author: Bockes, J.:

text:
    CHARLES E. BUTLER, as Trustee, etc., Appellant, Impleaded with SARAH C. BUTLER, as Executrix, etc., v. THE BOSTON AND ALBANY RAILROAD COMPANY, Respondent.

      Trustee — when he is held pw'sonally liable for the costs of am action brought by him.

    When a trustee during the pendency of an action brought by him receives and voluntarily disburses money belonging to the estate, and the defendant thereafter recovers a judgment against him for costs, the court may, if the trustee . has no money wherewith to pay the judgment, allow the defendant to enter a judgment against him personally for the amount thereof.
    Appeal from an order made at Special Term directing that the plaintiff, Charles E. Butler, be charged personally with the payment of the defendant’s costs.
    The action was brought by plaintiffs, not individually, but in their representative capacity, for ’damages to the real estate held by them for the fife of Alexander Hammond, occasioned by the defendant’s building and maintaining a second track in the street in front of the said premises; and also praying for an injunction against the defendant, restraining the use of said second track.
    The cause was referred and a report made in favor of the defendant, adjudging that the complaint be dismissed, with costs, and directing judgment to be entered therefor in favor of the defendant and against the plaintiffs.
    It appeared that after the action was commenced, Charles E. Butler, as trustee, received and paid out divers moneys, and that he had personally advanced some $110.11 when Alexander Hammond suddenly and unexpectedly died.

      S. L. Magoun, for the appellant.

      Newkirk & Chace, for the respondent.
   Bockes, J.:

We are of the opinion that the order appealed from was properly granted, on the ground stated at Special Term, that the plaintiff, Butler, was, during the progress of the action, possessed of trust funds sufficient to satisfy the costs awarded to the defendant in the action. Having the means in hand, he should have anticipated the possible result of the suit and kept them, in order to be able to meet the costs which might be awarded against him therein. It seems that he paid his own attorney and counsel in the suit. It was quite as much his duty to pay from the trust fund the costs of the defendant, as it was to pay his own attorney and counsel in the suit, and thus relieve himself from personal liability to them. To pay all other demands, or most of them, in full, and retain nothing at all for an equally just claim was an unfair disposition of the funds. It is an old maxim that “ equality is equity.” The trustee incurred liability for those costs by his own action. He should not be allowed to cast the burden of his own mistake, calling it such, upon his adversary, especially as he possessed the means of indemnifying himself from the fund his proceeding was intended to enhance or benefit. And again his obligation to pay these costs was equal if not paramount to the duty he owed to the beneficiary under the trust. He should not, therefore, make application of the fund to the beneficiary and leave these costs wholly unpaid. Such distribution of means in hand was improper as it was unjust.

The defendant was not concluded from this motion in this case by the judgment awarded by the referee. Costs were awarded against the plaintiffs, and without any further order they would be deemed to be against the plaintiffs in their representative capacity, but the defendant was at -liberty to move the court for an order charging them personally therewith on the grounds here urged.

We do not think it necessary here to consider the question whether the action was necessarily brought by Butler in his representative capacity. We are of the opinion that the order was well based, on the ground above considered.

The order appealed from should be affirmed, with ten dollars costs and expenses for disbursements.

Boardman, J., concurred; Learned, P. J., taking no part.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    MARIA L. PLATZ, Respondent, v. THE CITY OF COHOES, Appellant.

      Negligence of a city in the awe of its streets — one traveling on Sunday may recover damages for injuries sustained — when a traveler is not responsible for the negligence of the driver.

    This action was brought by the plaintiff, a married woman, to recover damages for injuries sustained by her by reason of her being thrown from a carriage driven by her husband in one of the streets of the city of Cohoes on a Sunday evening. The accident was alleged to have been occasioned by the negligence of the defendant in allowing a heap of earth to be thrown upon and left unguarded in the street.

      Held, that the court properly refused to nonsuit the plaintiff on the ground that she met with the accident while violating the Sunday law, in traveling on that’ day for a purpose other than “ charity or necessity.”
    That the court properly charged that the plaintiff was not responsible for any carelessness on the part of her husband in driving, unless she did some act encouraging it.
    Appeal by the defendant from a judgment in favor of the plaintiff entered upon a verdict, and from an order denying the defendant’s motion for a new trial upon the minutes.
    The action was brought to recover for injuries sustained by the plaintiff, a married woman,'in being overturned while riding in a carriage driven by her husband in the streets of Cohoes, on Sunday evening, October 21, 1875. The overthrow of the carriage was caused, by a heap of dirt thrown up by the water commissioners in excavating for the purpose of repairing a leak in the water-pipe on Remsen street, upon which the plaintiff’s husband drove his horse and wagon, in the absence of lights on the barricade surrounding the heap of dirt and the excavation.

      G. L. Stedman, for the appellant.

      R. W. Peckham, for the respondent.
   Bockes, J.:

The facts of this case are such, as we think, that it could not have been properly taken from the jury and decided by the court. Indeed the appellantis counsel does not so insist, except as to the husband’s alleged contributory negligence, which comes before us for consideration as a question of law on the exception to the ruling of the judge on that subject. The two points urged on this appeal are (1), that the plaintiff should have been nonsuited on the ground that she met with the accident while violating the Sunday law, in traveling on the Sabbath for a purpose other than “.charity or necessity,” and (2) that the court erred in holding as matter of law that negligence of the husband who was driving the horse attached to the vehicle from which the plaintiff was thrown, although it may have contributed to the injury, would not bar her action. As to the first question, it seems to be settled against the appellant in Carroll v. The Staten Island Railroad Company (58 N. Y., 126, 132), and in Wood v. Erie Railway Company (72 id., 196), see remarks of Miller, J., on p. 200. In Bertholf v. Reilly (8 Hun, 16) it was held that the sending out of the horse on Sunday by the plaintiff did not deprive him of his action for an unlawful injury to the property. This ruling was approved in this case on appeal (74 N. Y., 509). See remarks of Andrews, J., last paragraph on p. 525; see also Baldwin v. Barney (12 R. I., 392). Whatever may be the law in some other of the States, in this State the question seems to be determined by the decisions above cited.

The court charged the jury that the plaintiff was not responsible for carelessness on the part of her husband in driving, unless she did some act encouraging the carelessness, and declined to charge the contrary of this proposition. In these rulings we are of the opinion the learned judge was right. They are sustained by abundant authority, conceding that the plaintiff was to be deemed a mere passenger. (Perry v. Lansing, 17 Hun, 34; Robinson v. N. Y. C. and H. R. R. R. Co., 66 N. Y., 11; Dyer v. Erie R. Co., 71 id., 228.) The defendant’s counsel endeavors to bring this case within the decisions in Harris v. Uebelhoer (75 N. Y., 169) and in Beck v. East River Ferry Co. (6 Rob., 82). But these cases were decided on the ground that the parties upon whom negligence was charged were engaged in a joint enterprise, or were so connected in their action as that it was the joint product or performance of both.

Such is not this case. This case is very much the same as that of Robinson, above cited. There the plaintiff at the time of the injury was riding with another person upon the latter’s invitation. There, as here, the plaintiff had no control over the driver of the vehicle. Judge Church there says: “ The plaintiff had no control of the vehicle nor of the driver in its management. It is not claimed but that Oonlon was an able-bodied, competent person to manage the establishment, nor that he was intoxicated or in any way unfit to have charge of it.” The learned judge adds: Hpon what principle is it that his negligence is imputable to the plaintiff ? It is conceded that if by his negligence he had injured a third person, she would not be liable. She was not responsible for his acts an¿L had no right and no power to control them. True she had consented to ride with him, but as he was in every respect competent and suitable, she was not negligent in doing so.”

This reasoning well applies to this case and fully sustains the rulings of the learned judge here tinder examination. The order and judgment appealed from must be affirmed, with costs.

Learned, P. J., and Boardman, J., concurred.

Judgment and order affirmed, with costs.


text:
    OLNEY L. CARPENTER, Respondent, v. THE BOSTON AND ALBANY RAILROAD COMPANY, Appellant.

      Rail/road company — not liable fof the negligence of a postal clerk.

    A railroad company is not liable to a passenger wbo, while entering the station for the purpose of taking an approaching train, is struck and injured by mail bags carelessly and negligently thrown from the mail car by a postal clerk employed by the United States government.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The plaintiff was a merchant doing business and residing at Canaan Four Corners, in Columbia county, and was the traveling partner of the firm of O. L. Carpenter & Co. On the 6th day of January, 1876, the plaintiff was the owner of a distance ticket, so-called, issued by the defendant, upon which there was then due a certain number of miles travel, and more than enough to pass him from Chatham Village to Canaan station, on the defendant’s road. With such ticket in his possession, the said plaintiff went to the defendant’s depot at Chatham to take passage on the first train running east on the road. ■ The eastern train was due as he approached the depot coming from the east. As he came upon the platform, the train came rapidly from the west and the engine passed the plaintiff. As the mail car came opposite him the doors were thrown open and several mail bags, with their heavy contents, ■were violently thrown upon the plaintiff as he was walking on the platform toward the passenger cars of the train on which he intended to embark. The weight of mail bags and contents, with the additional motion of the train, struck the plaintiff upon his left leg near the knee, twisted him violently around, and threw him prostrate on the platform, on which he lay beneath said mail bags.

      John Gadman, for the appellant.
    It has been repeatedly held that a postal clerk or mail agent on a railroad train is a passenger. (Norton v. Western R. R., 15 N. Y., 444; Rlair v. Erie R. R., 66 id., 313; Price v. Penn. R. R., Alb. Law. Jour., vol. 22, p. 391.)
      “ There is no such privity between a railroad company and a passenger as to make it liable for the wrongful act of the passenger upon any principal.” (Putnam v. Broadway, eto., B. B. Co., 55 N. Y., 113; McPherson v. N. Y. Central B. B. Co., 44 id., 478.)

