    In an action by the daughters, brought after the death of the widow to have the farm sold to satisfy the charges thereon:

      Held, that the lien of the legatees for the amount of their legacies was superior to that of Elihu for the amounts expended by him in improving the place, even though its value was thereby actually increased to the extent of the expenditure.
    The testator also, by Ms will, gave a home and support on the farm to each of Ms daughters so long as they remained single. After they became twenty, one and had received their legacies they were to have such support, on paying the interest of $500, as long as they stayed and remained single.
    In November, 1879, and after the death of the widow, one of the daughters, who was still unmarried, demanded of Elihu her home, and support. To this he replied, stating the destruction of the house by fire, and offering her what was provided by the will, as soon as the new house should be finished, and offering, in the meantime, to support her at one or two other places near the farm. To this offer'she made no reply. In this proceeding she sought to have the value of the home and support which she was entitled to receive charged upon the land.

      Held, that no recovery could be had therefor as Elihu was under no obligation to do anything more than he had offered to do when the demand was made.

      Held, further, that the lien of the pecuniary legacies to the four daughters was entitled to priority over the lien for the amount due to the unmarried daughter for the failure of Elihu to furnish her the support provided by the will.
    Appeal from a judgment, entered upon the report of a referee.

      Orin Gambell, for H. Louisa Akin, appellant.

      Robert H. McClellan, for the respondent.

      Lem Smith, for Elihu G. Akin.
   LEARNED, P. J.:

This action is brought to have a certain farm, formerly tbe property of James Akin, deceased, sold to satisfy certain charges thereon under his will, and to determine the rights of the parties interested. The defendant H. Louisa Akin (or Hannah Akin, as she is named in the will), appeals from the judgment entered on the report of the referee, and claims a different distribution of the proceeds.

The will gave a life interest in the farm to the widow, remainder to testator’s son Edward, charged with the payment of $500 to each of four daughters, if the personal property was insufficient, payable one year after death of widow, if they were then twenty-one ; if not, then on arriving at twenty-one. He gave a home and support on the farm to each daughter so long as they remained ■single. After they became twenty-one and had received their legacies, they were to have such support, on paying the interest of $500, as long as they stayed and remained single. Edward Akin conveyed his interest in the farm to Elihu G. Akin, in 1875. The^ widow died October 14, 1879, all the daughters being then over: twenty-one. All except H. Louisa Akin married during the life ■of the widow. In 1872 the dwelling-house on the farm burned. There was no place there in which an occupant could live until Elihu, in the winter and spring of- 1879 and 1880, rebuilt and repaired a house. He also rebuilt fences, etc. The whole expenditure was $1,412.39. He received in 1880 from the Troy and Boston Bailroad Company $819.13 damages for land taken. The improvements made by Elihu increased the value of the farm to the extent of the expenditure. On the 6th of November, 1879, H. Louisa Akin demanded of Elihu Akin her home and support. To this demand he replied, stating the destruction of the house by fire, offering her what was provided by the will, as soon as the new house should be finished, and meantime offering her support at one or the other of two places near the farm. She made no reply to this and never made any demand for her support afterwards. The referee held, first, that Elihu was entitled to be paid for his expenditure aforesaid, less what he had received from the Troy and Boston Bailroad Company.

These legatees had severally a charge on the farm for their pecuniary legacies. This charge was like a mortgage. Now,, if the house on a mortgaged farm were to burn down, and the owner of the equity of redemption were to rebuild, he would not be entitled to be paid for the expense of rebuilding in preference to the mortgagee. It is said that the improvements have increased the value. That may be, and Elihu will receive that increased value by the greater price for which the property will sell. But he cannot put the expense of his improvement ahead of the lien of the legacies. Assume that the farm alone was enough to pay the pecuniary legacies. Then those legatees were secure without any rebuilding. If they doubted the security they could have insured their interest in the premises.

The case of Gibert v. Peteler (38 N. Y., 165) does not apply. A vendee in possession under a contract for sale was allowed for improvements, when the vendor failed to convey. The vendee lost all title to the land by the vendor’s failure to convey, and therefore was allowed a lien for improvements, which had increased the value of the vendor’s land. Here it is Elihu’s land, not the land of the pecuniary legatees, which has been increased in valuer These legatees have only a lien, and that lien cannot be taken away by him.

