text:
    THEOPHELIA G. TOWNSEND, Appellant, v. OLIVER B. WHITNEY, Respondent.

      Sureties — rights of, against principal débtcrr.

    The defendant, an administrator, having failed to pay over certain moneys as required by a decree of the surrogate, a judgment was docketed against him and an execution issued thereon was returned unsatisfied. Actions were then brought on his bond, and judgments recovered against defendant and his surety, plaintiff’s husband. The judgments were paid by plaintiff’s husband, and an assignment of the decree and judgments-was taken to plaintiff.

      Held, that the plaintiff, was entitled to enforce the judgments against defendant, and to procure an attachment to be issued against him by the surrogate.
    Appeal from an order made by the surrogate of Ulster county, denying an' application for an execution against the person, to enforce the payment of moneys decreed to be paid by Oliver B. Whitney, defendant, as administrator.
    Whitney and another were administrators of John J. Ferris, deceased, and William Ii. Townsend, the husband of this plaintiff, the petitioner, became one of the sureties on their bond as such administrators. In course of administration a decree was made by the surrogate, directing the payment of certain distributive shares of the Ferris estate to certain persons entitled'thereto.
    To enforce such payment, the parties thus entitled, caused the decree to be docketed in- the Ulster county clerk’s office, upon the certificate of the surrogate, and caused execution to be issued thereon against the administrators, which was-returned wholly unsatisfied.
    The parties entitled under, the decree thereupon brought suit upon the administrator’s bond, and obtained three several judgments against Oliver B. Whitney, his co-administrator, and William H. Townsend, the surviving surety, husband of the appellant. These judgments were paid through Townsend, the surety, and assignments thereof, and of the surrogate’s decree, and of all rights and remedies thereunder were taken by Theophelia Gr. Townsend, the appellant; and thereupon a demand having been made upon Whitney for payment of the moneys directed to be-paid by the decree which was refused, a petition was filed by Theophelia G-. Townsend, assignee of the interest of Lydia E. Love and others, under the decree, for an attachment against Whitney to answer for his misconduct. An attachment was granted, and on the return-day thereof Whitney appeared and pleaded. The pleading was in the nature of a demurrer, and the surrogate filed an order denying the application and discharging the attachment.

      J. Keivton Fiero, for the appellant.

      F. L. Westbrooolc and John J. Linson, for the respondent.
    Two remedies are given by the statute against executors and administrators who fail or neglect to obey the orders or decrees of the surrogate directing them to pay money. An action on the decree docketed in the clerk’s office against the sureties on the bond. (3 R. S., title 1, chap. 2, §§ 17-19 [6th ed.], 329.) Proceedings by attachment against the person of the defaulting administrator or executor. (3 R. S., title 1, chap. 2, §§ 20, 21 [6th ed.], 329.) Bringing action on the bond is an election. This remedy is allowed on the ground that the other has ceased. It cannot be pursued until the petitioner has exhausted his rights under the other. They are totally inconsistent. (Broten v. Littlefield, 1 Wench, 398; Same Case, 11 Wench, 467; Morris v. Rexford, 18 N.^Y., 552; Kinney v. Kiernan, 2 Lans., 492.) The decrees are merged in and extinguished by the judgments obtained upon them in the Supreme Court. The latter were securities of a higher nature. (Clark r. Rowling, 3 N. Y., 227 ; Andrews v. Smith, 9 'Wench, 53 ; Graft v. Merrill, 14 N. Y., 456 ; Purdy v. Doyle, 1 Paige Ch., 558; McGuinty v. Herrick, 5 Wencl., 240.) The assignment of the judgments to the petitioner operated as a satisfaction. William H. Townsend was one of the judgment-debtors. His money paid the original claimants. His wife had no separate estate. Formerly, both in the courts of common law and of equity, the payment of a judgment by one judgment-debtor would have been held an extinguishment. (.Hodgson v. 8haw, 3 Mylne & Keen, 183; 10 Eng. Ch. R., 183; Copis v. Middleton, 1 Turn. & Russ., 224; 12 Eng. Ch. R., 223.) Nor would it make any difference if the surety had procured an assignment to be taken to a third person for his benefit. (1 Story’s Eq. Jur., § 4995, and cases there cited; Ontario Bank v. Walker; 1 Hill, 652; Bank of Salina v. • Abbott, 3 Denio, 181; Marsh v. Benedict, 14 Hun, 317), presents precisely the same state of facts as Oorey v. White. And the statute of 1832, as well as the cases above cited, are referred to by the presiding justice in his elaborate opinion. (Morley v. Stevens, 47 How., 228; HarbeckY. Vanderbilt, 20 N. Y.; 395; Shumway v. Cooley, 9 Hun, 131; Booth v. F. <& M. Bk., 11 Hun, 258; ■ Adams v. Drake, 11 Cush., 504; Holmes v. Day, 108 Mass., 563; Hull y. Sherwood, 59 Mo., 172; Carpenter v. Stilwell, 1 Kernan, 61.)
   Learned, P. J.:

The decree of the surrogate was neither paid nor discharged by the judgments subsequently recovered, nor was it merged therein.

The recovery of the judgments against the administrator and his surety, though joint in form, did not take away from the surety his peculiar privileges. He did not become thereby merely a jointdebior. He still remained entitled, on payment, to subrogation, and to all the rights which the creditor had against the principal. (Meech v. Benedict, May Term, 1878.) The creditor has admitted this right of subrogation, and has assigned to the surety (or to another person at his request), as he was bound to do, all the securities or claims which he had against the principal. That is, he has assigned the judgment and the decree. The assignee then holds these with all the rights and powers which the creditor had in respect to the principal debtor. Nothing has been done in any way to release the principal from his debt, or to take away from the holder of the debt any means of enforcing- and collecting it. The principal has not paid it, and he has no reason to object to any process which the law gives to compel him to do his duty, and to pay over these trust funds.

Something was said, in his behalf, to the effect that process against the person was a remedy personal to the creditor. There is no force in this. Attachments against administrators and such parties for not paying money issue because the moneys which they have are held in trust. If they have used them except for trust purposes, they are not mere debtors. They are guilty of a quasi criminal act, for which they ought to be punished. And' it is of no consequence to them whether the result of their wrong-doing falls- on- their creditor or on some innocent, surety. In either ease they are equally culpable; and in either case liable to any authorized process- which may compel them to give up the property which they unjustly hold.

Sureties- are, and should be, ¡favored in law. And this assignment was undoubtedly made to another person to avoid any question as to the effect of an assignment to the surety, one of the defendants in the judgments. The debtor has no merits in his favor. He has not only wrongfully retained trust funds, but he has thrown the consequences of his wrong-doing- on his surety, whom he ought to have protected from loss. And now he is endeavoring to escape from his liability to that surety on technical grounds.

The order must be-reversed, with $10 costs and printing, dis-_ bursements and proceedings remitted to surrogate with direction to issue process.

Present — Learned, P. J., BoARDMAN'and Westbrook, JJ.

Ordered- accordingly.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    GEORGE KELLY, Appellant, v. NORMAN W. COUNTRYMAN and CATHARINE STRAYER, Administrator and Administratrix, etc., of JOSIAH STRAYER, Deceased, Respondents.

      Commencement of action■ — warrant of attachment — summons must he sei'ved within thirty days after issue of.

    April 10th, 1877, a warrant of attachment, summons and complaint against Josiah Strayer were delivered to the sheriff for service. April 14th, a levy was made under the warrant. On April 18th Strayer died, not having been served with the summons. On May 28th, an order was granted allowing the action to be continued by the service of a summons and complaint therein on the defendants, his administrators; and on June 18th, they were served upon them.
    . Held, that as the summons was not served within thirty days from its issue, the warrant of attachment and the levy thereunder were void.
    Appeal from an order denying a motion of the plaintiff for an order directing the sheriff of Montgomery county to sell a bond and mortgage, levied upon under a warrant of attachment issued in this action.
    The original summons and complaint in this action were issued against Josiah Strayer April 10, 1877, and on the same day a warrant of attachment was allowed. The summons, complaint and warrant of attachment were all delivered to the sheriff April 10, 1877, for service. The sheriff attached the bond and mortgage in question April 14, 1877.
    The original defendant, Josiah Strayer, died April 18, 1877, in Onondaga county, before the service of the summons upon him. On the 28th day of May, 1877, an order was granted at Special Term, on due notice to the defendants, allowing the action to be continued by the service of a summons and complaint therein on the defendants, the legal representatives of deceased; the order was entered on the 29th.
    The summons and complaint were severally served on the present defendants June 18, 1877; they appeared and put in a general answer. The cause was tried October 16, 1877; the jury gave plaintiff a verdict for $1,126.26, for which sum and costs judgment was entered November 18, 1877.

      The following is the opinion of J udge Landon on denying the motion, from which this appeal ivas taken:
    An attachment under the Code (§ 227, Old Code) issues only in an action. In order to commence an action, a summons must be served upon the defendant in one of the methods prescribed by the Code (§ 127). Nevertheless, for the purpose of an attachment, it is provided (§ 227): “An action shall be deemed commenced when the summons is issued, provided, however, that personal service of such summons shall be made, or publications thereof commenced within thirty days.”
    In this case the original defendant died within thirty days after the issuing of the summons and attachment, and before service of the summons upon him. The action against the original defendants was, therefore, only conditionally commenced; and the conditions not having been complied with, it must be held that the action never was actually commenced against him. Since the service of the summons was a condition necessary to the life of the action, it is quite immaterial by what casualty the plaintiff was prevented from performing the condition. It turns out that the attachment was issued otherwise than in an action, and therefore must fail. {Waffle v. Goble, 53 Barb., 517; Taddilcin v. Cantrell, 1 Hun, 710.)
    After the death of the original defendant, the plaintiff obtained leave of the court to proceed against the present defendants, as his administrators, by the service of a summons and complaint upon them. Service thereof was made, but not within thirty days from the issuing of the original summons. If such service had been made within the thirty days, doubtless the attachment could be upheld; but as it was not, the attachment failed.