      Chas. L. Beale and R. E. Andrews, for the respondent.
    The defendant is liable to the plaintiff for all injuries resulting to him fr#m the negligent or wrongful acts or omissions of the mail agents or mail carriers upon defendant’s trains, even if they are not employes or agents of said defendant. If the mail agents are to be regarded as lessees, then the defendant is liable for their negligence’and the-injury resulting to the plaintiff therefrom. (Peoria and Bock Island Railroad v. Lane, 83 111., 448 ; 5 Weekly Digest, 404; Moyer v. The Macon and C. Railroad, 49 Ga., 355; Perry v. The Central Railroad Company, 58 id., 467; York and Maryland Railroad Company v. Winans, 17 How. [U. S.], 39; Bannon v. R. R. Company, 5 Wall. [U. S.], 90; Nelson v. The Vermont and Canada Railroad Co., 26 Yt., 717; Finnegan v. The Illinois Central R. R. Co., 21 111., 646 ; Thorpe v. New York Central R. R. Co. [Ct. of App.], Alb. L. Jour., May 10, 1879; also, Same v. Same,L. Jour., May 10, 1880; Bryant v. Rich, 106 Mass., 180; 8 Am., 311; id., 451; Shirty v. Billings, 8 Bush [Ky.], 147; Skinner v. L. B. and S. Railway, 2 Eng. L. and Eq. Rep., 360; Peters v. Rylands, 20 Penn., 497.) But if said mail agents or carriers were not the technical lessees of defendant’s road, but were merely entitled, under a contract with defendant, to run their own car, or a hired car, exclusively occupied by them, over the track and attached to the train or drawn by the locomotive of the defendant, and, if in so doing, any injury resulted to plaintiff from the negligence of such mail agents, while their car was on said track attached to said train, or propelled by said engine, the defendant is liable therefor. (Lane v. The Peoria and Rock Island R. R. Co. [above cited], 5 Weekly Dig., 404; 83 111., 448; Thorpe v. The New York Central and Hudson River Railroad Company, 5 Weekly Dig., 556 ; Randle v. Deshler, 3 Keyes, 572; State v. Merserean, 64 N. Y., 138 ; Robinson v. N. Y. C. and H. R. R. R., 3 Weekly Dig., 56 [Ct. of App., April 18, 1878] ; 64 N. Y., 138 ; Palletb v. Lang, 56 id., 200; Bonnet v. Third Avenue R. R. Co.,
      45 id., 628; Schapman, v. The Boston and Worcester B. B. Co., 9 Cush., 24; McChay and Wife v. The Nashua and Lowell B. B. Corporation, 4 id., 401; Eaton v. The Boston and Albany Bailroad Company, 11 Allen, 500; Hint v. Norwich Transportation Co., 34 Conn., 554; IT. S. S. C., 13 "Wall., 3; 6 Blatchf., 158.) If the mail carriers are to be regarded simply as passengers of defendant transported with their charge (mails, packages, etc.), for hire like express agents, still their negligence or wrongful acts, causing injury to others who were passengers, or persons rightfully in the cars or upon the platforms, etc., of the defendants, would render the defendant liable to injured parties for injuries they inflicted or occasioned. (Flint v. The York and Norwich Transportation Company, supra • The New Orleans, St Louis and Chicago B. B. Co. v. Burke, 53 Miss., 200; 24 Am., 689 ; Pittsburgh and Connellsville B. B. Co. v. Pillan, 18 id., 424; 76 Penn., 510 ; Eemson y. The European and North America B. B. Co., 62 Me., 84; 16 Am., 404; Goddard y. The Grand Trunk Bailway Go., 57 Me., 202; S. C., 2 Am., 39; 27 Maryland, 277; Carroll y. Staten Island Bailroad Co., 58 N. Y., 126; Bawles v. Deshler, 3 Keyes, 572; Barnet y. Third Avenue Bailroad Co., 45 N. Y., 628; affirming 1 Sweeney, 568; Funnell y. Bonfriend, 2 Daley, 155; Sheridan y. Brooklyn and C. B. B. Co., 34 How., 217; N. Y. Weekly Dig. [Jan. 13, 1878], 497; Fletcher y. Broddick, 2 New Reports, 182; New Reports, 44, 47, Geo. Ill, sometimes cited as 5 Bosanquet and Puller in America; Bogers v. Bogenda Drutt, 2 W. R. P. C., 51, Digest page 298; Sheridan, administrator, y. The Brooklyn and Newton Bailroad Company, 36 N. Y., 39 ; Nathan y. The Western Baih'oad Corporation, 15 id., 444; Flint y. The New York and Norwich Trans. Co., 13 Wall., 3; Burke y. The New Orleans-and Chicago B. B., 13 Miss., 200; 24 Am., 689 ; Pillou v. The Pitts-burg a/nd C. B. B., 18 id., 424; 16 id., 404; Bryant y. Bich, 106 Mass., 180; 8 Am., 311; Goddard v. Grand Trunk Bailroad, 57 Me., 202; 2 Am., 39 ; also, 27 Md., 277.)
   Bockes, J.:

The immediate cause of injury here complained of was an act of gross carelessness on the part of the postal clerk ” in the employ of the Hnited States government, while on duty on the defendant’s road. The legal relations between the defendant’s company and this person was that of carrier and passenger. (Price v. Penn. R. R. Co., 22 Alb. L. J., 391.) This is so held in our own State in the analogous cases of express messengers and herdsmen riding on trains, under contract with the company for the transportation of property in their charge. (Blair v. Erie R. Co., 66 N. Y., 313.) And it is decided in Putnam v. B’way and Sec. Av. R. R. Co. (55 N. Y., 108), that a railroad company is not liable for the wrongful acts of a passenger, save as it is bound to exercise the utmost vigilance in maintaining order and guarding its passengers from violence. In this case Judge Allen says: There is no such privity between a railway company and a passenger as to make‘it liable for the wrongful acts of the passenger upon any principle; ” and the learned judge cites with approval the doctrine laid down in Pittsburg, F. W. & C. R. R Co. v. Hinds (53 Penn. St. R., 512), on this point. It is difficult to see how or on what principle the defendant’s company can be held liable in this case for the careless and wrongful act of the “ postal clerk ” in throwing the mail bags from the train. He was in no respect the agent or servant of the company. He was not engaged in its business, nor was he at all subject to its direction or control any more than was any passenger on the train. Suppose that this “postal clerk” or any passenger had leaped from the train under the same circumstances as attended the throwing off of the mail bags, and had thus caused the injury to the plaintiff here complained of, would the railroad company have been liable therefor? Certainly not. The company could not be held liable in such case, and for the plain reason that the act was not the act of the company, nor of its agent or servant, nor did it pertain to the business of the company. Such act the company was not bound to anticipate. The company could not assume that a passenger would commit a wrongful act; so it was not bound to anticipate its occurrence.

It is urged that the company were negligent in not furnishing some safeguard or protection to persons who might be injured by the act of the “postal clerk” in throwing the mail bags from the train. But if they were thrown off with proper observation and care, no injury could result from such act to which liability would attach. So the company had the right to believe, and to base its conduct upon such belief, that the postal clerk ” would act with due prudence. There was consequently no negligence in omitting to make provision against an improbable emergency under the broadest rule of obligation; the company was bound to provide against such dangers only as could be reasonably anticipated or naturally expected to occur. (Cleveland v. N. J. S. Co., 68 N. Y., 312, 313.)

This rule of duty was considered by Judge Folger in the case cited, and also by Judge Grover in Dougan v. C. T. Co. (56 N. Y., 7, 8.) In the latter case; it is said that the defendant was bound to provide only against such dangers as would be reasonably apprehended by prudent persons.

That was a case where a passenger on the defendant’s boat slipped from the gangway, only protected by a single bar about three feet above the deck. The learned judge said the evidence showed that all the passenger boats upon the lake had been constructed and run in the same way in this respect; that boats had so been run for a great number of years, and there was no proof tending to show that anyone had ever before fell and gone overboard under the railing, or that any such danger had been apprehended by any one. It was obvious that no such thing was likely to occur.” And the learned judge further remarked: When, as in the present case, numerous boats constructed in this same way had been run for years with perfect safety to the passengers, where there was no ground for supposing that any passenger, ever permitted to be there, would fall under the railing, to find negligence from a failure to board up the space so as to preclude such a possibility, could not be justified.” In that case it was held that there was no question to be submitted to the jury. This subject is also treated by Judge Allen, in Putnam v. Broadway and Second Avenue Railroad Company (above cited), in a like line of reasoning. It is there laid down as a sound rule of law that a party is only answerable, as for negligence, for omitting to provide against those dangers which might be reasonably expected to occur, such as might be foreseen by ordinary forecast; and this, too, is the doctrine of Cleveland v. N. J. S. Co. (68 N. Y., 312, 313). Giving application to these well settled principles, it seems impossible to hold the defendant’s company liable in this case. The plaintiff mult seek redress for his injuries against the “ postal clerk” or against tbe principal in whose business be was engaged. That tbe “postal clerk” is irresponsible, pecuniarily, or tbat redress cannot be obtained against bis principal in tbis case, is no ground for casting babibty upon tbe defendant’s company.

Tbe judgment and order appealed from should be reversed and a new trial granted, costs to abide tbe event.

Boardman, J., concurred; Learned, P. J., taking no part.

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


author: Bockes, J.: Learned, P. J.:

text:
    SARAH E. BAUCUS, Appellant, v. MARY A. STOVER, Executrix, and EBENEZER A. BALCH and JAMES BARR, as Executors of GEORGE STOVER, deceased, and others, Respondents.

      Liability of an executor for a debt due to the testator — when he may show his (the executor’s) insolvency — 3 S. 8. (6th. ed.), 91, § 14 — how payment may be enforced —When the widow is not entitled to have sheep, swine, etc., set apa/i't to hei'— Computation of commissions upon real estate sold subject to a mortgage.

