text:
    The People, Resp’t, v. Charles F. Underhill, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed Janury 18, 1894.)

    1. Criminal law—Forgery.
    Under section 514 of the Penal Code, the crime is complete if an officer of a corporation falsifies a writing belonging, or appertaining, to the business of the corporation, intending to defraud the same.
    2. Same.
    In such case, it is immaterial whether the change was made before or after the execution of the signature.
    Appeal from the judgment of conviction, and from an order denying a motion for a new trial, and from an order denying a motion in arrest of judgment.

      George Baines, for app’lt; Howard W. Widener, Asst. Dist. Atty., for the People.
   Haight, J.

The defendant was the president of the Flour City Life Association, an insurance corporation having its principal place of business in the city of Rochester. In November, 1890, Philip Wareham, of Brooklyn, Mich., died, holding two policies in the association, numbered respectively 5,748 and 9,629, in which his son, Hamilton Wareham, was made the beneficiary, .and who, by reason oí the policies, became entitled to receive from the association the sum of about §2,000. It appears that after the death of Wareham was reported to the defendant and one McOargo went to Michigan, called upon Hamilton Wareham, the beneficiary under the policies, and entered into an agreement with him to compromise and settle his claim against the association for the sum of $400, which sum they then paid to him. The compromise agreement so entered into with Wareham. was in writing, drawn by the defendant, and is as follows:

“ Whereas, the undersigned, Hamilton Wareham, of Grand Ledge, Mich., the beneficiary named in certain certificates of insurance numbered 5,748 and 9,629, issued by the Flour City Life Association, and dated the 8th April and 12th August, 1889, upon the life of Philip Wareham, of Brooklyn, for 16 shares in Glass B of said association; and whereas, eight shares would have matured thereon on approval of the same; and whereas, it is claimed upon the part of said association that by reason of certain omissions and misstatements in the application therefor, and the contradictions thereof which appear by the proof of loss filed with said association, that a legal defense exists against the payment of said policy, or any part thereof, and it is deemed expedient to compromise and adjust the same upon an equitable basis— the undersigned, Hamilton Wareham, hereby, for value received, and in consideration of all the premises, agrees that he will accept the sum of fourteen hundred dollars in compromise of any and all claims and demands whatsoever due upon or hereafter to grow ■due by reason of said certificates ; and upon payment of said sum in cash the undersigned does hereby receipt in full for the amount ■due on said policy. The said claim is hereby compromised and adjusted accordingly, and the above-named amount is accepted in full accord and satisfaction thereof.

Witness the hand and "seal of said party this 3d day of December, 1890.

The above was signed by Hamilton Wareham, with his seal affixed, and acknowledged before one E. O. Kelley. It is claimed ■that this instrument was forwarded by the defendant to the office of the association in Rochester, accompanied with a check on the association for $1,400, with a letter to the secretary directing him to take the check to the Central Bank, and get the cash on the same, and then, with the cash, go to some other bank, and get Hew York drafts to the amount of $1,400, payable to the defendant’s order, and to forward them to him at Ionia, Mich., that the secretary did as directed; that the drafts to the amount of $1,400 were received by the defendant, indorsed by him, and that he procured the money on the same. It is further claimed that after the defendant returned to Rochester he presided at a meeting of the directors of the association on the 17th day of January, 1891, and that at that meeting the compromise contract settling the Wareham claim was presented to the board of directors, was approved, and ordered paid. The evidence tends to show that the compromise agreement was drawn in a room occupied by the defendant, in Michigan; that Wareham was unable to read it, because of impaired sight; that the defendant read it over to him before he signed it, and that in reading it read the sum to be paid in the compromise as $400, instead of $1,400; that thereupon Wareham signed the same, and was paid $400.

The first count in the indictment was evidently drawn under § 511 of the Penal Code, and charges forgery in the second degree in this: that the defendant did feloniously and falsely make, forge, alter, and counterfeit the compromise agreement in question, with the intent to injure and defraud the Flour City Life Association. The second count in the indictment charges the defendant with the same crime in uttering the instrument. The third count in the indictment was evidently drawn pursuant to the provisions of §§ 514 and 515 of the Penal Code. It charges the defendant with having falsely altered the instrument in question, being a writing belonging to the association, then and there being a corporation, by writing “ teen ” after “four ” therein, so as to raise the amount from $400 to $1,400. The fourth count charges the defendant with the same crime in having uttered the instrument. In the third count of the indictment the formal conditions are for some reason omitted. It is not charged that the defendant was an officer or an employee of the corporation, or that he defrauded any person by his act. It is quite possible that this count is defective, but we discover no such defect with reference to the fourth count, the count under which we understand the defendant to have been convicted. The evidence is of such a character as to make the guilt or innocence of the defendant a question for the jury. We shall, therefore, discuss only the legal propositions presented.

The court, in its charge to the jury, at first submitted the question as to whether the instrument alleged to have been altered was forged in the city of Rochester, with the instructions that, if the alteration was made in the state of Michigan, there could not be a conviction under the first and third counts in the indictment; but afterwards, at the request of defendant’s counsel, the judge charged the jury that if they found the defendant guilty it must be of uttering the instrument, either in the second or third degree, as charged in the second or fourth counts of the indictment. With reference to the charge in the second degree, he instructed the jury that they could not convict unless they found as a fact that the alteration was made after the instrument was signed by Wareham; but with reference to the charge in the third degree he instructed the jury to the effect that it was immaterial whether the letters “teen” were written in before or after the signing by Wareham. To this charge an exception was taken by the defendant. The question thus presented is one of interest, and does not appear to have been considered in any reported case to which our attention has been called. At common law, the question as to whether it was forgery to produce a genuine signature to an instrument by means of false representations as to its contents, gave rise to conflicting decisions. The text writers uponcriminallaw from Coke to Barber were of the opinion that the fabrication and false making of a written instrument, as well as the fraudulent insertion, alteration, or erasure in a material part whereby a new operation was given to it, would amount to forgery, even though it were afterwards executed by a person ignorant of the deceit. 3 Co. Inst. 170; 1 Hawk. P. C. c. 21, § 2; 2 East, P. C. c. 19 § 2 ; 2 Russ. Crimes, c. 32, § 1, p. 319 ; 2 Deac. Crim. Law, 1402; 1 Barb. Crim. Law, 114. But in Reg. v. Collins, 2 Moody & R. 461, Baron Rolfe refused to follow this rule; and to the same effect is Reg. v. Chadwick, Id. 545. These cases have been followed by the more modern writers. 2 Whart. Crim. Law, § 1435; 1 Bish. (New) Crim. Law, 584; 2 Bish. (New) Crim. Law, | 156. In Hill v. State, 1 Yerg. 76, it was held that the writing of a note for a person, inserting a lager sum than the real amount due, and falsely and fraudulently reading it over to him as for the latter amount with a view to defraud him, is not forgery. See, also, Com v. Sankey, 22 Pa. St. 390 ; State v. Flanders, 38 N. H. 324, 336. But all is not harmony under the modern cases. State v. Shurtleff, 18 Me. 368; 3 Rice Ev. § 489. See note to Arnold v. Cost, 22 Amer. Dec. 302, 311. It will be observed that none of the authorities referred to attempt a construction of our recent statute defining forgery in its various degrees. The term “forgery,” as used in our statute, now includes false making as well as counterfeiting and alteration. Pen. Code, § 520. “A person is guilty of forgery in the second degree who, with intent to defraud, forges an instrument, or writing, being or purporting to be the act of another,” etc. It may be that an instrument cannot purport to be the act of another before his name is placed thereon. Wc shall, therefore, without deciding the question, assume that under our statute defining forgery in the second degree the alteration must be made after the instrument is executed. The trial court so charged the jury. But is this the rule in reference to the charge in the third degree? The Code provides that “a person who either (1) being an officer or in the employment of a corporation, association, partnership or individuals, falsifies or unlawfully and corruptly alters, erases, obliterates or destroys any accounts, books of accounts, records or other writing belonging to or appertaining to the business of the corporation, association or partnership or individuals "" * * is guilty of forgery in the third degree.” Pen. Code, § 514. Under this statute the crime is complete if an officer of a corporation falsifies a writing belonging to or appertaining to the business of the corporation, intending to defraud the same. Such is the charge made against the defendant. The procuring of the signature of Wareham to the compromise agreement by falsely representing its contents to him, standing alone, may not be forgery. He was not defrauded. He agreed to take $400, and was paid $400. The fact that the paper bore his genuine signature might make it a true paper as to him, for he, by the act of signing, asserted the truthfulness of its contents; but as to the association it is a false paper, for it represents that Wareham was paid 1,400 when in fact he was paid but $400, and his signature thereto does not change the fact. Suppose the defendant and Wareham had collusively arranged to defraud the association, and for the purpose of carrying out sucli arrangement the defendant had written the instrument, inserting the words “fourteen hundred dollars,” and Ware-ham, knowing of such insertion, had signed the same, can there be any doubt but that the instrument would have been a false one within the meaning of the statute? And is the defendant’s position in reference thereto different by reason of his havingprocured Wareham’s name through misrepresentation and deceit. We think not. To our minds, the crime consists in the making of the false instrument belonging to or appertaining to the business of the corporation by an officer thereto. The writing is one act, and the procuring of Wareham’s signature is another. The two acts together constitute the making. If we are correct in this view, it is immaterial under the statute, whether the “teen” was written before or after the signature of Warekam.