      JD. /S'. Morrel, for the appellant.
    By the death of Strayer the action was suspended. (Code of Procedure, § 121; Moore v. Hamilton, 44 N. Y., 666, 672; Thacher v. Bancroft, 15 Abb., 243; Heinmuller v. Gray, 44 How., 260; Livermore v. Bainbridge, 43 id., 272; McCarty v. Peake, 18 id., 138; Fulmann v. Bruner, 4 N. Y. S. C. [T. & C.], 558.) From that time, the thirty days provided by section 227 of the Code of Procedure for the service of the summons ceased to run. (Moore v. Ham
      ilton, 44 N. Y., 666, 672; Heinmuller v. Gray, 44 How., 260; McOolloch v. Norwood, 58 N. Y., 562.) The court is deemed to have acquired jurisdiction of the action, and control of all subsequent proceedings, from the time of the allowance of the warrant of attachment. (Code of Procedure, § 139; 'Moore v. Thayer, 6 How., 47; Buckhardt v. Sandford, 7 How., 329; Thacher v. Bancroft, 15 Abb., 243 ; section 139 of the Code of Procedure; Moore v. Thayer, 10 Barb., 258.) A voluntary appearance of a defendant is equivalent to the jiersonal service of the summons upon him. (Code of Procedure, § 139.) All questions, subsequent to the granting of the warrant of attachment, including the service of the summons, are questions of regularity. (Buckhardt v. Sandford, 7 How., 329; Gere v. Gundlach, 57 Barb., 13; Simpson v. Burch, 4 Hun, 315.)

      James JS. Dewey, for the respondents.
   Per Curiam:

We think that the reasons stated in the opinion of Mr. Justice Landon dispose of this case. But the plaintiff insists that his rights are saved by section 139, Old Code. By that section the cohrt, from the time of the allowance of a provisional remedy, is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. But this is not in conflict with section 127, declaring that an action is commenced by the service of a summons, or with section 227, providing that for the purpose of that section the action is deemed commenced by the issue of a summons provided, etc. The court had jurisdiction of the subsequent proceedings in this case. But the failure to serve the summons within thirty days, made its previous issue a nullity, in respect to the commencement of the action. And the attachment fell with the action. The order should be affirmed, with $10 costs and printing disbursements.

Present: — Learned, P. J., Boardman and Tappan, JJ.

Order affirmed, with $10 costs and printing.


author: Learned, P. J.:

text:
    ASA W. HEATH, Appellant, v. LUTHER COLE, as Executor, and others, Legatees of LYMAN HEATH, Deceased, Respondents.

      Willr-proof, as to due execution of.

    Although when a man is well and strong, a declaration made by a third person in his presence, that an instrument is his will, and a request by such person to the witnesses to sign it, may be assumed to be the acts of the testator; yet, where the testator is at the end of a sickness, which has lasted over eleven years; when he is within a few hours of his death, and very feeble, and able to speak but faintly, such assumption cannot be made, unless his adoption of the acts of such person be clearly proved.
    Appeal from a decree of the surrogate of the county of Saratoga, admitting to probate an instrument alleged to be the last will and testament of Lyman Heath, deceased. Probate of the will was contested on the grounds: 1. That the said Lyman Heath was not, at the time of the alleged execution of said instrument, of sound mind and memory. 2. That the said instrument was procured by the fraud and undue influence of the said legatees, Luther Cole and J. H. Davis. 3. That the said instrument was never published or declared by the said Lyman Heath to be his last will and testament.

      W. B. French, for the appellant.
    There was not, under the circumstances, a sufficient publication of the instrument. (2 R. S., p. 63, § 35 ; Lewis v. Lewis, 11 N. Y., 220 ; Rutherford v. Rutherford, 1 Den., 33; Seymour v. Van Wyclc, 2- Sel., 120; Brown v. Be Selding, 4 Sand., 10 ; Wilson v. Hetterich, 2 Brad., 427, 431; Brinclcerlioof v. Remsen, 26 Wend., 325 ; Ex parte Beers, 2 id., 163 ; Hunt v. Mootrie, 3 id., 322 ; Barry v. Boyer, 1 N. Y. S. C., 422 ; Matter of Will of Wilson, 2 Brad., 427 ; Abbey v. Christy, 49 Barb., 276 ; McSorleyY. McSorley, 2 Brad., 188.) The party offering the paper for probate must show, affirmatively, a compliance with all the requirements of the statute. (Chaffee v. Baptist Mission Conven., 10 Paige, 85; Matter of Will of John Kellum, 52 N. Y., 617, 519,) But if by the testimony the court is left in doubt as to the execution of the will, and is not convinced that the same was duly executed, it will reverse the decree of the surrogate and send the case to a jury to investigate. (Howland v. Taylor, 53 N. Y., 627 ; Forman v. Smith, 7 Lans., 443 ; Reynolds v. Root, 62 Barb., 250 ; McKindley v. Lamb, 56 id., 284; Orolius v. Stark, 64 Barb., 162 ; S. C., 7 Bans., 301.)

      J. W. Grane and L. B. Pike, for the respondents.
    No particular form of words is necessary to make the declaration, nor, indeed, is it necessary to say anything; but any positive act by him showing that testator desired the witness to understand from him that it was his will he was executing, and that he knew what he was executing, or any acquiesence in the act of another doing- the same office, is an effectual declaration by testator. (McDonough v. Laughlin, 20 Barb., 244; Gilbert, exW. y. Knox et ail., 52 N. Y., 125; Peck v. Gary, 27 N. Y., 9; Coffin et al. v. Coffin, 23 N. Y., 9; Brinlcerhoff et al. v. Remsen et al., 8 Paige, 488; RemsenY. Brinkerhoff, 26 Wend., 324.)
   Learned, P. J.:

At the time when the testator signed the will he was very feeble; he did not speak aloud much; and, in fact, was near his end. The will was signed about noon, and he died about 11 o’clock at night. When it was signed, the widow testifies that the inside of his hands was purple.

Holden, who drew the will, sat by the window, about eight or ten feet from the dying man. Davis, the other subscribing witness, stood by Heath’s bedside. Heath stated his age aloud, and, Holden drew the beginning of the will. All the items of the will were written by Holden, at the dictation of Davis, who stated aloud to Holden what Heath told him; Heath’s words were not audible to Holden.

When the instrument was drawn, Holden took it to the bedside of Heath, read it over to him, and asked him if it was all right, and he said it was. Nothing more was said by Heath, until, he signed. They got a board for him to sign on. Davis took hold of his shoulders and raised him up, and he signed. Holden. does not recollect of Heath’s saying anything after he had finished writing the will, except that the will was all right, after Holden read it to him. He testifies that he said to Davis that it would ' be necessary to have two witnesses; that Davis communicated it ■ to Heath, and said that Heath wanted them to sign as witnesses. He cannot testily that he heard Heath say this; he heard no reply ■from Heath to Davis in regard to it; he says that there was no publication of the will, except his reading it to Heath, and Heath’s saying it was all right.

Davis, the other witness, testifies in regard to the execution, ■that after Holden read the will to Heath, Holden asked him if 'that was as he wanted it, and he said, yes. He further testifies that he asked Heath whom he would have for witnesses, and he said, I want you and Holden. He further testifies to the signing substantially in accordance with Holden’s testimony. In another part of his testimony, he says: “Holden read the will, and I heard it read; I believe that he knows, and I can’t say positively that he knew and understood the provisions of the will; he made ■no remark while the will was being read; and after its being read, Mr. Holden asked him if it was all right, and as he wanted it, and he said it was; I can’t say these were the exact words used by either, but it was the substance or import.” The same witness testifies that, on the morning- of the day Heath told him he wanted he should go for Holden to draw his will, and the witness went and brought him.

The widow of the deceased was present at the execution. She testifies that Heath said nothing in her presence about that being his will; that he did not appear to pay much attention to what Holden was doing, or Davis saying; that he had a very sinking spell while they were drawing the paper, and she thought he was breathing his last. Otherwise, witness testifies to his existing weakness.

Emeline "Woodcock testifies, that on Tuesday before Heath died he told her they had been hounding him to make a will against his wishes; but he should make no will.

Holden testifies that he cannot say that, when he was reading the will to Heath, Heath was strong enough to follow him in the reading of the will from its commencement to its close, with close attention, and so as fully to comprehend all its provisions; or that he had strength of mind and body sufficient to remember the amount of his property, and the condition of all his relations to him.

“The knowledge that the instrument which the witnesses are called upon to attest is a will must be communicated to them by the testator at the time of his subscription.” (Gilbert v. Knox, 52 N. Y., 125 at 128.) It is apparent that, in considering the question whether that ivas done in the present case, we must bear in mind the testator’s condition. When a man is in full health and strength, with all his senses in vigor, whatever is said for him and in his presence, may, properly and without danger, be taken to be his act. The declaration that the instrument is the testator’s will, and the request to witnesses to sign, may be made by another, under such circumstances, that they are plainly adopted by the testator and become his acts. But, when a man is feeble, and able to speak but faintly, at the very last of a sickness which has lasted eleven years, and within a few hours of his death, then it is necessary to examine more carefully Avhat takes place before him. It Avill not answer then to assume, Avithout some clear proof, that he adopts the acts of those about him, who pretend to speak for him. In his feeble condition he may be unable to express his dissent, and it is unsafe to take his silence as acquiescence.

