text:
    GEORGE S. HAZARD AND FRANK W. FISKE, Respondents, v. JOSIAH M. FISKE, GEORGE W. SMITH AND ARTHUR D. FISKE, Appellants.

      Factors’ act — chattel' 179 of 1830 — construction of.

    Section 1 of the factors’ act (1830, chapter 179) providing- that every person, in whose name any merchandize shall he shipped, shall be deemed the true owner, so far as in certain cases to give the consignee a lien thereon for advances made by him, only applies to those cases in which the owner consents to the shipment being made in the name of a third person.
    The mere neglect of the true owner to fortify his position, by taking all precautions against a fraud upon his rights and title, is not equivalent to a voluntary consent on his part to the sale or other disposition of the property by a person who assumes to control it for such purposes under color of a fraud.
    Section 8 of the said act, protecting persons dealing with “any factor or other agent entrusted with the possession of any bill of lading,” etc., does not apply to those cases in which the possession of the goods, or of the evidences of the title thereto, is obtained in hostility to the right, and without the consent of the owner.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      William II. Oreen, for the appellants.

      Sherman S. Rogers, for the respondents.
   Talcott, P. J. :

This is an appeal from a judgment rendered at a circuit m Erie county on the verdict of a jury in favor of the plaintiff, and also from an order entered denying a new trial on the minutes.

The facts present one of the cases in which Ozias L. Nims, a grain speculator in Buffalo, had obtained the possession of 18,503 bushels of corn in fraud of the rights of the plaintiffs, who had advanced money upon the bill of lading to enable Nims to pay a draft from Chicago, which came to Buffalo attached to the bill of lading of the corn, issued at Chicago by the master of the schooner Czar. Several similar cases have appeared in the courts under various aspects and involving different questions, some of which are reported as follows : (M. and T. Bank v. Farmers and Mechanics’ Bank, 60 N. Y., 40; Marine Bank v. Fiske, 71 id., 353; Farmers and Mechanics’ Bank v. Erie R. R. Co., 72 id., 188.) It appears in substance in this case that Nims (who was in partnership with David Long), doing business under the name and style of “ O. L. Nims, agent,” had directed one J. B. Lyon, who was the agent of Nims at Chicago, to purchase for the firm of O. L. Nims, agent, 24,000 bushels of corn, which Lyon did, and shipped the same on the schooner Czar, on account of said Lyon, to the care of O. L. Nims. To raise the money at Chicago to pay the price of the corn, Lyon drew h;s draft on O. L. Nims for $12,610.59, payable to the order of the cashier of a bank in Chicago, attached the same to the bill of lading issued by the master of the Czar. Lyon delivered the bill of lading, with the draft attached, to the said bank, which discounted it, and sent the draft with the bill of lading forward to a bank at Buffalo for collection. The draft and bill of lading arrived at Buffalo on the 30th «day of October, 1871, and on that day the plaintiffs, also grain dealers at Buffalo, at the request of Nims, and as a loan or advance on the cargo of the Czar, loaned to Nims $12,600, with the agreement that they should hold the bill of lading as collateral security for the repayment of the money, and took from Nims a receipt and agreement as follows:

“ Buffalo, October 30, 1871.
“ Received of G. S. Hazard & Co., $12,600 advance on 2400 bushels corn. Schooner Czar. Bill of lading held as collateral. $12,000.”
“ O. L. NIMS, Agent.
“Per LEWIS M. EVANS.”

At the time the receipt was given the bill of lading and certain certificates, evidencing the fact that the said cargo was insured, -were handed to Hazard & Co., and they gave Nims the $12,600 by their check.

The bill of lading was indorsed by “ O. L. Nims,” and by O. L. Nims,” agent.

The schooner Czar, with its cargo, arrived at Buffalo on the seventh or eighth of November following the transfer of the bill of lading. According to the custom and ordinary course of business, the master of the schooner would seek out the person to whose care the cargo was consigned, and deliver it to him, or put it into such elevator as he should direct, and there was a custom amongst grain dealers at Buffalo that when advances were made on a cargo of grain and the bill of lading assigned, the consignee should procure the elevators warehouse receipt in the name of the person to whom the bill of lading was assigned, and the assignee generally intrusted the performance of that duty to the general owner of the grain, though, in some instances, those who had made advances on cargoes gave notice to the proprietors of the elevator that the warehouse receipt must be made out to the party to whom the bill of lading was assigned. In this instance the master, having notified Nims of the arrival of the cargo, was directed by the latter, with the assent of the plaintiffs, to deliver the cargo into an elevator known as the “ city elevator,” and he did so, taking a warehouse receipt, known as an “ elevator ticket,” for the same. The master then took the “ elevator ticket ” to the office of the “Western Elevating Company,” who then had chax-ge of the running of several elevators in Buffalo, and procured the warehouse receipt of the Western Elevating Company for the said cargo of corn, by the indorsement and delivery of the “ elevator ticket ” to the company, which warehouse receipt certified that said company had received said cargo in store, subject to the order of O. L. Nims. This warehouse receipt the master took to the office of Nims, and delivered to him on being paid his freight.