    Although under section 14 of 3 Revised Statutes (6th ed.), 91, an executor must include a debt due from him to his testator in the inventory, and is, upon the final accounting, prima facie to be held liable therefor as for so much money in his hands at the time the debt became due, yet the presumption of solvency created by the statute may be rebutted, and the executor may show an honest inability to pay the debt continuing during the whole period of his executorship.
    A decree refusing to charge the executor with the amount of his debt as for so much money in his hands, does not prevent his being required to render a further account should he thereafter become able to pay the debt, nor does it . prevent a proceeding being instituted in equity against him to enforce the payment of the claim and the due application of the avails thereof when collected.
    As the executor holds the position of a trustee as regards the debt, he could not avail himself of the statute of limitations as a defense.
    The .statute, authorizing the setting apart of sheep and swine to the widow, only applies where the deceased has such an ownership and possession of them at the time of the making of the inventory, as will permit of their delivery to the widow; when he has but a half interest therein, they cannot be delivered to her, nor can any allowance be made therefor.

      Where, under a power in the will authorizing a sale for the purpose of a division of the proceeds, an executor sells real estate subject to mortgages existing thereon at the time of the testator’s death, or sells the real estate free from the incumbrance, paying ofE such incumbrance from the proceeds of sale, he is only entitled to commissions upon the amounts actually received for the equity of redemption, and cannot charge them also upon the amount of the mortgages on the property sold. (Bocees, J , dissenting.)
    Appeal from the decree of the surrogate of the county of Washington, on the final settlement of the accounts of the executrix and executors of the will of George Stover, deceased.
    Among the assets of the deceased was a note of James Bair, one of the executors, dated April 1, 1874, for $4,561.91, on which there was due at the making of the inventory, as certified by the appraisers, $3,753.11. Barr united in verifying the inventory and in filing it. The testator owned no sheep or their fleeces, nor swine, but owned such jointly with his tenant farmer, one-half each. The appraisers did not set-off to the widow, sheep or their fleeces, or swine, or feed for the sheep and swine.
    The real estate of the testator was mortgaged, the farm for $6,050 and the store for $2,675, and by virtue of a power in the will the executors sold both, realizing on the farm $7,189.63, and after paying the bond and mortgage a surplus of $1,139.63, and selling the store to the mortgagee for just the amount of the incumbrance.
    The decree adjudged that Barr, executor, should not be required to account for his note ; that the widow should be allowed for sheep and their fleeces, and swine and food for the sheep and swine not set-off by the appraisers, and that the executrix and executor Balch should be allowed commissions on the gross amount of the sales of the real estate, not on the surplus only.

      Robert H. McClellan, for the appellant.

      D. M. Westfall, for the respondents.
   Bockes, J.:

This is an appeal from a decree of the surrogate of Washington county, made on a final accounting by the executrix and executors of the will of George Stover, deceased.

The leading question on this appeal arises on the omission of the surrogate to charge the executor Barr with the sum of $3,753.11 and interest, being the balance due the estate on his note, held by the testator at the time of his decease.

The facts in regard to this note are as follows: There was, among the assets of the deceased, a note made by Barr, one of the executors, dated April 1, 1874, for $4,561.91, on which there was due and unpaid at the time of making the inventory, as certified by the appraisers, $3,753.11. Barr united in verifying the inventory, which was filed with the surrogate. The note was inventoried as “ very doubtful of collection of any part.” Barr was wholly insolvent at the time of the decease of the testator, and so remained to the time of entering the decree appealed from.

The appellant insists that the surrogate was in error in omitting to charge Barr as executor with the amount unpaid on the note, and in refusing to decree distribution thereof against him as money in his hands for that purpose. This claim of the appellant is based upon the provision of the statute, which provides that “ the naming of any person executor in a will shall not operate as a discharge or bequest of any just claim which the testator had against such executor, but such claim shall be included among the credits and effects of the deceased in the inventory, and such executor shall be liable for the same as for so much money in his hands at the time such debt or demand becomes due, and he shall apply and distribute the same in the payment of debts and legacies and among the next of kin as part of the personal estate of the deceased.” (3 R. S. [6th ed.], 91, § 14.)

The decision of the question under examination depends upon the proper construction to be given this provision of law. The object of the enactment therefore becomes an important if not absolutely controlling subject of inquiry. A reading of this section, in connection with others, defining the duties and obligations of executors, shows that the purpose of this statute was to effect a .change in the law theretofore existing, according to which the appointment by the creditor of a debtor as his executor, discharged or extinguished the debt. (Soverhill v. Suydam, 2 Thom. & C., 460-465.)

This provision should consequently be construed with reference to the object sought t® be attained by its enactment. It was intended evidently to do no more than work this change in the law. Thus an executor would be held to the same obligation and duty as regarded his 'own indebtedness to the estate, to which he was bound, in regard to other assets coming to his hands. Nor is there any reason for an application of any stricter or more onerous obligation against him in the one case than in the other. As to other assets, if collectible, collection should be made, and he would be held to due diligence in that regard. In the case of his own indebtedness to the estate it should be presumed paid, and the money in hand under his obligation to pay. This is the substance and effect of the law under examination. But, as in the case of general assets, it would be open to him to show its utter worthlessness at all times during the continuance of the trust to which he was appointed. So to discharge himself from all obligation as executor for the worthless assets, he might show his total inability to make payment at, and subsequent to, the testator’s decease. The principle applied in Everts v. Everts (62 Barb., 577-583) would apply here. The statute contemplates a condition of solvency, ability to pay the debt, not one of honest insolvency. Where it declares that the executor shall be liable for his indebtedness to the estate, as for so much money in his hands, an ability to pay while executor is within the contemplation of the law. It was not intended to have application to an exceptional case of his inability to meet his promise. A different construction of this law would make an insolvent executor, by virtue of the statute itself, an embezzler of money which he never received and which he was unable to obtain; and this without any wrong or laches on his part. Such a construction would be unreasonable, as it would be unjust. It was in view of the wrong which such a construction would inflict, that a ne exeat was refused in Brownell v. Akin (6 Hun, 378). Undoubtedly the note shoiild be inventoried among the assets. So the law declares; and the executor should be held to be prima facie liable for his debt as for so much money in hand to be applied and distributed by him according to law (62 Barb., 577-579), but he would still be at liberty to meet and overcome the presumption against him by showing an honest inability to make payment at all times during his executorship, in which case he would not be held liable on tbe accounting for money in hand. It cannot be that this law was intended to convert a liability on a simple contract debt into one of a different character involving the debtor’s personal liberty. The decision in Adair v. Brimmer (74 N. Y., 539) and other cases cited by the appellant’s counsel on this point, are not here applicable. In those cases there was no question as to the solvency of the executors. The cases were decided on the hypothesis that they were well able to pay and satisfy their indebtedness. In such case, as matter of course, the executor should be deemed to have the money in hand for distribution. It was not intended by this law to hold an executor to any greater or different obligation in the proceeding for his accounting before the surrogate than in case he was proceeded against in equity. On referring to the statute applicable to the latter proceeding, it will be seen that “ in every such action the defendant shall not be charged for any demands or rights in action, specified in their inventory, unless it appear that such demands or rights have been collected, or might have been collected, with due diligence.” (3 R. S. [6th ed.], 733, § 15.)

This should be the test of liability against the executor on his accounting before the surrogate; and, as I think, no other or severer test is given by the statute under its proper interpretation. The entire scheme of the law applicable to executors is to hold them to a just and honest exercise of duty in regard to the trust reposed in them, the test of which is due dibgence in all things pertaining thereto, and it does not, as it should not, impose inequities and hardships where honest exertion has been fully observed.

It is laid down as a just rule that a trustee will be held liable for more than he receives, only in case of “superior negligence or willful default.” (Taylor v. Benham, 5 How. [U. S.], 275, and cases there cited.) And that ab that can be demanded of an executor or trustee is perfect honesty and reasonable dibgence. (1 Iredell’s Eq. [N. C.], 108.) The statute above cited has not, as we think, imposed any more stringent rule of duty and liability against an executor when debtor to the estate he represents.

It is urged by the appebant’s counsel that the claim against the executor is barred by the decree appealed from. But there is nothing in the language of the decree to support this position. Besides it is provided by statute that a decree upon final settlement is conclusive only to the effect “ that the moneys stated in such account as collected, were all that were collectible on the debts stated in such account, at the time of the settlement thereof. (3 R. S. [6th ed.], 102, § 79; Johnson v. Richards, 3 Hun, 454; Brown v. Brown, 53 Barb., 217, 220, 221.)

A further accounting could be required against the executor in case he should become able to pay the debt, and holding the position of trustee as regards the debt, he could not avail himself of the bar given by the statute of limitations. Nor does the decree prevent a proceeding against the executor in equity, to enforce a payment of the claim and the due application of the avails when collected. Our conclusion is, that no error was committed in omitting to charge Barr with the amount of his note as so much money on hand for distribution.

It is further insisted that an improper allowance was made for commissions. Commissions were allowed on the gross sum for which the real estate sold, Instead of the surplus beyond the mortgage liens. The will contained a power of sale of the real estate, and in point of fact the entire property was sold, and the moneys arising from the sale were applied first in payment and satisfaction of liens. Whether these liens were or were not also personal liabilities of the testator, the case does not disclose. It should be presumed that they were, if that fact would aid the respondents, as there can be no intendment against the correctness of the decree appealed from. It is the duty of the party charging error to make it appear. If these liens were personal liabilities of the testator, on which the estate might be charged for any deficiency arising on the mortgage sales, there would be propriety in securing their satisfaction by the executors. But this question under examination is determined against the appellant in Cox v. Schermerhorn (18 Hun, 16). This decision we feel bound to follow, at least on the facts in the present case.

It is further urged that the surrogate was in error in allowing to the widow the value of ten sheep with their fleeces, thirty-two dollars and fifty cents, and two swine, eighteen dollars; not set-off to her by the appraisers on making the inventory. We are of the opinion that these allowances to the widow were improperly made.. The testator had no sheep or swine at the time of his death from which such set-off then could be made. The statute contemplates such an ownership and possession of this property in the deceased, or his personal representatives, at the time of making up the inventory, as will permit their delivery to the widow at least potentially. Here the testator had but a half interest in these animals. They could not be then delivered over to the widow, even potentially, and, therefore, could not be set-off to her.