The referee held that, after the repayment aforesaid to Elihu, the pecuniary legacies of $500 should be next paid; then the amount due H. Louisa Akin for her home and support. She insists that the legacy of a home and support is demonstrative, and should have-preference over the pecuniary legacies. The referee has awarded her $1,822.10, for the value of her support from November 6,1879, to May 6, 1885; that is from the time of the aforesaid demand. This shows that the referee considered that demand and her reply thereto as a refusal which entitled H. Louisa Akin to a money compensation. "We do not so regard it! At that time there was no house on the farm, and Elihu offered the next best thing. It could not be that he would become liable to pay money for her support elsewhere, when by accident the house had burned, and there was no place for her on the farm. She did not accept the offer and made subsequently no other demand. There was no obligation on Elihu to support her elsewhere than on the farm. So the will expressly provides. And it may be easy for a farmer to give a home and support on his farm, while it would be a great burden to pay in money for support elsewhere. (McKillip v. McKillip, 8 Barb., 552; Converse v. McArthur, 17 id., 410; Hawley v. Morton, 23 id., 255.) In Borst v. Crommie (36 N. Y. Sup. Ct.; 19 Hun, 209) it will be seen that until there is a refusal to support at the place designated in the' will, the legatee has not a right of action.

Now it appears that JEL Louisa lived on the farm until the house was burned. She then went away, and subsequently she has lived with her brother James at Cambridge, and has there taken charge of the household work. Elihu, the owner of the farm, is her brother; and nothing is shown indicating that she might not pleasantly and comfortably live with him. It should be clearly shown that Elihu was not willing to give her a home and support on the farm, or that the home and support he offered was in some way unsuitable, before she should burden the estate with a large sum for the value of a home, which she has obtained elsewhere.

In the next place, H. Louisa insists that the value of her past support should be paid before the pecuniary legacies. As the opinion which we have already expressed must require a new trial, and .as we cannot tell what may be there shown, it is perhaps unnecessary to decide this question. But on the whole we are of tho opinion that the pecuniary legacies should be first paid. One reason for this is that the testator evidently desired to treat his daughters •equally. He wished that each should have $500 and a support until married. Now if the compensation for the failure to give this support is to be first paid, it may take away all the avails, leaving nothing for the pecuniary legacies. Taking the whole will into consideration, we think that this inequality was not intended. Of course, the testator expected that the home would be actually afforded ; not that the farm would be sold.

And it must be noticed that the pecuniary legatees are also those foi whom the support is provided. So that H. Louisa stands in the same position with her sisters. Each was to have support till she was married and $500. It is not to be supposed that the others were to loose their $500 because they were soon married; and H. Louisa has remained single. We think that a new trial is necessary.

Judgment reversed, new trial granted, referee discharged, costs to abide event.

LaNDON, J., concurred.

Present — LeaeNed, P. J., and LaNDON, J.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


text:
    MARY MITCHELL, Respondent, v. THE HOME SAVINGS BANK OF THE CITY OF ALBANY, Appellant.

      By-laws of a sailings bank — a depositor assenting thereto is bound by them — a depositor who has lost his book may be compelled to furnish security before getting a duplicate.

    This action was brought by tbe plaintiff to recover money deposited by her with tbe defendant, a duly incorporated savings bank. Tbe plaintiff testified that she bad lost her pass-book and had not assigned or transferred it to any person. Tbe defendant based its refusal to pay tbe deposit upon tbe ground that tbe plaintiff bad failed to produce her pass-book when making tbe demand, or to furnish adequate indemnity, as required by tbe by-laws of tbe bank, which provided that in case of loss of a pass-book, on satisfactory proof and adequate indemnity, a duplicate might be issued, and “that no person shall have tbe right to demand or receive any sum as principal or interest without bis or her pass-book, that tbe amount demanded and paid may be entered therein,” to which by-laws the plaintiff had signified her assent by subscribing the same. The defendant had never received any notice from any person claiming tbe deposit or any part thereof.