In the present case, so far as Holden is concerned, all that he can say is that he read the instrument to the testator. He does not say whether he read the attestation clause. He asked the testator if it Avas all right, and he. said it was. The testator did not, nor did any one in his presence, state that the instrument was his Avill. This Avas all that he heard the testator say. Davis said that Heath wanted them to sign. But Holden did not hear Heath say this, or hear any reply to Davis’ remark to Heath.

The other Avitness (Davis) is a legatee under ■ the will. His evidence is to the same effect, and he adds that Heath told him that he wanted Holden and himself for witnesses, and that Heath sent him in the morning for Holden to draw his Avill.

But to neither of these Avitnesses is there a statement made by Heath that the instrument is his Avill. And this is a most important matter. The provision is intended to protect men in just such cases as this — men in extremis, almost too feeble to have a clear idea of their wishes, and ready, in bodily and mental weakness, to say that anything is right which a friend reads to them. In such cases there should be an unquestionable statement of the nature of the instrument, and an unquestionable request to the witnesses.

In the case of Gilbert v. Knox, above referred to, nothing is said of the condition of the testator, except that it was conclusively established that he knew the character of the instrument. The will was executed twelve years, the last codicil two years, before his death.

So in Peck v. Gary (27 N. Y., 9), the will was .executed at a banking house, and the testator was about to go sea. He must have been in full possession of his powers. And so, also, in Thampson v. Stevens, briefly reported in (62 N. Y., 634), there could have been no question as to the full knowledge by the testatrix of the nature of the instrument, or of her stating this knowledge to the witnesses, or of her request to them.

There can be no doubt of the general principle, that the proponents can establish a valid execution only by showing a full compliance with all the provisions of the statute. (Lewis v. Lewis, 11 N. Y., 220.) Nor can there be any question what the provisions are. The doubt must be whether the testator has so acted that we can say that he requested the witnesses to sign, and whether by words or otherwise he expressed to them the fact that the instrument was his will. And when we consider Heath's feeble and exhausted condition, his weakness of body and mind, such that one of the subscribing witnesses will not testify that Ire could comprehend the will, and the other cannot say that he understood it, when we see that he did not himself declare the instrument to be his will, or request the witnesses to sign it, we cannot hold that the acts which were done in his presence were so adopted by him as to make a valid request or declaration.

The decree of the surrogate should be reversed; issues to be tried by a jury ; costs to abide the event.

Present — -Learned, P. J., Boardman and Tapp an, JJ.

Decree of surrogate reversed ; issues to be settled and tried by a jury ; costs to abide the event.


text:
    CHARLES E. WARING, Appellant, v. JOHN P. O’NEILL, Receiver of The Continental Insurance Company, Respondent.

      Insolvent company — when policy-holder cannot deduct the value of his policy from a mortgage held by the company on his land — Controversy submitted, triable at General not Special Term.

    On the 31st of March, 1877, a life insurance company was dissolved, and the defendant appointed its receiver. On that day plaintiff held a paid-up policy in the company for §6,000, to procure which in a solvent company would then have cost §3,600. At that time the company held a bond and mortgage, given by one Ackerman for §8,500, payable June 1,1877. On July 27,1877, Ackerman sold the property to plaintiff subject to the mortgage, which plaintiff assumed and agreed to pay. This action was brought by him to redeem the mortgage, upon paying what was due thereon, after deducting the §3,600. Held, that the action could not be maintained.

      Qucere, as to the lights of the holder of a paid-up policy, against the receiver of an insolvent company.
    Under section 1281 of the Code of Civil Procedure, as under section 372 of the Old Code, a controversy submitted upon agreed facts, is to be tried at the General Term, and it is irregular to have it heard in the first instance at Special Term.

      Qucere, as to the power of a receiver of an insolvent insurance company to submit a controversy upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure.
    Appeal from a judgment entered on the decision of the court at Special Term, denying the set-off claimed by the plaintiff herein, and ordering that the action be dismissed with costs. The case was heard at Special Term as a controversy submitted upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure. The statement alleged, among other things, that the plaintiff was the owner and holder of a paid-up policy of insurance upon the life of the plaintiff for the sum of six thousand dollars, issued by the Continental Life Insurance Company of the city of New York, a corporation duly organized under the laws of this State. That the amount of premiums paid by the plaintiff to said Continental Life Insurance Company, and which forms the consideration of said contract or policy of insurance, was the sum of three thousand nine hundred and seventy-five dollars and sixty cents. That the said Continental Life Insurance Company lately failed and became insolvent; and an order was heretofore made by this court, at a Special Term thereof held at the city hall, in the city of Kingston, on the 31st day of March, 1877, on the application of the Attorney-General of this State, by which it was ordered and decreed that the said corporation, the Continental Life Insurance Company, be and the same is hereby excluded from its corporate rights, privileges and franchises, and dissolved; and that a distribution of its effects bo made, in such manner as this court shall hereinafter direct. That. in and by such order the defendant, JohnP. O’Neill, Esquire, of the city of Now York, was appointed receiver of the goods, chattels, credits and effects of of the said corporation, to wind up and settle the affairs of said corporation, with the usual powers of receivers in like eases. That amongst the assets of the said Continental Life Insurance Company which passed to the said receiver by virtue of his said appointment, and which are now held by the said receiver, was a bond and mortgage made and executed to the said Continental Life Insurance Company, by John W. Ackerman and wife, of the city of Yonkers, to secure the payment of the principal sum of eight thousand Uve hundred dollars, and the interest to grow due thereon. That the premises covered by the said mortgage were owned by said Ackerman, the mortgagor, at the time of the dissolution of the said company, and the appointment of said receiver. That subsequently, and on or about the 25th day of July, 1877, the said John W. Ackerman and wife duly sold and conveyed to the plaintiff the said property covered by the said mortgage, subject thereto ; and the plaintiff assumed and became liable to pay the amount of the said bond and mortgage as part of the purchase-money on such conveyance; and that the plaintiff is still the owner of the said property, subject to the payment of the said mortgage. That at the time of the execution of the said deed said plaintiff knew of the dissolution of said company, and the appointment of the defendant as its receiver as aforesaid. That the amount it would cost to obtain a paid-up policy in any other good and solvent life insurance company to the amount of six thousand dollars, upon the life of the plaintiff, at his age, at the time of the insolvency and dissolution of the said Continental Life Insurance Company, was the sum of thirty-six hundred dollars. That the affairs of the said Continental Life Insurance Company were in process of settlement and liquidation, and that it was impossible at that time to ascertain and state the amount that would be realized from said assets, and to fix the percentage that the said assets would pay the policy-holders and creditors of the said company. The plaintiff prayed judgment that he might redeem the said bond and mortgage of John W. Ackerman, by paying the amount due thereon, less the amount due the plaintiff from the said Continental Life Insurance Company on account of said policy, to the end that said mortgage might be satisfied of record, or for such other or different relief as to the court should seem meet. The defendant insisted that the plaintiff was not entitled to redeem said bond and mortgage, except by paying the full amount thereof in cash.

      JR. W. Van Pelt, for the appellant.
    The receiver could have brought an action directly against Waring on his promise made to Ackerman to pay his debt to the company, as and for part of the purchase-money of the property. (Laiorence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 id., 178; Barbour v. Myers, 64 id., 41.) Waring could then have set up his counter-claim for the amount due to him on his policy. Or if the receiver had brought an action to foreclose the mortgage, he would have been entitled to a judgment against him for .deficiency. In such case, also, Waring could have set up this counter-claim. (Hunt v. Chapman, 51 N. Y. , 261; Bathgate v. Ilaslcins, 63 id., 261; Lathrop v. Godfrey, 6 N. Y. Sup. Ct. [T. & C.], 3 Hun, 739.)

      Wingate & Cullen, for the respondent.
    The purchase of the property covered by the mortgage in question, and the assumption of the payment of the latter by the plaintiff being subsequent to, and with knowledge of, the appointment of the receiver, no right of offset was thereby obtained. (2 Edm. Revised Statutes, 49, § 36; Matter of Van Allen, 37 Barb., 225, 227; Pardo v. Osgood, 2 Abb. Pr. [N. S.], 365; Smith v. Brinelcerhoff, 2 Seld., 305, affirming 8 Barb., 519; Supreme Ct., 1807, Ogden v. Cowley, 2 Johns., 274; Driven v. Phelps, 34 Barb., 224; McLaren v.
      Pennington and others, 1 Paige, 102; Johnson v. Bloodgood, 1 Jokus. Cas., 51; Hager man v. Ilyslop, Antk. N. P., 269; Thompson v. Iloorlcer, 4 N. Y. Legal Obs., 17; Wells v. Stewart, 3 Barb., 40; Hides v. McGrorty, 2 Duer, 295; Kendallv. Rider, 35 Barb., 100; Clark v. Brodcway, 1 Abb., Ct. Ap. Dec., 353; Haxton v. Bishop, 3 Wend., 13; Matter of Middle Hist. Bank, 1 Paige, 585; Swords v. Blake, 3 Edw., 112; Matter of The Empire City Bank, 18 N. Y., 227.)
   Learned, P. J.:

No question was made by either party on the argument as to the authority of a receiver to submit a controversy, without action, under section-1279 of the New Code. In deciding this case, therefore, we are not to be considered as expressing any opinion in that respect.

Upon the argument, it was stated that, under the New Code, a case submitted was to be heard, in the first instance, at the Special Term, as was done in this instance. Wo are unable to find any authority for this view. Section 1281, like the corresponding section 37 2 of the Old Code, directs that the trial shall be had at the General Term. The proceedings, therefore, in this case at the Special Term seem to have been unauthorized; and, in strictness, the judgment might, perhaps, be reversed on that ground. But, as the parties have argued the merits of the case, we may treat this as the trial, without reference to the former proceedings.