The decree appealed from must be corrected as to these items, and as then corrected it should be affirmed. No costs of appeal allowed to either party as against the other.

Learned, P. J.:

I do not agree as to the commissions. The will gave the real estate to the children equally, and gave the executors power to sell in order to divide. They sold the store to the mortgagee for exactly the amount of the mortgage thereon and received nothing. They sold the farm for more than the mortgage and received the difference only.

If the mortgages were not made by the testator, then they were not debts to be paid by the executors. If they were, then they were to be paid by the devisees and not by the executors. (1 R. S., 749, § 4.) In neither case were the executors to pay the mortgage debts primarily.

They had no power to sell the land free from the mortgages, but could only sell the equity of redemption. And they were entitled to commissions only on what they received. In re De Peyster (4 Sandf. Ch., 511) decides nothing on this point. Cox v. Schemerhorn (25 Sup. Ct., 16) cites no authority, except In re De Peyster. The facts in Oox v. Sehemerhorn do not appear. The court say that the executors were liable for the price at which the property was sold. That would not be true in the present case. The executors did not receive and could not have received anything more than the value of the equity. Their commissions are only on what they receive and pay out. (2 R. S., m. p. 93, § 58.)

Boardman, J., concurred.

Decree modified by allowing commissions only on tbe surplus of tbe real estate beyond the mortgages, instead of the whole value, by disallowing the value of the sheep ; otherwise affirmed without costs to either party.

      This opinion was concurred in by Learned, P. J., and by Boardman, J., except as to tbe allowances of commissions on the gross sum for which the real estate sold, instead of on the surplus over the mortgage liens.
      On this question see opinion of Learned, P. J.


author: Bookes, J.:

text:
    ALONZO GREENE, Respondent, v. PRENTISS W. HALLENBECK and JOHN I. HALLENBECK, Appellants.

      Fraudulent representations — when the question of the defendants’ prudence in relying upon them should be submitted to the jury.

    The defendants having at the request of one Perry and the plaintiff, who acted as Perry’s attorney, signed as sureties an undertaking given by Perry upon an appeal from a judgment recovered against him, Perry, in order to secure the defendants against any liability thereon, confessed a judgment in their favor, the plaintiff acting as their attorney in the taking thereof. Thereafter the ' plaintiff falsely stated to the defendants that by signing the undertaking they became liable to pay the amount due to him for services rendered to Perry in the action, and that for any amount so paid they were secured by the judgment confessed in their favor, and the defendants, relying upon the said statement, allowed the plaintiff to take a judgment against them in a justice’s court for $168.
    In this action, brought upon the said judgment, the defendants set up the foregoing facts as a defense.

      Held, that the questions as to whether or not' the said facts were sufficient to establish the defense of fraud, and whether or not the defendants had omitted to exercise reasonable prudence and caution in acting upon the plaintiff’s statement and advice, should have been left to the jury, and that the court erred in refusing to allow the evidence thereof to be submitted to them.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Griswold & Crowell, for the appellants.

      S. L. Magoun, for the respondent.
   Bookes, J.:

This action was brought on a judgment rendered in a Justices’ Court, in favor of the plaintiff against the defendants, for $168.57. The defense to be considered on this appeal was, that the judgment was procured and entered against the defendants fraudulently. This defense was set up as a third defense. The defendants offered to prove the facts stated in that defense, but the court held and decided that those facts did not constitute a defense, and no other being offered, a verdict was directed for the amount unpaid on the judgment. The question is whether the facts stated in the third defense showed, as there averred, that the judgment was procured by fraud.

In and bv this defense it was averred in substance, but not in the same order and form, as follows, to wit: (1.) That the plaintiff at the time the judgment was obtained had no legal claim or cause of action against the defendants. (2.) That the plaintiff was an attorney and counselor of this court, and acted as such for' one Peri-y in an action wherein one lampman recovered judgment against Perry. (3.) That at the request of Perry and of the plaintiff the defendant entered into a bond or undertaking on an appeal by Perry from the aforesaid judgment against him. (4.) That to secure the defendants against liability on such bond or undertaking, Perry confessed a judgment to the defendants, the plaintiff acting as their attorney. (5.) That thereafter, and while the action was still pending on the aforesaid appeal, the plaintiff stated and represented to the defendants that Perry was indebted to him for services and expenses incurred in the conduct of that suit: that by reason of signing the bond or undertaking on appeal they had made themselves liable to him (plaintiff) therefor; and, further, that the judgment confessed by Perry to them secured and indemnified them for such liability ; that they relied upon the statements and representations so made to them, and upon the advice so given them; and so relying thereon they did, at the request of the plaintiff and on his advice, suffer and permit the judgment in suit to be rendered and entered against them for Perry’s indebtedness. It was further averred that the statements and representations as to their liability for Perry’s indebtedness, and as to their being indemnified therefor, were false to the plaintiff’s knowledge and were made by him to them with fraudulent intent.

Briefly stated, -the defendants averred and charged that having a good defense to the action they were induced to omit to make or present it to the court, by and through the fraudulent statements and advice of the plaintiff as to their liability for his alleged claim. Fraud in the obtaining of a judgment is matter of defense in a suit brought upon it, and it is matter for relief in equity. (Huggins v. King, 3 Barb., 616; Farrington v. Bullard, 40 id., 515; Dobson v. Pearce, 12 N. Y., 156.) In the last case cited it was held that a defendant in an action upon a judgment may allege and prove as a defense that it was obtained by fraud. It is of no importance here that a reply was interposed. That did not hurt the defense set up in the answer. The defendants offered to prove the facts stated in the third defense. The offer was rejected. If those facts constituted a defense the ruling was erroneous, no matter whether or not they were also well pleaded as a counter-claim.

The only ground on which the ruling can be justified is this: That notwithstanding the fact that the alleged false representations were made as averred, yet it appears that the defendants might have informed themselves of their non-liability to the plaintiff,,and indeed of the falsity of all the plaintiff’s statements and representations complained of, by the exercise of reasonable diligence on their part. That the defendants were bound to exercise reasonable diligence in the looking up and presenting of their case is well settled. (Stilwell v. Carpenter, 59 N. Y., 414; Smith v. Nelson, 62 id., 286; Whittlesey v. Delaney, 73 id., 571; Verplanck v. Van Buren, 76 id., 247.) But I am of the opinion that the facts averred in the pleading, with no explanation or qualification of them, establish as matter of law the defense of fraud in this case in all its essential requisites. But it is not necessary here to so hold, for if the facts averred would make a case for the jury on the issue of fraud-, it was error to exclude the offered proof.

Now, on the question of reasonable diligence to which the defendants were bound, if the facts averred in the pleading were such that when proved the jury might find in their favor, then the ruling which excluded the proof of them was erroneous, for in that case the proof should have been allowed and the question then would be for the jury to find on this, with other questions necessary to be found by them, to establish the alleged defense. It is quite true that the defendants might have inquired and learned that they were not liable to the plaintiff on the undertaking executed by them on the appeal in the Perry suit, nor for anything that they had done in that suit, nor liable to him by reason of the indemnity judgment confessed by Perry to them, and that they were not secured by that judgment for the claim made by him against them. These facts the defendants might have learned on due examination of the records in the clerk’s office, and on consultation with a lawyer. But was it unreasonable for them to omit to make such search and to obtain legal advice when they were informed, and, as they say, counseled by a lawyer, the plaintiff, who knew all the facts, that they were liable to him and were secured for such liability by a j'udgment which he had entered as attorney for them? "Was it unreasonable for them to accept as true the assertions of the plaintiff, who was cognizant of all the facts and assumed to advise them of their legal position on those facts, being himself an attorney and counselor of the court, without further inquiry or seeking other advice ? If doubt existed on this question upon the facts, then the case was one proper for determination by the jury. The question then would be whether, in view of all the facts, the defendants should be deemed to have omitted to exercise reasonable prudence and caution in acting upon the plaintiff’s assui’ances and advice. The exclusion of proof of the facts averred in the third defense was erroneous, and for this reason a new trial must be granted.

The payments alleged in the complaint to have been made on the j'udgment do not affect the question above discussed.

It should be observed that this examination of the case is based upon the averments of the pleading, and on the assumption to which we are here bound, that the facts there stated are true as charged.

Judgment reversed, new trial granted, costs to abide the event.

Learned and Boardman, JJ., concurred.

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


author: Per Curiam:

text:
    JOHN MONTFORT, Appellant, v. ISABEL MONTFORT, as Executrix, etc., Respondent.

      Tena/ntfm' life — when requwed to gi/oe security for fund, received — when testamentwy trustee requwed to give security — 1871, cha/p. 482.
    A testator by liis will bequeathed one-half of a certain sum of money to his “son John, in trust to be invested for the benefit of his heirs, he having the use or interest of the same; also his widow, so long as she remains his widow; he dying without heirs of his own begotten,” the principal of the same shall revert to certain persons named in the will.

      Held, that the bequest was a general one to John for life (and to his widow so long as she should remain his widow), with remainder over as specified in the will.'
    That as no trustee for the fund was created by the will, the executrix should either retain and invest the same, or that security should be required of John in case it were delivered to him.
    That even if John, who was a non-resident of the State, was to be deemed a testamentary trustee of the fund, the surrogate was authorized, by section 1 of chapter 482 of 1871, to require him to give security for its ultimate disposition in accordance with the direction of the will.
    Appeal from a decree of the surrogate of Tompkins county, made upon the return of an order requiring tbe respondent to render an account of ber proceedings as executrix, and to show ause wby a certain legacy should not be paid to tbe appellant.