By some neglect or inadvertence the plaintiffs never got possession of the warehouse receipt, and Nims, without the consent or knowledge of the plaintiffs, being enabled by means of the warehouse receipt delivered to him by the master, caused the com to be shipped on four canal boats, after mixing it with other corn belonging to him consigned to the defendants, constituting the firm of “ J. M. Fiske & Co.,” commission grain dealers in Now York, and obtained from the master of each of said canal boats a canal shipping bill or bill of lading, consigning the corn embraced in that cargo to the care of said J. M. Fiske & Co., New York, and drew his draft on J. M. Fiske & Co., against each of the said canal cargoes, attached the draft in each case to the canal shipping bill, and procured the several drafts to be discounted at some one of the Buffalo banks and received the money.

The said several drafts were sent to New York for collection, and were presented to and paid by said J. M. Fiske & Co., without any notice of any claim on the part of the plaintiffs to the said corn or any part thereof.

Thus it appears that by the neglect of the plaintiffs to give notice to the elevating company that they (the plaintiffs) were the assignees of the bill of lrding for the corn shipped on board the Czar, or seeing to it that the warehouse receipt was issued in the name of the plaintiffs of delivered to the plaintiffs, Nims was enabled, tortiously and fraudulently, to get the actual possession of the corn, and to obtain from the defendants, Fiske & Co., an advance thereon of nearly the full value thereof, and the question presented by the case is, whether, by the neglect of the plaintiffs to take any of the precautions specified, they have been deprived of their title to the corn, and are debarred and estopped from reclaiming the same as against J. M. Fiske & Co., by the factors’ act or otherwise.

The plaiutiffs, by the indorsement and delivery of the bill of lading of the schooner Czar for a valuable consideration, became, in judgment of law, the possessors of her cargo of corn, as the pledgees of Nims, the general owner. The transfer -of the bill of lading transferred the possession of the cargo, and the possession of the carrier thereafter became the possession of the plaintiffs, who thus became the pledgees and special owners thereof. (Manuf and T. Bk. v. Farmers and M. Bk., 60 N. Y., 40; Marine Bk. v. Fiske, 71 id., 353.)

The general owner had not the possession or the right to the possession,- or to dispose of, or to control the com. Any possession which he might obtain or dominion he might exercise over it, without the assent of the plaintiff, would have been tortious, and he could transfer no title to another. (Marine Bk. v. Fiske, 71 N. Y., 357, and cases cited.)

It is quite apparent, then, that, as between the plaintiffs and Nims, the latter did not and could not acquire any title to the cargo by neglecting to take out the receipt of the elevating company in the name of the plaintiffs, or by omitting to hand it over to the plaintiffs, which good faith and the customary mode of transacting that kind of business required Nims to do, and the only remaining question is whether Fiske & Co. acquired a title to the corn as against the plaintiffs, by having' in good faith advanced on the corn contained in the canal boat cargoes. The statute known as the “Factors’ act” (Laws of 1830, chap. 179) provides in the first section thereof that every person, in whose name any merchandize shall be shipped, shall be deemed the true owner thereof, so far as to'entitle the consignee of such merchandize to a lien thereon. 1. For any money advanced or negotiable security given by such consignee, to or for the use of the person in whose name such shipment shall have been made. But it has been held in various cases that this applies only to cases where the shipment in the name of another person is made by, or with the consent of the owner. (Covill v. Hill, 4 Den., 323; First Nat. Bk. of Toledo v. Shaw, 61 N. Y., 283; Saltus v. Fverett, 20 Wend., 267.) The third section of the Factors’ act provides : “ Every factor or other agent intrusted with the possession of any bill of lading, custom house permit' or warehouse keepers’ receipt for the delivery of any such merchandize, and every such factor or agent not having the documentary evidence of title, who shall be intrusted with the possession of any merchandize for the purpose of sale, or as a security for auy advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person, for the sale or disposition of the whole or any part ..of such merchandize, for any money advanced, or negotiable instrument, or other obligation in writing, given by such other person upon the faith thereof.”