At the time of the dissolution of the company and the appointment of the defendant as receiver, on the 31st of March, 1877, the plaintiff held what is called a paid-up policy in the company for $6,000. That is, he held an-agreemont, on the part of the company, that, for a certain consideration already received, the company would pay to his legal representatives, ninety days after notice of his death, $6,000; subject, however, to certain conditions which might forfeit the claim. The policy also contained the condition that any indebtedness to the company should be first deducted therefrom.

It is agreed between the parties that, to obtain a paid-up policy to the like amount on the plaintiff’s life, from a good and solvent company at the time of such insolvency and dissolution, would have cost $3,600.

Among the assets of the company which passed to the receiver was a bond and mortgage of one Ackerman for $8,500 and interest, payable June 1, 1877. Ackerman ivas the owner of the land at the time of the dissolution and of the appointment of the receiver. Afterwards, on the 25lh of July, 1877, Ackerman sold the mortgaged property to the plaintiff, subject to the mortgage; and the plaintiff assumed and agreed to pay this mortgage as a part of the purchase-money. The -plaintiff now asks that he may set off the sum of $3,600, which it Avould cost him to purchase another policy on his life, against so much of the mortgage debt, and that he may redeem the mortgage on paying the balance.

We do not think it is necessary, in this case, to decide just Avhat are the claims of the plaintiff upon his policy. That question is not Avithout its difficulties. Whether'the failure of the company is to be considered a breach of its contract of insurance; and, if so, what are the plaintiff’s damages — -whether or not, on a distribution of the assets, he will be entitled to the amount of his policy, less a discount for the time when it would probably become payable — these and many similar questions might have a bearing on the present case, in determining the extent of the plaintiff’s claim.

But, passing these and assuming, for -the purposes of this case (Avhat may not be true in fact), that, .at the dissolution .of the company, the plaintiff Avas a creditor for a debt then -payable, can he have the set-off which he asks ?

It is not denied by the plaintiff that, if Ackerman, after the insolvency and the appointment of a receiver, had bought a claim (for instance the plaintiff’s) against the company, this could not have been set off against Ackerman’s debt on his bond. And this is for the plain reason,. as it seems, that the rights of debtors and creditors must be determined -by their condition at the time of the appointment. The debtor is liable to pay his debt. The creditor is entitled to his pro rata share of the assets. Whatever claims the debtor of the company then had against it .may be set-off, and no others.

But the plaintiff seeks to evade this general .principle by.inakin’g himself, after the appointment of the receiver, a debtor to the receiver by his own voluntary act, to which the receiver is not a party. His position is this, that, after the appointment of a receiver, a debtor to the company may pay that debt to a creditor of the company; that such creditor may, in consideration thereof, agree with the debtor to pay to the receiver the debt which the debtor owes; and then that the creditor may have the debt which he has thus assumed, discharged by a set-off of his own claim against the company, to the extent of its full amount. This is plainly contrary to the principle above stated.

The doctrine for which the plaintiff contends would enable any creditor of an insolvent company to get his claim in full, if he could induce some debtor of the company to pay to him the debt, on consideration of his agreement to assume such debt then owing to the receiver. It does not change the character of the plaintiff’s position that, in this case, the debt of Ackerman was secured by a mortgage. Nor does it make any difference that Ackerman transferred land and not money to the plaintiff as the consideration of the plaintiff’s agreement to assume Ackerman’s debt.

Still, the fact is plain that, when the company became insolvent, Ackerman owed it a debt. To this debt the receiver became entitled, and he might collect it from Ackerman personally or from the land. On the other hand, the plaintiff, even if he were a creditor of the company for a debt presently payable, was entitled to have from the receiver only a pro rata share of the assets. He cannot, by agreeing with Ackerman to assume Ackerman’s debt to the receiver, prevent the receiver from collecting the full amount thereof.

Ackerman’s debt was owing to its full amount when the receiver was appointed. The full amount thereof was owing when the plaintiff assumed to pay it; and his agreement was to pay the same to the receiver who then owned the claim. On the other hand, at the time when the plaintiff made this agreement to pay the receiver, his only claim against the receiver was a right to share pro rata in the assets when they should be distributed. The receiver owed the plaintiff no debt, but was only under an obligation to distribute to him what should finally appear to be his portion. The plaintiff claims that he has become the principal debtor by his assuming the mortgage. So, too, if he had borrowed money of the receiver on bond and mortgage, he would be the principal debtor. But if he had himself borrowed this money of the receiver, after the dissolution, on his own bond and mortgage, ho could not set off against such loan the whole amount of his claim against the company, while it was uncertain what dividend the receiver might make. And he stands no better in this case than if he had himself borrowed the money from the receiver. For his obligation to pay was not contracted until after the appointment of the receiver; and he was never, in any way, a debtor to the company during its existence upon this bond or debt. For this reason, he cannot claim any benefit from the provision in the policy that an indebtedness to the company is to be deducted before payment. He never contracted with the company to pay this bond.

A judgment, therefore, must be entered on the submission declaring that the plaintiff is not entitled to redeem the bond and mortgage, except by paying the full amount thereof in cash, with costs against the'plaintiff.

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

Judgment ordered for defendant on submission, with costs. ■


author: Leakned, P. J.:

text:
    JOHN MAXWELL, Appellant, v. EDWARD H. AUDINWOOD, JONAS H. LANE and ALBERT D. SMITH, Respondents.

      <foods consigned, to he sold at a fixed price — duty of consignee as to.

    Where a consignee receives goods, with instructions to sell them at a price named, and sells them accordingly, remitting the proceeds to the consignor, and thereafter is compelled to take them back, as not being equal to the sample, it is his duty to at once notify the consignor, and demand repayment of the amount remitted; if, without notifying the consignor, he sells the goods at a price less than that at which he was instructed to sell them, he acts wrongfully, and cannot call on the consignor to make good the loss.

      Appeal from a judgment in favor of the defendants, entered upon the report of a referee.
    The action was brought to recover a balance alleged to be duo upon the consignment of certain goods to the defendants for sale as commission merchants. The referee found, among other things, that the defendants were co-partners in business; that the plaintiff and one James Sugden, were, on or about April 1st, 1874, and until on or about the first day of April, 1875, continued to be co-partners in business, transacting the same at Amsterdam, N. Y., under the firm name and style of Maxwell & Sugden; that the said Maxwell & Sugden, on or about the 14th day of September, 1874, .consigned and delivered to the defendants as such co-partners, one case (containing 32 dozen) of Shetland knit shirts and drawers, to be by them sold upon commission at a fixed compensation there agreed upon; that said Maxwell & Sugden then instructed the defendants to sell the said goods at the price of $5.50 per dozen, less five per cent, on sales; and on or about the--day of October, 1874, the defendants, as such commission merchants, sold upon sample and forwarded said case of goods unopened, as received by them, to James Cochrane & Co., of the city of Pittsburg, Pa., at the price above stated; that subsequently, and on or about the month of October, 1874, the said James Cochrane & Co. returned the said goods to the defendants, refusing to accept them upon the ground that the same were not according to the sample shown them by the defendants — were of an inferior quality, and worth less per dozen than the sample, and that they did not want that quality of goods. And the defendants accepted said return of said goods except three dozen, •which the said James Cochrane & Co. were allowed by defendants to retain at $5.50 per dozen; that the amount of such sales to James Cochrane & Co., less commission, interest and other proper charges, was $150.86; that the defendants bn the 18th day of September, 1874, advanced upon the said goods to the said Max-, well & Sugden $128,"; that afterwards, and on or about the 10th day of October, 1874, the defendants upon the faith of said sale to James Cochrane & Co., advanced and paid to the said Maxwell & Sugden $22.86, in full payment of the amount of such sale; that the said case of goods sold and forwarded to said James Cochrane & Co. were not equal to the sample shown by the defendants to the said James Cochrane & Co., and in quality were inferior thereto, and the defendants afterwards, and in or about the month of December, 1874, re-sold said twenty-seven dozen of the .Same so returned, at-$3.33^ per dozen, being the highest price for which the same could be sold. A And that $3.33| per dozen was the highest price for that quality and style of goods, and they were worth no more, and that the entire amount of said sale, less the interest on advances, commission and other proper charges ivas, including the sales of the three dozen retained by James Cochrane & Co., $81.98, being $68.88 less than the amount of the advances, interest and payments made thereon to the said. Maxwell & Sugden; that no notice or information was. given by said defendants to said Maxwell & Sugden after the receipt and sale of said goods of any defect in the manufacture or quality of any of said goods, or of any complaints or objections to the same or. any part thereof by said James Cochrane & Co., or of their refusal to retain the said goods for any cause, or that defendants had accepted a return of said goods' until- after defendants had re-sold them; that said goods were returned by the said James Cochrane & Co. to and were received by said defendants and .re-sold by them without the knowledge and consent of the said Maxwell & Sud-gen, and without the said defendants making any demand of the firm of Maxwell & Sugden to re-pay advances made them thereon; ) that in or about the month of September, 1874, the said Maxwell & Sugden consigned to the defendants another- case of knit shirts and drawers containing twenty-four dozen, to be sold for them on commission by ■ defendants, which were sold by the defendants for the sum of $91.20 over and above commissions and other proper charges; that on the 16th day of December, 1874, the defendants informed the said Maxwell & Sugden by letter that one case of the goods were returned to them as inferior, and that they had hard work to place them. They also inclosed in said letter their check on the Importers’ and Traders’ National Bank of New York city, payable to the order of said Maxwell & Sugden, for the sum of $22.32, which the defendants in the letter inclosing said check stated was in full • to balance account; That the said Maxwell & Sugden received said check and letter in which the same ivas inclosed by due course of mail, indorsed and used said check for their own benefit, and in the ordinary course of banking the same was transmitted from Amsterdam, N. ' Y., for collection and collected of and paid by the said Importers’ and Traders’ Bank, and by it charged to defendants’ account. That afterwards and before the commencement of this action, and on or about the first day of April, 1875, the said firm of Maxwell '& Sugden was dissolved, and the demand set forth in said complaint and all the interest of the said James Sugden in any claim or demand which they might have or hold against the defendants, was sold and assigned and transferred by the said Sugden to the plaintiff herein.
    As conclusions of law the referee found, that the plaintiff’s 'claim as set forth and described in his complaint was, before the commencement of this action, settled and paid and satisfied by the defendants. That the defendants are entitled to judgment herein against the plaintiff for their costs and disbursements. '