      J. L. Baker, for the appellant.

      Merritt King, for the respondent.
   Per Curiam:

Tbe executrix named in tbe will bad in ber bands for distribution, according to tbe provisions of that instrument, $7,840.26, one-balf of which sum, as is conceded, belonged to ber absolutely, tbe other half was bequeathed as follows: “ To my son John, in trust to be invested for the benefit of bis heirs, be having tbe use or interest of tbe same; also his widow so long as she remains bis widow; be dying without heirs of bis own begotten, tbe principal of tbe same shall revert to tbe hems of my brothers, John Monfort, Naomi, James and Henry.” This provision of the will is awkwardly expressed, but its meaning is manifestly this: That John should have the use and income of the fund during life; then that his widow should have such use so long as she should remain his widow, remainder over to those declared by the will entitled thereto. This construction of the will is not questioned; but John further claims and insists that by this provision he is made the trustee of the fwnd, and, hence, is entitled to have it paid over by the executrix to him for investment. The surrogate held otherwise, to wit: That a duty devolved upon the executrix to protect and preserve the fund for those entitled to it in remainder, and it was decreed that the executrix should retain and invest the fund for the benefit of all concerned until John should give security for its safe keeping for those entitled to it in remainder, in which event it might be paid over to him.

This decision was put on the ground that the executrix having the fund in hand owed the duty of its preservation to those entitled to it in remainder, and that John (being a non-resident of the State and for other reasons) was an improper person to receive the fund without giving security for its ultimate disposition in accordance with the provisions of the will.

A testator may confide a fund to a legatee for life, trusting to such legatee to preserve the fund for the benefit of those entitled to it in remainder, and in such case the legatee for life becomes the trustee of the fund during the continuance of the life estate. It is so decided in Smith v. Van Ostrand (64 N. Y., 278), but it may be doubted whether it was, in this case, intended that John should be intrusted with the fund. The language of the will, construed in the light of surrounding circumstances, does not, as we think, favor such construction. If the contrary construction be given, then, there being no express declaration as to the person who should make the investment, that duty would devolve upon the executrix, in whose hands the fund was placed by the testator. In this view the case in hand is like that supposed by Judge Eakl, in Livingston v. Murray (68 N. Y., 485), where a bequest of a general residuary estate is made to A. for life, with remainder to B. after A.’s death, in a will in which executors are appointed. “In such case” (says the learned iudge) “there is no other trust than the law creates and vests in the executors. They take the legal title to all the personal property. They must convert it into money, pay the debts, expenses and specific legacies, if any, and as they are bound to execute all the provisions of the will, they are charged with a duty as to both A. and B. They must give to A. what belongs to him, and then to B. what belongs to him. They cannot discharge their duty by delivering the whole property to A. and thus imperil the rights of B.” The learned judge adopts as sound law the rule laid down in Willard on Executors, that “ when there is a general bequest to one for life and remainder over, the executor should convert the whole into money and, invest it in permanent securities. The interest only is payable to the tenant for life, and on his death the residue belongs to the remainder-man.” Judge Raparlo lays down the same rule in Smith v. Van Ostrand (supra), on pp. 281 and 282; as does also Judge Comstock in Tyson v. Blake (22 N. Y., 563). We are inclined to the opinion that the bequest in this case was general to J ohn for life (and to his widow so long as she should remain his widow), remainder over as specified in the will. In that case the executrix was charged with a duty to all the beneficiaries of the fund, which would require either its retention and investment by her as executrix, or that security be given for its ultimate proper disposition in case of its delivery or payment over to John.

Again, in case John is to be deemed the testamentary trustee of the fund in the' hands of the executrix, it was competent for the surrogate to require security for its ultimate disposition according to the provisions of the will before it should be delivered up or paid over to him. This authority is expressly given by chapter 482, section 1 of the Laws of 1871. Here was a fund in the'hands of the executrix subject to the order of the surrogate as to its proper disposition, having in view the requirements of the will. The law cited declares that he may require testamentary trustees to give security in the same manner as provided in the case of executors, administrators or guardians. Before letters testamentary shall be granted to a non-resident of the State, he must give security for tne faithful performance of the trust. John was a non-resident of the State, hence the surrogate was for this reason, not to speak of other reasons, authorized to require the security here provided for.

We are of the opinion, therefore, that the decree of the surrogate is right, and think it should be affirmed.

Decree affirmed, with costs against appellant.

Learned, P. J., and Boardman, J., concurred.-

Order affirmed, with costs against the appellant.


text:
    WILLIAM J. RENNIE, Assignee of ANSEL H. GAIGE, and ANSEL H. GAIGE, Plaintiffs, v. JEREMIAH BEAN and others, Defendants.

      General assignment — requisites of, under chap. 466 of 1877.
    Since the passage of chapter 466 of 1877, a general assignment for the benefit of creditors must, in order to vest the property in the assignee, be in a writing duly acknowledged by the assignor, must have thereon the assent of the assignee, duly subscribed and acknowledged by him, and must have been duly recorded.
    An assignment recorded without the assent of the assignee to act, having been duly subscribed and acknowledged by him thereon, although he may have orally agreed to act, is void as against creditors claiming under attachments against the property of the assignor.
    Submission of a controversy upon agreed facts under section 1279 of the Oode of Civil Procedure.

      Solomon Judd, for the plaintiffs.

      Chapman & Lyon, for the defendants.
   Bockes, J.:

The assignment was executed and acknowledged by the assignor on the J 8th of September, 1877, and its acknowledgment was duly certified by a commissioner of deeds on that day. On the following day, the nineteenth, the assignment was handed to the assignee, who thereupon orally assented to act as assignee thereunder, and immediately delivered the instrument to the county clerk for record, and it-was recorded on that day at-1.30 p. m. On the same day the assignee took actual possession of the assigned property, after which, and at 2.30 p. m. of that day, the property was seized by the defendant Dunn, as sheriff, under an attachment in favor of the defendant Bean against the assignor. Five days thereafter, and on the twenty-fourth September, the assignee signed and acknowledged his assent to act as assignee. Whereupon the instrument was again recorded in the county clerk’s office. The question is, when was the assignment to be deemed delivered so as to pass the title to the assigned property to the assignee ? The first act of recording was unauthorized and of course goes for nothing. The statute is, that “the assent of the assignee, subscribed and acknowledged by him, shall appear in writing * * * upon the assignment before the same is recorded.” (Sess. Laws of 1877, chap. 466, § 1.) These requirements were not- complied with prior to the first recording of the instrument; hence, that act was without 'authority. The assignment did not become effectual to pass title until there was an acceptance of the trust by the assignee. This was held in Crosby v. Hillyer (24 Wend., 280). It was there decided that the mere taking of the instrument in hand by the assignee, and its retention by him, amounted to nothing; that there must be an acceptance of the trust; that a delivery without acceptance was nugatory.

Formerly delivery of the assignment to the assignee, his oral acceptance of the trust and taking possession of the assigned property, as was done in this case on the nineteenth of September, would have vested the title in the assignee, and neither an acknowledgment of the instrument nor its recording was necessary to its validity. But in 1860 a law was passed which provided (1) that assignments should be in writing; (2) that their execution should be acknowledged, and (3) that the certificate of acknowledgment should be indorsed thereon before delivery to the assignee. (Sess. Laws of 1860, chap. 348, § 1.) Under this statute it was held that the acknowledgment by the assignor was a condition precedent to a valid and effectual delivery. (Fairchild v. Gwynne, 16 Abb., 23.) This decision was by a divided court-. The doctrine of this case was, however, afterward redeclared by the Court of Appeals in Hardmann v. Bowen (39 N. Y., 196) and in Britton v. Lorenz (45 N. Y., 51). Thus it was held in the former of these cases that under this statute of 1860, even though the assignment was delivered together with the possession of the assigned property, yet creditors of the assignors might attach the property in the hands of the assignee prior to making the statutory acknowledgment. The present statute of 1877, chapter 166, which we are here called upon to construe, differs from that of 1860 in this, that the former, the law of 1877, does not in terms declare that the certificate of acknowledgment must be indorsed on the instrument before delivery to the assignee. But in both of the cases last cited the question was discussed whether the provisions of the law declaring how assignments should be executed and delivered were merely directory, or were mandatory, and it was determined that they were mandatory. It was argued that the purpose and object of the statute was to correct abuses theretofore existing in the execution and delivery of those instruments ; and it was decided in effect that, such being the case, an observance of the provisions of the law, declaring what should be done and the mode of doing it, was essential and was a pre-requisite to their validity. On this subject Judge Mullen says, in Fairchild v. Gwynne, that “ voluntary assignments by insolvent debtors for the benefit of creditors, in and by which certain creditors or classes of creditors have been preferred over other creditors or classes, have not been favored instruments in the courts, nor have business men looked upon them without suspicion. The secrecy with which they might be made, the facility they afforded to fraud, the unjust preferences they secured, required that they should be watched with the greatest vigilance and scrutinized with the greatest care. It was in the power of the debtor and his assignee to put forward one of these instruments at such time as should most effectually give effect to their own purposes, to ante or jpost date it, to consider it as delivered or not delivered, to alter the schedules, to increase or lessen the number of preferred creditors, to prefer a friend or non-prefer an enemy, to increase or lessen the amount of property to be passed under the assignment; these and other fraudulent and dishonest acts might have been done without any opportunity being afforded to the creditors to prevent or punish them. It was to prevent these abuses that the statute (chap. 318 of 1860) was passedand the learned judge added there was an evil to be remedied, and it could only be remedied by a law requiring the persons to be affected by it to conform to its provisions or tbeir acts would be void;” and he further adds as follows: “That tbe Legislature intended to make this statute mandatory, I have no doubt.” These remarks are introduced here at length, because of tbeir pertinency and direct bearing upon tbe case in band. Tbe same bne of reasoning is pursued by Judge Mason in Hardmann v. Bowen, above cited. He says that it is a fundamental error to treat tbe statute as merely directory; that it is no such thing; that it introduces a new law in regard to assignments.”