It is contended that the court erred in submitting to the jury the various alleged acts of the defendant in connection with the paper after its execution, as bearing upon the question of uttering. It was claimed that the defendant forwarded the instrument to the office of the association, there to be placed upon file as a voucher for money expended by him as an officer, etc. The trial court submitted the evidence bearing upon this question to the jury for them to determine whether it was not an uttering of the instrument. The attention of the jury was also called to- the meeting of the directors on the 17th of January, at which the defendant presided as president, when the claim was audited. It was submitted also as to whether this was an uttering. We have discovered no errors in reference to the ruling upon these questions. We do not understand that the prosecution was confined to one item of evidence tending to show an uttering of the instrument. The charge in the indictment does not specify the evidence upon which the prosecution relied for the purpose of establishing the charge. The placing or causing of the instrument to be placed upon file in the company’s office for the purpose of having it subsequently acted upon when the directors should meet is one step; the action of the board of directors in approving of the compromise and ordering it paid is another step. Each, is consistent with and dependent upon the other, and the two together complete the transaction. While either, standing alone, may be sufficient to constitute the crime of uttering, the people certainly were entitled to give in evidence the fnll transaction, and have it considered by the jury.

The defendant’s counsel requested the court to charge that the conversation with Colvin- would not constitute an uttering of the paper. To this the court replied that the jury must take that into consideration witli the other facts in the case. There had been no charge of claim that the conversation with Colvin constituted an uttering. The defendant’s counsel had made a claim to the court to the effect that there was no evidence that Underhill either spoke about, referred to, or had any relations with the paper from the time that it came from Michigan until he delivered it to the district attorney ; and asked the court to charge that there was no evidence from which they could find that Underhill, after his return, made any representation or did any act with reference to the paper in question. In answer to this the court called his attention to the testimony of Colvin. Colvin had testified to a conversation with Underhill, in which he stated that the claim had been compromised for $400; that there had been crooked work in reference to it; that he did the writing, and that the crooked work had been charged to him before the grand jury; that at the time he drew the papers McCargo stepped behind him, and whispered to him to draw the paper for $1,400 instead of $400 ; and that McCargo made as much out of the settlement as he had, etc. It was claimed that this amounted to an admission of his guilt, and, if an admission, it showed that there had been an uttering ; so that, while the conversation did not constitute an uttering, it tended to show that there had been an uttering. The request to charge, as an abstract proposition, was correct; but, inasmuch as there had been no such claim made in the case, we think that the comment of the court following it was not such an error as to necessitate a new trial. The judgment, orders, and conviction should be affirmed. All concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    The People ex rel. William Gunn, Resp’t, v. Charles A. Webster, as Superintendent of the Penitentiary, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Criminal law—Commitment.
    The commitment need not recite as to whether the defendant was brought before the Special Sessions with, or without, a warrant.
    2. Same—Arrest without warrant.
    The magistrate, where a person is brought before him without a warrant, need not issue a warrant and have him re-arrested upon it.
    3. Same.
    An officer may arrest under the direction of another officer who saw the commission of the offense.
    Motion by plaintiff for a new trial on exceptions ordered to be heard at general term in the first instance after nonsuit.

      Howard H Widener, Asst. Dist. Atty., for app’lt; O. I. McDowell, for resp’t.
   Haight, J.

It appears that the relator was imprisoned in the Monroe county penitentiary, in the custody of Charles A. Webster, as superintendent; that the petitioned the special county judge for a writ of habeas corpus, to the end that he might be bailed or discharged from custody ; that upon the petition the writ was allowed, and on the return day therein mentioned the superintendent of the penitentiary produced the body of the relator before the special county judge, as he was commanded to do, and made return thereto, to the effect that the relator was in his custody, and detained by him as superintendent of the penitentiary of Monroe county under and by virtue of a commitment issued by Charles B. Ernst, Esq., police justice of the city of Rochester, H. Y., on the 10th day of June, 1893, which recited a conviction had in court of special sessions held, by the police j ustice aforesaid for the crime of unlawfully and willfully riding on the cars of the New York Central & Hudson River Railroad without permission from the proper authorities or the person in charge thereof. A copy of the commitment is attached, signed by the police justice, which is in the form prescribed by the statute. The superintendent further returned upon information and belief that the relator was arrested by an officer when in the actual commission of the offense specified in the commitment, and brought before the police justice, where proceedings were lawfully and regularly *had, the relator upon such charge duly and lawfully tried, and upon such, trial duly convicted, an that thecommitment was issued upon such conviction. The relator traversed this portion of the return, and thereupon the special county judge entered upon a hearing of the case, taking the oral testimony, ordered the relator discharged upon the grounds, as stated by the court, “the relator was arrested upon the charge of vagrancy ; that it appears from what he states and from the evidence of other witnesses that the relator was tried and convicted for unlawfully riding on railroad cars ; that no information was laid or warrant issued by the police justice upon this charge; and that, therefore, the police justice of the city of Rochester, sitting as a court of special sessions, acquired no jurisdiction of the case; and also that it does not appear by thecommitment returned by the superintendent of the penitentiary that the relator is detained for the commission of a crime described in the statute.”

Section 426 of the Penal Code provides that:

“ (1) A person who rides on any engine or any freight or wood car of any railway company, without authority or permission of the proper officers of the company, or of the person in charge of said car or engine, or (2) who gets on any car or train while in motion, for the purpose of obtaining transportation thereon as a passenger, or (8) who wilfully obstructs, hinders or delays the passage of any car lawfully running upon any horse or street railway is guilty of a misdemeanor.”

The charge, as specified in the commitment, is, as we have seen, “ with unlawfully and willfully riding on the cars of the New York Central & Hudson River Railroad without permission from the proper authorities or of the person in charge of the train at " Rochester, on the 9th day of June, 1893.". It appears to us that this is sufficiently explicit to bring the offense charged within the first subdivison of the section of the Penal Code quoted. The special county judge says that the relator was arrested upon acharge of vagrancy, but such fact, if fact it be, does not appear from the return of the superintendent. The commitment states that William Gunn, the relator, was brought before a court of special sessions held by C. B. Ernst, Esq., police justice of the city of Rochester, charged with unlawfully and willfully riding on the cars, etc. It says nothing about his being arrested upon a charge of vagrancy, and we do not understand this portion of the return to have been traversed. The special county judge further states that it appears from what the relator states, and from the evidence of the other witnesses, that he was tried and convicted for unlawfully riding on railroad cars; that no information was laid or warrant issued by the police justice on this charge; and that, therefore, the police justice, sitting as a court of special sessions, acquired no jurisdiction in the case. As to the conviction for unlawfully riding upon railroad cars, the fact appears, not only from the statement of the relator and his witnesses, but also from the commitment. As we have seen, the commitment recites that he was brought before the court of special sessions, and this charge was made against him. As to whether he was brought on a warrant, or by an officer who had arrested him without a warrant, the commitment is silent; and we have been unable to find any provision of the statute which requires this fact to be specified in the commitment. Section 168 of the Code of Oriminal Procedure provides that an arrest may be (1) by a peace officer under a warrant; (2) by a peace officer without a warrant; or (3) by a private person. Provisions are made in the Code for the issuing or warrants upon information laid before a magistrate. Such warrants command the peace officer to whom they are directed to forthwith arrest the person named therein, and bring him before the magistrate. Sections 148, 151. Provisions are also made for arrests without a warrant in certain cases by peace officers and private persons. Sections 177, 183. When an arrest is made, the person arrested must at once be taken before a magistrate. The office of a warrant is to bring the person charged before a magistrate. When that has been done, its office is at an end. The magistrate acquires jurisdiction of the person when the person is placed in his custody charged with a crime. It then becomes bis duty to act. Hence the provisions of § 188, which provide that “ when the defendant is brought before a magistrate upon an arrest, either with or without warrant, on a charge of having committed a crime, the magistrate must immediately inform him of the charge against him and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had.” If we understand the position of the respondent correctly, it is that it is the duty of a magistrate, even though a person is delivered into his custody charged with a crime, to then issue a warrant, or to enter upon a preliminary examination to determine whether he was properly arrested without a warrant before he can acquire jurisdiction. Our attention has been called to no case which sustains this contention. It is provided that a court or judge, upon the return of a writ of habeas corpus, shall not inquire into the legality or justice of any mandate, judgment, decree, or final order. Code Civil Proc. § 2034. Here we have the relator brought before a magistrate sitting as a court of special sessions. He is charged with unlawfully and willfully riding on the cars of the Hew York Central & Hudson River Railroad without permission from the proper authorities or the person in charge of the train, which, under the provisions of the statute, is a misdemeanor. Upon this charge he was tried and convicted, and sentenced to be imprisoned in the Monroe county penitentiary for the term of two months. The facts set forth in the commitment are not controverted, and the special county judge had no power to inquire into the legality or justice of the judgment.

But assume for the purposes of this case that the special county judge had the power to go outside of the record, and take oral testimony upon the controverted questions. It then appears that one La Pointe was an officer in charge of the Hew York Central & Hudson Biver Bailroad yards. That he went to the police office in the city of Bochester, and asked for a detail of detectives. That several were furnished him, and they together made a descent upon the yards of the railroad company. That there they found a number of boys, whom they arrested, among them was the relator. It appear that the relator was taken in custody by Officer D.ukelow, but that Officer La Pointe told Dulcelow to arrest him. This the relator concedes in his testimony. That they took the persons arrested to the station house, and that there Dulcelow first entered the charge of vagrancy against the relator but when he was taken before the police justice La Pointe appeared against him with the charge of unlawfully riding upon railroad cars, as specified in the commitment. The evidence taken before the court of special sessions is not returned. It has no place upon a hearing upon a wilt of habeas corpus, but the relator admits in his testimony that Officer La Pointe was sworn upon the trial, and testified that he, the relator, had been riding upon freight cars; that he was jumping on freights all the time. La Pointe could not well have testified to this without having seen him; so that, upon the respondent’s theory of the case, the magistrate had evidence before him tending to show the legality of the arrest. True, Dulcelow, who actually took the relator in charge, did not see him in the act of committing an offense, but Dukelow acted under the orders arid directions of La Pointe, who did see him. La Pointe was the officer in charge there, present, making the arrests. He had the right to call to his aid the other officers, and whatever they did under his direction may be treated as his act. The order appealed from should be reversed, and the relator remanded to the custody of the superintendent of the Monroe county penitentiary.