This third section also contemplates that the party who has assumed to act in disposing of the merchandize should have been “ intrusted1’ with the possession of the documentary evi--deneos of title, or with the goods themselves, for the purpose of sale, etc., and does not extend the protection of the act to cases in which the possession of the goods or evidence of title thereto shall have been obtained in hostility to the right and to the consent of the owner.

It appears to be well settled that unless the usual indicia of ownership have been conferred upon the party who assumes to sell, dispose of, or consign the merchandize, by the true owner, or with . his consent, such owner is not prevented from pursuing his title, even as against a bona fide purchaser or lienor. (Barnard v. Campbell, 55 N. Y., 456; Ballard v. Burgett, 40 id., 314; Austin v. Dye, 46 id., 500; Dows v. Perrin, 16 id., 325.)

It docs not appear that the plaintiffs had any knowledge that the master of the Czar had taken the warehouse receipt in the name of Nims, or that Nims had retained the possession of it. On ■ the contrary, it appears that the plaintiff supposed the warehouse receipt, which had been taken, was in their safe and in their possession, until after the fraud upon them had been perpetrated by Nims.

None of the cases, so far as we have been able to examine them, hold that the neglect of the true owner to fortifying his position, by the taking of all precautions against a fraud upon his rights and title, would be equivalent to a voluntary consent on his part to the sale or other disposition of the property by a person who should assume to control it for such purposes under color of a fraud which, at all events, so far as its moral qualities are concerned, amounted to a larceny of the corn. In the case of Voorhis v. Olmstead (66 N. Y., 113), the plaintiff had voluntarily consented that the warehouse men should give the warehouse receipt to Bidde & Co., as owners, and thus invested them with the possession and the usual documentary evidence of title, and it was this voluntary consent which enabled the warehouse and security com-paiiy to hold a lien for its advances.

True, the defendants claim that what passed between Nims and one of the plaintiffs, about the time of the arrival of the cargo, amounted to a consent that Nims should sell or ship the corn, or should take it into his possession, but the conversations referred to are easily explained upon the idea that they were based on the assumption that before any of these things were to be done Nims was, as in former instances, to reimburse the plaintiffs for the advance of the $12,600. And the jury have, by their verdict, found in effect that the plaintiffs did not consent that Nims should take any ¡possession of the corn without payment of their advances. The various requests of the defendants' counsel to charge were, in 'effect, to instruct the jury upon the evidence in the case, as matter of law, that the defendants were entitled to recover, and would have been erroneous if we are correct in the view we have taken of the case.

As to the conversion, it was sufficiently shown that the defendants had sold the corn before the commencement of the suit.

On the whole, in regard to the rights of the respective parties, we cannot distinguish this case in principle from the case of The Marine Bank v. Fiske (71 N. Y., 353), where it was held that ‘ ‘ the owner of property, which has been tortiously taken from him, is not estopped from reclaiming it by the fraudulent act of the tortious taker, to which he was not a party, and which ho in no way aided; to create an estoppel he must have enabled the wrongdoer to perpetrate the fraud.”

The judgment and order denying a new trial are affirmed.

Smith and HaediN, JJ., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Talcott, P. J.:

license: Public Domain

text:
    EDWIN A. SWETTENHAM, Respondent, v. WILLIAM E. LEARY, Appellant.

      Declarations of one in possession of land — admissibility of— adverse possession — title to what land may be claimed by — Practical location of boundary line — how established.

    Declarations of a party as to the title claimed by Mm are admissible as evidence if made while lie was in possession of the premises in dispute, and it is not necessary that they should have been made wMle he was actually upon the land.
    One who has entered into possession of and occupied certain premises under a deed, and who has inclosed .the same with a substantial fence, is entitled to claim a title, by adverse possession, to the whole of the premises so inclosed, though a portion thereof is not included in the land described in the deed.
    To establish the practical location of a boundary line, it is not requisite to prove an actual agreement, but acquiescence in its location, even if erroneous, with occupation in accordance with it, for a sufficient length of time to ban an entry, will suffice.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      J. A. Pathway and A. Perry, for the appellant.