Then regarding tbe act of 1877, chapter 466, section 1, as mandatory, what is requisite to constitute a valid assignment for tbe benefit of creditors, so as to vest tbe property in tbe assignee? Those requirements are specified in section 1 of that act, and for anything that appears or for any sound reasoning that can be adduced to tbe contrary, each requirement should be held peremptory, one as much as tbe other. That section provides that assignments shall be in writing; shall be duly acknowledged by tbe assignor; shall be recorded in tbe clerk’s office; and it also provides that tbe assent of tbe assignee shall be in writing upon tbe instrument before it shall be recorded. According to tbe decisions above cited, tbe law is mandatory as to tbe first three provisions above stated. As to those tbe statute is peremptory. It thus declares tbe requisites of a vabd assignment. It was competent for tbe legislature to estabbsb tbe prerequisites, and by making it a public record before it should take effect, many of tbe abuses which before existed would be corrected. It is a matter of importance to creditors to know whether or not an assignment has been made; whether or not, if made, it has been delivered so as to become effectual to pass the debtor’s property, also its provisions. Tbe making a public record of it answers all proper requisites in this regard. It is then put on equal footing with other records which the public good requires should be open to inspection to all persons. This was doubtless what tbe legislature intended by this act, as in this way many of tbe evils which bad before surrounded assignments by insolvent and, often times, dishonest debtors, would be, to some extent at least, remedied.

In this case tbe assent of tbe assignee was not indorsed, and of course it was not acknowledged, nor was tbe^ instrument duly recorded until several days after the seizure of the property under tbe attachment. Hence, as we conclude, the attaching creditors obtained a priority of right to it, as against any claim which the assignee could interpose.

In the above consideration of the case we have not overlooked the decisions made under the law of 1860, which held some of its provisions to be merely directory. These cases have reference to duties or acts to be performed after the assignment has taken effect and the title has passed. (Evans v. Chapin, 20 How., 289; Van Vleet v. Slauson, 45 Barb., 317; Barbour v. Everson, 16 Abb., 366; Thrasher v. Bentley, 59 N. Y., 649; Brennan v. Willson, 71 id., 502; Matter of Farnam, 75 id., 190.) These cases are, as we think, here inapplicable.

The defendants are entitled to judgment, with costs. If the parties are unable to agree upon the form of the judgment to be entered, it may be settled by one of the members of the court.

Learned, P. J., and Boardman, J., concurred.

Judgment allowed for defendant on submission, with costs.


text:
    ROBERT T. SMART, Appellant, v. ANDREW J. SMART, Respondent.

      Agreement — when not one of indemnity merely — when the defense of the statute of frauds cannot he set up after a partial performance.

    The parties hereto entered into an agreement whereby the plaintiff was to purchase certain real estate of the defendant, and in part payment thereof convey to him a stock of goods in a store and the unexpired term of a lease thereof made to the plaintiff, the defendant agreeing, orally, to pay the rent thereafter to -fall due thereon to the lessors. The agreement was fully performed hy the plaintiff, who thereafter brought this action to recover the rent which the defendant had failed and refused to pay.

      Held, that the agreement was not one of indemnity merely, and that the plaintiff was not required to prove actual damage to maintain his action.
    That the agreement having been fully performed hy the plaintiff, and the defendant having taken possession of the goods and storp, the defense that the agreement was void under the statute of frauds could not be interposed.

      Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed at the circuit.
    In 1875 the defendant agreed by parol to convey to the plaintiff certain real estate, and to receive in part payment thereof a stock of goods in a store and the unexpired term of about fourteen months of a lease thereof given by the owners to the plaintiff, the defendant agreeing to pay the rent to fall due upon the lease to the lessors. The agreement was carried into effect. Subsequently, the defendant having assigned the lease and neglected to pay the rent, this action was brought by the plaintiff upon the said agreement to recover the amount due.

      Olin A. Martin, for the appellant.

      James Lansing, for the respondent.
   Bockes, J.:

The parties do not differ as to what should be deemed to be the agreement brought under examination in this case. As the plaintiff stated the contract in his points, it was that the defendant would pay the rent for the unexpired portion of the term. As the defendant states it, he was to have possession of the premises for the unexpired term and pay the rent to the lessors, the "Warrens. The evidence sustains the latter, if indeed there be any difference in the statement of it by the respective counsel. If this contract be held to be one of mere indemnity, the plaintiff has no right of actiqn until damnified, that is, until the rent, or some part’of it, for which he was liable to the Warrens was paid by him. But the contract was not one of indemnity merely. It was to do a positive act; to pay the rent for which the plaintiff was liable to the Warrens, when and as it should fall due. In such case an answer of non damnificatus is not good. (Port v. Jackson, 17 Johns., 239; also, Jackson v. Port, id., 479; Gilbert v. Wiman, 1 N. Y., 550; Rector, etc., v. Higgins, 48 id., 533; Belloni v. Freeborn, 63 id., 383-390; Kohler v. Matlage, 72 id., 259.) There are many other cases to the same effect referred to in the cases cited. Here there was a promise to the plaintiff to pay the rent for the unexpired term. On non-payment the defendant became liable to the plaintiff on this promise to the amount of rent unpaid. The cases above cited so hold.

But it is urged that the contract was void under the statute of frauds (1) because not in writing, and (2) because not to be performed within a year from the making thereof. It appears that the contract was fully performed on the part of the plaintiff. The defendant went into possession, not to speak of other matters of consideration which he accepted and took the benefit of. The contract was not therefore merely executory. The plaintiff had fully performed by delivering over to the defendant the property agreed to be sold and delivered, and the defendant accepted of it, held it and retained the benefits derivable from its delivery, possession and use. All that remained to be done was for the defendant to make payment as he had agreed. In this view it was like an action for property sold and delivered. The statute of frauds is not a defense in such case. The defendant got all he bargained for, and should therefore pay as he agreed. (Thomas v. Dickinson, 12 N. Y., 364; Tyler v. Church, 54 id., 632.) In the last case cited it is said that the plaintiff having fully performed the agreement on his part, the defendant could not avail himself of the statute of frauds. It is a well settled rale that a party who takes the full benefit of a contract is bound to fulfill it on his part. We are of the opinion that the plaintiff was improperly nonsuited.

Motion for new trial granted, costs to abide the event.

Learned, P. J., and Boardman, J., concurred.

New trial granted, costs to abide event.


author: Learned, P. J.;

text:
    JAMES R. CHAPMAN and ORTON J. BROWN, Appellants, v. GERTRUDE FONDA, Administratrix, of LEWIS P. CLOSE, etc., Respondent.

      Statute of limitations— Code of Civil Procedwre, § 403 — the extension of one yearn gimen by the last clause of it is not applicable to a case where, the letter's were not issued until after the claim was ba/rred.

    Appeal from an order of the county judge of Saratoga county, acting as surrogate, allowing the claim by the respondent against the estate of Lewis P. Close, deceased, and ordering a sale of his real estate to pay the same.
    Close died November 30, 1872, intestate. No letters of administration were issued until December 30, 1879, when they were issued to the respondent as a creditor of Close. The petition in this proceeding was presented April 6, 1880. Maria A. Eoot was the sole child and heir-at-law of the deceased. On the 16th of May, 1871, she executed a mortgage which covered the premises to Orton J. Brown. On the 1st of May, 1875, she executed another to the same person, and on the 29th of April, 1876, a third. On the 30th of May, 1876, she executed a fourth mortgage to J. H. Walbridge on the same premises. These were all recorded about their dates. Two of them are in process of foreclosure and a receiver is in possession. The mortgagee, Brown, had no knowledge when he took his mortgages that there was any claim against the estate of Close.
    The main question involved in this case, as to the right of the respondent to cut off the rights of the mortgagees by a sale, and as to whether or not a mortgage was a conveyance within, and was protected by chapter 815 of 1869, as amended by chapter 211 of 1873, was considered by this General Term in the case of Fonda v. Chapman, decided in November, 1880, and reported in 23 Hun, 119.

      After affirming the conclusions reached in that case, the court at General Term said : “ The later of the notes was dated January 16, 1872, payable one day after date. Assuming then that the cause of action accrued January 20, 1872, the ordinary limitation of six years would require that the action be brought on or before January 20, 1878. Section 403, Code of Civil Procedure, says that eighteen months after death are not a part of the time limited. This extends the time to July 20, 1879. Then that same section says that if letters are not issued at least six months before the expiration of the time to bring the action, as extended above, the term of one year after letters are issued is not a part of the time.
    Now, in the present case, letters were not issued at any time before the expiration of the time to bring the action, but were issued December 20, 1879. The administratrix construes this part of section 403 as applying as well to a case where letters are issued after the expiration of the time to bring the action, as to a case where they are issued within six months prior to such expiration. That is, the administratrix claims that after six years have expired from the time when the cause of action arose, and eighteen months more, if at any time thereafter, be it twenty years, letters are issued, a creditor has one year thereafter in which to sue. This is to hold that after the limited time has once expired, the issue of letters gives a right of action for one year thereafter. We do not think that this is the true construction, and in this present case, inasmuch as the seven years and six months had expired before letters were issued, we think that the issue of letters did not give further time within which to sue. {Sanford v. Sandford, 62 N. Y., 553.)
    The order should be reversed, with costs, against the administratrix personally. '

      Putnam & Eustis, for the appellants.

      Charles C. Lester, for the respondent.
   Opinion by

Learned, P. J.;

Boardman, concurred; Bockes, J., not acting.

Order of county judge, acting as surrogate, reversed, with costs, against administratrix personally.


author: Boardman, J.

text:
    REBECCA JANE VAN LOAN, Appellant, v. FARMERS’ MUTUAL FIRE INSURANCE ASSOCIATION OF THE TOWN OF CATSKILL, Respondent.

      Verbal agreement to issue policy of insurance — when it will be enforced after the destruction of the propen'ty before a policy has been issued.

