text:
    Susan M. Hoyt, Appellant, v. Israel C. See and James H. Lander, Respondents.
   Judgment of County Court affirmed, with costs. Opinion by

Barnard, P. J.


source: Caselaw Access Project

author: Barnard, P. J.;

license: Public Domain

text:
    John L. Brownell, Respondent, v. Elisha Ruckman, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Dykman, J.,. not sitting.


author: Dykman, J.

text:
    In the Matter of the Probate of the Last Will, etc., of John H. Martinhoff.
   Decree of surrogate affirmed, with costs. Opinion by

Dykman, J.


author: Cullen, J.;

text:
    Patrick Kane, Appellant, v. Amelia A. Stark and others, as Administrators, etc., Respondents.
   Order refusing new trial affirmed, with costs. Opinion by

Cullen, J.;

Barnard, F. J., not sitting.


author: Barnard, P. J.

text:
    Cotton W. Bean, Appellant, v. James O. Cole, as Sheriff etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Viola T. Adams, Appellant, v. James O. Cole, as Sheriff, etc., Respondent.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    John Shields and others, Appellants, v. Anna A. Ingram, Respondent.
   Decree of surrogate affirmed, with costs. Opinion by

Dykman, J.


text:
    George D. Purdy and others, Appellants, v. Samuel A. Hayt and Lewis H. White, Executors, etc., and others, Respondents.
   Decree of surrogate upon appeal of Purdy and others affirmed, with costs. Opinion by Barnard, P. J. Decree of surrogate

upon appeal of Mrs. Bates and children affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J.;

text:
    Jacob Stroher, Respondent, v. Blandina M. Elting and another, Appellants.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Cullen, J., not sitting.


author: Cullen, J.

text:
    Mary McGough, Administratrix, etc., Appellant, v. Thomas R. Sharp, Receiver, etc., Respondent.
   Order granting nonsuit reversed and new trial granted, costs to abide event. Opinion by

Cullen, J.


text:
    James Van Tassel, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment and

order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J'., not sitting.


text:
    Sherburne Shaw, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Cullen, J., not sitting.


text:
    Christianna Harrison, Appellant, v. The Brooklyn, Bath and Coney Island Railroad Company, Respondent.
   Judgment reversed and new trial granted, costs to abide event; reference vacated. Opinion by

Cullen, J.


text:
    Michael McCail, Appellant, v. Nathaniel Dominy and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Cullen, J.;

Barnard, P. J., not sitting.


text:
    The Mutual Life Insurance Company of New York, Respondent, v. Anson B. Hoyt, Appellant. Impleaded, etc.
   Judgment affirmed, without costs. Opinion by

Cullen, J.;

Dykman, J., not sitting.


text:
    Andrew J. Clark and others, Appellants, v. Robert Strain and others, Respondents.
   Judgment and order denying new trial affirmed; with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Philip Hammer, Appellant, v. The French Cream of Tartar Company, Respondent.
   Order setting aside verdict affirmed, with costs. Opinion by

Barnard, P. J.;

Cullen, J., not sitting.


text:
    The People of the State of New York ex rel. John Gass, Respondents, v. William Morgan Lee, Appellant.
   Order affirmed, with costs. Opinion by

Cullen, J.;

Barnard, P. J., not sitting.


text:
    George M. Chapman, Respondent, v. John G. L. Boettcher, Appellant.
   Judgment affirmed, without costs. Opinion by

Cullen, J.


author: Barnard, P. J

text:
    The Fishkill Savings Institute, Respondent, v. Henry Bostwick, Receiver, etc., Appellant.
   Judgment reversed and new trial granted, with costs to abide event; reference vacated. Opinion by

Barnard, P. J


text:
    Henry C. Rhodes and others, Appellants, v. Peter June and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    The People of the State of New York ex rel. The Union Ferry Company of Brooklyn, Appellant, v. The Board of Assessors of Brooklyn, Respondents.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. The Brooklyn City Railroad Company, Appellant, v. The Board of Assessors of Brooklyn, Respondent.
   Order affirmed, with costs and disbtirsements. Opinion by

Dykman, J.


text:
    Mary E. Weeks, Administratrix, etc., Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Dykman, J.


text:
    Anthony Becht, Administrator, etc., Respondent, v. Austin Corbin, Receiver, etc., Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.; Cullen, J., not sitting.


text:
    The People of the State of New York ex rel. O’Mara and others, Appellants, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.
   Order affirming proceedings of commissioners and dismissing writ of certiorari reversed, with costs, and relator restored. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. James Slattery, Appellants, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.
   Order affirming proceedings of commissioners and dismissing writ of certiorari reversed, with costs, and relator restored. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. George S. Magrath, Appellants, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.
   Order affirming proceedings of commissioners and dismissing writ of certiorari reversed, with costs, and relator restored! Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. James Cottrell, Appellants, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.
   Order affirming proceedings of commissioners and dismissing writ of certiorari reversed, and relator restored. Opinion by

Dykman, J.


text:
    Jacob Haag and Philip Haag, Claimants and Respondents, v. Charles Hillemeier, Owner and Appellant.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Cullen, J.


text:
    James Sheridan, Respondent, v. Richard Healy, Appellant.
   Judgment reversed and case sent back to referee to determine what compensation is proper to be allowed defendant for his services. Opinion- by

Dykman, J.;

Cullen, J., not sitting.


text:
    William H. Catlin, Respondent, v. The Adirondack Company and others, Appellants.

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

Barnard, P. J.;

Dykman, J., not sitting.


author: Dykman, J. ■

text:
    Isaac Banker, Respondent, v. Henry Mansing, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J. ■


text:
    John C. Orr and others, Respondents, v. St. Anthony’s Roman Catholic Church of the City of Brooklyn, Appellant.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Cullen, J., not sitting.


text:
    John W. Metcalf, Appellant, v. Jeremiah P. Robinson and George C. Robinson, Respondents.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Cullen, J.


text:
    Charles E. Perkins, Appellant, v. Samuel H. Sterrett and William T. Colborn, Respondents.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Cullen, J., not sitting.


text:
    Thomas Eames, Appellant, v. The City of Brooklyn, Respondent.
   Judgment affirmed, with costs. Opinion by

Cullen, J.


text:
    Sarah Seaman, Respondent, v. Mary E. Williams, Appellant.
   Judgment of County Court affirmed, with costs. Opinion by

Dykman, J.


text:
    Henry Bostwick, Receiver, etc., Respondent, v. Beverly Haight, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Henry Bostwick, Receiver, etc., Respondent, v. Samuel L. Van Voorhis, sole Executor, etc., Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Elizabeth Meltzer, Executrix, etc., Respondent, v. Edwin N. Doll, Executor, etc., Appellant.
   Judgment and order denying new trial affirmed, with costs. Order of 5th December, 1881, allowing costs to plaintiff, affirmed, with costs and disbursements. Order of April 19, 1882, denying new trial upon ground of newly discovered evidence, affirmed, with costs and disbursements. Order denying motion to punish W. B. Lynes for contempt; appeal dismissed, with costs and disbursements for non-service of papers. Judge Cullen not sitting in the appeal from this order. Opinion by

Barnard, P. J.


text:
    Onifrio Mongano, Appellant, v. The People of the State of New York, Respondent.
   Reargument ordered.

Dykman, J., not sitting.


text:
    In the Matter of the Final Accounting of Swane Autrop.
   Decree of surrogate adjudging illegitimacy of appellants reversed, with new trial granted. Opinion by

Cullen, J.;

Dykman, J., dissenting.


text:
    Francis L. Crommett and others, Appellants, v. The Knickerbocker Life Insurance Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Edward C. Boardman, as Receiver, etc., Respondent, v. Maria B. Wheeler, Appellant, Impleaded, etc.
   Parts of judgment appealed from affirmed, with costs. Opinion by

Barnard, P. J.;

' Dykman, J., not sitting.


text:
    The New York Central and Hudson River Railroad Company, Appellant, v. The Village of Fishkill Landing, Respondent.

   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Louis C. Gillespie, Respondent, v. The New York City and Northern Railroad Company, Appellant.
   Judgment and order confirming award of arbitrators affirmed, with costs. Opinion by

Cullen, J.;

Dykman, J., not sitting.


text:
    Frank J. Mills and others, Respondents, v. N. Holmes Odell and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Hannah Lazear, Appellant, v. Martha Ann Sly, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    John H. Brooks, Respondent, v. John Baldwin, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Beverly Haight and Susan A. Haight, Respondents, v. The Continental Insurance Company of the City of New York, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Dy'kman, J.

text:
    Peter H. Walsh, Appellant, v. John E. Walsh and Robert E. Walsh, Respondents.
   Order affirmed, with costs and disbursements. Opinion by

Dy'kman, J.


text:
    John F. Tallmadge, Respondent, v. The Third National Bank of the City of New York, Appellcmt.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Michael Mulry, Respondent, v. John L. C. Norton, Appellant.
   Reargument ordered.


author: Smith, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. EDWIN O. DRAPER, Appellant.

      Indictment — when it is not objectionable as setting out two offenses — what a sufficient charrge therein, of the crime of rape — a demurrer will not lie because of the indefiniteness of an indictment— Code of Criminal Procedure, sec. 415 — to what adjournments it refers — a new trial will not be granted for a harmless, inadv&rtent omission to comply with it — new tidal not granted for harrmless irregula/rities occurring while the jw'y are deliberating upon tlieir verdict.