      N. W. Putting, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment on a verdict for the plaintiff, directed at the Oswego circuit, and from an order denying a new trial.

The action is ejectment to recover a strip of land sixteen inches wide and one hundred feet long, situated on the south side of Cayuga street, in the city of Oswego. The parties owned adjoining lots, the lot of the plaintiff being west of that claimed by the defendant. Both parties traced their titles back for nearly forty years to a common source. It appeared that the defendant, and those under whom he claimed, had been in possession of the lot occupied by him, including the strip in controversy, for more than thirty years, as we understand the case, having a part of it covered by buildings and the whole inclosed by a substantial fence ; and the plaintiff, and those under whom he claimed, had been in possession of the lot next west of the strip in dispute for a like period. After some evidence had been given concerning conflicting surveys, in respect to the boundaries of the said lots, the following circumstances occurred on the trial, the defendant Leary being under examination as a witness in his own behalf. “ Question. You always claimed and supposed you owned the premises between all the fences, did you not ? ” Witness. “ I always claimed it as mine.” Objected to; objection sustained. The court. You may show by the witness what he stated he claimed there, if he did state it to anybody while he was in possession. Question. ‘ ‘ What was your claim while in possession of those premises ? ” Objected to ; objection sustained and excepted to by defendant. The court. He may state what he himself has said to anybody while upon his own premises. Exception taken by defendant’s counsel. Question. “ You held these premises under this claim of title, did you, this deed ? ” “ Yes, sir.” “ And that is the only claim you rested upon; that was your claim exclusive of any other right; you held exclusively under your paper title?” “Yes, sir. I held that I owned up to that fence.” Question. “ From fence to fence ? ” Objected to. The court. “ I think you may as well stop right here. The witness swears that he claims under this deed. There is no adverse possession here. You may give in evidence anything to show that the line of your lot is further to the west than the survey makes it, but you have no adverse possession in this case.” The defendant’s counsel excepted to the ruling. The evidence closed. The court. “ As the case now stands, with the boundary lino established by the survey made by the surveyor, there is no question to go to the jury.” The defendant’s counsel requested that the case be submitted to the jury, as to the quéstion of the true line of practical location ; of adverse possession; but the court overruled these requests and directed that the jury find a verdict for the plaintiff for the land described in the complaint; to which the defendant excepted.

We think there were several errors committed by the court.

In the first place, the court seems to have confined the evidence of the defendant’s claim of title to declarations which may have been made by him while actually standing on the land in question. The rule is, that declarations on this subject are admissible, if made whilst the parties so declaring is m possession of the premises in dispute. (Abeel v. Van Gelder, 36 N. Y., 513.) And it is not essential that they should have been made on the laud. (Smith v. McNamara, 4 Lans., 169.)

The court seems also to have held that a person who entered and claimed title under a deed could not claim, by adverse possession, any land not lying within the boundaries given in the deed under which. he entered ; whereas, the rule of law, as wo understand it, is, that a party, in the actual possession of a part of a lot, may claim, under certain circumstances, title by adverse possession of such portions of the same lot as lie within the boundaries described in his deed, though the same have not been actually occupied by him by a pedis possessionem. And such seems plainly to be the effect of the provisions of the statutes of limitation relating to real estate. (2 R. S., 294, §§ 9, 10; Code of Civil Procedure, §§ 82, 83.) Especially subdivision, § 10, cited from Revised Statutes, and subdivision 4 of § 83 of the Code, which provide that “where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed, according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.”

“ There is no doubt that actual occupancy and a claim of title, whether such claim be by deed or otherwise, constitute a valid adverse possession to that extent. But when a party claims to hold adversely, a lot of land, by proving actual occupancy of a part only, his claim must be under a deed or paper title. This distinction has been uniformly recognized and acted upon by this court.” (Jackson v. Woodruff, 1 Cow., 276, 287.) In the case last cited, there is a reference to the case of Jackson ex dem. Dervient v. Lloyd, decided in October, 1820, but not reported. It appeared that tho defendant had a deed for lot No. 4, but took possession of lot No. 5, believing it to be his lot and claiming it as such, and it was held that the defendant could not establish an adverse possession to tbe whole lot, by the actual improvement of a part, because no part of number five was included in the deed.

To make the possession of land adverse, so as to avoid a deed, under the statute of champerty, such possession must be under claim of some' specific title. A general assertion of ownership,^ irrespective of any particular title, is insufficient. Otherwise, it seems, in respect to adverse possession for the purposes of the statute of limitations. (Crary v. Goodman, 22 N. Y., 170, and cases cited.)