All Concur.


author: O’Brien, J.

text:
    In the Matter of the Judicial Settlement of the Account of John S. Cameron et al., as Executors, etc., Deceased.

      (Supreme Court, General Term, First Department,

      Filed March, 1894.)

    Will—Construction—Legacies—Contingent.
    Where there is no gift, but a direction to executors to pay, or divide and pay, at. a future time, vesting in the beneficiary will not take place till that time arrives.
    Appeal from decree of the surrogate construing the will of John Cameron, deceased.
    The will was as follows:
    “ First I direct my executors, hereinafter named, to pay all my just debts and funeral expenses as soon as may be after my decease.

      “ Second. I. give and bequeath unto my dear wife, Sarah H. Cameron, her executors, administrators and assigns, all and singular my personal property of every nature and "wheresoever situate.
    “ I -give and devise unto my executors hereinafter named, and to the survivors and survivor of them, and to such one or more of them as shall qualify, all my real estate of every name and nature, and wheresoever situate, in trust.
    “ 1. To rent the same for the best sums that can be obtained therefor, and collect the said rents, and after deducting taxes, assessments, repairs, insurance, commissions and all legal, just and proper charges, out of the net proceeds thereof, to pay over the sum of one hundred and twenty-five dollars to my wife, Sarah H. Cameron, and also a like sum to each of my daughters, Mary, Isabel Y. and Hannah D., quarterly, on the first days of May, August, Hovember and February of each year, and at the same, times of the residue to pay one-third thereof to each of my sons, William D., George H. and John Spencer Cameron.
    “2. I do hereby authorize, empower and direct my said executors, the survivors and survivor of them, as soon as my lots and buildings known by the street numbers two hundred and sixty-six (266) and two hundred and sixty-eight (268) Bleecker street and number four (4) Commerce street, Hew York city, can be sold for forty thousand dollars, or more, during the lives of my daughter, Hannah D, and my son, John S. Cameron, and, in any event, upon the death of the survivor of them, to sell said premises for cash, or part cash and part credit, hereby giving and granting to my said executors or the survivor full power and authority to make and execute good and sufficient deed or deeds therefor, to the purchaser or purchasers, and receive good and sufficient bonds and mortgages, upon the premises sold, for part of the purchase money; and thereupon to divide the whole of such purchase money and mortgages as follows:
    “My son, William D. Cameron, having had from me at various times certain sums of money amounting to, at least, six thousand seven hundred and fifty dollars (6,750), and my son, George H. Cameron, also having had from me, at least, one thousand dollars ($1,000), it is my desire, and I do so direct, that each of the other members of my family shall first receive out of my estate amounts equal to the aforesaid sums that my sons have already had from me, and I do hereby direct my said executors, and the survivors and survivor of them, to divide the whole proceeds of said sale among my beloved wife, Sarah H. Cameron, and my beloved children, Mary, Isabel, Hannah D. and John S. share and share alike, until each of them shall have received the sum of bne thousand dollars ($1,000) for" each of their sole use and benefit and behoof forever; and thereafter divide the residue of . said purchase money among my beloved wife, Sarah H., and my beloved children, Mary, George H., Isabel, Hannah D. and John S., share and share alike, until each shall have received out of the said balance the sum of five thousand eight hundred and fifty dollars ($5,850) for each of their sole use, benefit and behoof for ever; and thereafter to divide the residue (if any) into seven equal shares and to retain and invest one of said one-seventh shares and pay over the income thereof to my beloved son William D. Cameron during his life, and after his death pay the principal sum over and equally among his children then surviving, share and share alike; and also to pay over another one-seventh share to my wife, Sarah H., and also a like one-seventh to each of my said other children, Mary, George H., Isabel, Hannah D., and John S., for their and each of their sole use, benefit and behoof for ever. If any of my said children shall have depai'ted this life before me, leaving lawful issue, such issue shall lake ihdr deceased parents' share among them, share and share alike.

    “Fourth. It is my will, and I do hereby direct, that the provision made herein for my wife shall, if accepted by her, be in lieu and bar of all dower or right of dower in my estate.
    “Fifth. In the event of the marriage of any of my daughters, it is my will that they and each of them shall retain possession of their share of my estate in their own right and name, and that their husbands have no hand or voice whatever therein.
    “Sixth. I do hereby constitute and appoint my wife, Sarah H. Cameron, and my sons,George H. Cameron and John S. Cameron, and my daughter, Hannah D. Cameron, all of the city of New York, executors of this my last will and testament, hereby revoking all other and former wills and codicils by me at any time heretofore made."

      Robert C. Taylor, for app’lt; Schuyler 0. Carlton, for resp’t.
   O’Brien, J.

The single question for our determination is, whether the legacies given by the will were vested or contingent. In the leading case of Warner v. Durant, 76 N. Y. 136, it is said: “ It is a general principle that where the gift is absolute, and the time of payment only postponed, time, not being of the substance of the gift and relating only to the payment, does not suspend the gift, but merely defers the payment '* * * Another rule is tobe noticed, Where there is no gift, but a direction to executors or trustees to pay or divide, and to pay at a future time, vesting in the beneficiary will not take place until that time arrives.”

In Smith v. Edwards, 88 N. Y., 108, it is said: “While we are to encourage always a construction which leans to the vesting of legacies, and seek diligently for evidences of such purpose and intention, we must still construe the will and not make it over to suit our own notions of what might have been wisest,”

This tendency to seek diligently for evidence in order that the legacy may be held to be vested rather than contingent, in cases of doubt, explains many of the cases which are really exceptions to the general rule laid down in Warner v. Durant, supra, which, as shown from the citation, is authority for the view that where the only gift is in a direction to pay or distribute at a future time without words of present gift, the estate will not vest until the coming of tliat future time. Thus, in Vanderpoel v. Loew, 112 N. Y., 167; 20 St. Rep. 654 ; the circumstance that the whole income of each share was given to the person to whom the share itself was given was held controlling as denoting an intention to vest a remainder. So, in Goebel v. Wolf, 113 N, Y., 405; 23 St. Rep. 176, the fact that the personalty was vested was regarded as thro wing light upon the testator’sintention to have the realty also vest.

Applying the general rule laid down in Warner v. Durant, viewed in the light of the exceptions founded on the cases cited, it seems to us reasonably free from doubt that the legacies were contingent, and that the circumstances which were resorted to in those cases to vest the interests are not here present. From the will it will be seen that all the personalty is given outright and absolutely to the wife. So far as the rents are concerned, or the income, the amounts which the persons named are to take are unequal, though the desire of equalizing in the final distribution the interests of all parties in the property is apparent.

Morever, the realty, unlike the personalty, is devised to the executors in trust, with direction until the same 'is sold to pay over the income in unequal amounts to the widow and children; and in the event of the property reaching a certain value during the lives of two of his children, but in any event, upon the death of the survivor of them, the executors are authorized and directed to sell the premises for cash, or part cash and part credit; and then follows what we must regard as significent language used by the testator, that they are “thereupon to divide the whole of such purchase money and mortgages as follows.” This is succeeded by the provisions in which the share each is to receive is indicated ; and at the end of these provisions it will be noticed that, while nothing is said about the wife’s share, there is a provision to the effect that “if any of my said children shall have departed this life before me, leaving lawful issue, such issue shall take their deceased parents! share amongst them, share arid share alike."

The intent, we think, from the wholp context of the will was, that the interest or share of each one was to be determined by the situation when at the period in the future designated the property should be sold and the division made. As suggested by appellant, we find here no words of present gift, and the whole scheme of distribution is introduced by the word “ thereupon,” which, it is urged, should here be given the same force and effect as and held tantamount to the word “ thenwhich, as shown, has been many times adjudicated by the court of appeals to be the pivot upon which the decision of that court turned. Hobson v. Hale, 95 N. Y. 588; Shipman v. Rollins, 68 N. Y. 311, 324; Quackenbos v. Kingsland, 102 N. Y. 128; 1 St. Rep. 175.

Giving due weight, therefore, to the well settled rule that should incline to a vestment rather than a contingency, yet we fail to find in this will language which, under the cases to which we have adverted, could be regarded as sufficient to distinguish it from the leading case already referred to of Warner v. Durant. And, thinking as we do that the general rule laid down in that case should control here, our conclusion is that the legacies were •contingent, and that the surrogate was wrong in his construction that they were vested

The decree, therefore, should be reversed, and the matter remitted to the surrogate for distribution accordingly.