      Held, that as the by-laws were reasonable and valid, and the plaintiff had assented to them, they became part of the contract, and that the plaintiff could not recover without producing her original pass-book, or procuring another by tendering adequate indemnity.
    Appeal from a judgment of tbe County Court of Albany county, entered upon tbe report of a referee in favor of plaintiff and against tbe defendant for $467.22.
    Tbis action was brought to recover tbe balance of deposits made by plaintiff with defendant, a savings bank organized under chapter 371, Laws of 1875, at various times between January 16, 1880, and May, 1883.
    Tbe plaintiff lost her pass-book in tbe autumn of 1883. Some time in 1884 tbe plaintiff went to tbe defendant’s banking bouse and asked for five dollars, stating tbat sbe bad lost ber pass-book, and was informed tbat sbe could not draw out any money without pro* ducing tbe pass-book or giving bonds, as prescribed by tbe defendant’s by-laws. On one or more occasions thereafter plaintiff made a demand for ber money and was informed on each occasion tbat sbe must give bonds. Plaintiff also at one time presented an affidavit to tbe bank to tbe effect tbat sbe bad not transferred ber pass-book or assigned ber account. On tbe 9th of January, 1885, sbe commenced this action, claiming tbat sbe was unable to give indemnity.
    Tbe referee found, as a matter of law: Tbat tbe regulations above set fourth requiring proof of loss of pass-book and adequate indemnity made part of tbe contract between plaintiff and defendant by force of tbe statute, chapter 371 of tbe Laws of 1875.
    Tbat tbe regulation requiring adequate indemnity in case of loss of pass-book is reasonable and valid, because though tbe right to tbe deposit is a chose in action, tbe absence of tbe pass-book would be notice sufficient to put tbe bank upon inquiry. Tbat tbe regulation should, however, be construed as requiring indemnity only when some risk would exist from making payment.
    Tbat tbe defendant bad made all tbe inquiry it was bound to make to ascertain whether tbe pass-book bad been lost without any assignment thereof or of tbe deposits, and bad discovered no ground for supposing there bad been an assignment
    Tbat having made such inquiry and having received no notice from any person claiming as assignee, defendant would not, bad it paid tbe plaintiff, have been liable to pay tbe money over again even in case there had been an assignment. Tbat there was no risk in making tbe payment against which indemnity was needed. Tbat tbe plaintiff was entitled to judgment.

      Arthur I. Andrews, for tbe appellant.

      HurTbut dt Bellows, for tbe respondent.
   Learned, P. J.:

Section 23 of chapter 371, Laws of 1875, provides for tbe repayment of deposits “ under such regulations as tbe board of trustees shall prescribe,” which regulations are to be printed in tbe passbook and put up in a conspicuous place in the business room of the corporation. Section 32, as amended by chapter 347, Laws of 1878, provides that a savings bank shall not pay any interest or deposit or portion of a deposit, unless the pass-book be presented and the proper entry made therein, and further provides that the trustees may make by-laws for the payment in case of loss ©f pass-book, etc.

' The trustees of defendant had passed certain by-laws which were properly put up and were printed in plaintiff’s pass-book. One of these required that, on making the first deposit, the depositor should subscribe and thereby signify his or her assent to the by-laws. The plaintiff had done this. By-law eight provided that in case of loss of a pass-book, on satisfactory proof and adequate indemnity, a duplicate might be issued. By-law ten was as follows: “ No person shall have the right to demand or receive any sum as principal or interest without his or her pass book that the amount demanded and paid may be entered therein.”

The plaintiff was a depositor. She testified on the trial that she had lost her pass-book, and had not assigned or transferred it. She offered no indemnity, and she sought to recover the deposit. Judgment was entered in her favor on the report of the referee and the defendant appeals.

These by-laws enter into-, and form part of, the contract between plaintiff and defendant. They are made for the protection of the depositors and of the bank. They protect depositors against forged orders and orders obtained by fraud. They are reasonable and valid, and they were assented to by plaintiff. It was then a part of the contract that the plaintiff should not have the right to demand her money without the pass-book, in order that the amount paid might be entered thereon. Now in case.of loss it will be seen that the contract was, not that the money should be paid, but that a duplicate book should be issued on giving adequate security. If the plaintiff had demanded a duplicate book, is there any doubt that she must have given adequate security, and that such adequate security might justly have been equal in amount to the deposit ? Would it be correct to say, as plaintiff claims, that the defendant needed no security, inasmuch as the plaintiff had not assigned her book ; and therefore that the bank could be required without any security to issue another pass-book? We think not. True, in tbe present case, the plaintiff sues for her money and not for the issuing of a pass-book. But the case we have supposed illustrates the meaning of the parties when they agreed for adequate security.

The plaintiff insists that, inasmuch as she testifies that she has not assigned the book, and inasmuch as no person has yet given notice to the defendant of any assignment, the bank may safely pay to her, and that it needs no security. The same argument would apply if she were demanding a duplicate pass-book. Yet it could not be that the defendant would be bound, without having security,fo issue a duplicate pass-book. The plaintiff cannot escape the obligation to give security, by changing her claim from a demand for a duplicate pass-book into a demand for the money. Certainly this by-law was intended to have some meaning. If the plaintiff’s position is right, the by-law is entirely ineffectual.