"Where it appears that there has been an actual and continued occupation of premises, under a claim of title, exclusive of any other right for a period of twenty years, the occupier may defend an action to recover the possession of the premises so occupied, whether he has a deed of premises adjoining those so occupied or not; and even though his entry and claim of title was under the mistaken supposition that the premises so occupied were included within the boundaries described in his deed.

As- wo understand this case, it .appears that the defendant had built upon a part of the sixteen inches which the plaintiff now claims, and that the whole of it had been protected by a substantial inclosure, and had been actually occupied by the defendant, claiming to own the same for upwards of twenty years. We think, therefore, the defendant was right in insisting on submitting to the jury his title by adverse possession.

We think, also, there was sufficient evidence to go to the-jury on the question of a practical location of the line between the two lots. Where there has been a practical location of a line which has been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations, or the erroneous line has been agreed upon between the parties claiming the land on both sides thereof, or the party whose right is to be thus barred has silently looked on and seen the other party doing acts, such for example, as erecting a building, or subjecting himself to .expenses in relation to the land on the opposite side of the line, which he would not have done if the line had not been so located, as we understand the authorities, a party in occupation up to the erroneous line may defend an action to recover the land, though the line is shown to have been erroneously located. (Rockwell v. Adams, 6 Wend., 467; Corning v. Troy Iron and Nail Factory, 44 N. Y., 577; Jones v. Smith, 64 id., 180, 184, 185; McCormick v. Barnum, 10 Wend., 104; Smith v. McAllister, 14 Barb., 434.)

We think, therefore, there was evidence to go to the jury on the question of a practical location of the line between the parties to the suit or their predecessors in the title, and that it was not necessary to prove an actual agreement, but acquiesence in. the location, even if erroneous, for a sufficient length of time to bar an entry, with occupation accordingly, was sufficient.

The judgment and order denying a new trial are reversed and a new trial ordered, costs to abide the event.

Smith and Hardin, JJ., concurred.

Ordered accordingly.


author: Hardin, J. :

text:
    HOMER COOK and others, COMMISSIONERS OF HIGHWAYS OF THE TOWN OF PAVILION, Respondents, v. ICHABOD W. COVIL, Appellant.

      Encroachment upon highways — proceedings to remove — requisites of the notice to the occupant — whether a ham as well as a fence may he removed.

    Where proceedings to remove an encroachment of fences upon a highway are instituted under the provision of the Revised Statutes, as amended by chapter 125 of 1870, the notice must specify the breadth the highway was originally intended to have had.

      Quarce, whether, whore the encroachment is caused by a ham and not by a fence, proceedings to remove it may be instituted thereunder.
    Appeal from a judgment of the County Court of Genesee county, affirming a judgment of a justice of the peace, entered upon a verdict of a jury finding an encroachment by the defendant upon a highway.
    The commissioner of highways, of the town of Pavilion, made an order, and gave a notice in respect to an alleged encroachment. The defendant denied the encroachment, and a jury was summoned in the justice’s court, and certified the particulars of said supposed encroachment.

      The defendant appealed to the county court, which affirmed the judgment, and the defendant thereupon appealed to this court.

      Q. F. Bissell, for the appellant.

      Myron II. Feck, for the respondents.
   Hardin, J. :

The one hundred and third section of the Revised Statutes, relating to encroachments upon highways, was amended by chapter 125 of the Laws of 1870 by inserting after the words “laid out,” in the first line, the words “ or ascertained, described and entered of record, in the town clerk's office.”

Prior to such amendment it was held that proceedings under the Revised Statutes, in respect to encroachments, did not apply to highways established by prescription. (Doughty v. Brill, 36 Barb., 488; S. C. affirmed, 3 Keyes, 612; Marvin v. Pardee, 64 Barb., 359.) The original section, and the section as amended, provides that where a highway “shall be encroached upon by fences, erected by any occupant of the land through or by which' such highway runs,” the commissioners may order such fences to be removed so that such highway may‘be of the breadth originally intended.