Van Brunt, P. J., and Parker, J., concur.


author: Bradley, J.

text:
    Harold J. Emmet, Resp't, v. William J. Penoyer, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    Evidence—Parol.
    The consideration in an instrument signed and delivered as a note or memorandum of sale, where the property has not been paid for, is not open to explanation by parol.
    Appeal from a judgment entered upon a verdict rendered at Grenesee circuit in favor of the plaintiff and from an order denying motion made upon the minutes for a new trial. The plaintiff having in January, 1890, purchased of the defendant the stock of goods, furniture, etc., of'a drug store in city of New York, carried on the business there until in December, 1891, when he resold to the defendant and executed and delivered to him a bill of sale of which the following is a copy, “ W. J. Penoyer bought of H. J. Emmett the marble counters, marble floor, glass and silver show case, desk, mirrors and all personal property now in said store-No. 309 Fourth Avenue, N. Y., it being a part originally bought of W. J. Penoyer and since purchased for $2,500. New York-Dee. 10, 1891.
    Witness, H. J. Emmett.”
    “ W. B. Hitchcock.
    The plaintiff alleges that the defendant agreed in consideration of the sale to him to surrender the plaintiff’s note held by him, and in addition to pay the plaintiff $1,000 as soon as the defendant made sale or transfer of the property and that afterwards in March, 1892, the defendant did make sale of it and became liable-to pay that sum to the plaintiff. The defendant admits that he purchased the goods and thereafter sold them, and he puts in issue the other allegations of the complaint. He also alleges a counterclaim.

      Isaac M Miller, for app’lt; John F. Dorthy, for resp’t.
   Bradley, J.

The main question here is whether oral proof to the effect the defendant agreed to pay the plaintiff $3,500 instead of $2,500 for the goods was admissible.

The proportion of fact arising upon the conflicting evidence-given in behalf of the respective parties was properly submitted to the jury, unless they were concluded as to the price by the written bill of sale subscribed by the plaintiff. By that he stated that the defendant bought the property and the price there mentioned is $2,500. After the writing was so executed the defendant delivered up the plaintiff’s notes amounting to $2,500 and took possession of the property.

It is urged on the part of the plaintiff that no consideration for the sale is expressed in the writing, and that.if the sum so appearing may be treated as the consideration it was competent to prove by parol that it was different in amount from that so expressed for any purpose other than to impeach the validity of the instrument. The sum so stated in the instrument fairly imports the price for which the sale was made and no reason is given by the evidence for its application to any other specific purpose. As a general rule all negotiations leading to a written contract, are merged in it, and parol evidence is not as between the parties admissable to vary or modify its terms. When, however, some of the elements of the agreement are not embraced within the writing, the terms of it so omitted as well as undertakings collateral to it may be shown by parol proof. Chapin v. Dobson, 78 N. Y. 74; Routledge v. Worthington Co., 119 id. 529 ; 32 St. Rep. 195. But such proof to be competent must be consistent with the terms contained in the writing made by the parties to express their agreement pro tanto. Case v. Phoenix Bridge Co., 134 N. Y. 78; 45 St. Rep. 603. These are familiar propositions applicable to-written contracts made without fraud or duress.

This rule is not necessarily applicable to evidence offered to prove the purpose for which an instrument purporting to have been executed as a contract was made, and to show that it was or lias become inoperative for such purpose. That would not tend to contradict or vary its terms. Grierson v. Mason, 60 N. Y. 394. And because a mere receipt is not treated as a contract, the rule before mentioned is not applicable to it. Therefore the provisions of a written instrument acknowledging receipt for the consideration is not conclusive, but is open to explanation and may be shown by parol proof to be other than that, so expressed, and to have been unpaid. McCrea v. Purmont, 16 Wend, 460 ; Barber v. Bradley, 42 N. Y. 316; Hibbard v. Haughian, 70 Id. 54. If the instrument in question had contained the acknowledgement of the receipt by the plaintiff of the sum there mentioned the consideration would properly have been the subject of proof by parol, as it would have been if-words to that effect subscribed by him had been added to it.

In that case it may have been treated as a mere receipt. Filkins Whyland, 24 N. Y. 338; Buswell v. Pioneer, 37 Id. 312. But as said by Judge Selden in Terry v. Wheeler, 25 N. Y. 523; if the property had not been paid for, and the instrument, omitting the receipt had been signed and delivered as a note or memorandum of the sale it would then have been the evidence of a contract executory on one part at least, and not open to explanation by parol." The written memorandum in the present case did not indicate payment or receipt of the consideration, nor was it paid before the instrument, was delivered by the plaintiff to the defendant. It was executory on the part of the latter, and purported to state the price he was required to pay for the goods, without any agreement on his part expressed in it to take the property and do so, when he accepted a delivery of the goods he became liable to pay the price for them. It is true that the bill of sale was drawn by the defendant, pursuant to some understanding between the parties, and although the language of the writing imports a past sale, none in fact appears to have been accomplished prior to the time of its execution and delivery to the plaintiff.

It is not seen how the sum there mentioned in its relation to the property, and sale as evidenced by the writing, can be treated other than the expression of the price for which the sale and purchase were made.

In Bonesteel v. Flack, 41 Barb. 435 ; it was held that the terms of a memorandum of sale similar to the one in question were not subject to modification by parol proof. This is in accordance with the general doctrine. And although the question in that case did not have especial reference to the price of the property, it is not seen that any distinction between the provisions in that and any other respect can be observed in the application of the rule against the admissibility of parol evidence to vary the terms of a written contract. Engelhorn v. Reitlinger, 122 N. Y. 76 ; 33 , St. Rep. 275; Thomas v. Scutt, 127 N. Y. 133; 38 St. Rep. 692. The cases cited by the learned counsel for the plaintiff do not seem to support his contention that the consideration appearing' in the bill of sale may be shown by parol to have been greater than there stated. The reason of the rule relating to provisions acknowledging receipt of payment in written instruments is not applicable to that in question. In McKinster v. Babcock, 26 N. Y. 378, the question arose between the mortgagee as plaintiff and the defendant whose intestate as sheriff had taken the property by virtue of an execution issued upon a judgment against the mortgagor. The defense was founded upon the charge that the mortgage was made in fraud of creditors of the mortgagor. It purported by its terms to have been given to secure the payment of $1000, which the mortgagor agreed to pay. The defendant proved that the mortgagor did not owe the plaintiff any money, and thereupon the plaintiff was permitted to prove that the mortgage was to secure the latter for his accomodation endorsement of two notes of $500 each. This evidence of the plaintiff was held admissible to show the purpose of the mortgage that it was made in good faith and to support its validity. The evidence in such case is not treated as contradictory of the terms of a mortgage, but to show its purpose, Truscott v. King, 6 N. Y. 147: Chester v. Bank of Kingston, 16 Id. 336 ; Miller v. Lockwood, 33 Id. 203 ; Hutchins v. Hibbard, 34 Id. 24; Bainbridge v. Richmond, 17 Hun, 391; 78 N. Y. 618. The doctrine of the McKinster Case that when a mortgage is attacked by creditors of the mortgagee its consideration and its purpose are open to explanation to uphold it, is approved in Ham v. Van Orden, 84 N. Y. 269.

And the rule excluding parol evidence to vary or contradict a written agreement, is applicable only to the contracting parties and their privies. It is not available to a stranger to it. Coleman v. First Nat. Bank, 63 N. Y, 388; McMaster v. Insurance Co. of N. America, 55 Id. 222; Dempsey v. Kipp, 61 Id. 462; Brown v. Thurber, 58 How. 95 ;. 77 N. Y. 613. _

_ It is not claimed that the bill of sale in question was made for any purpose other than to sell the property mentioned in it to the defendant. Nor does it come within the principle of any case to which our attention has been called permitting parol proof to vary it, nor is there any ambiguity which seems to permit it. And as the price there mentioned is deemed subject to the same rule as any other portion of the instrument in that respect the conclusion follows that the exception of the parol evidence to prove that the price was not correctly stated and that it was greater was well taken. If as treated at the trial, it had been open to such explanation, the verdict would have been deemed supported by the evidence.

The conclusion here rests solely upon the question of law. And with a view to enable the plaintiff if he is so advised to have a review without another trial the questions of fact are determined in his favor.

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


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    In the Matter of the Judicial Settlement of the Accounts of Frank A. Teed, as Administrator with the Will annexed of Louis B. Grant, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Will—Life estate—Value.
    In the absence of anything to the contary, the interest upon the value of the personal property will prima facie represent the value of the life estate therein, if it has ended.
    2. Executors, etc.—-Inventory.

      A. regularly made inventory is prima facie correct in respect to value as well as quantity of the property.
    3. Same.
    But, where it appears on the accounting that there are some accounts and claims in the inventory uncollected and uncollectible, such deficiency-in value furnishes some evidence of their available value as of the time of the death of the testator.
    4. Same—Interest.
    When, at the termination of the life estate, the estate is to be settled and its proceeds distributed, any appropriation of it or its proceeds or income for any purpose other than its preservation, during its settlement and distribution, is not legitimately permissible.
    Appeal by the 'New York Baptist Union for Ministerial Education from the decree of the surrogate of Chautauqua County, settling the accounts of the administrator with the will annexed of Louis B. Grant deceased, and directing the distribution.

      Marsenus If. Briggs, for app’lt; George Barker, for resp’t.
   Bradley, J.

The testator Louis B. Grant died May 16, 1884 leaving his will, which was admitted to probate, by it he gave to his wife his household furniture, and devised and bequeathed to her the use of his estate real and personal during her life. He gave to his brother Henry D. Grant an annuity of $5109 from and after the death of his wife.

He gave to the Cook academy an endowment of one thousand dollars payable in one year after the death of his wife.