      Z. 8. Westbrook, for the appellant.

      Reed é Drake, for the respondents.
   Leakned, P. J.:

If, at the time when the defendants sold and received pay for the last consignment, the plaintiff’s fixm was indebted to them in the amount which they claim, then the referee was right. And the first question is, whether they were so indebted. The defend- • ants had received from the plaintiff’s firm the former consignment, ■ Avith instructions to sell at a certain price. They had advanced some money on the consignment, and had then sold at the price named, and had remitted the balance of the avails. Afteiwards the goods had been returned to them as-not equal to the sample. Noav, assuming that the failure of the goods to equal the sample was not their fault, and that they were entitled to be repaid the money which they had remitted to the plaintiff’s- firm, they had ’ a plain duty to do. :

’( They should have notified the plaintiff’s firm, and required the repayment of the moneys. Without doing this, they had no right to sell the goods at a price less than that named in their instructions. When, therefore, without notice to the plaintiff’s firm, and without demand from that firm of the moneys advanced, they sold tire goods at a price less than that at which they were authorized to sell, they did this wrongfully; and they had no right to call on the plaintiff’s firm to make good the loss. It is no answer to say that they sold the goods for all they were worth. They had no right to sell them at all, unless for the price named.

This disposes of the question, whether the plaintiff’s firm were indebted to the defendants in the amount which they claim. Another question remains. While the defendant had no legal claim against the plaintiff’s firm, still there had been a loss which the plaintiff’s firm might, if they had chosen, have made good. The question is, did the plaintiff’s firm, by any act, allow this claim, and settle with the defendants on the basis of such allowance? The defendants claim that the plaintiff’s firm did this by accepting the check sent for the balance of the last consignment. Now, by the acceptance of that check, the plaintiff’s firm did not allow any claim, of which they were ignorant- And we must inquire whether they knew of the claim and allowed it when they accepted the check. The letter of the defendants, inclosing the check, does not state the facts. It does not distinctly refer to the former consignment- But it is vaguely expressed, as if it were intended to make the plaintiff’s firm suppose that the alleged defective goods were a part of the last assignment. If the plaintiff’s firm are to be bound by the acceptance of this check, it should clearly appear that they understood the facts fully. On the contrary, they did not understand them; for they wrote at once to inquire the meaning of the letter, and to know why the whole avails of this consignment was not remitted to them.

We need not say whether, even with knowledge, they were bound to refuse the check, which was a part of what was owing to them. It is enough, that they camiot be prejudiced by its acceptance,' unless it be shown that they fully understood what had been done by the defendants, and knew that they had sold the former consignment at a less price than the instructions authorized.

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

Present — Learned, P. <J., Boardman and Bockes, JJ.

Judgment reversed; new trial ordered; reference discharged; costs to abide event.


text:
    THE BOARD OF SUPERVISORS OF TOMPKINS COUNTY, Plaintiff, v. GEORGE H. BRISTOL and others, Defendants.

      County treasurer — official reports of, admissible against Ms sureties — duty of, as to trust fu/nds — as to military fund.

    A report made and filed "by a county treasurer, in pursuance of chapter 386 of the Laws of 1859, is admissible in evidenced n an action upon his official bond, to show the amount of moneys or securities then in his hands belonging to infants or other persons.
    Statements made by a county treasurer to his successor in office, after the expiration of his term, are not admissible against his sureties.
    Where a trust, upon which certain securities are held, terminates during the ' term of office of a county treasurer, he is not bound to transfer such securities to his successor in office, although he has not then paid them over to the persons entitled to receive them.

      ¡Semble, that it is his duty to transfer to his successor any trust funds in his hands as to which the trusts have not yet expired.

      Quaere, as to whether the county treasurer is bound to pay over to his successor money belonging to the military fund, received in pursuance of section 178 of ‘ chapter 80 of the Laws of 1870.
    Appeal from a judgment, entered upon the report of a referee in an action, against a county treasurer and the sureties on his official bond. The referee found, among other things, that in November, 1872, the defendant, George II. Bristol, was elected "treasurer of the county of Tompkins. That thereafter on the 5th day of -December, 1872, the defendants above named executed and delivered to the supervisors of said county a bond with sureties. That during his said term of office said Bristol, as such treasurer, received large sums of money belonging to said county. That said Bristol did not pay according to law all moneys which came into his hands as treasurer as aforesaid, but on the contrary at the expiration of the term of his office aforesaid neglected, and still neglects to pay to his successor in said office, and retained and appropriated to his own use the sum of five thousand one hundred ninety-four dollars and sixty cents of the moneys of said county received by him as aforesaid. That on the 8th of April, 1872, there was in this court in the hands of Bristol as treasurer as aforesaid, $3,802.58 in trust to the use of Samuel M. Wilson, an infant, $3,700 of which sum was secured by mortgage, and the balance $102.58 paid to said treasurer in cash on that day. That said Bristol duly passed to his successor the mortgage last mentioned, and also another mortgage to the treasurer in trust for said infant, Wilson, for $300, on account of this fund. That grima fade, there appears to be owing on and secured by these two mortgages in trust for said last named infant, on account of said fund a sum equal to the amount thereof — In fact it would appear that only $1,860 remained due on the $3,700 mortgage when it was passed over by Bristol to his successor — That on the 2d day of October, 1872, $790.06 was paid into the Supreme Court to said Bristol as treasurer, as aforesaid, in trust to the use of Martha Lampkin, John Lampkin and Frank Lampkin, infants, that the said Martha duly received the portion thereof to which she was entitled on attaining her majority; that John and Frank had not, nor had either of them, attained the age of twenty-one years at the time of the commencement of this action. That it was not proven on the trial of this action that the defendant, Bristol, had appropriated any part of the fund last mentioned to his own use, or made any default in the performance of his official duty in relation to it. That except as herein specified no fund required to be paid into court was proven to have been received by the defendant, Bristol, as treasurer, as aforesaid, hence he found that grima fade, no such fund has been received by him, except as aforesaid. That the defendant, Bristol, has not appropriated to his own use or withheld from his successor, or failed to pay according to law any fund received by him on account of any military organization-

      P. G. Ellsworth and M. King, for the plaintiff.

      F. M. Finch, for the defendants.
   Learned, P. J.:

This is an action against a county treasurer and his sureties upon his official bond. Both the plaintiff and the sureties have appealed. But on the argument the counsel for the sureties stated that they asked no reversal of the judgment. Their solo object in appealing was that, in case of a reversal, an opinion should be expressed on certain points.

The only matters then to consider are those raised by the plaintiffs, as ground for a reversal of the judgment. By the report of the referee the plaintiffs recovered for what may be called the county fund, but did not recover for what are called the infant heir fund and the military fund. I do not understand that anj question was made on the argument in respect to the recovery for the county funds. But the plaintiffs claim that they should have recovered also for the two other funds above specified.

The first point is that the referee , erred in excluding certain alleged official reports as evidence. If the action had been brought to recover for a violation of duty in making imperfect or false reports, there would have been much force in the plaintiffs-argument. But these alleged reports were offered for the pur pose of showing the amount of the so-called infant heir fund in the hands of the county treasurer at the time when they were made; and the referee, in his findings of law, held that they were not competent evidence against the defendants.

The referee, in his opinion, states that none of these purport to be official reports. But, on examining the case, this statement seems to be an oversight in regard to one at least. One of these exhibits (marked Q) was a report signed by the treasurer and verified by him, and was filed in the county clerk’s office in pursuance of chapter 386, Laws of 1859. In the case of Bissell v. Saxton (66 N. Y., 55), it is said of similar reports that they were subject to explanation by the sureties, and not conclusive against them. This language plainly implies that such reports would be admissible in evidence; otherwise it could not be said that they were subject to explanation.

From the opinion of the referee and the argument of the defendant’s counsel, however, it would seem that the referee must have held this report rather to be insufficient as evidence than inadmissible. For the referee states that this report was insufficient to prove the orders or judgment of the court under which this infant heir fund was held; and that the treasurer’s sureties could be liable only for money held under some order or judgment of the court. Hence the referee holds, as I understand him, that the orders or judgments must be shown by the records thereof, unless the production of the record is excused; and that the official statement by the treasurer of the infant heir funds in his hands is no evidence against the defendants.