    An indictment charged that the defendant, “in and upon Emma I. Lacey, feloniously and violently did make an assault, and her, the said Emma I. Lacey, then violently and against her will feloniously did ravish, and carnally did know, against the form of the statute,” etc. The defendant demurred on the ground that the indictment charged two offenses, to wit, an assault and the crime of rape; and, also, upon the ground that the facts alleged did not constitute the crime of rape, as it was not alleged that the woman on whom the rape was charged to have been committed was at that time of the age of ten years and upwards.

      Held, that the demurrer was properly overruled.
    The Code of Criminal Procedure does not authorize a demurrer to be interposed on the ground of the indefiniteness of the indictment.
    Section 415 of the Code of Criminal Procedure provides that “the jury must at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court; that it is their duty not to converse among themselves on any subject connected with the trial, or to form or express an opinion thereon until the cause is finally submitted to them.” Tlie defendant moved for a new trial on tlie ground that the court omitted, on taking a recess for dinner, to admonish tlie jury as required by that section.

      Held, that as the omission to charge the jury was apparently the result of amere inadvertence, which was not shown to have worked harm to the defendant, it furnished no cause for setting aside tlie verdict.

      It seems, that this section refers to an adjournment from day to .day, or for a longer time, and not to a recess taken during a single day’s session.
    The action of a jury in getting possession, while deliberating upon their verdict, of a copy of the Revised Statutes, or of any other book containing statements of law as to the crime set forth in the indictment, although irregular, will not vitiate the verdict unless it be shown that the defendant was prejudiced thereby.
    The fact that the officers sworn to attend a jury were in the same room with them during their deliberations is not a ground for granting a new trial.
    The practice is not, however, to be approved of.
    Appeal from a judgment of tlie Court of Sessions of Orleans county convicting the defendant of rape.

      W. P. L. Stafford, for the appellant.

      Isaac S. Signor, for the respondents.
   Smith, P. J.:

The indictment charged that tlie defendant “ in and upon Emma I. Lacey feloniously and violently did make an assault, and her, the said Emma I. Lacey, then violently and against her will feloniously did ravish and carnally did know against the form of the statute,” etc.

The defendant demurred to the indictment on the ground that it charges two offenses in the same count, to wit, an assault and the crime of rape; and, also, upon the ground that the facts alleged do not constitute the crime of rape, inasmuch as it is not alleged that the woman on whom the rape was charged to have been committed was, at the time, of the age of ten years or upwards. The demurrer was overruled and, as we think, properly. The assault charged was simply an element of the offense of rape. It was unnecessary to allege that the person on whom the offense was committed was of the age of ten years or upwards. The demurrer was taken under the fourth subdivision of section 323 of tbe Code of Criminal Procedure, wliich authorizes a demurrer when it appears on the face of the indictment that the facts stated do not constitute a crime. The facts alleged constituted the crime of rape as defined by tbe Revised Statutes (2 R. S., 663) whether the female was over or under the age of ten years. If over that age, a “ forcible ravishing ” constituted the crime; if under, “ carnal and unlawful knowledge ” was enough, and both were alleged. If it be urged that the indictment was so indefinite as that it could not be known which offense was charged, the answer is that the Criminal Code does not make indefiniteness a ground of demurrer.

The defendant moved for a new trial in the court below on several grounds. The first of these is the alleged error of the -court in omitting, on taking a -recess for dinner, to admonish the jury as required by section 415 of the Code of Criminal Procedure. That requirement is that “the jury must, also, at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves on any subject connected with the trial, ór to form or express any opinion thereon, until the cause is finally suR mitted to them.” ¥e are inclined to think that the legislature, in adopting the enactment above quoted, had in view an adjournment from day to day, or for a longer time, and not a recess taken during a single day’s session. “An adjournment,” says Blackstone, “ is no more than a continuance of the session from one day to another, as the word itself signifies. ” (1 Com., 186.) It can hardly be supposed that the legislature intended that the admonition should be repeated whenever, during the day, the trial should be suspended and the jury allowed to retire for a few minutes, as is often the case. Rut whatever the -proper construction of the section, and whatever the liability to which a court or judge may be subjected by reason of a willful violation of its provisions, we are of the opinion that an omission to give the prescribed admonition, which is the result of mere inadvertence, as this apparently was, and which is not shown to have worked harm to the defendant, is no cause for setting aside the verdict. One of the defendant’s attorneys states in his affidavit that he “ is informed and believes that the rights of the defendant‘were substantially prejudiced to his great injury ” by the omission referred to, but this is a mere conclusion of the affiant, and no fact is stated on which it is based. Section 463 of the Code of Criminal Procedure declares that a new trial can -be granted by the court in which the former trial was had onkj in the cases provided in section 465, and an omission to admonish the jury, as directed in section 415, is not one of the cases specified in section 465, in 'which a new trial may be granted.

It is contended by the appellant’s counsel tüat a new trial should have been granted for the alleged misconduct of the jury in consulting law books on the crime of rape during their deliberations. It appears that the jury were out all night in charge of two officers, and that during a part of the night they were allowed to occupy the room in which the trial had been had. Yan Stone, one of the officers, makes an affidavit in which he says that the jury “had access to law books on the crime of rape; that one and another of the jury read to the others from such books and expounded to them the law thereon as they supposed it to be, and contrary to the judge’s charge; and that said reading of law so made continued during nearly all of said night.” The other officer, Howard, makes affidavit that he “ was with the jury nearly all the time they were in said room, being out of said room only two or three times, and then only a few minutes at a time, leaving the other officer in charge; that he saw some of the jurors reading some of the books lying on ■the table; that they appeared to be reading said books to while away1 the time, and that he heard no general talk or discussion among the jurors upon what they had read; that he did not hear anything to make him believe that any of said jurors were influenced by anything read in any book or anything other than the evidence in the case ; that none of said jurors asked for any law books, and that none were furnished to said jury or any member thereof to the knowledge or belief of deponent.” One of the defendant’s counsel makes affidavit that he “ is informed and believes that the defendant would not have been convicted of the crime charged had it not been for the jury’s misreading and misunderstanding of the law governing this case in the jury room, and other misconduct; and that the jury came to unite in a verdict of guilty, under the false impression derived from such improper conduct, that if convicted, defendant could not be sentenced for more than five years.” The affiant does not give the name of his informant, or the sources of his information. In the nature of the case it could only have been derived from the jurors themselves or the officers in charge. The officers are presumed to have stated all the information they possessed on the subject in their affidavits above quoted. As-declarations of jurors cannot be received to impeach their verdict, information derived from them would be incompetent. The affidavit of counsel, therefore, is to be regarded merely as a statement of his belief on the subject, and adds nothing whatever to the statements made by the officei-s. On the part of the plaintiff, the affidavits of. two of the jurors are presented for the first time on the hearing of the appeal, to'the effect that before the jury were taken into the room where the books were, all the jurors except the two affiants voted for conviction, and that the affiants in subsequently voting the same way and making the result unanimous were not influenced by anything read from the books. But those affidavits not having been used on the motion in the court below, are not now available to the plaintiff without the defendant’s consent. The only case cited by the counsel for the prosecution in support of his motion to be allowed to. read them on the appeal, is Eastwood v. The People (3 Park. Cr. R., 25); but there the affidavits used at the General Term in the first instance were read on the part of the prisoner without objection by the people’s counsel. But upon the case as made by the affidavits of the two officers we do not think the Sessions erred in refusing a new trial. Within the limitations prescribed by sections 463 and 465, above referred to, misconduct on the part of the jury is not cause for granting a new trial, unless it be such as to have prevented “ a fair and due consideration of the case.” No misconduct is alleged on the part of the parties or of anyone connected with the trial. None of the jurors called for books and none were furnished them. The books to which they had access had been used in court and inadvertently left on the table, without any design that they should come to the hands of the jury. What the books were, or what were their contents on the subject of rape does not appear. The averments of Yan Stone as to what the jurors read therefrom are of the vaguest description. If his affidavit were wholly uncontradictód it would be difficult to say what law the jurors imbibed from the books, or in what particular respect they were misled as to the law to the defendant’s prejudice. But upon the affidavit of Howard there is no reason to suppose that any juror was influenced by what was read from the books. Before the Code of Criminal Procedure, irregularity in the conduct of a jury, when it was shown that no injury resulted to the prisoner, was not ground for a new trial. In the capital case of The People v. Hartung (17 How. Pr., 85; S. C., on appeal, 4 Park. Cr. R., 319, 329), the jury, during their deliberations, having improperly p >ssessed themselves of a copy of the Revised Statutes and consulted the same, it was held a mere irregularity, which, not having resulted in any actual prejudice to the prisoner, was held not to have vitiated the verdict. In Baker v. Simmons (29 Barb., 198), it was held by the Supreme Court in the sixth district that the verdict of a jury in a Justice’s Court should not b'e set aside simply because the constable having them in charge sought to interfere with their deliberations and urged them to give their verdict to the prevaili lg party. It would have been otherwise had the act of the constable been instigated by the party. A much stronger case is that of The People v. Carnal (1 Park. Cr. R., 256). It was a trial for murder. The constable communicated with the jury, and one of them swore that he never should have convicted the prisoner but for what the constable communicated to them. A new trial was denied, after full argument and examination by the court. The cases cited are authority for holding that if the jury in the case before us had possessed themselves of a copy of the Revised Statutes or of any other book containing some statement of law on the subject of rape, the act, although irregular, would not have vitiated their verdict, unless it appeared that the defendant was prejudiced thereby.

There is an obvious distinction between the case at bar and that of Mitchell v. Carter (14 Hun, 448), cited by the appellant’s counsel. There the jury possessed themselves of the minutes kept by the trial judge, which contained, partial-and imperfect notes of the testimony, and consequently .the jurors in reading them could hardly avoid getting false impressions of the facts of the case.