He devised and bequeathed to - the New York Baptist Union for the endowment of the Rochester Theological Seminary all the residue and remainder of his estate, real and personal, and charged such Baptist Union with the expense of taking care of his cemetary lot in Fredonia N. Y. His wife survived him and died intestate February '6, 1887. His brother Henry did not survive hen

A prior decree of the surrogate settling the accounts was on .review reversed and re-settlement directed. Matter of Teed, 59 Hun 63; 35 St. Rep. 531. The controversy now has relation only to the personal estate. The two institutions mentioned in the will can take only one half in value, as of the time of the death of testator, of the estate. Laws of 1860 Ch. 360. The value of the personal estate, as represented by the inventory and appraisal made after his death was $ 20,896.67, to which may be added for that not included in the appraisal $272.89, making together $21,169.56. There was no judicial settlement contemplated during the life of the widow, to whom letters testamentary were issued. The debts of the testator as of the time of his death amounted to $6,977.52. The expense of the proceedings had for the accounting, as allowed were $1,821.02. And the interest received by the widow upon the personal assets amounted to $2,642.04.

In the settlement made by the decree of the surrogate the appellant was allowed the benefit of the interest upon one half of the net value of the personal property from the time of the death of the testator to that of the widow. The sum for interest so allowed was less than half the amount of the interest so received by her during that time. Upon this fact arises one question presented for consideration. To ascertain what the personal property was worth at the time of the death of the testator, the value of the life estate in it which succeeded his death must be measured. If it had not terminated when the division was sought it would have been determined by a certain known method of measurement. This was well illustrated by Judge Earl in Hollis v. Drew Theological Seminary, 95 N. Y. 166: But as the life estate 'had ended, there was no occasion to do more than to make it appear what in fact was its value. In such case if nothing appeared to the contrary the interest upon the value of the personal estate so held would prima facie represent it. Here the fact appears that the amount of interest received by the widow upon the personal assets was greater than the interest upon the value of the personal estate remaining after deducting the debts and expenses as the computation was represented by the decree of the surrogate.

The interest so received by her issued out of the personal estate which came to her use, and the amount thus by her derived from it during her life should be treated as the value of the life estate and the institutions should have the benefit of one half of it to realize one half of the personal estate of the testator, as of the time of-his death. ■ ,

It is urged on the part of the appellant that the inventory before mentioned as made determines the value of the personal property at the time of the testator’s death, because as it is insisted there is no satisfactory evidence to the contrary.

It may be true that an inventory regularly made, as this was is prima facie correct in respect to value as well as quantity of the property. Stewart’s Appeal, 110 Penn. St. 410. In the present case it concededly appeared on the accounting that of the-accounts and claims in the inventory, there were those amounting to $2,804.09 uncollected and uncollectible. And while the proceeding for settling the accounts in which this was made to appear was instituted nearly two years after the death of the widow, it may be observed that such then deficiency in value, in view of the nature of the accounts and circumstances which may be inferred furnished some evidence of their available value as of the time of the death of the testator, and they should be treated as having no such value at that time. The result of these views is that the two institutions should have of the personal estate $6,104.97 instead of $5,974.59 as determined by the decree, and after deducting the $1000 to which the Cook Academy is entitled there remains for the appellant $5104.97 to which should be added for taking care of the cemetery lot before mentioned the sum of $50 agreed upon by the parties for that purpose, making together $5,154.97.

It is also urged that the appellant is entitled to interest upon its share in the personal estate from the time of the death of the widow until that of the former decree, November 25, 1889. No reason for this seems apparent upon the facts in the record.

It appears that some time prior to October, 1885, the widow as executrix instituted proceedings before the surrogate for a judicial settlement of her accounts, and this proceeding does .not seem to have been fully concluded ; that after her death the administrator of her estate in May, 1887, instituted proceedings for the judicial settlement of his accounts, which resulted in the- decree of the surrogate directing him to hand over to the administrator with the will annexed of Louis B. Grant, deceased, all the personal estate of the latter which came to his hands and any moneys he had received thereon. He did so, and this included substantially all the personal estate left by him, and it was the subject of the accounting in question. This estate consisted mainly of dioses in action, and gny interest which had accumulated and been uncollected was in the property so delivered to the representative of the testator, and became the subject of the judicial settlement finally made by the surrogate, and whatever was collected by the latter went into his account soon after presented on application for judicial settlement, which was finally determined. The proceedings occupied some time. No satisfactory reason appears for allowing interest" under the circumstances after the time of the death of the widow.

The estate after that time was subject to no use. The right and duty then arose to have the estate settled and its proceeds distributed, and during that period any appropriation of it or its proceeds or income for any purpose other than its preservation was not legitimately permissible.

These views lead to the conclusion that the surrogate’s decree should be so modified as to award to the appellant from the personal estate the sum of $5,154.97, and as to reduce accordingly the amount directed by the decree to be paid therefrom to the respondent Elias Eorbes as administrator, etc., of Julia A. F. Grant, deceased.

And that such other modification only of the decree be made ■as may be necessary to conform it to that before mentioned, with costs to the appellant payable oat of the entire fund which is the subject of the division between the parties and derivable from, the personal estate of the testator.

All concur.


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    Wilbur J. Manley, App’lt, v. Albert L. Decker, as Treasurer, etc., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Principal and agent—Warranty—An agent’s power.
    An agent’s power to sell carries with it, as against the principle in favor of the purchaser, the authority to warrant.
    2. Evidence—Principal and agent—Instructions.
    In an action against the principal, conversations Between him and agent, are incompetent in his favor.
    Appeal from judgment of Cattaraugus county court entered upon a verdict in favor of the defendant.

      E. E Nash, for app’lt; William 11. Henderson, for resp’t.
   Bradley, J.

The action was brought to recover damages for and alleged breach of warranty, in the sale of a quantity of cheese to William E. Smith & Co. The plaintiff is assignee of the claim. He made the purchase of the cheese for them through Harrison Franklin, who was authorized to make the sale. The evidence on the part of the plaintiff is that in the interview or negotiation between Franklin and the plaintiff the latter inquired of him about the quality of the cheese and Franklin said that the defend-had “told him to guarantee the cheese fine.” Thereupon the plaintiff said to Franklin that if the quality of the cheese was “fine” he would give seven and a half cents per pound for it. The offer was afterwards accepted, the sale made, the cheese paid for and delivered, that upon inspection the cheese was found to be in quality of a lower grade than “fine” and consequently not worth as much as it would have been if of that specified quality.

On the defense Franklin testified that he did not say to the plaintiff that the defendant had told him to guarantee the cheese fine. He was asked “Did Mr. Decker tell you to do so?.” The objection to this on the ground that any matter of conversation between the witness and Decker, the defendant, was incompetent was overruled and exception taken. The witness answered “No.”

This evidence was not material between the parties to the action on the question of the authority of Franklin to warrant the cheese. His power to sell carried with it as against the plaintiff in behalf of the purchase the authority to warrant.

It evidently was offered in corroboration of the evidence of the witness, and may have had some effect upon the question of fact presented by the conflict in the evidence of the two witnesses and of their credibility. The evidence whether or not, such conversation was had between Franklin and the defendant was not competent in behalf of the latter for any purpose. And as it may have been prejudicial to the plaintiff upon that question, the error cannot be disregarded.

ISTo other question seems to require consideration.

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


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    The Central Bank of Rochester, Resp’t, v. John G. Thein et al., App’lts.

      (Supreme Court, General Term, Fifth Department.

      Filed April, 1894.)

    1. Bills and notes—Bank—Payment.
    Where' a bank, which is holder of a note, has funds of the maker sufficient to pay it, it is its duty to charge up the amount of the note to the maker and thus satisfy it.
    3. Same—Defense.
    If such balance continue up to the time the action is commenced by the bank against the indorsers, it is a defense to the defendant if the maker is primarily liable.
    3.. Pleadings—Answer—Sham.
    A verified answer, containing matter of affirmative defense, will not be stricken out as sham.
    4. Same—Denial.
    The issue presented by denial, in an answer of material allegation in the complaint, cannot be disposed of on motion to strike out the answer as false or sham.
    Appeal from order of Monroe special term striking out the defendants’ answer, and from the judgment thereupon entered against them.
    The plaintiff by its complaint alleges that the Solidarity Cooperative Clothing Company made its promissory note, of date December 23, 1892, whereby it promised to pay at the banking office of the plaintiff $2,000, to the order of the defendant Thein three months after its date and delivered it to the payee, that the note was endorsed by him and the other defendants and before its maturity transferred to the plaintiff. That when it became due the note was duly presented at the place where payable, payment thereof demanded, and refused, and due notice of such presentment, demand, and refusal and protest was given to the defendants.
    The defendants by their answer admitted the making and endorsement of the note as.alleged in the complaint and the transfer of it to the plaintiff. They further alleged that the company, the maker of the note, deposited money from time to time to its credit in the plaintiff’s bank, and that prior to and at the time the note became due there remained of the amount of the money, so deposited, $2,203.50, in the possession of the plaintiff, and that on March 25, 1893, the maker of the note by order directed the plaintiff to pay and apply $2,000 of the amount, so remaining with the plaintiff of the money so deposited, upon and in payment of the note.
    And they “ deny each and every allegation in said complaint contained not hereinbefore specifically admitted, modified or explained.”

      The plaintiff’s motion was made upon the pleadings and an affidavit of the cashier of -the plaintiff to the effect that the Cooperative Company did not have a balance to its credit with the plaintiff sufficient to pay the note, and it so appeared by a statement, of the account set forth in the affidavit One of the defendants by his affidavit stated that if the plaintiff had correctly kept the account with the Co-operative Company the balance as stated in the answer would have been represented by it. The affidavit ■ also stated on information and belief that the plaintiff had erroneously reduced upon its books the balance of the company by charging to its account the amount of checks forged by one .Adler. And further that the answer was interposed in good faith and not for the purpose of delay.
    The answer was stricken out as false.