Before the Constitution of 1846, moneys such as these were paid to the register or clerk of chancery. (2 R. S., m. p. 172, sect. 24, etc.) These officers were required to give bonds. (2 R. S., m. p. 170, sect. 9, et sag.) They held office during the pleasure of the chancellor. (1. R. S„ m. p. 108, sect. 17.) Hence it was said that in case of “ death, removal or resignation,” the funds passed to a successor. (2 R. S., m. p. 172, sect. 26.) There was no expiration of office, as there is in the case of a county treasurer. The judiciary act, chapter 280, Laws 1847, sect. 71, substituted the clerk of the Court of Appeals for the register and clerks of chancery and the clerks of the Supreme Court, in respect to such moneys, making all laws relative thereto applicable. Chap. 277, Laws of 1848, substituted the county treasurers (except in the city of New York) for the clerk of the Court of Appeals; as to such moneys; making all the provisions of law relative thereto applicable to them. Chapter 386, Laws of 1859, required, in its first section, annual reports from each county treasurer, “ of all moneys or securities in his hands, belonging to infants or other persons;” and in its second section made the official bonds applicable to all such moneys and securities. Chapter 524, Laws of 1874, authorizes the court to direct an action on a. treasurer’s bond in case of disobedience to an order. Such action, it would seem, is to be brought in the name of the supervisors. The present action is not brought under this law last cited. But it is brought as to the infant heir fund, on the theory that the county treasurer is in default for neglecting to transfer this fund, or part thereof to his successor. Considering the course of legislation, above set forth, I think it may be assumed that he and the sureties are liable upon the bond, if he has .in fact failed to transfer to his successor any of this infant heir fund in his possession at the expiration of his office; or at least any as to which the trust had not expired. Yet, perhaps, it is not necessary to pass on that question, except for the purpose of examining this case. And the question must be in respect to the exhibit above mentioned, whether that exhibit afforded any legal evidence on this point. The statute of 1859 is very general in its terms. It makes the treasurer’s official bond applicable to all moneys and securities in his hands belonging to infants or other persons. It does not in terms call them “trust funds,” nor does it speak of them as funds brought into court.

It is probably true that there are no other funds in a county treasurer’s hands to which the statute can properly apply, except such as are deposited by order of a court. But the language is such that the sureties are declared to be liable, if in his official character he has funds belonging to infants or other persons, which he misappropriates. As it seems to me, then, that exhibit was evidence that the treasurer had, at the time of its making, the funds therein stated. But the exhibit was made in July, 1873. Bristol continued in office till January 1, 1875. I do not think that it is to be presumed against him that he had not properly managed these funds during that interval. The presumption must be in favor of a proper discharge of official duty.

The subsequent exhibits, marked R and S, were neither signed nor sworn to by Bristol. They cannot, then, be binding on him. They are not official documents. Nor do I think that the examination and report of the referee appointed By the court was evidence against the sureties. It was an ex parte investigation, conducted under the authority of the court for its own information. It decided nothing.

The paper called exhibit Y is only a statement made by Bristol to his successor, after his office had expired. It is not evidence against the sureties. (Tenth Nat. Bank v. Darragh, 8 Sup. Ct. N. Y., 111.) We have, also, the testimony of Van Voorhies, the successor of Bristol, who testifies, in substance, that certain funds were not paid to him. But his only knowledge as to what constituted the infant heir fund, at the time when Bristol’s office expired, comes from the statement of Bristol above mentioned. And the testimony, therefore, amounts to no independent proof on the subject. Laying aside, then, for the present, those cases in respect to which some further evidence was produced, it seems to me that the only evidence is that in 1873 Bristol had certain funds in his hands; and that there is no evidence that he had not appropriated those funds to the rightful owners before his term of office expired, or that he failed to transfer to his successor any that had not been previously paid out to the parties interested.

In regard to some of the infant funds, further evidence was given. It appears that Bristol held a mortgage in trust for Mary A. Stewart. She came of age December 26, 1875, five days before his office expired. It is claimed that a few days before the 26th, Bristol received the money on this mortgage. She demanded it of him, and he failed to pay. It does not appear positively that the satisfaction-piece given in evidence was a satisfaction-piece of this mortgage. But assuming that it was so, the trust for Mrs. Stewart ceased before Bristol’s term of office expired. I do not think it can be held that his successor had any right to these funds. Perhaps Bristol might voluntarily pay them over to his successor, if for any reason he had been unable to pay, or had not paid, them to the person who had become absolutely entitled. But however that may be, as the trust had ceased, I do not see how the successor can claim to have the trust funds. The case is somewhat analogous to that of an ordinary trustee holding several distinct trust funds for several parties. If for any reason a successor should be appointed to such trustee, the successor would not succeed to the trusts which had expired. It might even be doubted whether, as to such trusts, the trustee could relieve himself from responsibility by any transfer to a successor. As to the Lamphin heirs, it appears that John and Prank were not of age when Bristol’s office expired. I am unable to see that there is any evidence showing that the investment held for them was not transferred to Bristol’s successor. This should be shown, in order to make Bristol and his sureties liable. In regard to the Wilson heir, the evidence is that a mortgage was given to the treasurer April 15, 1872, for $3,700; and that Bristol, on the expiration of his office, turned over to his successor only $2,160; that is to say, the original mortgage, on which it is said that only $1,860 remained due, and another mortgage of $300. It should be noticed, at this point, that there is printed in the case what appears to be an account between Bristol and Wilson which is in fact only a memorandum made up by a witness, and is not, as was stated on the argument, any part of the evidence. It is not, as might at first appear, an account rendered by Bristol. And the witness who produced it stated that he had no personal knowledge on the the subject. We are left, then, at the most, to the fact simply that the fund turned over to Bristol’s successor is less than the fund had been in 1872. I do not think that we can legally conclude from that fact alone that Bristol and his sureties are liable in this action. No evidence, so far as I can see, is given that the fund has not been applied to the infant’s support. And it is testified to by Bristol’s successor that no claim has been made by the infant to his knowledge.

We must bear in mind, throughout the consideration of this case, that this is not a mere proceeding to have an accounting by a trustee. It is an action brought for a violation of official duty against the parties to the official bond. And it seems reasonable, then that the plaintiffs should show such violation, and should not ask the court to presume that such violation has been committed. • These reasons, above given, lead to the conclusion, that the referee properly held that the cause of action was not proved as to the infant heir fund, leaving the parties therein interested to their several actions on the bond, if these funds have been misappropriated.

There remains to be considered the military fund. By the “Military Code” Laws of 1870, chapter 80, section 178, the comptroller is to draw his warrant on the state treasurer, in favor of the county treasurer, for a certain sum of money, for each regiment, etc., certified by the adjutant-general to be organized, etc. By section 182 the official bond applies to these moneys. The only proof on this branch of the case is, that the comptroller did draw his warrant in favor of Bristol to a certain amount, for certain military organizations in Tompkins county, specified in the warrant; and that Bristol received the money; and also that in another instance Bristol drew for another amount, stating it to be for the appropriation to a certain military organization. No evidence is given to show that the money was not paid by him to the propel’ organization. Nor is any proof given that any miiitary organization now claims the money.

I do not see how, on these facts alone, we can conclude that the treasurer’s sureties are liable in this • action. It is, perhaps, unnecessary to examine whether these plaintiffs could, in any case, maintain for their own benefit an action for such'moneys. It would seem that this money should be paid to the military organization by Bristol, and that possibly Bristol’s successor has no interest in it. It is, perhaps, neither county funds nor trust funds. But we need express no opinion on this point.

I think that in regard to this fund, also, the cause of action was not proved. If there be any military organization claiming this money, it should not be prejudiced by this result of this litigation.

Present — Learned, P. J., Tapean and Martin, JJ.

Judgment affirmed, with costs.


text:
    ANDREW BRITT, Respondent, v. LUCIUS LAWSON, Impleaded, etc., Appellant.

      One who indorses a negotiable note before delivery, liable as an indorser — Joint and, several note — demand must be made of each maker.
    In order to charge the indorser of a joint and several note, the makers not being partners, a demand must be made of each maker.
    The fact that one of the makers is the principal debtor, and the others sureties, does not authorize a demand to be made against the principal debtor alone,
    | unless the relation of the makers to each other appears on the face of the paper, or the indorser is proved to have had knowledge of it.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.
    The action was brought upon a joint and several note, signed by three persons, payable to the plaintiff or bearer, with interest, on demand, and indorsed by the defendant Lawson before delivery.

      The principal question was, whether a demand upon one of the makers was sufficient to charge the indorser, such maker being the principal debtor.

      Lounsbery & Childs, for the appellant.

      George Van Mfan, for the respondent.
   Learned, P. J.:

The defendant is to be made liable as indorser, (Hall v. Newcomb, 7 Hill, 416; Phelps v. Vischer, 50 N. Y., 75.) The case was tried on that theory.

There were three makers of the note, and it is proved that demand was made of only one. The defendant insisted that this was insufficient; the court held that it was sufficient, because this one was the principal debtor; and as it -was the several note of each, and the defendant was the indorser to each, therefore the demand was good.

This note was joint and several. (Edwards on Bills, 682.) In Union Bank v. Willis (8 Metc., 504), it is held that where there were two joint and several promisors (for such the parties were held in that case, see pp. 511, 512), who were not partners, a demand must be made on both, in order to charge the indorser. This case is approved, and the same rule is laid down in Gates v. Beecher (60 N. Y., 518, p. 523). The question, then, must be whether this case is taken out of that rule by the fact (stated by the learned justice) that the person of whom the demand was made was the principal, and the other makers were sureties. Nothing of this kind appears on the note; nor is there any evidence that the defendant knew of this fact before the time when notice of demand was served on him. And, at least, in the absence of such knowledge, the defendant may insist that the makers shall be treated as joint and several principals ; such as they appear to be on the note itself. It seems to us, then, that a sufficient demand was not shown. Did, then, the indorser, with knowledge of the facts by which he was discharged, subsequently promise to pay? (Edwards on Bills, 651.)