The fact that the officers sworn to attend the jury were in the same room with the jury during their deliberations is not ground for granting a new trial. There is no rule in this State which prevents such practice, although it is not to be 'approved. (The People v. Hartung, 4 Park. Cr. R., 256.) The rule seems to be otherwise in Michigan. (People v. Knapp, 43 Mich., 267.)

The application for a new trial on the ground of newly discovered evidence was properly denied. The affidavit upon which that branch of the motion is based fails to show that Mary Smith, the person whose testimony is alleged to be newly discovered, is a material witness in any respect, except as it may be inferred from the fact that she was a household servant in the employ of the father of the complainant at the time the rape was alleged to have been committed. For aught that appears that fact was known to, the defendant before the trial. The affidavit alleges that she was not subpoenaed for the reason that the defendant’s counsel understood and supposed she would be subpoenaed in behalf of the people.

We have examined the several exceptions taken by the defendant’s counsel during the trial, and it is enough to say that in the rulings to which they refer we discover no error.

The conviction and judgment should be affirmed and the case remitted to the Court of Sessions of Orleans county, with directions to carry the same into execution.

Hakdin and Haight, JJ., concurred.

So ordered.


author: Smith, P.' J.:

text:
    WILLIAM S. WRIGHT, Appellant, v. GEORGE B. CLAPP, Respondent.

      Usury 1cm — a general assignee is not a borrower within the meaning of it — 1887, chap. 430,
    A general assignee of an insolvent debtor is not a borrower, within the meaning of the usury law (1837, chap. 430), and cannot maintain an action to procure the cancellation of usurious notes or securities given by the assignor, without paying or offering to pay the sums actually loaned.
    The right so to do cannot be conferred upon the assignee by any provision inserted in the assignment.
    Appeal from a judgment, entered on an order of the Special Term in Erie county, sustaining a demurrer to the complaint.

      A. K. Potter, for the appellant.

      PL. O. Pay, for the respondent.
   Smith, P.' J.:

The complaint alleges that Alphens Reynolds executed to the plaintiff an assignment of all the property of Reynolds in trust for the benefit of his creditors, including certain real estate upon which Reynolds and his wife had previously executed to the defendant a mortgage as collateral to certain promissory notes also executed by Reynolds to the defendant. The complaint alleges that the notes and mortgage are usurious. The notes are described in the assignment, and it is therein declared that they are believed by the assignor to be void for usury, and if so, no part of the assigned property shall be applied to their payment, but if not void for usury they shall be paid out of said property, so far as the same is sufficient for the purpose. The relief asked is that the notes and mortgage be adjudged void for usury, and that the property held by the plaintiff in trust be declared not subject to any lien or trust in favor of defendant. The Special Term held that the plaintiff was not a borrower within the meaning of the act of 1837, and that as he had not paid or offered to pay the sum loaned, he was not entitled to relief.

We think the decision of the Special Term should be affirmed. It has been hold frequently that the term borrower,” as used in the statute (chap. 430, Laws 1837), designates only the party bound by the original contract to pay the loan. (Wheelock v. Lee, 64 N. Y., 242, and cases there cited by Andrews, J.) In Wheelock v. Lee (supra), it was held that the word “ borrower ” does not include an assignee of the debtor in bankruptcy. In Schermerhorn v. Talman (4 Kern., 94), the original borrower, who had incumbered his property with usurious liens, was declared a bankrupt, and his property vested in the assignee in bankruptcy.' Afterwards he purchased the property of the assignee, and on a bill filed by him to cancel the usurious liens, it was held that he was to be regarded as a purchaser merely and not as a borrower. The present plaintiff is not bound by the original contract to pay the debt, and therefore is not to be treated as a borrower.

The case is not altered by the peculiar provisions of the assignment in respect to paying the defendant’s debt. The parties to .the assignment could not alter the statute or annul its effect by stipulations of their own. Notwithstanding those provisions the plaintiff is not a borrower, an 1 not being snob, be cannot avoid tbe securities without restoring tbe money loaned.

Tbe judgment and order should be affirmed, with costs.

Hardin, J., concurred; Haight, J., not sitting.

So ordered.


text:
    MARY C. WORKS, Respondent, v. THE CITY OF LOCKPORT, Appellant.

      City of Loakport — ordinance dweeting a local improvement to be made — petition for it — when work asked for in different petitions may be joined — notice to property owners of the assessment — 1873, chap. 387.
    The charter oí the city of Lockport directs that no ordinance providing for local improvements shall be passed unless based upon a petition therefor, signed by persons owning at least one-third of the property to be assessed for the improvement, Two petitions were presented to the common council, each asking for the construction of a main sewer in Erie street, and praying also one of them for the construction of branch sewers in Mulberry and South streets, and the other in Lewis and Spalding streets. An ordinance was passed directing a sewer to be constructed in Erie street, from Walnut to a point 250 feet south of Spalding street, with branches in South, Mulberry, Lewis and Spalding streets.

      Held, that-as the petitioners were united in asking for the construction of the main sewer the ordinance was valid, and 'was not rendered void by reason of the fact that the branch sewers which it directed to be constructed were riot asked for in each petition.

      Qucere, as to whether entirely separate improvements asked for in separate petitions could be prop.erly united in one ordinance.

      Held, further, that the fact that the ordinance directed the main sewer to be made longer and the branches shorter than the sewers petitioned for did not invalidate it; that the common council was not confined to the exact limits marked out by the petitioners, provided the improvements ordered were, in the main, the same as those asked for.
    Where the charter only requires notice of the assessment for a local improvement to'be given to the owners of property to be affected thereby, no notice of the action of the common council in defining the area of assessment need be given.
    Appeal from a judgment in favor of tbe plaintiff, entered on tbe report of a referee.

      Banjmiin J. JELunfAmg, for the appellant.

      'Ransom c& Joyce, for the respondent.
   Smith, P. J.:

This action is brought to recover back money collected by the authorities of the city of Lockport from the plaintiff, for- a local assessment levied in proceedings taken for the construction of certain sewers in the streets of said city, which proceedings are alleged to be void. The allegation of invalidity is twofold: First. That no petition for the construction of the sewers ordered was presented to the common council; and, secondly. That the ordinance directing the construction of the sewers was passed without notice to the plaintiff and without a hearing or an ojiportunity to her to be heard.

The charter of the city of Lockport provides that in all cases of local improvements, except the construction of cross-walks, the affirmative vote of two-thirds of the aldermen in office shall be necessary to pass any ordinance ordering the said improvement; which action shall be based upon a petition therefor to the common council, signed by persons owning at least one-third of the property to be assessed for the improvement, provided, however, that the decision of the common council as to whether such petition is signed by such persons owning at least one-third of the property to be assessed for such improvement shall be final and conclusive, and shall not be subject to question or appeal.” (Laws 1873, chap. 387, § ,18.) The ordinance in the present case directed the construction of a main sewer in Erie street, in said city, from Walnut street to a point 250 feet south of Spalding street, with lateral branches in South, Mulberry, Lewis and Spalding streets connecting with said main sewer. The action of the common council in adopting said ordinance was based upon two petitions signed by the owners of property in said city, each asking for a main sewer in Erie street, and one of them praying for the construction of branches in Mulberry and South streets and the other in Lewis and Spalding streets.

It is insisted on the part of the plaintiff that the two petitions could not be united as the basis of one ordinance. Had each petition asked for an entirely separate improvement, it is at least questionable whether the two could have been properly united in one ordinance.. Such a practice might lead to combinations to carry several unworthy projects, neither of which could succeed alone. But in this case the two petitions were united as to the main sewer, and to that extent the ordinance was clearly authorized. We are not prepared to say that the action of the common counted was void, because the branch sewers which it directed to be constructed were not asked for in both petitions. For aught that appears the result to each person assessed is the same as if the construction of the branch sewers had been directed by separate ordinances.

It is also contended that the ordinance is not authorised by the petitions for the reason that it directs the construction of a main sewer 250 feet longer than that petitioned for, and the lateral sewers do not extend as far as the petitions asked for. But wé apprehend the common council are not confined to the exact limits marked out by the petitions, provided the improvement ordered is the same, in the main, as that asked for in the petition.

As to the want of notice it is true that no notice was given of the action of the common council in defining the real estate which they deemed benefited by the proposed improvement; nor do we understand that such notice is requisite under the charter of the city of Lockport. The only notice required by the charter' is of the assessment, and that was given in the mode prescribed. (Laws 1873, chap. 387, § 18.) The case differs from that of Ireland v. The City of Rochester (51 Barb., 414) cited by the plaintiff’s counsel. By the charter of that city the notice to be given was required to specify “ such improvement, the estimated expense thereof and the portion or part of the city to be assessed for such expense” (Laws 1861, chap. 143, § 165); and that provision had not been complied with in that case. It has been held frequently that a statute authorizing an assessment for a local improvement to be imposed upon a property owner without notice to him and an opportunity to be heard is unconstitutional. But where notice of the assessment is provided for we are not aware that an omission in the statute to provide for notice of the preliminary proceeding defining the area to be benefited by the proposed improvement has been held to render the statute unconstitutional. The defining of the section benefited is not the taking of private property, nor thé subjecting it to be taken by valid process. Until an assessment is imposed the owner cannot be deprived of his property.

For these reasons we think the money sought to be recovered was not illegally collected, and that the judgment should be reversed and a new trial ordered before another referee, costs to abide event.

Hardin and Haight, JJ., concurred.