      Forsyth & Brothers, for app’lts; Hubbell & McGuire, for resp’t.
   Bradley, J.

The allegations of the answer are to the effect that the plaintiff had of the amount of the funds deposited by the makers of the note, at the time of its maturity, sufficient to pay it. If that were so it was the duty of the plaintiff to charge up the amount of the note to the maker and thus satisfy it. Aetna National Bank v. Fourth National Bank, 46 N. Y. 82-88; Indiq v. National Ctiy Bank, 80 N. Y. 100-106; Roberts v. Tucker, 16 Ad. & El. N. S. 560-578. And if the balance continued to be and was adequate to pay the note up to the time this action was commenced that fact was then a defense available to the defendants as endorsers of the paper, assuming as we must that the maker was primarily liable, as between it and the defendants to pay the note.

The defendants by their answer therefore did set up matter , which, if supported by evidence, might constitute a defense and the note be treated as paid. Whether it was demurrable for want of allegation to the effect that the balance due the maker in his bank account with the plaintiff sufficient to satisfy the note at maturity was permitted and did still remain there, it is unnecessary to inquire or determine for the purpose of the question here. The defendant’s answer was duly verified, and the affidavit in opposition to the motion was contradictory of that on the part of the plaintiff, and contained the statement, that the answer was put in, in good faith, and not for purposes of delay. In such case it is quite well settled that an answer containing matter of affirmative defense will not be stricken out as sham, but that the party alleging it is entitled to the opportunity of a trial, and to have the fact determined upon evidence in the usual manner. Webb v. Foster, 13 J. & S. 311 ; Henderson v. Manning, 5 Civ. Pro. R. 221; Barney v. King, 37 St. Rep. 533-535; Rogers v. Vosburg, 87 N. Y. 228.

There may be cases where an answer or defense may be stricken out as sham. This was within the contemplation of the Code § 538. But as has been elsewhere said it is applicable to matter set up in a pleading as mere pretense, in bad faith and without color of fact. Farnsworth v. Halstead, 18 Civ. Pro. R. 227. And in Barney v. King, it was held that it did not apply to matter of defense in a verified answer.

The allegations of affirmative defense in the answer in the present case may be false, but that question is not triable by or to be determined upon conflicting affidavits without infringing the defendant's right to trial by jury.

While the allegations in the answer tending to specifically deny the service and receipt of notice of presentment of the note and of demand and default in payment are not sufficient to put the due service of such notice in issue, the defendants do not expressly admit the service of it, nor do they admit the allegation of the complaint that the note was presented at the place where payable, and payment demanded and refused. This was an essential allegation as against the defendants. And the latter allegation at least seems to come within the denial made by the answer of the defendants. The issue presented by denial, in an answer of material allegations in the complaint, cannot be disposed of on motion to strike out the answer as false or sham. Wayland v. Tysen, 45 N. Y. 281; Robert Gere Bank v. Inman, 51 Hun, 97; 24 St. Rep. 160. If these views are correct the order should be reversed, the motion denied and the judgment set aside.

All concur.


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    Emil Ludekins, as Receiver of The National United States Savings and Loan Company, App’lt, v. Charles Pscherhofer et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Bond—Indemnity—Fraudulent Concealment.
    Where the obligee company, through its officers, has knowledge or information that the principal is dishonest and, therefore, untrustworthy, and having the opportunity to do so, fails, before the bond is executed, to advise the surety of the fact, it may be chargeable with fraudulent concealment, which may be effectual to relieve him from liabilities as such upon the bond.

      %. Same—Alteration.
    A change in the affidavit of justification to a bond, after being sworn to, is not a material alteration of the bond.
    Motion byfthe plaintiff for a new trial upon exceptions taken at the Monroe Circuit and ordered heard at general term in the first instance.

      John H. Hopkins, for pl’ff; William JS. Werner, for def’ts.
   Bradley, J.

The defendant Pscherhofer was treasurer of the Uational United States Savings and Loan Company, and to secure to the company the performance of his duties as such treasurer, he as principal and the defendant Wagner as surety executed a bond on the 30th day of August, 1890, of that date. This action is upon such bond. She alleges that the officers of the defendant withheld from her knowledge which they had affecting the character for integrity of her principal in the bond to her prejudice ; and that after she executed it, material alterations were made in the instrument whereby it was as against her rendered void. Pursuant to the order of the court made when the action came on for trial, the question of fact for special finding of the jury was, “Is the bond set forth in the plaintiff’s complaint valid as against the defendant Dora Wagner?”, and all other questions of fact were to await the verdict upon that question.

The jury found for the defendant. No question is raised as to the regularity of the trial of that issue alone. It appeared that the principal in the bond had applied to the Fidelity Company of the city of New York to become surety for him’, and such company declined to do so, and expressed such declination by letter, which was produced and read in the presence of the board of directors of the N. IT. S. S. & L. Co., on the evening prior to the examination of the bond in question. The latt,er was not produced at the trial. There was some evidence tending to prove that the Fidelity Company declined to become surety for him because it did not consider him trustworthy. Whether the letter contained anything to that effect was upon the evidence a disputed question of fact. The omission to advise the defendant Wagner of the refusal of the Fidelity Company to go upon the bond, was not of itself- any defense. But if the Savings and Loan Company, through its officers, had acknowledged or had been informed that the treasurer was dishonest and for that reason untrustworthy, and, having the opportunity to do so, failed, before the bond was executed and received, to advise the surety of the fact it would be chargeable with fraudulent concealment, which might be effectual to relieve her from liability as such upon the bond. This rests upon the ground that the surety was prejudiced by the risk assumed by reason of the non-disclosure of the fact that the principal for want of integrity is not entitled to the confidence in the relation which his surety as such is induced to assume to him and which concealment is deemed fraudulent. Anything short of that is insufficient to avoid the obligation of the surety. Howe Machine Co. v. Farrington, 82 N. Y. 121; Atlantic & P. Tel. Co. v. Barnes, 64 Id. 385; Farmers N. Bank v. VanSlyke, 49 Hun, 7; 17 St. Rep. 519.

In the present case, as there is no bearing upon that question, there was no error in submitting it to the jury.

The question of th e weight of the evidence is not here for consideration. The further inquiry has relation to the charge that there was an alteration of the instrument after its execution.

It is not claimed that any change was made in the body of the bond itself, but that in the affidavit of justification made by both the principal and.surety some erasures and insertions were made. The affidavit was one in which they both joined, and the evidence on the part of the defendant Wagner is to the effect that when executed it contained the statement that the principal was worth in property the sum of $10,000; and that it was after-wards altered by erasing the word “property” and inserting in place of it the word “ business ” and by striking out the figure “10” and inserting “5” making “$5,000 ” in place of “ $10,000.”

It is not seen how this can be treated as a material or any alteration of the bond. The affidavit was no part of it. The liability of the defendants or either of them upon the bond was made no less or greater or in any manner affected by it, as the obligation assumed was not in any sense dependent upon the affidavit of justification.

It seems that no rights, interests, duties or obligations of either of the makers <pf the bond were affected or changed by the alleged alterations, and it was therefore immaterial. People v. Muzzy, 1 Denio, 239; Vogle v. Ripper, 34 Ill., 100; 85 Am. Dec. 298; Eddy v. Bond, 16 Me., 461; 36 Am. Dec., 767 ; Inglish v. Breneman, 5 Ark., 377; 41 Am. Dec., 96; Smith v. Smith, 1 R. I., 398; 53 Am. Dec., 652.

Whether the defendant Wagner supposed when the affidavit was made that she was becoming surety for a principal worth $10,000 in property or $5,000 in business did not concern the obligee any more than it affected the liability of the obligors or either of them. It may be that the subject of his responsibility, as represented by him in the affidavit, was considered by the surety.

If for any reason he afterwards altered it, the condition of his property or responsibility was not made any different by the alteration, nor was the surety by it prejudiced in the means available to her for indemnity.

These views lead to the conclusion that the exception was well taken to the submission of the question of the alteration to the jury with instructions, that if they so found the fact, they might find a verdict for the defendant Wagner.

And for that reason the motion for a new trial should be granted, costs to abide the event.

All concur.


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    Elmer E. Bunker, Resp’t, v. Washington W. Langs, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Jurisdiction—Person—County Court.
    An omission to allege, in an action in County Court, that defendant is a resident of the county is waived by defendant’s appearing and answering the complaint on the merits, without demurrer or objection.
    3. Bilis and notes—Guaranty—Merger.
    Where, before maturity of a guaranteed note, the payee indorses and transfers it, and, after default in its payment, the holder recovers judgment against such indorser, who pays the judgment and takes the note, the note is not merged in the recovery, but the guarantee is the subject of an action by the indorser.
    Appeal from judgment of Steuben county court entered upon report of referee in favor of the plaintiff.

      A. M. Burrill, for app’lt; Frank H. Robinson, for resp’t
   Bradley, J.

The action was brought in the county court upon a guarantee by the defendant of a promissory note, of date March 25, 1890, made by Earnest Trowbridge and George B„ Emory for $72.00, payable to the order of the plaintiff one year after its date at the bank of Porter & Davis at Canisteo, EÍ Y. The plaintiff failed to allege in the complaint that the defendant was a resident of the county of Steuben, which was a requisite fact to enable the court to assume jurisdiction of the person of the defendant, Code Civ. Pro., §340, sub. 3, and for that reason the latter may have demurred or declined to appear and answer the complaint. He did, however, appear and answer it upon the merits without objection.