But the liability of the defendant is not a mere debt without qualification. It is a debt payable on presentation of the pass-book. If, therefore, the pass-book has been assigned, the assignee, seeing that provision in the book, may well believe that his lawful possession of the book secures to him the deposit although he gives no notice to the defendant. He may say that, by the very terms of the deposit, the failure to produce the book is notice to the defendant not to pay to the plaintiff except at its peril. (See in this connection Schoenwald v. Metropolitan Savings Bank, 57 N. Y., 418.) Thus we held in National Bank of Fort Edward v. Washington County National Bank (12 Sup. Ct. N. Y.; 5 Hun, 605) that, where a certificate of deposit had been issued by defendant payable only on return of the certificate properly 'indorsed, the defendant was liable to a Iona fide holder, for the whole amount, although the defendant had made a payment to the original depositor. There the certificate was issued in 1863; the payment made in 1864, and the certificate transferred in 1870. The analogy between the cases consists in this, that in both the payment of the amount deposited is, by the terms of the instrument, to be made only on return or presentation thereof.

The case of Warhus v. Bowery Savings Bank (21 N. Y., 543) decides only that the administrator of a depositor, not producing the pass-book, could not recover without proof that it had been lost or destroyed. The question of security was not raised or decided.

Tbe eases of Wall v. Provident Institution for Savings (3 Allen [Mass.], 96), and Heath v. Portsmouth Savings Bank, (46 N. H., 78), are directly in favor of defendant’s position.

¥e are of opinion that tbe by-laws formed part of tbe contract, ■and that the plaintiff must comply with them; that adequate security does not mean no security; that tbe defendant has a right to be protected against tbe risk that tbe pass-book has passed into the hands of some other person who is, or who may claim to be, tbe rightful owners.

Judgment reversed, and new trial granted, referee discharged, costs to abide event.

Bocees and LaNdoN, JJ., concurred.

Judgment reversed, new trial granted, referee discharged, costa to abide event.


author: LEARNED, P. J. I

text:
    JACOB S. PETRIE, Appellant, v. ADAM MOTT and JOHN D. HOLLENBECK., as Executors, etc., of DAVID LESTER, Deceased, Respondents.

      Statute of limitations — when it begins to run — a provision in a will for a debtor is not an acknowledgment of a debt.

    In or about tbe year 1860 the defendants’ testator, being indebted to the plaintiff for work performed by the latter during the years 1857, 1858, 1859 and 1860, entered into an oral agreement with him whereby the plaintiff agreed to postpone the time for the payment of the amount then due until the death of the testator, who agreed to pay him the said amount by a provision to be inserted in his will. In 1862 the testator made a will containing a provision for the plaintiff. Thereafter he revoked this will by making another which contained no provision for the plaintiff. The testator died in 1881.
    In this action, brought by the plaintiff against the executors of the deceased to recover the amount so due to him:

      Held, that the action was barred by the statute of limitations, which began to run at the time of the making of the agreement in 1860.
    That the provision made in the first will was not such a written acknowledgment of a promise to pay the debt as to take it out of the statute.
    Appeal from a judgment in favor of tbe defendants, entered upon tbe report of a referee.

      J. C. Ormsby, for tbe appellant.

      J. W. Houghton and J. 8. HAmoreaux, for the respondents.
   LEARNED, P. J. I

The plaintiff, in 1857, entered into possession of the farm of defendant’s testator, David Lester, to work the same on shares for one year. He continued in possession until 1865 ; each year making a new agreement. So that the letting was from year to year. During the years 1857, 1858, 1859 and 1860, and in each of those years, plaintiff performed work for said testator, at his request, in the improvement of the farm, which work was not included in the terms of his lease, and for which said testator agreed to pay him. No time was appointed when the work was tó be paid for at the time the request to perform was made, or at any time till the work had been done. Prom this it follows that payment for each piece of work was payable on its completion; or at least that the whole value of the work done in any year was payable at the end of that year.

After the performance of the work and at the end of the first year, the testator asked credit of plaintiff; and he did so at the end of each year. At some subsequent time, which the referee finds was two or three years after 1857, the testator and plaintiff orally agreed to postpone payment of the amount due plaintiff till the death of the testator, who agreed to pay him the amount by provision in his will.

The referee finds that it is not proved that extra work was done after the time when this agreement was made. The testimony is uncertain as to dates, and we think that there is no reason why this finding of fact should not stand.

-Vbout 1862, the testator made a will by which some provision was made for plaintiff. There is no sufficient proof as to the form or amount of such provision. The testator subsequently referred the plaintiff to John M. Clark, one of the witnesses to the will, that he might be assured that provision had been made thereby for him; and Clark told the plaintiff he was mentioned therein. Subsequently the testator executed another will, which revoked the former will of 1862, and which made no provision for the plaintiff. The testator died in August, 1881, and the will last mentioned was admitted to probate.