Judgment reversed and new trial ordered before another referee, costs to abide event.


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    SIPHORUS GATES, Respondent, v. MILO CANFIELD, Appellant.
    Practice— discontinuance of an action in a Justice’s Oourt upon a plea of title being interposed — what is not a trial of am issue of fact at the circuit^ — when the defendant is entitled to costs — ■ Oode of Oml Procedure, see. 3235.
    The plaintiff discontinued an action, brought in a Justice’s Court for a trespass upon lands, upon a plea of title and a general denial being interposed by the defendant. Thereafter he brought this action for the same cause, and the same defenses were again pleaded. Upon the trial the plaintiff having given no evidence to prove the trespass alleged in the complaint, the court, on motion of the defendant, dismissed the complaint.

      Held, that there was no “trial of an issue of fact,” within the meaning of those terms as used in the exception contained in section 3235 of the Code of Civil Procedure, and that the defendant was entitled to costs.
    Appeal from an order of the Steuben Special Term, denying a motion to set aside a taxation of costs for the plaintiff, and to direct the clerk to tax costs for the defendant. •

      Holliday d¡ Bingham and H. Bemis, for the appellant.

      I. H. da O. W. Stevéns, for the respondent.
   Smith, P. J.:

The plaintiff commenced an action against the defendant in a Justice’s Court for trespass on lands, and the same having been dis-

continued by a plea of title, the plaintiff brought the present action in this court for the same cause, and the like defense was interposed here. The plea of title was accompanied in each court by a general denial. At the trial, at the circuit, the plaintiff gave no evidence tending to prove the trespass alleged in the complaint, and thereupon the court, on motion of the defendant, dismissed the complaint, no evidence whatever having been offered by the defendant. IJpon these facts the plaintiff claims that he is entitled to'costs, and that the defendant is not, and the Special Term has so held. The only question is whether that position is correct.

The question depends upon the construction to be given to certain words contained in section 3235 of the Code of Civil Procedure. So much of that section as is material to the question is as follows: “ Section 3235. Where an action brought before a justice of the peace * * * has been discontinued, as prescribed by law, upon the delivery of an answer showing that title-to real property will come in question, and a new action for the same cause has been commenced in the proper court; the party in whose favor final judgment is rendered in the new action is entitled to costs, except that where final judgment is rendered therein in favor of the defendant upon the trial of an issue of fact, the plaintiff is entitled to costs, rmless it is certified that the title to real property came in question on the trial.” Of course, in this case, there was no such certificate. The question comes down to this: Was the trial at the circuit tire trial of an issue of fact within the meaning of the section above transcribed? True, issues of fact had been joined by the pleadings, and such issues had been noticed and placed on the calendar and moved for trial, so that probably the party recovering costs of the action would be entitled to the fee given for the trial of an issue of fact by section 3251 of the Code. But those considerations do not determine the present question. ■ For when the plaintiff’s evidence was out, it was apparent that there was no issue of fact to be tried, and the presiding judge thereupon withheld the case from the jury and disposed of it upon a question of law. The defendant’s motion to dismiss the complaint for the want of evidence to support it was analogous to a demurrer to the evidence, and as the motion prevailed, the case was disposed of upon an issue of law, without any issue of fact being tried. Section 3235 of the present Code is a substitute for section 61 of the Code of Procedure. That section provides as follows: “ If the judgment in the Supreme Court bo for the pfiaintiff he shall recover costs; if it be for the defendant he shall recover costs, except that upon a verdict lie shall pay costs to the plaintiff, unless the judge certify,” etc. We do not think the change of verbiage from the words “ upon a verdict ” to the words “ upon the trial of an issue of fact,” was intended to work the consequence contended for by the plaintiff, but it was designed merely to include the case of a tri il by the court or a referee, as well as that of a trial by a jury. The construction contended for by the respondent is contrary to the general policy of the statute as to costs, and if adopted would enable the plaintiff in every like case, to work a fraud on tbe defendant by withholding his evidence at the trial of the new action.

If we are right in these views there has been no trial of an issue of fact, -within tbe meaning of the statute under consideration, and consequently the case is not within the exception made by the section, and the defendant and n'ot the plaintiff is entitled to costs.

The order of the Special Term should be reversed, with ten dollars costs and disbursements, and the defendant’s motion granted; with ten dollars costs.

ITardin and Haight, JJ., concurred.

So ordered.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS RUTHERFORD, Respondent, v. THE COUNTY COURT OF ORLEANS COUNTY and Others, Appellants.

      Drainage proceedings— the Oounty Oourt may appoint commissioners of appraisal — 1869, chap. 888, and 1871, chap. 303 — the regularity of the appointment of de facto drainage commissioners cannot be attacked collaterally.

    Under the statutes authorizing proceedings to be taken for the draining of lands (chap. 888 of 1869 and chap. 303 of 1871) the county court has power to appoint commissioners of appraisal, when the drainage commissioners cannot agree with a land owner upon the compensation to be made.
    An application for the appointment of commissioners of appraisal cannot be defeated by showing irregularity in the manner of the appointment of the drainage commission, where the members of the latter commission are commissioners de facto.

    Appeal from an order of Hie Special Term directing a writ of prohibition to issue to the Oounty Oourt of Orleans county, prohibiting tlie appointment in that court of commissioners of appraisal in certain proceedings for draining lands.

      John U. White, for the appellants.

      John Cunneen, for the respondent.
   Smith, P. J.:

Waiving the question whether, upon the assumption that the County Court lias not jurisdiction to appoint commissioners of appraisal, the case is a proper one for the issuing of a writ of prohibition, we are of the opinion that the lack of such jurisdiction in that court does not appear.

It is contended on the part of the relator that the statutes authorizing proceedings for draining lands do not vest County Courts with power to appoint commissioners of appraisal, and that when such proceedings instituted in a County Court have reached a stage where the appointment . of commissioners of appraisal becomes necessary, such commissioners can only be appointed by the Supreme Court.. This conclusion is reached by a construction of certain language contained in the statutes referred to, in which we are not prepared to concur. Jurisdiction of draining proceedings is given to the County Court by chapter 888 of the Laws of 1869, as amended by chapter 303 of the Laws of 1871. The ninth section of the act of 1869 provides that when the drainage commissioners cannot agree with a land owner upon the compensation for making a ditch or channel upon his land they shall proceed to acquire “ title to the said easement upon and across the land of such person in the manner, so far as the same is applicable, prescribed by chapter 140 of the Laws of 1850, entitled ‘an act to authorize the formation of railroad corporations, and to regulate the same,’ and the acts supplemental and amendatory thereto.” Section 14 of the act of 1850 provides, among other things, that a petition for the purpose of acquiring title under that act shall be presented to the Supreme Court, and this provision is supposed by the relator’s counsel to apply to like proceedings under the drainage acts. But the “manner” of procedure under the railroad act is borrowed by the drainage statute, only so far “ as it is applicable ” to proceedings thereunder, and as the County Court is the sole forum which can entertain proceedings for draining lands, the particular provision referred to is not applicable to Such proceedings. In other words, the intention of the act is that the collateral proceeding for the appointment of commissioners of appraisal shall be had in the same forum in which the principal proceeding is conducted, and it is there to be carried' on in the manner prescribed in section II of the railroad act so far as the same is applicable thereto.

It is also contended on the part of the relator that in the present case, the drainage commissioners, who signed and verified the petition that was presented for the appointment of commissioners of appraisal, were appointed by the county judge and not by the County Court, and for that reason their appointment was not valid, and the petition signed by them furnished no basis for the action of the County Court in appointing commissioners of appraisal. But they were commissioners de faeto. Their acts were valid so far as the public is concerned, and the question whether they were commissioners de jure cannot be raised collaterally.

The order should be reversed and the writ of prohibition quashed, with ten dollars costs and disbursements.

Hardin, J., concurred; Haight, J., not sitting.

So ordered.


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    DAVID ANDERSON, Appellant, v. FRANK B. SIBLEY and ACSAH G. CHAMPLAIN, Administrators, etc., Respondents.

      Statute of limitations — what is a sufficient written acknowledgment to take the debt out of the statute— Code of Omit Procedure, sec. 395.
    On July 16, 1878, the plaintiff commenced an action in a Justice’s Court upon a claim which accrued in August, 1872. The action was adjourned to October seventeenth. On that day the parties appeared before the justice and entered into a written stipulation to submit the matters in difference to an arbitrator named therein, and on the hearing before the arbitrator to waive the statute of limitations. Thereupon the action was discontinued. The next day the defendants’ intestate revoked the submission, and thereafter and in the following March died. Upon tlie plaintiS seeking to enforce the payment of the claim from the defendants they pleaded the statute of limitations.

      Held, that the agreement to waive the statute on the hearing before the arbitrator ' was a sufficient written acknowledgment of the debt to remove the bar of the statute.
    Appeal from an order of the Cattaraugus Special Term confirming the report of a referee upon a claim against the estate of the defendants’ intestate, and denying the plaintiff’s motion to set aside the report on a case and exceptions.

      Phelps da Eaton, for the appellant.

      R. 8. Armstrong, for the respondents.
   Smith, P. J.:

The claim in dispute is on contract, and it accrued in August, 1872. On the 16th of July, 1878, the plaintiff commenced an action upon it against the intestate before a justice of the peace. The action was adjourned to the seventeenth of October following. On that day the parties appeared before the justice, and entered into a written stipulation to submit their matters in difference ,to an arbitrator named therein, and on the hearing before the arbitrator to waive the statute of limitations. Thereupon the action before the justice was discontinued, and the justice rendered a judgment against the plaintiff for the costs. The next day the intestate revoked the submission to the arbitrator. The intestate died in the following March, and the plaintiff having sought to enforce his demand against the administrators, they set up the statute of limitations and that defense was sustained by the referee and he reported in favor of the defendants on that ground alone.