After the issue had been referred and upon the hearing before the referee he sought to raise the question, and upon the motion of the plaintiff amendment of the complaint was allowed and made so as to allege the residence of the defendant in the county.

It is now urged that the objection was available at the trial and that the allowance of the amendment by the referee was error. And in support of that view reference is made to the provisions of the statute, that objections to the jurisdiction of the court although not taken by demurrer or answer is not waived. Code Civ. Pro. § 499. This evidently has relation to jurisdiction! of the subject matter, which if not within the jurisdiction of the court cannot be conferred Upon it by consent of the parties.

The rule is otherwise as to the person. A defendant may submit himself to the jurisdiction of a court although the process by which the plaintiff has attempted to institute an action against him is ineffectual for the purpose, and if he appear and plead to the merits without objection, the want of jurisdiction of his person is waived. This is the general rule. Clapp v. Graves, 26 N. Y. 418.

The present case comes within this doctrine. And while a demurrer or objection in the outset or failure to appear and answer would have been effectual to prevent a valid recovery without amendment of the complaint in the respect in question when the defendant did without objection appear and answrer the complaint on the merits, he waived the question of jurisdiction of his person and it was then and thereby conferred upon the court. Dake v. Miller, 15 Hun, 356; McMahon v. Sherman, 14 St. Rep. 637; Ross v. Konor, 17 id. 465.

The cases cited by the learned counsel for the defendant have no necessary application to the question.

In Frees v. Ford, 6 N. Y. 176, the defendant pleaded want of jurisdiction of the county court and upon demurrer the plea was sustained.

In Judge v. Hall, 5 Lansing, 69, the question arose upon demurrer to the complaint which was held bad for want of averment that the defendant was a resident of the county. And such was the case of Gilbert v. York, 111 N. Y. 544; 20 St. Rep. 126. The question was not in Burns v. O'Neil, 10 Hun, 494. No amendment of the complaint in the present case was necessary and therefore the defendant was not prejudiced by it. Before the maturity of the note the plaintiff endorsed and transferred it to one Shaw, and after default in its payment he recovered judgment against the plaintiff as endorser. The latter paid to Shaw the judgment and took from him the note. It is now insisted that the note was merged in the recovery and that the defendant’s guarantee is not the subject of an action by the plaintiff. It may be observed that the plaintiff’s contracts of endorsement was a new and independent one to pay the amount of the note upon the condition that he should become charged in the manner prescribed by the law-merchant. The action and recovery against him were upon his contract of endorsement. The promise of the makers, as such, of the note was not, nor was the defendant’s undertaking of guaranty the subject of the recovery by the judgment or necessarily affected by it, and when the plaintiff discharged his liability by payment to Shaw and took from him the note and guaranty, the right was restored to him to resort to his action upon either. No question of merger therefore arises here.

In Lancey v. Clark, 64 N. Y. 209, the plaintiff paid the amount of the note there in question to the holder and took it up at the request of one of the parties for whom the defendant was an accomodation maker of it. And it was held that the plaintiff did not derive any right to the note by transfer from the holder, but from the party primarily liable by the payment of it at her request, and the same defense which could be made against the latter by the defendant was available to him as against the plaintiff for the obvious reason that the plaintiff stood in no better position for the purpose of the action than did the person at whose instance he took up the note.

In the present case the plaintiff discharged his liability as endorser, and thereupon received the note with the guaranty from the holder for his own benefit. He says he endorsed the note and let Shaw have it, and after it became due, “ I took it up. I paid him for it and he gave me the note.’’ There is no difficulty in the way of his having the beneficial interest in and title to the note and guaranty. The further question raised whether or not there was an alteration after its delivery was made by inserting words which changed the terms of it from a joint to a joint and several note, was one of fact arising upon a conflict of evidence, and was disposed of by the findings of the referee adversely to the defendant.

The judgment should be affirmed.

All concur.


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    Smith, Perkins and Company, Resp’t, v. Milon F. Wilson et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894)

    Attachment—Recital of grounds.
    A recital in the attachment that “the said defendants have assigned, disposed of or secreted their property with intent to defraud their creditors,” sufficiently satisfies the requirements of § 641-of the Code in this respect.
    Appeal from order of county judge of Monroe county denying motion to set aside a warrant of attachment.

      H. H. Woodward, for app’lts; W. W. Webb, for resp’t.
   Bradley, J.

The objections made to the warrant of attachment are (1) That is fails to state the grounds upon which it was issued, (2) That the affidavits are insufficient to authorize or support it.

The recital in the attachment of the grounds is that “the said defendants have assigned, disposed of or secreted their property with intent to defraud their creditors.” It is said that this alternative statement does not specify which of the causes so recited is the one upon which the process was issued and therefore the requirement of the statute in that respect is not observed. Code Civ. Pro., § 641.

This has been the subject of consideration in several cases since the enactment of the provisions of that section. Rothschild v. Mooney, 36 St. Rep., 565 ; Dintruff v. Tuthill, 62 Hun, 591; 43 St. Rep., 704; Garson v. Brumberg, 75 Hun, 336; 58 St. Rep., 209; 26 N. Y. Supp. 1003; Cronin v. Crooks, 57 St. Rep., 475; 27 N. Y. Supp. 822.

In none of those cases is it determined that a recital like the one in question is insufficient.

Amongst the grounds specified as essential to an attachment are those that the defendant has removed, or is about to remove property from the 'State with intent to defraud his creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of or secrete property, with the like intent.” Code Civ. Pro., § 636. In the Cronin case the recital in the attachment was that the defendant “has assigned and disposed of, or is about to assign or dispose of her property with intent to defraud her creditors.” This disjunctive union of the two grounds was held bad, and not such as to support the attachment. But it was there remarked that a statement that the defendant had assigned or disposed of property with intent to defraud her creditors would have been a compliance with the statute, as would also have been the recital that she was about to assign, secrete or dispose of her property with such intent.

In the Rothchild case an attachment having a recital similar to that in the Oi'onin case was sustained.

In Dintruff v. Tuthill the recital was that the defendant had removed or was about to remove property from the state with intent to defraud creditors or had assigned, disposed of or secreted, or was about to assign, dispose of or secrete his property with the like intent. This was a statement in the alternative of distinct classes of the causes for which a warrant of attachment could be granted; and it was held that by thus disjunctively reciting them, neither was designated as ground upon which it was issued and for that reason there was a failare to comply with the requirement of § 641 before mentioned.

In the ¡^resent case the recital is of one class only of the grounds as they are arranged in § 636; and the same state of facts presented by affadavits may consistently in supposible cases be applicable to and premit inferences in support of each of the causes so recited. And within the rule stated in Carson v. Brumberg the statement of the grounds must be deemed efficiently made in the attachment.

A careful examination of the affidavits leads to the conclusion that they are sufficient to support it. The order should therefore be affirmed. All concur.


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    Floyd C. Shepard et al., App’lts, v. Watson C. Squire et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Venue—Change—Section 984 of Code.
    The import of the words “one of the parties,” in § 984 of the Code, is the same as though it read that an action must be tried in the county in which one of the persons, who is a party, resides.
    8. Same—Non-besidents.
    The fact that the defendants are all non-residents of the state, does not deny to them the benefit of the provisions of said section.
    3. Same.
    The right to a change of the place of trial to the proper county is abso lute, when the proceedings to accomplish it are duly taken and pursued.

      4. Same—Demand.
    A demand, made before answering the amended complaint, is effectual to support a motion to change the place of trial, made in due time thereafter.
    Appeal by plaintiff from an order of Monroe special term of November, 1893, granting the defendant’s motion to change the place of trial from Monroe to Herkimer county.
    The action was commenced by the service of the summons May 8, 1893. The complaint was served by mail upon the defendants’ attorney June 22, and their answer was served July 20. Before answering, and on July 5, a written demand was served that the place of trial be changed from Monroe county, which was that designated in the complaint, to Herkimer county. On July 20, with the answer the defendants’ attorney served upon the plaintiffs’ attorney another like written demand for change of the place of trial, and on July 21 they served affidavits and notice of motian, to be made at Monroe special term of July 31 for change of the place of trial. The motion was then heard founded upon the first demand, and was denied in September as prematurely made, with leave to renew. Before the decision of the motion, and on August 18, the defendants’ attorney served other affidavits and notice of motion to be heard at Monroe special term of September 11, founded upon the second demand. An amended complaint was served on the defendants’ attorney, August 25, and thereupon before the time for answering the amended complaint expired the defendants’ attorney served the plaintiffs’ attorney with another and like written demand for change of the place of trial, withdrew- the second motion so noticed, and served other affidavits and notice of motion founded upon the third demand for Monroe special term of October 30, 1893. The motion was there heard and granted. And from that order the plaintiffs appeal.

      John Van Voorhis, for appl’ts; A. M. Mills, for resp’ts.
   Bradley, J.

The defendants were at the time of the commencement of the action and are residents of the state of Washington.

The subject of the action is land situated in that state. The plaintiff King is and has for several years been a resident of the state of Minnesota. The place of residence of the other plaintiffs is Ilion in the county of Herkimer, N. Y. This action comes within those to which is applicable the statute which provides that an action “ must be tried in the county in which one of the parties resided at the time of the commencement thereof,” Code Civ. Pro., § 984. And because none of the parties resided in the county of Monroe, and two of the plaintiffs then resided in the county of Herkimer, the demand for the change to the latter as the proper county was made.