The plaintiff now seeks to recover $1,000, the alleged value of the aforesaid extra work. The defendants, among other defenses, set up the statute of limitations. ■ The referee held that the plaintiff was barred by the statute, and the plaintiff appeals.

The testator was indebted to the plaintiff, and the debt was payable at the time (say in 1860) when the oral agreement for compensation by will was made. At that time then an immediate right of action existed in favor of the plaintiff against the testator. The work had not been done upon the strength of a promise to pay by a provision in the will, but upon a simple agreement to pay, which was an agreement to pay when the work is finished, or possibly, under the circumstances, at the end of the year. Several of the cases therefore which are cited by the plaintiff have no application, being cases where the work had been done on a previous, or existing, promise to pay by a will. Of course, in those cases, by the very terms of the agreement the work, at the time it was done, was not to be paid otherwise than by the last will of the party.

But in this case the immediate right of action was existing and necessarily the statute of limitations was beginning to run. Then we have the Code of Civil Procedure, section 395, which says that an acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract, whereby to take the case out of the operation of the statute. (Code of Procedure, § 110.) The agreement to pay by a provision in testator’s will can be, in this respect, no different from an agreement to pay after a lapse of ten years, or an agreement to extend the time of payment of a debt already payable for ten years. Is there any. doubt that such an agreement, if oral, would not take the case out of the operation of the statute.

It has been decided that, when a debt is payable, an agreement on the part of the creditor to extend the time and on the part of the debtor to pay at the extended time is without consideration and void. (Kellogg v. Olmsted, 25 N. Y., 189.) In the present • case it does not appear even that the testator agreed to pay interest on the debt. So that the agreement was simply that, if the creditor would wait a certain (or rather an uncertain) time, the debtor would then pay the debt. That could certainly not be binding on the .creditor. This doctrine, of course, does not touch the case of the surrender of one written obligation, and the issue of another in its place. But nothing of that kind is in the present case. Nor is it doubted that the time for performance of a contract may be extended before such time has arrived. That doctrine is not material here.

There was, then, nothing in the oral agreement above mentioned which extended the time of payment, or took the matter out of the statute of limitations. But the plaintiff urges that the provision contained in the will of 1862 operated to take the case out of the statute. There are several answers to this. It is not proved what was contained in the will. There is no proof that the will acknowledged a debt or expressed that the bequest was in the nature of payment. Generally, a bequest is a voluntary gift. It would be an extraordinary doctrine that, if a person executed a will, giving a bequest to another, and afterwards revoked that will, such bequest in a revoked will should be evidence against his estate of a debt. Wills have no effect till the death of the testator. And a writing which has no effect cannot be an “ acknowledgment or promise.”

The plaintiff, however, urges that a fraud has been practiced on him. Now, we cannot know what the testator would say on the merits of this case, and how he would regard a claim for $1,000, made in 1883, for services alleged to have been rendered before 1862. The very object of the statute of limitations is to guard parties against stale claims. And this is very stale. And the claim that a fraud was practiced would fall, if we should consider that the intention of the testator and the bequest in the will of 1862 may have been, after all, matters of mere bounty and not of debt. Such is the impression given us by the testimony of one of plaintiff’s witnesses, Mrs. Bogart, the sister-in-law of the testator. The plaintiff insists that the statement to him by Clark of the contents of the will of 1862 by the direction of the testator was an estoppel. We do not see what it estopped. Can it be said that it estopped the testator from revoking his will ? But if the agreement between plaintiff and testator was valid and binding, then it is of no consequence whether or not the testator revoked his will, because his estate -would be liable on tbe agreement, if tbe agreement was binding. On tbe other hand, if the agreement was not binding, then the testator was not bound to carry it out, and the bequest was a merely voluntary gift which he could revoke without incurring liability.

It comes then to this, to take the plaintiff’s own view, that the parties made an oral agreement which was not binding and that .plaintiff, supposing it to be binding, allowed the statute of limitations to run against his claim. But can we disregard the statute for that reason ? Suppose there had been a mere verbal agreement to extend the time, as above suggested, for ten years, and the plaintiff, relying on that, had neglected to sue, would not the statute have run against his claim, and could the court have disregarded the statute because the plaintiff had erred ?

The judgment should be affirmed, with costs.

Landon, J., concurred.

Present — Learned, P. L, and Landon, J.

- Judgment affirmed, with costs.