It is very clear that the stipulation is not available to the plaintiff as an estoppel in pais, for he was not induced to enter into it by any assertion of fact, misrepresentation or fraud on the part of the intestate. He is presumed to have known when he entered into the submission to arbitrate that each party had a right to revoke it. Nor is it available in this action as a technical waiver of the statute, for the waiver provided for was, by its terms, confined to the proceedings before the arbitrator.

But the question arises whether the agreement to waive the statute, being in writing, is not such an acknowledgment of the debt as will take'it out of the statute. We suppose that any acknowledgment which would have been sufficient before the Code, will now suffice if it be in writing. (Old Code, § 110 ; new Code, § 395.) “ The only effect of the Code,” said Ch. J. Earl, in Shapley v. Abbott (42 N. Y., 443, 447,) “ is to require that to he proved by writing which could before be proved by parol.” Prior to the Code an unconditional acknowledgment of the existence of the debt was enough, and that could have been shown by proof of direct acknowledgment or by a proof of facts from which it could be properly inferred. (Shapley v. Abbott, sup., p. 446 and cases there cited.) In the case of Shapley, cited above, it appeared that the creditor called upon the debtor, and told him that the note which he presented was about to outlaw and something must be done about it, and the debtor replied that if the note did outlaw he would not plead the statute of limitations on it. It is apparent from the opinions delivered in the Court of Appeals, that the members of the court thought that the acknowledgment above stated would have been sufficient, prior to the Code, to take the debt out of the statute, but it was not sufficient since the Code, because not in writing. (See, also, Burton v. Stevens, 24 Vermont, 131.)

In the present case, the acknowledgment is substantially the same in effect as in Shapley’s case, and is in writing. It is true the conversation in Shapley’s case related to the particular claim in suit, while here the submission was general, of all matters in difference —but there is no proof that the plaintiff made any other claim than the one in suit — and the referee has found that the claim so submitted is identical with the claim sued on in this action. And although the agreement not to set up the statute, was limited to the proceedings before the arbitrator, it was as distinct a recognition of the existence of the debt, as if it had been unrestricted and • general.

The inference of a recognition of the debt is not repelled by the fact that the claim was to be litigated and submitted to arbitration. The facts warrant the implication of a promise to pay the debt, provided there was no defense to it, other than the statute of limRations — and that there was any other defense cannot be claimed. In Mosher v. Hubbard (13 Johns., 510), the plaintiff’s agent, on presenting the claim, asked the defendant if he had -any recollection of paying it, but the defendant answered that he had not; and on the agent asking what should be done about it, the defendant said that he was in great haste, but that he would examine his pipers on his return home, and that if he found that he had paid the claim he would write to the agent, but the agent testified that lie had never received any letter or communication from the defendant on the subject. This, the court said, was sufficient to raise an implied promise to pay the money, unless, on examination, it should be found that the claim had been paid, and there being no evidence of such payment, the defendant was held liable. So, here, the stipulation and the facts attending it, as to which there is no dispute, raise an implied promise to pay the claim, unless some defense should be found to exist to it, other than the statute of limitations, and' no such defense appearing, the written promise or acknowledgment takes the case out of the statute.

The order appealed from should be reversed and a new hearing ordered before another referee to be appointed in the mode provided by statute in cases of this nature, with costs of this appeal to abide the final direction as to costs.

Hardin and Haight, JJ., concurred.

Ordered accordingly.


author: Hardin, J.:

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    FREDERICK A. BUSHNELL, as Administrator, etc., of ELLEN V. BUSHNELL, Deceased, Respondent, v. CALVIN G. L. B. CARPENTER, Appellant.
    Legacy— when vested — when one accepting a devise charged with the payment of legacies is personally liable therefor.

    A testator by bis will gave and bequeathed “to the two children now living of my daughter, Ann Maria, the sum of one thousand dollars each, to be paid to them, respectively, as they arrive at the age of twenty-flve years.” He then devised the principal part of his real and personal estate to his son, subject to the payment by him of all debts and certain of the legacies, including the ones above mentioned; “ expressly making tbe said legacies a charge and lien upon the property devised ” to his son.

      Held, that the legacy to each of the children vested immediately upon the death of the testator, and then became a lien upon the property devised to his son. That upon the death of one of the children, before attaining the age of twenty-five years, her administrators might bring an action to recover the legaciy after the time when the child, , if living,'would have attained that age.
    That as the son had accepted the devise made to him, and was the sole executor, he was personally liable for the payment of the legacy.
    Appeal from a judgment in favor of tlie plaintiff, entered upon tbe trial of tbis action by tbe court without a jury.

      J. 8. Lambertsoh and A. M. Mills, for tbe appellant.

      O. I). Adams, for tbe respondent.
   Hardin, J.:

Stephen F. Carpenter, July 11, 1863, made and executed his last will and testament and died in tbe spring of 1864, and the question here presented relates to a legacy given to Ellen O. Bushnell, one of the grandchildren of the deceased testator.

The legatee, Ellen O. Bushnell, was an infant when the will was made, and she died and the respondent was appointed administrator of her estate in October, 1881, and had she continued to live she would have been twenty-five years of age before this action wras commenced. . She was a daughter of Ann Maria Bushnell.

The fifth clause of tlie will is as follows:

Fifth.. I give and bequeath to the two children now living of my daughter Ann Maria, the sum of one thousand dollars each, to be paid to them, respectively, as they arrive at the age of twenty-five years.”

Two questions are made by the appellant: First. It is argued that “ the legacy never vested; ” and, second. The legacy lapsed.”

We are of the opinion that both points are unstable and unsound. The legacy vested upon the death of the testator and the time of its payment was postponed for the ease of the estate given to the defendant, who, under the scheme of the will, took the principal part of the personal and real estate charged with the payment of several legacies, among them the one to the respondent’s intestate.

In the language giving the appellant such principal part of his father’s property are found the following words, viz.: To have and to hold the said real and personal estate to my said son, and to his heirs and assigns forever, subject, nevertheless, to the payment by him of all my debts; and, further, to the payment of the several legacies hereinafter made to * * * Ann Maria and her children, * * * hereby expressly making the said legacies a charge and lien upon the property devised to my said son.” Considering both provisions of the will in determining the questions before us together, we are of the opinion that the legacy to the respondent’s intestate vested upon the death of her grandfather, and that it immediately became a charge and lien upon the property devised to the son,” the appellant, and that the time of its payment was postponed until such time as the grandchild would attain the age of twenty-five years. (Note a, in 6 Yes., 239, to Hanson v. Graham, and cases there cited; Robert, Exr., v. Corning, 15 Weekly Dig., 79; Paterson v. Ellis, 11 Wend., 260; Sweet v. Rockwell, 2 N. Y., 73; Loder v. Hatfield, 71 id., 97.)

As Forger, J., says, in the case of Loder v. Hatfield: The intention of the testator is clear “ as the words of gift are direct, emphatic and absolute. • Hence we may gather the intent as being to make an absolute and present vested gift and to defer to the future only the time of payment.”

Obviously it was the intention of the testator to allow his son time, in which to pay the debts and legacies charged upon the estate, so that he would not need to sell the estate; and with that object in view he postponed the time of payment of the legacies, and did not, by such postponement, intend to prevent the operation of the words which made the legacies absolute, nor to provide any limitation depending upon the continuance of the life of a legatee. (Hoyt v. Hoyt, 12 Weekly Dig., 279; Dayton on Surrogates [3d ed.], p. 425 ; 2 Redf. Surrogates, 576.)

The judgment properly declares the land devised to the defendant chargeable with the legacy; and that the defendant, who has accepted the devise to himself, and who is the sole executor, is personally liable for the payment of the legacy. (Brown v. Knapp, 79 N. Y., 137.)

The judgment should be affirmed, with costs.

Smith, P. J., and Haight, J., concurred.

Judgment affirmed, with costs.


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    BYRON ALFORD and ALLEN R. CURTIS, Appellants, v. EUGENE COBB and THOMAS ARGUE, Respondents.

      Equitable subrogation — when a lessee paying a debt of his lessor is entitled, to the benefit of the doctrine — ■ Attachment — when the action is for a breach of contract it is sufficient to show that the sum is claimed to be due over and above all discounts and set-offs— Code of Civil Procedure, secs. 635, 630.
    The plaintiffs alleged, in an affidavit used upon an application for an attachment, that they had become the owners from the defendants of á lease of an oil well, ■ and a derrick, carpenters’ rig and other improvements upon the leasehold premises; that while they were such owners one Hotaling held a debt against the defendants for furnishing the derrick, etc., at the defendants’ request, and had alien therefor against the property; that he was about to enforce the payment of the debt, and had placed an execution in the hands of the sheriff to procure a sale of the property ; that in order to prevent a sale of the property the plaintiffs vrere compelled to and did pay to the sheriff the amount of the debt.

      Held, that the plaintiffs thereby became entitled to the debt and lien so held by Hotaling.
    That they thus acquired a cause of action for a breach of contract against 'the defendants.
    That in an action brought by them to recover damages for the aforesaid breach of contract, an attachment might be issued under section 635 of the Code of Civil Procedure.
    The affidavit stated that the amount of “ plaintiff’s claim in said action is $313.75, and interest from the 9th of January, 1882, over and above all discounts and set-offs.”