    Appeal from a judgment in favor of the defendant entered upon an order dismissing the complaint.
    The defendant is a town mutual insurance company, all of whose directors are its agents in effecting insurance. One Brook's was such a director and agent. In the fall of 1875, plaintiff asked Brooks to come around and insure her buildings. In pursuance of that invitation Brooks came early in January, 1876, and made a survey of the buildings and premises, and agreed upon the amount to be insured on the several buildings. Plaintiff’s husband paid Brooks one dollar for making the survey. The next day plaintiff sent word to Brooks that the policy must be made out in her name as the property was hers. The survey made by Brooks was taken to the secretary of the company January twelfth, and he was informed that the policy was to be made out in the name of Mrs. Yan Loan, and Brooks at the same time paid the secretary one dollar for making out the policy. The survey was satisfactory to the secretary, and he made the entry of the survey upon the company’s books, as in all other cases of insurance constituting a substantial record of the policy to be issued when Mrs. Yan Loan’s first name should be ascertained. It was known that Mrs. Yan Loan owned the property and that the policy was to be issued to her. It would have been issued forthwith had her full name been known.
    After the survey and before the fire occurred the plaintiff twice asked Brooks why her policy had not come, and he replied it was all right and it would probably come in due time.
    On the 29th of March, 1876, the fire occurred which destroyed property included in the survey, and upon which plaintiff claims she had a contract of insurance in the amount of $900. The next morning after the fire Brooks had plaintiff execute the bond required from all persons insured in defendant’s company, and was paid by her one dollar. No other money was required to secure insurance with defendant. On these and other facts fully stated in the case the plaintiff was nonsuited, the special reason therefor not being stated.
    The court at General Term said: “Eleven grounds are assigned for such motion, hut it will not be necessary to consider them in detail. If, in any view of the evidence, the plaintiff was entitled to its submission to the jury and to sustain a verdict in her favor, the nonsuit was wrong. It cannot be denied that a contract for insurance by parol may be valid. Hence it is not fatal to the plaintiff that the policy had not been delivered before the fire. (Train v. Holland Purchase Ins. Co., 62 N. Y., 598; Angelin. Hartford Ins. Co., 59 id., 171.) Nor would it affect her right if no policy had ever been made out. It may be conceded thence that an executed insurance in defendant’s company cannot exist without a policy. Still the defendant may he hound by its agreement to execute such a policy or to insure against loss. In this case all the elements of such a contract are proved. The plaintiff asks defendant’s director and agent for insurance. He examines the property and agrees with plaintiff on the amounts to be insured upon each separate parcel. The preliminary survey is complete, except plaintiff’s given name. It is handed to the secretary, and by him approved. The record is made in the books of the company, leaving a blank for plaintiff’s name when fully ascertained. (Clinton v. Hove Ins. Co., 45 N. Y., 454.)
    This record is the basis of and the same in substance as the policy. It would not have been so made if the application for insurance had not been acceptable. The secretary’s fee of one dollar for policy had been paid to and accepted by him. Brooks, the director and agent, had told plaintiff her insurance was all right and the policy would be along in due time. No actual premium was required to he paid by defendant. Each person insured was required, on the delivery of the policy, ordinarily to execute a bond in substance to pay all assessments made for losses incurred by the company. The application for insurance was in defendant’s company. As in Train’s case (62 N. Y., 598), it was impliedly upon the terms and conditions on which defendant insured that she expected a policy. The failure to execute her bond before the fire is no worse than a failure to pay a premium {Com. Mutual Marine Ins. Co. v. Union Mutual Ins. Co., 19 How. [H. S.], 318), the agent consenting thereto. It was in accordance with the custom of defendant to require the bond when the policy was delivered. Why was not here a good deal of evidence tending to show not only that Brooks had agreed to insure plaintiff and had accepted the risk, but that the defendant also had done the same. Had not the secretary approved of the application and the survey, and entered the same in his books ? Would he have done this if he had not intended to accept the risk and insure the property as specified in the survey %

    H these questions are answered in the affirmative, the minds of the parties did meet, the terms of insurance were agreed upon, the property insured and the amount of risk assumed. It was known by the secretary that the property belonged to plaintiff and that she was the person to be insured. There was nothing doubtful about the parties to the contract. The delivery of the undertaking by plaintiff to defendant was not essential to a valid contract. It might be waived or postponed as in this case.
    The contract for insurance was not void by the statute of frauds, even though plaintiff expected a five years’ policy. {Angelí v. Hartford Ins. Co., 59 N. Y., Ill; Trustees of Baptist Church v. Brooklyn Ins. Co., 19 id., 305).

      John Sanderson, for the appellant.

      King & Hallock, for the respondent.
   Opinion by

Boardman, J.

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

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


text:
    CATHARINE A. ABBOTT, as Administratrix, etc., Appellant, v. THE JOHNSTOWN, GLOVERSVILLE AND KINGSBORO HORSE RAILROAD COMPANY, Respondent.

      Severance of action — right of the plaintiff to have separate bills of costs taxed — right to home an extra allowance against each defendant— Code of Civil Procedure, § 3231.
    Appeal from an order of the Special Term denying a motion on behalf of the plaintiff for an additional allowance.
    The action was originally brought by the administratrix of the estate of David H. Cuyler, deceased, against the above named Horse Railroad Company and one Nicholas H. Decker, the lessee of the said road, for negligence in the management of the said horse railroad, resulting in the death of Cuyler. Both defendants appeared and answered by the same attorneys. On the first trial, on motion of the defendant’s attorneys, the complaint, as against the Horse Railroad Company, was dismissed on the ground that the company having leased its road to the defendant Decker, he and not the company was responsible for the negligence of the employes. A judgment was recovered against Decker, which was reversed on appeal and a new trial ordered. Immediately after such reversal the plaintiff appealed from the judgment dismissing the complaint against the Horse Railroad Company, and the General Term affirmed the judgment of the court below. After such affirmance a new trial was had against the defendant Decker and a verdict recovered for $2,937.50, and on motion the court granted an additional allowance of five per cent as against said Decker. An appeal from an order denying a motion for a new trial on the judge’s minutes was affirmed by the General Term, and an appeal therefrom was taken to the Court of Appeals by Decker, which appeal is still pending and undetermined. At the same time that Decker appealed to the General Term on the last above mentioned order, plaintiff appealed to the Court of Appeals from the judgment of the General Term affirming the judgment of the Special Term dismissing the complaint. The Court of Appeals reversed the said judgment and ordered a new trial as against the railroad company, with costs to abide the event thereof.

      Anew trial was had on the 28th of June, 1880, and a verdict rendered in favor of the plaintiff for $2,300.
    The court at General Term said: “ This case does not come within section 3231 of the Code of Civil Procedure, either in language or intent. That provision was intended to prevent the severance of causes of action for the purpose of making additional bills of costs.
    “ In the present case the severance was by the act of the court on the motion of the defendants. Since that time the progress of the action has been severed by no fault of plaintiff, and, hence, we think there is no sound reason why the plaintiff may not have bills of costs taxed and inserted in each judgment. But we do not decide whether the plaintiff may, in the end, collect two several bills of costs or only one, or full costs in one' case and disbursements in the other. It may well happen that the recovery against Decker may be reversed and ultimately no recovery had against him. In such an event a refusal to allow costs to be inserted in the present judgment would prove unjust to the plaintiff, as he might not then recover any costs.
    “ The learned judge refused to grant an extra allowance solely upon the ground that no costs should be allowed to the plaintiff in the action against this defendant, because costs and extra allowance had been allowed him in the judgment against Decker now under review in the Court of Appeals. If we are right in our reasoning as to the purpose of section 3231, he was wrong in such conclusion. The plaintiff should be at liberty to include his costs in the judgment against the present defendant also. That being so it was a matter of discretion with the judge to make or refuse an extra allowance. That discretion has not been exercised, and, hence, we must reverse the order of the Special Term and remit the application to the Special Term for such decision as shall seem reasonable and proper.”

      Dudley, Dennison & Dudley, for the appellant.

      John M. Carroll, for the respondent.
   Opinion by

Boardman, J.

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

Order reversed, with ten dollars costs and printing disbursements, and proceedings remitted to Special Term for further action.


author: Bockes and Westbrook, JJ.

text:
    The People of the State of New York ex rel. Samuel Cook, Overseer of the Poor, etc., Respondent, v. John H. Garrison, Appellant.
   Order appealed from and order of filiation reversed. Opinions by

Bockes and Westbrook, JJ.


text:
    Ambrose Gilligan v. The Commercial Fire Insurance Company.
   Motion to amend order denied, with ten dollars costs.


text:
    William Brown, as Executor, etc., Appellant, v. Henry Gaddis, Respondent.

   Order granting new trial reversed, with costs. Opinion by

Boardman, J.


author: Bockes, J.;

text:
    Mary E. Mann, as Administratrix, etc., Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.

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

Bockes, J.;

Learned, P. J., taking no part.


text:
    The American Bible Society, Appellant, v. Benjamin Stover and others, Respondents.

   Decree of surrogate reversed and feigned issues ordered; costs of both parties and this appeal to be paid out of estate. Opinion by

Boardman, J.


text:
    The Evangelical Lutheran Christ Church of Germantown, Respondent, v. James C. Fingar, Appellant.

   The part of the order appealed from reversed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.,

and by Bockes, J., dissenting.


text:
    George A. Ferguson, Respondent, v. Maria M. Fitch, Appellant.
   Appeal dismissed under Andrews v. Long (79 N. Y., 573); Ilch v. Karker (11 W. Dig., 193).


author: Boardman, J.,

text:
    Morgan H. Chrysler, Respondent, v. George Canaday, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.,

and by Learned, P. J., dissenting.


text:
    Henry Shepherd, Appellant, v. The City of Cohoes, Respondent.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Bockes, J.

text:
    Mary Lanctot, Administratrix, etc., Appellant, v. The Troy and Lansingburgh Railroad Company, Respondent.

   Motion for, new trial denied, with costs. Opinion by

Bockes, J.


author: Learned, P. J.

text:
    Abraham J. Seeley, Respondent, v. George G. Karner, Appellant, Impleaded with Austin Archer and others.
   Judgment affirmed, with costs against appellant. Opinion by

Learned, P. J.


text:
    John N. Young, Respondent, v. John H. Divine and Daniel R. Bonnell, Appellants.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Gerothman W. Cornell, as Assignee, etc., Respondent, v. Emerson P. Markham, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


author: Bockes, J.,

text:
    Cornelius Vandercook, Appellant, v. The City of Cohoes, Respondent.