The defendant says that when he was served with the notice of non-payment, lie tolcl the plaintiff he had not been liable on the note for a long time; that he afterwards said to the plaintiff’s counsel, that if he was liable he would sue the makers the next day. Previous to the time of the. service of notice of non-payment, the defendant had a conversation with the plaintiff, in which he said he ivas not holden. But this could not be a waiver. The learned justice held that the defendant was liable on his own statement.

The testimony of the plaintiff is that, when he served the notice, the defendant said he “proposed” (i. e., supposed) he ivas not liable. The plaintiff’s counsel testifies that he had an interview with the defendant, in which the defendant told him that he thought he was not liable on the note at the first, but found out he was; and also that, in another interview, he said: “ As far as I am concerned, I will make no defense to the note; but if I have to pay it, I will pay it.”

This is the substance of the evidence as to promises by the defendant to pay. It will be seen that the promises to the plaintiff and those to his counsel were not made with knowledge that the defendant had been discharged. On the contrary, these promises were made in the belief or on the assumption that he was liable legally. He did not, therefore, waive a defense which he did not know that he possessed. Even if there was enough to go to the jury, with proper instructions, we do not think it could be held that the defendant was clearly liable on his own statement, as was laid down by the court; nor do we think that a verdict should have been directed for the plaintiff.

Some other questions are presented which Ave need not consider.

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

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

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


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    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THE ALBANY AND VERMONT RAILROAD COMPANY, Respondent.

      Action to dissolve a corporation — proper parties to — Code of Civil Procedure, § 452.
    Where an action is brought by the people to dissolve a corporation and forfeit its rights, privileges and franchises, one to whom it has leased property to be held during the term of its corporate existence, has no right to apply to be made a party defendant, under section 452 of the Code of Civil Procedure, in order to contest the forfeiture of its franchises.

      Semble, that, where one corporation has legally assigned some of its franchises to another, such franchises can only be annulled in an action against the corporation to which they have been assigned.
    Appeal from an order of the Rensselaer County Special Term, requiring the plaintiff to make the Troy and Boston Railroad Company a party defendant to this action.
    In and prior to the year 1860, the defendant owned and operated a railroad from the city of Albany to Eagle Bridge, in the county of Rensselaer. On or about the 1st day of January, 1862, the defendant leased to the Troy and Boston Railroad all that part of its line between Waterford Junction and Eagle Bridge.
    This action was brought by the Attorney-General to vacate the charter of the Albany and Vermont Railroad Company, lor a non-user of that portion of its line leased to the Troy and Boston Railroad. Shortly after the commencement of the action, the Troy and Boston road moved for an order that it be made a party defendant to said action, upon the ground that it was the lessee of a large part of the real estate of said Albany and Vermont Railroad, and that its title to such real estate would be destroyed in case the plaintiff should obtain the judgment asked for in the complaint.
    The motion was granted by the Special Term, and the plaintiff' appealed to this court.

      jEJ. W. Paige, for the appellant.

      Psek Cowen, for the Troy and Boston Railroad Company.
   Learned, P. J.:

This action was commenced in the name of the people by their Attorney-General, and with the leave of this court first had, to obtain a judgment, as expressed in the Complaint, that the defendant, a corporation of this State, has forfeited its 'corporate rights, privileges and franchises; that it be excluded therefrom, and that the Corporation be dissolved.

On the application of the Troy and Boston Railroad Company, the Special Term ordered that that company be made a party defendant; that the plaintiffs should amend the summons and complaint accordingly, and insert proper allegations in the complaint for that purpose, and.serve the same on that company, and that all proceedings should be stayed until twenty days after such service. The plaintiffs appeal.

The respondent insists that it is entitled to this order under the second sentence of section 452, New Code. This is section 122, subdivision 2, Old Code, amended. ' The respondent claims that in 1862, the Albany and Vermont Railroad Company leased to the respondent a portion of its railroad with the lands, superstructure and all property thereon, during such period as the said companies should continue railroad corporations, at the yearly rent of one dollar. By this lease the Albany and Vermont Railroad Company, the party of the first part, reserved at all times the right to abandon the demised road, in case it should become requisite in order to protect the party of the first part in the full enjoyment of the part not demised.

It was further agreed, that if the party of the first part should exercise these reserved rights without the same being requisite as aforesaid, it should incur no liability; and that the lease was executed entirely at the risk of the party of the second part, and without any covenant, express or implied, of the party of the first part. The party of the first part further agreed, on the expiration of the demise, to release to the party of the second part all its rights in the demised premises. Subsequently the Albany and Vermont Railroad Company did abandon, by amended articles, that part of their railroad.

This action is brought, under section 430, Old Code, which affords a substitute for the writ of quo warranto, and for information in the nature of such writ. (Section 428.) An information was properly, in its origin, a criminal proceeding. (4 Bl., 312.) And from this fact it may be seen that a suit of this kind is strictly a matter between the people and the corporation, which concerns no one else. The State granted the franchise, and the State seeks to annul it on the ground of forfeiture.

This is a subject with which no one has any concern but the State, and the corporation defendant. The right to be a corporation cannot be transferred by the body on which it is .bestowed. And, therefore, no other person than that body has a right to contest the question of forfeiture. A corporation, by making numerous contracts with different persons, cannot give them the right to contest an action brought by the State to annul the corporate rights for a forfeiture.

The position of the respondent is, that because it is a lessee of real estate belonging to the defendant, it has a right to be a defendant in this action. Would it be claimed that, if an action were brought by the people to annul the charter of a manufacturing corporation, every person who rented a tenant-house from it must, on request, be made a party ?

Again, the respondent insists that, inasmuch as its lease is to continue during the corporate existence of both companies, it has an interest in real property, the title to which may be affected by the judgment. In fact, however, by the very terms of the lease, on the expiration of the demise, the Albany and Vermont Railroad Company are to release the property to the respondent. And, therefore, so far as the agreement of the parties is concerned, the respondent's interests are not affected by the expiration of the lease. But suppose that the respondent is a lessee of property, which lease expires by its terms with the corporate existence of some corporation, may the respondent litigate with the State the question of forfeiture of such corporation ? ' Suppose that. this present lease, by its terms, were to continue during the corporate existence of Union College ?. If an action were brought1 to annul the charter of Union College, could the respondent claim to be made a party because its lease was to expire with the corporate existence of that college ? Clearly not.

And so, in this present case, neither as a mere tenant, nor as a lessee of lands by a lease which is to continue during the corporate .existence of this defendant, has the respondent any right, to interfere in the question here to be litigated. That is, whether the defendant has forfeited its franchises. Whether such forfeiture, if any should be found, can take away any rights of the respondent is a matter which must be tried in some other litigation.

If, by authority of some other statute, special or general, one corporation should legally assign some of its franchises to another, then it would seem that the franchises, thus legally assigned, could be annulled only by an action against the corporation to whom they have been assigned. Its rights would be unaffected by an action against the other corporation. So that, as it seems to us, if the respondent has legally acquired any franchises, these are not put in jeopardy by this action.

And, without passing on the question, we may further say, that generally the views expressed in Webster v. Bond, (16 S. C., N. Y., 437,) in regard to the application of section 122 of the Old Code should apply to section 452 of the New.

For these reasons, the order appealed from should be reversed, with $10 costs and printing disbursements.

Present — Learned, P. J., Boardman and Tapp an, JJ.

Order reversed, with $10 costs and printing, and motion denied, with $10 costs.


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    JAMES B. LATHAM and CORNELIUS FONDA, as Taxpayers, etc., Appellants, v. STEPHEN H. RICHARDS, President, etc., and the VILLAGE OF SARATOGA SPRINGS and others, Respondents.

      Action by tax-payer to restrain waste — chap. 161 of 1872 — supplemental complaint, ashing the repayment of moneys paid — when leave to file granted.

    This action was brought by two tax-payers of Saratoga Springs, under chapter 161 of 1872, to restrain the trustees from carrying out a contract entered into for the purchase of certain land, to be paid for largely by paying off mortgages thereon, and from levying a tax to raise money therefor. After the commencement of the action, and before the granting' of a preliminary injunction, a portion of the tax was collected and paid over to the owners of the mortg'ages. Plaintiff then applied for leave to file a supplemental complaint, setting forth these facts, and asking not only to restrain a further levy, but to compel those of the defendants who had received money to pay it back to the village.

      Held, that the application should have been granted.
    Appeal from an order of the Schenectady County Special Term, refusing leave to the plaintiffs to file a supplemental complaint in this action.
    On the 10th day of May, 1877, the board of trustees of the village of Saratoga Springs passed a resolution, appointing a committee to purchase a certain parcel of land, known as the I! Waring Farm,” for the purposes of a village cemetery. On the 11th of May, 1877, the defendants, Daniel H. and James II. Deyoe, the owners of said land, executed to the village a conveyance of said land.for the consideration of $12,136. The village, as part of the purchase-money, assumed the payment of certain mortgages on the premises to the amount of $9,250. On or about the 11th day of June, 1877, this action was commenced by the plaintiffs, as taxpayers of; the village of Saratoga Springs, to restrain the village from paying any money upon the above purchase, upon the ground that they had incurred the expenditure without first levying a tax to pay the same. A motion was made before Judge Landon for.a temporary injunction, and the same was denied. Another motion was made on additional papers, and also denied. The plaintiffs then appealed from the two orders of Judge Landon to the General Term, which reversed them and directed an injunction to issue (12 Hun, 360.) After the decision of Judge Landon, and before the reversal by the General Term, the village raised by taxation the sum of about $10,000, which it has applied to the payment of some of the mortgages on the property, and to preparing theland for a cemetery. This motion was made for leave to file a supplemental complaint, alleging the collection and disbursement of this money, for. the purpose of recovering it back from the several parties to whom it has , been paid.

      A,: Pond, for the appellants.