      Held, that this was a substantial compliance with section 636 of the Code of Civil Procedure, requiring the affidavit to show that the plaintiff is entitled to recover a sum stated “ over and above all counter-claims known to him ”
    Appeal from an order of tlie Cattaraugus Special Term vacating an attachment. The affidavit used to procure the attachment alleged, among other things, that the plaintiifs were assignees of the defendants of a lease of an oil well, rigs and other improvements for oil production on said premises; that a lien was jilaced upon said premises for work done for said defendants, and that the plaintiifs to save the property had been obliged to pay the amount of such lien.

      Bolles <& Moulton, for the appellants.

      Phelps (& Eaton, for the respondents.
   Hardin, J.:

Section 635 of the Code of Civil Procedure authorizes an. attachment to issue where the action is to recover a sum of money only as damages for one or more of the following causes: ,

I. Breach of contract, express or implied, other than a contract to many.”

Plaintiffs must show by affidavit to the satisfaction of the judge granting the same that such a cause of action exists against the defendant. (Sec. 636.)

Plaintiffs, in their affidavit, show that they became owners of the lease for oil wells, and the derrick and carpenters’ rig, and other improvements upon the leasehold premises, and that while they were such owners, one Hotaling held a debt and lien against the same and was about to enforce such debt and lien by a sale of the property, and to that end placed an execution in the hands of the sheriff of Cattaraugus county, and that, to prevent a sale of such property, the plaintiffs were obliged to pay and did pay to the sheriff the amount of the debt and lien held and owned by Hotaling. Thus the plaintiffs became entitled by subrogation to the lien and debt so held by Hotaling.

Prior to such payment, the defendants owed the debt to Hotaling. After such payment, the defendants were none the less indebted, and their obligation to pay was- to the plaintiffs instead of to Hotaling.

If the plaintiffs were mere strangers to the property, or were mere volunteers, they would not have acquired an ownership from Hotaling. (Cole v. Malcolm, 66 N. Y., 366 Patterson v. Birdsall, 6 Hun, 640; Gerwig v. Shetterly, 64 Barb., 626; Ellsworth v. Lockwood, 42 N. Y., 98 ; Clute v. Emmerich, 26 Hun, 16.)

The indebtedness of the defendants was for the work and labor performed by Hotaling, which, in virtue of the mechanics’ lien law-proceedings, Hotaling was entitled to enforce by proceeding in such manner as to have a lien declared upon the property as well as a decree in personam against the defendants.

All of Hotaling’s rights passed to the plaintiff who were compelled to pay Hotaling to prevent him, through the sheriff, selling their property. •

Having thus become the owners in equity of the Hotaling debt, the defendants were liable to the plaintiffs to pay their debt, and that debt was one arising out of their contract with Hotaling.

It may be that the defendants had sold the property to Garrett & Prentice, subject to the payment by them of the Hotaling debt. It may be that when they sold to the plaintiffs the plaintiffs had actual or constructive notice of the Hotaling debt, and only acquired such rights as Garrett & Prentice had' in the property, and that they took the property under such circumstances, as in equity they were not entitled to pay the debt to save their property.

We are not informed by the affidavit as to these features of the case and we do not, therefore, pass upon them.

Upon the affidavit used in the application for an attachment the plaintiffs showed a prima facie right to pay off the Hotaling debt to prevent their property from being sold, and entitling them, in equity to hold and own all the rights of Hotaling against the defendants, and among these rights the promise of defendants to pay Hotaling for the carpenters’ rig furnished by him at the special instance and request of these defendants. (Belden v. Slade, 26 Hun, 635; Brainard v. Cooper, 10 N. Y., 356.) Surely such a cause of action against the defendants is one arising out of a breach of contract, and therefore within the language and spirit of section 635 of the Code of Civil Procedure.

II. Section 366 of the Code requires the plaintiffs who applied for the attachment to show by affidavit that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him.

Was this provision of the statute complied with? It was held in Trow P. Co. v. Hart (60 How., 193), that this is a wholesome provision, and as the statute must be strictly observed, the allegation, in the precise form, or in substance, is as necessary, as the statement of a cause of action.”

With this rule before us, we turn to the affidavit and find it, viz.: “That theramount of plaintiffs’ claim in said action is $313.15, and interest from the 9th of January, 1882, over and above all discounts and set-offT * * *

Manifestly this affidavit is not in literal and exact compliance with the statute. May we hold it to be in substantial compliance with the'statute ?

From the language used in sections 500, 501, 502, 503, and the notes of Mr. Throop thereto, we are inclined to construe the words “ over and above all discounts and set-off,” as used in the affidavit, as containing a1 substantial compliance with the requirements of section 536, and that the plaintiffs, in effect, stated that -the sum of $313.75 was due them “over and above all counter-claims known to them.”

We, therefore, hold the affidavit to procure the attachment sufficient. Result is, the Special Term fell into an error in vacating the attachment.

The order should be reversed, with ten dollars costs and disbursements.

Smith, P. J., concurred; Haight, J., not sitting.

Order of Special Term reversed, with ten dollars costs and disbursements.


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    GEORGE CARING and Others, Appellans, v. HENRY E. RICHMOND, as Sheriff, etc., Respondent.

      Chattel mortgage — confusion of articles mm'tgaged, with other properly — does not destroy the lien of the mortgage as to such articles as can he identified.

    The fact that a mortgagor, with the knowledge and permission of the mortgagee, mixes articles covered by the mortgage with subsequently acquired property, so that some of the articles covered by the mortgage cannot be distinguished from those subsequently acquired, does not render the mortgage invalid as to such of the articles covered by it as can be identified and distinguished.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The action was in replevin, the plaintiffs claiming certain property under a chattel mortgage executed to them by D. IT. Westbury. The defendant justified his possession under attachments, issued to him as sheriff, in actions brought against Westbury and under executions subsequently obtained and issued in the same actions. The question as to the validity of the attachments has been before the court and they have been sustained. {City Bcmlc v. Westbury, 16 Hun, 458.)

      J. S. Oarlock and J. A. Stull, for the appellants.

      J. B. Perkins, for the respondent.
   Hardin, J.:

Formerly (22 linn, 369), we held in this case that an agreement entered into at the time of the execution of the chattel mortgage, by which the mortgagor was to sell the articles mortgaged and turn the cash and accounts for sales over to the mortgagees to apply in payment of the mortgage debt, did not, as a matter of law, render the mortgage invalid: (See, also, Brackett v. Ilaroey, 25 Hun, 502, approving our former decision.) Since our decision the cause has been tried before another referee, who has found the mortgage was not fraudulent in fact nor in law.

■ He also found that the goods covered by the chattel mortgage, and those subsequently acquired having been mixed and intermingled by the mortgagor, with the knowledge and permission of the plaintiffs, so that neither the mortgagor or mortgagees can identify or distinguish the goods covered by the mortgage from those subsequently acquired, and all said goods having passed to and being held by the defendant under a subsequent lawful title, the plaintiffs are not entitled to recover the same from his possession.

First. Upon the evidence we think the finding erroneous in so far as it states that none of the property covered by the mortgage could be identified.

Many articles are specifically described in the mortgage which remained on hand at the time the sheriff levied and made his inventory, which from their nature were capable of identification and description at the time of the levy. Parol evidence was competent to apply the description to the articles; and when that was applied the identification was complete. (Dodge v. Potter, 18 Barb., 201.)

Second. "Westbury did not recover as exempt property, in that valued at $221 in the municipal court, all the articles which were specifically described in the mortgage to the plaintiffs.

Third. If some of the property was incapable of identification, by reason of the acts of the mortgagor and mortgagees in intermixing after-acquired property with that on hand when the mortgage was given, the mortgage as to that which could be identified would be valid, and to that extent the plaintiffs would be entitled to recover, even if they failed as to that portion which had become confused. (Van Heusen v, Radcliff, 17 N. Y., 580; Gardner v. McEwen, 19 id., 123; Yates v. Olmsted, 56 id., 682.)

Fourth. We are of the opinion that there was not such a confusion of property, as to a portion of the mortgaged property, with after-acquired property, as to prevent the parties from recovering that which could be pointed out and specifically described and shown to have been embraced in the mortgage.

The case is unlike Robinson v. Holt (39 N. H., 557), where hay had been mixed with other hay, so that it was impossible to distinguish that of the debtor.

For the reasons we have stated we think the judgment should,, upon the facts as well as law, be reversed and a new trial ordered before another referee.

Judgment reversed and a new trial ordered before another referee,, with costs to abide the event.

Smith, P. J., and Haight, J., concurred.

Judgment reversed on a question of fact and a new trial ordered before another referee, costs to abide event.


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    SAMUEL C. STEELE and SIDNEY B. AVERY, Respondents, v. SCOTT LORD, Appellant, Impleaded with WILLIAM C. DWIGHT and Others. SAME v. SCOTT LORD, Appellant, Impleaded with JAMES L. GAGE and Others.

      Judgment — when a collateral security is not merged in it — when it does not bar an action to enfoixe the latter. •
    These two actions were brought by the plaintiffs upon promissory notes, one of which was made by Dwight and the other by Gage, both being indorsed by thg defendant Lord. The notes were delivered to the plaintiffs to be held as collateral security for the payment of any advances they might make under and in pursuance to two contracts they had made with Lord. In an action, brought by the plaintiffs for a final accounting upon the contracts, a judgment was obtained, for the amount due, which was paid and satisfied. Upon the trial of that action claims for advances made upon two drafts drawn upon the plaintiffs under the contracts were rejected because not included in the bill of particulars, and because each draft referred specifically to one of the notes now sued on. Subsequently the plaintiffs brought a new action upon the said drafts, and were defeated therein upon the ground that as the drafts were provable and recoverable in the former action, they were merged in the judgment recovered therein.