The defendants’ attorney not being served with written consent thereto, gave within due time notice of motion founded upon his third demand for such change of the place of trial.

The fact that the defendants were non-residents of the state does not deny to them the benefit of the statute referred to for the purpose of proceeding in the manner so provided for changing the place of trial to the proper county.

' Nor are the words “one of the parties” in section 984 entitled to such construction as to necessarily embrace all the plaintiffs or all the defendants, when they respectively consist of more than one person. In that case each one of the persons is a party plaintiff or defendant, and the import of the language used is in view of its purpose, the same as if it read that an action must be tried in the county in which one^ of the persons, who is a party, resided. Although the phraseology of the section differs somewhat from that of § 125 of the prior Code no material change in its meaning was intended as appears by the Throop’s notes, and its apparent effect is no different.

The right to the change of the place of trial to proper county is absolute, when the proceedings to accomplish it are duly taken and pursued. But it is urged on the part of the plaintiffs that the-third demand did not constitute a basis in support of the motion, because it was served before the defendants’ answered the amended complaint. It is conceded that they may have effectually served a demand with the answer to the amended complaint. It may be observed, that when it was served the amended one became the only complaint in the action as effectually as if none had preceded it, and for the purpose of proceedings to require and obtain a change of the place of trial the defendants were at liberty to so-treat it. The demand made before answering it was therefore effectual to support their motion made in due time thereafter.

In Penniman v. Fuller & W. Co., 138 N. Y. 442; 45 St. Rep. 654; the demand served with an amended answer to the complaint was held sufficient basis for a motion like the one in question. That case does not aid the plaintiffs.

Here the amended one was the complaint within the meaning of the statute referred to, and before answering as well as with it the defendants may properly have demanded the change of the place of trial. There was no waiver by any proceedings taken prior to the service of this demand of the right of the defendants to proceed upon it. They had before the service of the amended complaint persistently sought to obtain the change. It is difficult to-see that one such demand would be waived by another of like character preceding or following it.

In the present case the proceedings were instituted by a demand permitted and authorized by the service of the amended complaint and the motion was properly granted. The order should be affirmed. All concur.


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    Nora Fuller, Resp’t, v. Nancy Brown et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 1894.)

    1. Pleadings—Complaint—Fraudulent conveyance.
    A complaint, in an action to set aside a fraudulent conveyance, which avers the intent of the judgment debtor to hinder, delay and defraud his creditors, is sufficient in this respect, without alleging the reasons which go to sustain such charge.
    3. Fraudulent conveyance—No consideration.
    Where the transfer embraces substantially all the property of the debtor and leaves him without means to pay what he owes, his voluntary conveyance is controlling evidence of fraud as against his then existing creditors.
    3. Same—Tort, basis of action.
    A judgment, recovered for the appropriation of personal property in such manner as to constitute a conversion of it by the judgment debtor, may be the foundation of such action.
    4. Same—Proof of insolvency.
    Where the consideration is merely nominal and the conveyance practically voluntary, the return unsatisfied of the execution is evidence, .though not conclusive, of the insolvency of the judgment debtor.
    Appeal from judgment entered upon decision of the court at Cattaraugus special term in favor of the plaintiff.

      Henry Donnelly, for app’lts; Ernest F. Kruse, for resp’t.'
   Bradley, J.

The purpose of the action was to have adjudged as Brown, a deed of conveyance of certain land made by her to the defendant Allen, September 8th, 1891.

The plaintiff became the judgment creditor of the defendant Brown December 15th, 1891, by recovery in an action commenced in October of that year for the conversion of certain personal property about the first day of August, 1891. And execution against the property of the defendant Brown, issued December 16 upon the judgment, was returned unsatisfied January, 8th, 1892.

At the commencement of the trial the defendants’ motion to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action was denied and exception taken. If this was error it is available to the defendants on this review. Tooker v. Arnoux, 76 N. Y. 399.

The objection made to the pleading is in its omission to allege that at the time the defendant Brown made the conveyance she was insolvent or rendered so by it, and that it was not alleged that she owed any debts other than that arising out of the cause of action upon which the plaintiff’s judgment was recovered. In the complaint it is alleged that the of the was made by the grantor to the defendant Allen, her son, “without consideration for the purpose and with the intent to hinder, delay and defraud her creditors and particularly the plaintiff,” and to prevent the plaintiff or any other creditors from levying upon and selling it, that the property is worth $6,000 and that the defendant Brown “ claims to own and is possessed of no property outside of that so transferred, out of which the plaintiffs demand can be satisfied.” While it is not there expressly alleged that, the defendant had no other or sufficient property remaining to pay her existing debts after and at the time of such conveyance, the complaint does allege facts sufficient to support the plaintiff’s attack upon it as fraudulently made. The statute provides that every conveyance of property made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, etc., shall be void as against the person so hindered, delayed or defrauded, 2 R. S., 137, § 1. And that is always a question of fact and not of law, id., § 4. The intent therefore is the fact upon which the determination in such case must be founded, and that fact is distinctly alleged in the complaint. The reasons which go to sustain the imputation may constitute the evidence of the fact and need not necessarily be alleged.

The charge of such intent with the other facts alleged in the complaint was such as .to support the ruling of the court upon the preliminary motion.

The consideration expressed in the deed was a nominal one of one dollar. While the want of a valuable consideration is npt alone sufficient to sustain the charge of fraudulent intent, it is an important fact in that direction when it is made to appear that the transfer embraces substantially all the property of the debtor and leaves him without means to pay what be owes. In such case his voluntary conveyance is controling evidence of fraud as against his then existing creditors. Erickson v. Quinn, 47 N.Y. 410. It has been said that a person who recovers a judgment subsequently to such a transfer by the judgment debtor in an action of tort upon a liability existing at the time it was made is a subsequent creditor. Ford v. Johnston, 7 N. Y. 563. When the relation of the plaintiff in an action to set aside a transfer of property as fraudulent is that of subsequent creditor, he cannot rest upon the proposition that the imputation of fraudulent intent arises from the fact that the debtor made the transfer without valuable consideration and was at the time insolvent-, but must show that is was made with actual intent to defraud. Dygert v. Remerschnider, 32 N. Y. 609 ; King v. Wilcox, 11 Paige, 589.

It may be observed that the judgment referred to in Ford v. Johnston was recovered in an action for assault and battery, while that upon which the plaintiff founded this action as a creditor was recovered for the appropriation of her personal property in such manner as to constitute a conversion of it by the defendant Brown, who then incurred the liability to pay to the plaintiff the value of the property, and equitably as of that time the relation of the latter was that of a creditor or equivalently so for the purpose of this remedy founded upon the judgment. Pendleton v. Hughes, 65 Barb., 136; 53 N. Y, 626; Young v. Heermans, 66 N. Y. 374. And assuming that the deed to Allen transferred all her property or left her insolvent, the inference was premitted that it was made with the intent on the part of the grantor to hinder or delay the plaintiff in the collection of the amount she should recover on account of such existing liability of the defendant to her, and that she thus intended to defraud the plaintiff as such creditor, Cole v. Tyler, 65 N. Y. 73. Such as the natural consequences of the act may be deemed upon the facts to have been within the intent of the defendant. Coleman v. Burr, 93 N. Y. 18-31. But it is urged that the plaintiff failed to establish by evidence facts from which such inference could legitimately be derived, because it did not necessarily appear that the defendant may not at the very time of making the deed, have had other and adequate property to discharge her pecuniary liabilities. While this was not absolutely or conclusively proven it did appear that within two weeks after the conveyance was made, and the 21 day of September, 1891, an execution against her property was issued to the sheriff of the county of her residence upon a judgment then recently recovered against her, and in about a month thereafter was returned unsatisfied. And as has been observed a like execution upon the plaintiff’s judgment was issued in December following and thereafter returned with the same result.

The attempt and failure to collect the first execution so soon after the time of conveyance made by the defendants, furnished some evidence of her financial condition at the time the deed was made, and the inference was justified that in the intermediate time no substantial change in respect to her property had taken place. There was no evidence tending to prove or to indicate that she after the conveyance had any occasion to use or dispose of or may have disposed of property or that she had any remaining after the transfer so made by the deed to Allen.

In view of the fact that it may be” deemed to have been made for a mere nominal consideration, and was practically a voluntary conveyance, the return unsatisfied of the executions was evidence although not conclusive of the insolvence'of the judgment debtor. Herrick v. Borst, 4 Hill, 650.

The present case differs quite materially from that of Kain v. Larkin, 131 N. Y. 300; 43 St. Rep., 197, in respect to the question upon which the case was determined. There the execution returned unsatisfied was issued to the sheriff nearly a year and a half after the time of conveyance and the evidence tended to prove that the judgment debtor in the meantime had occasion to expend and may have expended considerable amount of money in his defense of the action and of the criminal prosecution against him. And the referee found that it was not shown by the evidence that the defendant had not ample means to pay all claims against him, including that for which the judgment was recovered, at the time of the conveyance. But that the transfer so made would so divest him of his property that he had not sufficient to satisfy the judgment. The latter part of the finding was construed to have reference to the time of the recovery of the judgment, which was seventeen months after the time of such conveyance. TJpon such state of facts the court then held that the charge of intent to hinder delay or or defraud creditors or other persons of their lawful suits, damages &c. was not sustained.

In the present case we think the evidence was sufficient to support the conclusion of the trial court.

The judgment should be affirmed. All concur.