      Eselc C'owen, for the respondents.
   Learned, P. J.:

This action was brought to declare certain acts of the defendants void, and to restrain them from doing certain other acts in completion and furtherance of - the acts already done. When the' • case was before this court on a former appeal, it ivas held that a temporary injunction pendente lite ought to be granted. It now appears, by the affidavits on the part of the plaintiff, that after the commencement of the action, but before this court had-decided that an injunction pendente lite ought to be granted, the defendants, or some of them, proceeded to do, and did, certain of the acts which this action was brought to restrain, and which would have been restrained, if the injunction had been granted when the action was commenced. These acts are in completion and furtherance of those which had been done before the action-was commenced, and which were the ground of its commencement.

The plaintiffs now ask leave to file a supplemental complaint', setting forth the acts done since the commencement of the action, and asking not only the original relief, but also-such relief-as will redress the alleged injury done since the action was commenced. The motion was refused by the ■ Special Term, and the plaintiffs appeal.

Aside from anything that may be considered peculiar in this action, this leave to file a supplemental complaint would seem to be almost-a matter of course in the sound discretion of the court. (2 Barb. Ch. Pr., 67.) If the original bill is sufficient for one kind of relief, and facts afterwards occur which entitle the complainant to other or more extensive relief, he may file a supplemental bill. (Candler v. Pettit, 1 Paige, 168; New Code, § 544; Old Code, § 177; Hasbrouck v. Shuster, 4 Barb., 285; Sage v. Mosher, 17 How. Pr., 367, 370.) Such being the general rule, as well of the new as of the old practice, the opposition to the motion in this case must rest on the peculiarity , of the action and of the amendment.'

The action is brought by two .tax-payers, who sue as well for themselves as for other tax-payers. It is authorized by chapter 161 of the laws of 1872: The-complaint alleges that the trustees of the village of’Saratoga Springs made a contract to purchase, a certain farm for certain purposes; that a deed was executed therefor; that a large part of the consideration was the payment of mortgages, and that the trustees are proceeding to lay a tax to pay for said land. The complaint avers, for reasons therein stated, that the purchase was void and illegal, and seeks to restrain the levy of the tax. The supplemental complaint alleges that since ■the commencement of the action this tax has been levied, and part of the amount levied has been paid to some of the defendants on the purchase- by the trustees; and it asks not only to restrain any further levy and to declare the purchase illegal, but .also to have a restitution made by the defendants who have received the money, to the village of Saratoga Springs.

The defendants now insist that the statute, above cited, authorizes only actions to restrain improper payments; and that, after such payments shall have been made, no action can be maintained by a tax-payer to compel payment of the money to the municipal corporation.

I do not think that, on a motion for leave to file a supplemental complaint, the court should be called upon to examine, with care, the question whether the new facts constitute a cause of action. .The defendants suggest that the plaintiff may bring a new action. But certainly there is no reason why this should bo done, when the new facts grow out of the original transaction and arc a continuation of it. It is not desirable that the court should, in this collateral matter, pass on the right of action. As a general rule, the plaintiffs should be allowed to set up new facts which are really a part of the original matter. The defendants urge that no action is known to the. law brought by a party, with no title to a fund, to compel one defendant to pay such fund to another.

This statement may be true, if limited to parties who have no interest, beneficial or otherwise, in a fund. But it seems to be too broad, if it is to have a wider meaning. When officers of a corporation have fraudulently or illegally transferred property, an action has been maintained by a stockholder, making the corporation defendant, to recover for the corporation the property wrongfully transferred. This is for the obvious reason that if the officers have transferred property wrongfully, they will not probably .seek to recover it back. (Gray v. Chaplin, 2 Sim. & Stu., 267; Gray v. N. Y & Virg. Steamship Co., 10 S. C. N. Y., 383, and cases there cited.) The general doctrine is recognized in Davenport v. Dows (18 Wall., 626). These cases differ from that which the plaintiffs ask to present, in this respect, that this corporation is municipal.

Previously to the act of 1872, it had been held that a municipal corporation, in the management of its property, exercised a public function. For that reason a tax-payer could not bring an action to restrain or redress a wrongful application of property.

(Roosevelt v. Draper, 23 N. Y., 318.) That- act was passed “to' remedy the felt defect in the law and give the tax-payer a concurrent action with the corporation for the prevention or correction of the wrongs mentioned in the act.” (Ayers v. Lawrence, 59 N. Y., 192 at 196.) And it cannot be doubted that in an action to restrain the officers of the village, the other parties to the alleged illegal contract might, and probably should, be joined.

Now, this act has taken away the very basis of the decision in Roosevelt v. Draper, and has permitted municipal officers to be sued by a tax-payer in such cases. The act does not say that only actions for injunction may be maintained. The previous decisions had no reference to the kind of action which might be brought. They were decisions as to the incompetency of a party, as taxpayer, to sue. This statute is “ for the protection of tax-payers.”. The words, “ actions to prevent waste or injury,” should not have a narrow meaning. “We have no right to give a hypercritical interpretation to a benign act designed for the protection of the tax-payer,.in favor of the wrong-doer.” (Ayer v. Lawrence, ut supra.) At least we ought not to say that it is so clear that a tax-payer may not have a judgment in such a suit compelling the wrong-doer to refund, that we will not permit him to set up the necessary allegation by a supplemental complaint.

The order should be reversed, with $10 costs and printing, and the plaintiff’s motion should be granted.

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

Order reversed, with $10 costs and printing, and leave to serve supplemental complaint granted.


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    MARGARET CARPENTER, Respondent, v. NANCY WELLER, as Administratrix, and ALFRED A. WELLER, as Administrator, of JACOB MOORE, Deceased, Appellants.

      Where relatives live as one family, claims for savices not maintainable — husband entitled tti sei-vices of wife.

    The plaintiff and hex* husband lived fox1 twenty-three years with, and in the house of, the deceased, her brothex-, a farmer. She assisted in the ordinax-y , woi'k of the house, .and in milking the cows, and in the dairy; she and her husband and childx-en all living together in her bi’Other’s house as one family. This action was brought by hex-, after her bx’Other’s death, to recover from his admisti-atoi's the value of' her services thus rendei'ed dux-ing the px-evious six years.

      Held, that, as no promise or agreement of the brother to compensate her for her services was shown, she could not recover.

      Held, fux-ther, that, as she was a married woman, and her husband had not released his right to her services, she could-not maintain an action to recover the value thex-eof.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The respondent presented to the appellants a claim against the deceased, consisting of a note executed by the intestate in his lifetime to her, and the accrued interest thereon, on which note there was unpaid, $455.68; also a claim for money received for respondent by the intestate, on the sale of a house owned by her, and interest thereon, $121; also for a school tax paid by respondent, $7.55; and for six years’ services as housekeeper for the intestate, $900; amounting in the whole to $1,484.23.
    The claim was rejected by the appellants, except as to $128.55, being the second and third items.
    The parties then, pursuant to the statute, referred the matter, and the referee, after hearing the proofs, etc., reported in favor of the plaintiff for the amount of the claim and the accrued interest, not, however, allowing interest on the claim for' services. The report was confirmed at Special Term.

      George II. Decker, for the appellants.

      A. O. and T. A. Niven, for the respondent.
   Learned, P. J.:

The plaintiff, now over sixty years old, and her husband lived for twenty-three years with the deceased, her brother, and a bachelor, in his house. Her children also lived there, and sometimes her grand-children. The deceased was a farmer. She. did ordinary work in the house; she helped in the work of the farm by milking cows and aiding in the dairy; she and her husband and children, and at times other relatives, inmates of the house, all lived together as one family, according to her own statement. There was never, so far as appears, any promise or agreement of any kind made by the deceased to compensate her for her services. At last, the brother died, and then the plaintiff presented a claim that she should be paid for six years’ services, any longer claim being, of course, barred by the statute.

The rule Of law in such 'cases is the plain dictate of common sense. (2 Parson’s Cont., 46; Williams v. Hutchinson, 3 Comst., 312.) When parties'live together in such manner as the evidence in this case discloses, each is every day doing services for the other; each, too, is receiving every clay from the others all the compensation which is expected. Such persons are not working for future pay; and they do not in fact expect it. No one for whom the services arc rendered, expects that pay will ever be demanded. Very often the compensation which is received from clay to day, in daily living, is far more than the services are worth. And the person rendering the services would consider it a great hardship not to be allowed to continue in the family. And often the claim for compensation springs up only after the death of the person on whose estate it is made. When, after twenty-three years of such living together as one family, a claim, never before heard of, is made, there is the strongest presumption against its validity. It must be sustained, if at all, by positive proof of an agreement to pay for the services, sufficient to overcome the presumption that the services were fully compensated every day by the benefits received. Mere performance of the services is not enough. It must be affirmatively shown that there was an agreement to pay for them.

In that respect the proof hr this case totally fails. Furthermore, the circumstances show affirmatively that the plaintiff never expected any payment, other than such as she was constantly receiving. These circumstances have been already, in part, briefly stated. There is the further circumstance that the plaintiff' held a note against the deceased. We may suppose that if she had really had this large claim for services, she would have obtained some note or memorandum for that also. '

There is another objection. The plaintiff is a married woman; her husband was entitled to her services and her earnings. He had not relinquished his claim to them; nor was she carrying on a business for herself. She was doing the ordinary work done by women in similar circumstances in a household, of which household her husband was a part. (Beau v. Kiah, 4 Hun, 171.)

The judgment must be reversed, a now trial granted and the reference discharged, without costs of appeal to either party; unless the plaintiff in twenty days stipulates to deduct from, the recovery $900. If she so stipulate, the judgment on the reduced amount is to be affirmed, without costs to either party.

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

Ordered accordingly.