      Meld, that the notes in suit were not merged in the judgment recovered in the action for an accounting, and that neither that judgment nor the judgment recovered in the second action was a bar to the maintenance of this one upon the notes.
    Appeals from two judgments, entered in Monroe county upon the reports of a referee. Each action is upon a promissory note. One note was executed by Dwight and the other by Gage. Each note was indorsed by the defendant Lord, and the notes were delivered by him to the plaintiffs as collateral security for advances made or to be made, by the plaintiffs to the defendant Lord, under two contracts entered into between the plaintiffs and the defendant Lord. The defense relied upon by the defendant Lord is, that the plaintiffs having sued for a final accounting on such contracts, and recovered a j'udgment for the balance due them, and such judgment having been paid and satisfied, and the said two notes on which these actions were brought - having been given as collateral security for such advances were paid by the satisfaction of the judgment upon the contract; that the* notes were merged and extinguished by that judgment.
    The referee reported adversely to the defendant, and upon his reports the judgments appealed from were entered. The defenses are identical in each action. The facts, with one exception, were admitted upon the trial; and the single fact not admitted, and the facts that were admitted, are all found to be true by the referee’s report. By the amended stipulation used upon the trial it was agreed that the pleadings should be deemed sufficient for the admission of the evidence. •
    The referee found as follows : “ That the said plaintiffs took and received said notes as security for advances thereafter to be made, and thereafter made by them, upon drafts 'made by the said Scott Lord, in and upon a certain contract existing between said parties for the manufacture and sale of certain croquet sets by said Lord, and for advances upon such contract by said plaintiffs. * * * The accounts of the said parties in respect to the said croquet sets so manufactured and sold by the said plaintiffs, and for the advances made by them upon such contract, have been duly liquidated, settled and closed between said parties by the judgment and decision of this court, in an action brought by the plaintiffs against the said Scott Lord for that purpose, except that in said account and judgment the promissory notes for which these actions were brought' were not included, and the same remain unpaid to the said plaintiffs and in full force and validity.” That the judgments so recovered by the said plaintiffs against the said defendant for $3,988.98 had been paid and satisfied.
    It appears by the case that the referee in the former action disallowed two of the drafts because they were not specified and stated in the bill of particulars, and because on their face they referred to the notes now in suit.
    After such disallowance of the drafts these respondents commenced an action against the appellant to recover the amount due upon them. Upon the trial of that action the referee decided as a matter of law that the said drafts were merged and extinguished in and by the judgment recovered in the first action.
    These two actions are commenced upon the promissory notes set out in the respective complaints, to recover upon the notes against the maker, and upon the several indorsements thereof by the other parties, about January 25, 1872. It appears that the appellant, by agreement with the other defendants, stood in the relation of principal, and they as sureties to said notes. The actions were severed and proceeded to trial solely against the appellant. The report in' the action on the drafts was made June 29,1878, and the several reports in these actions were made June 13,1879.

      Lord c& Lord, for the appellant.

      Osocur Craig, for the respondents.
   Hardin, J.:

Appellant now insists that “the portion of the advances” made to the appellant under said contracts, to which the excluded drafts and notes in suit relate, are merged and extinguished in and by said original judgment, and “tliat the original judgment is conclusive against the right of recovery of the excluded advances, and against a light of recovery upon the notes now in suit.” It affirmatively appears that the advances upon the accommodation acceptances of said two drafts, amounting to about the sum of one thousand dollars, have never been paid in fact. It clearly appears that the two notes involved in the actions now before us were delivered to the respondents as collateral security, and that the appellant is a party as an endorser to the notes, and that upon such endorsement the acceptances and advances were made. And it appears, that the plaintiffs, when they received the notes, did not know that the appellant sustained any other relation to the notes than that of endorser and surety. We are of the opinion that the learned' referee is correct in his conclusion, that the former judgment upon the contracts was not a bar to the right of recovery upon'the endorsement by the appellant of the promissory notes in these actions, and that the notes were collateral and independent securities in the hands of the plaintiffs, and valid at the time of their delivery, and subsisted and continued and remained as such, for the purpose of securing the payment of the advances made upon the faith of the notes and the several endorsements thereof. The notes in suit remain valid and subsisting obligations against the appellant, and remained unaffected by either of the former judgments. (Bank of Chenango v. Hyde, 4 Cow., 567; Butler v. Miller, 1 N. Y., 496-500 ; S. C., 1 Denio, 407.) The notes in suit were separate and distinct instruments, and the obligation of the respective parties thereto remained until the purpose for which the notes were delivered was accomplished, to wit, the securing of the right to a return of the money advanced by the plaintiffs upon the faith of the notes. (Nathans v. Hope, 77 N. Y., 420 ; Zimmerman v. Erhart (vol. II of the Reporter, Feb. 16, 1881), 220; Secor v. Sturgis, 16 N. Y., 554.)

The learned referee before whom these actions were tried, has fortified the conclusions we have approved by an elaborate and careful opinion, which meets with our approval. We therefore affirm the judgments entered upon his report.

Smith, P. J., and Haigiit, J"., concurred.

The judgment in each action affirmed.


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    ABRAM W. SEXTON, Appellant, v. EDWARD J. PEPPER and THOMAS BROWN, Respondents.

      Assessment — liability of the assessors for wrongfully placing a name upon their rolls after July first — what is a voluntary payment■ — when the assessment must be vacated before an action will lie against the assessors.

    The assessors of tlie town of Floyd, after tlie 1st day of July, 1878, wrongfully placed upon tlieir rolls tlie name of tlie plaintiff and assessed liim for a farm then occupied by liim. Subsequently tlie 'plaintiff handed the amount of the tax to his wife, upon whom 'the collector called and received all the tax but nineteen cents, which the plaintiff subsequently paid and received a receipt for the tax.
    In an action by him against two of the assessors to recover the amount of the tax so paid:

      Held, that although the assessors had no right to place the name of the plaintiff upon tlie rolls, yet as the assessment had never been reversed or set aside,- and as the tax had been voluntarily paid, the action could not be maintained.
    Appeal from a judgment of tlie Oneida County Court, affirming a judgment in favor of tlie defendants rendered in a Justice’s Court.
    Tlie action was brought against the defendants, two of the assessors of the town of Eloyd, to recover the amount of a tax which the plaintiff- claimed that he had been compelled to pay by reason of their having wrongfully placed his name upon the assessment-roll after July 1, 1SJ8.

      J. 8. Balter and M. M. Burlinson, for the appellant.

      J. 1. Sayles, for tlie respondents.
   Hardin, J.:

Assuming, as we must, upon evidence not contradicted, that the plaintiff’s name was placed upon the assessment-roll of the town of Eloyd by the defendants, two of the assessors, on the third Tuesday of August, 1818, commonly called grievance day, the defendants acted without authority.

It is adjudged that assessors have no right to add names to the assessment after the first day of July. (Mygatt v. Washburn, 15 N.Y., 316; Clark v. Norton, 49 id., 246 ; Westfall v. Preston, id., 352; S. C., 3 Lans., 484.) After the warrant was placed in the hands of the town collector the defendant handed the amount of the tax, twenty-fire dollars, to his wife, upon whom the collector called and received all but nineteen cents of the tax. Subsequently the plaintiff paid the nineteen cents himself to the collector. No levy was made upon his property prior to such payments, and there was no duress of person or property, and under the circumstances the plaintiff made a voluntary payment of the tax assessed upon the farm which he occupied, and he cannot recover money thus voluntarily paid by him. (Fleetwood v. The City of New York, 2 Sandf., 479; Harmony v. Bingham, 2 Iver., 116; The New York and Harlem R. R. Co. v. Marsh, Id., 311; Sandford v. Mayor, 33 Barb., 151; Silliman v. Wing, 7 Hill, 159 ; Supervisors of Onondaga v. Briggs, 2 Denio, 26.), Bellinger v Gray (51 N. Y., 620; Peyser v. Mayor, 70 id., 500) was not a case of voluntary payment.

Lour, Commissioner, in Bellinger v. Gray (supra), said: “ There is no color or ground for saying that the plaintiff made a voluntary payment of the money taken by the collector. The whole course of proceeding at the time shows not only that it was not such, but that he expressly forbid the taking, and therefore notified the collector that he would be held responsible therefor.”

In the .case in hand, the plaintiff testified, viz.: “ The tax that was assessed to me on the Fairchild place was paid; I left some money with my wife to pay it; she did not pay all the tax that day; I saw Mr. Morriss, the collector, a few days after; there was some nineteen cents due on the tax ; I ordered it paid ; this is the receipt I received for the tax; the receipt. was read in evidence, and it recited a payment by plaintiff of twenty-three dollars and ninety-nine cents taxes, and one dollar and twenty cents collector’s fees; total, twenty-five dollars and nineteen cents, June, 1879.”

There was no levy, no protfest, no dispute, no duress, but a voluntary payment, which stands in the way of any claim now made by plaintiff to recover back the money, or damages for assessing to him a farm which he occupied at the time the assessment was made. Nor has there been any reversal of the assessment. The case does not fall within Peyser v. Mayor (70 N. Y., 502; S. C., 5 Weekly Digest, 127.) In that case Folger, J., says: “ To warrant an action to recover back money paid by coercion of law upon a judgment or tax levied, or assessment levied, it must appear that the judgment or proceedings were prima faoie regular, so as not themselves to furnish evidence of their own invalidity, and -it must also appear that the rights and positions of the parties have been ohanged'smce the payment was made, as by a reversal for error, or a setting aside for irregularity or illegality.” (See, also, Lott v. Swezey, 29 Barb., 87.) This view renders it unnecessary to examine the question made as to one of the jurors, for if there was error in allowing him to sit, we do not see how the plaintiff was prejudiced thereby. (Bort v. Smith, 5 Barb., 283.)