   Judgment affirmed, with costs. Opinion by

Bockes, J.,

and by Learned, P. J., dissenting.


text:
    Henry Moyer, Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Levy Ely, Respondent, v. Hiram W. Bardin, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Saratoga County Bank, Appellant, v. Abbie M. Pruyn, Respondent.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


author: Boardman, J.;

text:
    Dennis G. Littlefield, Respondent, v. Ira Jagger, The Albany County Bank and others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Boardman, J.;

Learned, P. J., dissenting.


text:
    Rufus Chamberlain, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellants.
   Judgment and order reversed, new trial granted, costs to abide event.

Opinion by

Bockes, J.;

Learned, P. J., taking no part.


text:
    Betsey Newman, Appellant, v. Abram Nellis, Respondent.
   Judgment affirmed, with costs.


text:
    Stephen F. Palmer, Jr., Respondent, v. The Phœnix Insurance Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    James Gibson as Receiver, etc., of James Hickey, Appellant, v. James Hickey and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    George Weston, Appellant, v. Horace Dibble, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Jacob L. Everitt, Respondent, v. James R. Conklin, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


text:
    William Schwier, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Order affirmed, with costs. Opinion by

Boardman, J.


text:
    Oliver Porter, Respondent, v. William A. Robinson and others, Appellants.

   Judgment reversed, new trial granted, costs to abide event. Opinion by

Boardman, J.


text:
    John H. Platz, Respondent, v. The City of Cohoes, Appellant.

   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    Matthew J. Steen, Respondent, v. The Niagara Fire Insurance Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Alice Ketchum, Respondent, v. Caleb Palmer and others, Appellants.

   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


text:
    Joseph Shaffer, Respondent, v. Josiah Rich, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    The Glens Falls Paper Company, Respondent, v. Willliam H. White, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    Rebecca Livingston, Respondent, v. Lyman Tarbell, Appellant.

   Judgment of County Court affirmed, with costs. Opinion by

Bockes, J.


text:
    Julia A. Farr, Respondent, v. Sarah James and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    William H. Walton, Respondent, v. William R. Freeman and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Boardman, J.;

Bockes, J., not acting.


text:
    David Winans, Respondent, v. Abraham Cox and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Daniel Rawley, Respondent, v. Nathan R. Brown, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    Percival D. Nearing, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    Commissioners of Alms-house v. Israel. Same v. Osterhout.
   Motion for leave to go to Court of Appeals denied.


text:
    Winter v. Riggins.
   Motion for re-argument denied.


text:
    Lapham v. Chrome Steel Company.
   Motion for re-argument denied, with ten dollars cost.


text:
    Johnson v. Thomson.
   Motion for leave to go to Court of Appeals denied.


text:
    Graveline v. Kelly.
   —Motion for leave to go to Court of Appeals denied.


text:
    In the Matter of the Attorney-General v. The North America Life Insurance Company.
   Order affirmed, with ten dollars costs and printing disbursements against appellants.


text:
    Betsy Cornelius, Appellant, v. Avery Barton, Respondent.

   Order reversed, with ten dollars costs and printing disbursements, and motion denied. Opinion by

Boardman, J.


text:
    The Coxsackie and Oak Hill Plank-Road Company, Appellant, v. Frederick Gifford, Respondent.

   Judgment of County Court affirmed, with costs.


text:
    The Coxsackie and Oak Hill Plank-Road Company, Appellant, v. John Dolan, Respondent.

   Judgment of County Court affirmed, with costs.


text:
    William McKillop, Appellant, v. Francis Burton Burhans and Thomas Hill, Respondents.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    The Ulster County Savings Institution, Respondent, v. The Fourth National Bank of New York, Appellant.

   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Middaugh v. The City of Elmira.
   Motion for leave to go to the Court of Appeals denied.


text:
    John H. Hall, as Superintendent of the Poor of the county of Schuyler, Appellant, v. Isaac Thomas and Oliver Whitman, as Overseers of the Poor of the town of Erie, in the county of Chemung, Respondents.

   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Cordelia Morey, Respondent, v. The Village of West Troy, Appellant.

   Judgment affirmed, with costs. Opinion by JBoardman, J.


text:
    Daniel E. Donovan, Respondent, v. James H. Vandemark, Appellant.

   Judgment affirmed, with costs. Order affirmed, with ten dollars costs. Opinion by

Learned, P. J.


text:
    John Anderson and others, Appellants, v. Orson O. Wheeler, Sheriff, etc., Respondent.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Walter S. Church, Appellant, v. Adaline P. Kidd, as Executrix, etc., Respondent.

   Judgment affirmed, with costs.


author: Potter, J.

text:
    Gilletta Low, Respondent, v. Michael McNamara Walsh, Appellant

   Judgment affirmed, with costs, on opinion of

Potter, J.


text:
    Mary J. Garthwait, Appellant, v. John S. Garthwait and others, Respondents.

   Judgment affirmed, with costs.


text:
    Philo Richards, Respondent, v. Elizabeth Richards, as Administratrix, etc., Appellant.

   Judgment affirmed, with costs.


text:
    Roxy A. Alden v. The President, etc., of the Delaware and Hudson Canal Company.
   Motion for leave to go to Court of Appeals and for re-argument denied, with ten dollars costs.

Learned, P. J., taking no part.


text:
    Cornelius D. Weaver v. Josie A. Hall.
   Motion to open default denied, with ten dollars costs.


text:
    Luke Noone v. Edgar B. Newkirk.
   Judgment and order affirmed, with costs.


text:
    Catharine C. Murphy, Administratrix, etc., Plaintiff, v. The Boston and Albany Railroad Company, Defendant.

   Motion for new trial denied and judgment ordered for defendant, with costs. Opinion by

Bockes, J.;

Learned, P. J., taking no part.


text:
    Charles Earls and Grandison N. Frisbie, Respondents, v. The President, etc., of the Delaware and Hudson Canal Company, Appellants.

   Judgment affirmed, with costs.

Learned, P. J., taking no part.


text:
    Peter Silvernail, Appellant v. Abram V. Van Allen, Respondent.
   Judgment affirmed, with costs.


text:
    Barnes, Treasurer, v. Bamber and others. Morrison v. The Same.
   Motion granted by default.


text:
    Brooks v. Harrison.
   Motion granted by default.


text:
    John Hansee, Appellant, v. Felix Kramp, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    People ex rel. John S. Hassell v. Henry Hoffman.
   Judgment affirmed, with costs.


text:
    Edward I. McClasky, Appellant, v. William H. Malcolm, Respondent.
   Judgment of County Court reversed and that of justice affirmed, with costs. Mem. by

Learned, P. J.


text:
    P. Porter Wiggin, Receiver, v. Moses Miller.
   Judgment affirmed, with costs.

Bockes, J., taking no part.


author: Tappan, J.

text:
    James J. Wakefield, v. John McB. Davidson. Same v. Benjamin F. Judson and others.
   Judgment affirmed, with costs against appellants, on opinion of

Tappan, J.


text:
    William Barnes, Respondent, v. Edward Newcomb, Receiver, etc., Appellant.

   Judgment reversed, new trial ordered, costs to abide event. Opinions by

Learned, P. J.;

Bockes and Westbrook, JJ.


author: Barnard, P. J.:

text:
    WILLIAM B. RICE, Executor, etc., of THOMAS W. RICE, Deceased, Appellant, v. KATE N. MOTLEY and others, Executors, etc., of JAMES M. MOTLEY, Deceased, Respondents.

      Evidence — the testimony of a party taken at the instance of his adversary, is admissible in his own behalf after the death of the latter — Code of Ciml Procedure-, § 829.
    In this action brought to recover damages resulting from alleged fraudulent representations made by the defendant to the plaintiff, each party was, upon ' the application of his adversary, examined as a witness before the trial. Before the trial the defendant died and the action was continued against his executors.

      Held, that upon the trial the plaintiff was entitled to introduce in evidence his own examination, taken at the instance of the defendant, and that the same was not rendered inadmissible by section 829 of the Code of Civil Procedure.
    Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a nonsuit directed at tbe Circuit.

      Justus Palmer, for the appellant.

      Hamilton Odell, for the respondents.
   Barnard, P. J.:

This action was commenced by Thomas W. Rice against James M. Motley for damages resulting from alleged fraudulent representations made by Motley to Rice. Each party procured the examination of his adversary before trial. Before the trial Motley died, and the action was continued in the name of his executors. Upon the trial Thomas W. Rice was living and was a witness in his own behalf. He could not then testify to any personal transaction with Motley under section 829 of the Code of Civil Procedure. He then offered in evidence his own examination taken at the instance of Motley, and when both were living, and this was rejected. Was this ruling right ? I am inclined to think it was not. In the first place the reason of the rule excluding such testimony is wanting. When the deposition was taken, Motley was alive to cross-examine and to give testimony in his own behalf in opposition to that of the plaintiff. In the next place Motley himself called Rice as a witness in his own behalf, and the Code (§ 881) provides, “ the deposition * * * may be read in evidence by either party at the trial” * * * “or any other action,” or “between any parties claiming under them.” The depositions of parties are subject to a different rule from those of ordinary witnesses. The deposition of witnesses cannot be given in evidence unless the witness is proven to be since dead, insane or absent. (Sec. 882.) Parties deposition are admissible without this proof. Section 883 should not be construed so as to destroy the deposition of a deceased party. The deposition by that section is declared to have the same effect as the “ oral testL mony of the witness would have,” that objection may be made “to the competency or credibility of the witness,” or to the “ relevancy ” or “ competency ” of a question the same as if personally examined, and although there were no objections made when the deposition was taken. No allusion is made to the possible death of a party before trial in this section, while in section 881, as already seen, the deposition is made evidence in all future actions between the same parties or between others claiming under them.

I arrive at the conclusion, therefore, that the legislature did not intend to destroy evidence given by a witness who was competent to testify when his deposition was taken, and who became incompetent by reason of the death of his adversary afterward.

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

Dykman, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Exceptions sustained and judgment dismissing complaint reversed and new trial granted, costs to abide event.