We should affirm the judgment of the County Court of Oneida, which affirms the judgment of the Justices’ Court. Judgment of the Oneida County Court and that of the J ustices’ Court affirmed.

Smith, P. J., and Haight, J., concurred.

Judgment affirmed.


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    GEORGE H. HUMPHREY, as Executor, etc., of GEORGE TEGG, Deceased, Respondent, v. MARY A. WINSHIP, Appellant.
    Will— construction of bequest — when it refers to the persons occupying certain marital relations to the legatees at the time it is made, and not to those who may subsequently occupy them.

      A testator directed his trustee, upon the death of his widow, to invest two-sevenths of his estate in interest bearing securities, and to pay over one-half of the interest thereof “to each of my two daughters, Elizabeth and Mary Ann, so long as she shall continue living and unmarried; but in the event of the death of either of my two daughters, last aforesaid, then he shall divide and distribute such one-seventh part equally among her children; or in the event of the death of the husband of either of said two daughters he shall pay over said one-seventh part, or transfer the securities therefor, to her personally.”

      Held, that the testator referred to the husbands living at the time the will was drawn; that upon the death of one of the said husbands, after the death of the testator, his wife was entitled to receive the body of the bequest and not merely the income thereof, and that she did not lose the right so to do by a subsequent remarriage.
    Appeal from a judgment, entered upon the decision of the Monroe Special Term, giving a construction to a will of George Tegg, deceased. The will was made 26th of July, 1870. Testator died September 15, 1872, leaving eight children.
    The appellant was married when the will was made. She lost her husband October 1, 1876. On August 1, 1878, she married again, her present husband. The testator’s widow died October 18, 1880.
    . The property was to be converted into money, and disposed of by the trustee, at death of the testator’s widow. The will provided among other things that the trustee was,
    2d. “ To invest two one-seventli parts thereof, upon such interest bearing securities as to him may seem most' prudent and safe; and one-half the interest thereof to pay over to each of my two daughters, Elizabeth and Mary Ann, so long as she’ shall continue living and married; but in the event of the death of either of my two daughters last aforesaid, then he shall divide and distribute such one-seventh part equally among her children, or in the event of the death of the husband of either of said two daughters, he shall pay over said one-seventh part, or transfer the securities therefor, to her personally.
    “ But should either of my said daughters die before her husband, and without children, then it is my will that he divide one-seventh part equally between such of my children as may be living, and the heirs of such as may be dead per stirpes.”

      Perry <& HopMns, for the appellant.

      G. W. Humphrey, for the respondent.
   Hardin, J.:

Full effect should be given to all the language used by the testator, and that construction is preferred, and more reasonable, which gives significance to all the language used.

Respondent’s construction renders useless the words in the event of the death of the husband of either of the said two daughters * * he shall pay over * * or transfer * * to her personally.”

Whereas the construction contended for by the appellant impregnates those words with the intent on the part of the testator, that in the event of the death of the husband living at the time the will was made, the daughter should receive the body of the bequest, instead of merely the income thereof.

. Such construction is favored by the authorities. (Lovett v. Gillender, 35 N. Y., 619; Carter v. Hunt, 40 Barb., 89; Arcularius v. Geisenhainer, 3 Bradford, 64.)

Testator referred to the marriage existing between the daughter and.her husband living at the time the will was drawn, and in the use of the words “ death of the husband of either,” etc., to the then husband. This language referred to an actually existing state of facts, known to him when the will was prepared. (Gold v.Judson, 21 Conn., 616; Morse v. Mason, 11 Allen, 36; Quinn v. Hardenbrook, 54 N. Y., 83; Wetmore v. Parker, 52 id., 450.)

Appellant was entitled to have paid or transferred to her the .body of her share, and not simply the income thereof; it vested on the death of her husband. • (Robert v. Corning, 15 Weekly Digest, 79.)

Judgment should he reversed, and judgment ordered in accordance with this opinion for the appellant, with costs of the appeal payable out of the fund.

Smith, P. J., and Haight, J., concurred.

Judgment reversed and judgment ordered in accordance with the opinion, with' costs of the action and of this appeal, payable out of the estate.


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    FRANCIS RAYNOR, Respondent, v. JOHN A. LAUX, as Executor, etc., of CATHERINE MAYER, Deceased, Appellant.

      Claim, against the estate of a deceased person— the court may set aside the report of the referee — it may look into the evidence for a cause of action or defense — ichen the receipt of a note does not discharge the liability it n gimen to settle.

    The Special Term has power to set aside the report of' a referee, to whom a disputed claim against the estate of a deceased person has been referred as provided by the statute.
    As no pleadings are used in such proceedings the court will examine the proofs made by the parties, in order to ascertain the grounds of recovery or defense.

      The defendant's testatrix guaranteed the performance of the covenants of a lease given by the plaintiff to her son, and agreed to pay any deficiency that might arise thereunder and fully satisfy its conditions without requiring- any notice of non-payment or proof of demand. Subsequently two joint notes were given for rent due upon the lease, signed by the testatrix and her son. Upon a claim made against her estate the lease and notes were proved. . ■

      Held, that even if the estate of the deceased was not liable upon the notes for the reason that she had signed as a surety only, yet as it did not appear that the . notes were received under an agreement that the testatrix should be discharged from liability upon her guaranty, that her liability under such guaranty continued and could be enforced after the maturity of the notes:
    Appeal from an order of the Erie Special Term setting aside the report of a referee in a reference, under the statute, of a disputed claim against the estate of Catherine Mayor, deceased. The claim was made under ,a lease, upon which the intestate was liable as a guarantor, and upon two notes signed by her and by the lessee and given for'rent due under the lease. Upon the hearing, no objection was’taken to the introduction in evidence of the lease and the guaranty thereof, which guaranty was executed by the deceased, and of the notes which were given to adjust the rent which had accrued under the lease.

      C. F. Taber, for the appellant.

      Giles E. Stillwell, for the respondent.
   Hardin, J.:

Young v. Cuddy (23 Hun, 249), is in point upon the practice adopted in this case, and we, following it, must hold that the Special Term had power to set aside the report of the referee and to order a new trial. See, also, Coe v. Coe (37 Barb., 232); Radley v. Fisher (24 How., 404); Somerville v. Cook (9 Hun, 665). Bucklin v. Chapin (1 Bans., 450) is an authority for saying that the proofs made by the parties are to be looked into for “ the grounds of recovery or defense,” as there are no pleadings in proceedings under the statute to establish claims against estates. So, too, is Woodin v. Bagley (13 Wend,, 452). March 22, 1875, the testatrix, at the request of her son, Christian Mayor, who took a lease from the plaintiff, for a valuable consideration recited, indorsed upon the lease a guaranty -of performance of the lessee’s covenants, and in the guaranty bound herself to pay the rent, and also promised in the following words, viz.: “ I do hereby promise and agree to pay to Frank Raynor any deficiency and fully satisfy the conditions of the said agreement, without requiring any nptice of non-payment or proof of demand being made.”

She thus became absolutely bound to pay the rent if the lessor defaulted.. (Vinal v. Richardson, 13 Allen; 521; Knowles v. Cuddeback, 19 Hun, 592.)

Subsequently 'she joined with her son in giving two promissory notes upon time, which were produced upon the trial, and which notes were referred to in the claim filed, and were assumed and proven upon the trial to represent the rent which accrued under the lease and guaranty.

It is now urged by the learned counsel for the defendant that,' by the death of his testatrix, the notes were not binding upon her estate, as she was a mere surety upon the lease, and in settlement of such liability joined in the joint notes given to secure the rent, and that, as the notes were joint, her estate was discharged, and w.e are referred to Getty v. Binsse (49 N. Y., 385); Risley v. Brown (67 id., 160); Davis v. Van Buren (72 id., 589); Johnson v. Harvey (84 id., 365).

And, under the doctrine found in those cases, it maybe conceded that the estate was discharged, as between it and the creditor, from liability upon the notes by her death. Assuming such to be the effect, we are to consider whether the notes worked an extinguishment of her liability upon her guaranty. In the case, there was no evidence to establish that the notes were received imder an agreement that they should discharge the liability of the guarantor. .Her liability could not have been enforced until the maturity of the notes. (Herring v. Sanger, 3 Johns. Cases, 71.)

The creditor was entitled to enforce the original liability upon the lease and guaranty, and upon enforcing such liability, surrender the notes. (Tobey v. Barber, 5 Johns., 68 ; Van Eps v. Dillaye, 6 Barb., 244; Gibson v. Toby, 53 id., 191; S. C., 46 N. Y., 637.)

It follows from what has been said that the referee was in error in holding, as a conclusion of law, that the plaintiff was not entitled to recover for the rent in arrear under the lease and guaranty of 1875, “ in the absence of proof of tbe insolvency of said Christian Mayor and of his said claimant’s inability to collect from him the amount of the two notes,” and the Special Term properly set aside the report and directed a new trial. -

We should affirm the order, with costs of this appeal.

Order affirmed, with costs to abide the final decision in the action as to costs.

Smith, P. J., and Hai&ht, J., concurred.

Order affirmed, witli costs of this appeal, to abide the final direction in tbe proceedings as to costs.