The section also provides that they shall give notice, in writing, to the occupant of the land, to remove * * * fences within sixty days. (Act of 1870.) It also provides, “ every such order and notice shall specify. (1st.) The breadth of the road originally intended. (2d.) The extent of the encroachment. (3d.) And the place or places in which the same shall be.” The order and notice must comply with these provisions of the statute. (Spicer v. Slade, 9 John., 359; Mott v. Comrs. of Highways of Rush, 2 Hill, 473.) NelsoN, J., in that, the last cited case points out; clearly the reason -why the statute should be strictly observed. (See, also, Talmage v. Hunting, 39 Barb., 654; S. C., affirmed, 29 N. Y., 447.)

The commissioners must ascertain “ the breadth of the road originally intended.” That ascertainment is independent of the proceedings against the occupant to compel the removal of an encroachment.

Their power is to ascertain the extent of the road, as the same has become established by .user for more than twenty years. (Talmage v. Hunting, 29 N. Y., 447.)

The survey made and filed in May, 1836, in the town clerk's office of Le Roy, only gives a center line, and contains nothing upon the subject of the breadth of the road.

The order made by the commissioners June 9, 1877, requires the supposed encroachment to be removed “ so that such highway may be the breadth of three rods wide.” That is all it contains in respect to the breadth of the road. It contains no specifications of “the breadth of the road originally intended.” The notice served refers to the order, and does not state anything in respect to “ the breadth of the road originally intended.”

The order states a center line of the highway, and then specifies that “ the road is encroached upon' by the wall of Ichabod Covil to the extent of twenty-nine and a-half links at the west line of said Covil’s farm, and at the east end of said wall two and a-quarter links, and by barn and barn-yard fence fourteen and a-half links on the south said road.”

The order was defective, because it did not specify the breadth of the road originally intended. It may be observed that the words, “ and by barn and barn-yard fence fourteen and a-half links on the south said road,” are indefinite and uncertain. So, too, it may be observed that the statute under which the proceedings were had only refer to encroachments by fences, and it may be doubted whether the encroachment, if any of the barn, is such an one as can be removed by proceedings under the statute. (Chap. 125 of Laws of 1870.)

We must reverse the judgment of the county court, and of the justice, and the proceedings before the jury.

Talcott, P. J., and Smith, J., concurred.

Judgment of the county court and proceedings before the justice reversed, with costs.


author: Hardin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN T. JOYCE AND JOHN T. JOYCE, Appellants, v. FRANK BRUNDAGE, Respondent.

      Comity judge— expiration of term by disability of age — election of successor.

    A county judge, elected in 1873, fib-d a certificate with the Secretary of State, stating that he was then sixty-five years old, and that his official term would expire on the last day of December, 1878, by reason of the disability of age prescribed by the Constitution.

      Sold, that a county judge was properly elected at the general election held in November, 1878, and that there was on January 1, 1G79, no vacancy in that office which could be filled by the governor.
    Appeal from a judgment in favor of the defendant, entered ■upon the trial of this action by the court without a jury.
    This action was brought to obtain a judgment ousting the defendant from the office of county judge of Niagara county, and declaring that the relator was such county judge, and as such entitled .to exercise said office, and receive and enjoy the emoluments thereof.
    At the general election in November, 1873, Levi F. Bowen was elected county judge of Niagara county, and entered into said office January 1, 1874. He became seventy years of age November 11, 1878, and ceased to hold said office December 31, 1878.
    On March 8, 1879, the governor appointed and commissioned the relator county judge “to fill the vacancy in that office, caused by the arrival of Levi F. Bowen at the age of seventy years prior to the first of January last,” and on the 10th day of March, 1879, the relator filed his oath of office as such judge with the county clerk.
    At the general election held November 5, 1878, in pursuance of a notice in the ordinary form by the secretary of State, the electors of Niagara county voted for a person to hold the office of county judge from the 1st day of January, 1879, and the defendant received a plurality of the votes so cast and was declared elected, and afterwards filed an oath of office with the' county clerk, and on January 1, 1879, entered into said office and has ever since exercised the same.

      W II. Ransom, for the appellants.

      T. E. Ellsworth, for the respondent.
   Hardin, J.:

The term of tne former incumbent judge, Bowen, as county judge, expired on the 31st day of December, 1878. He was required to file a certificate indicating the year in which he became seventy years of age, and at the close of that year his term . of office expired. Such certificate was duly filed, and that clearly evidenced the duration of his “term” of office. There was, therefore, a vacancy in the office of county judge of Niagara county upon the 1st day of January, 1879. That vacancy could be and was properly filled by the electors. The defendant was therefore duly elected. As the vacancy was filled by the election of the defendant, there was no vacancy in the office of county judge of Niagara county when the relator received his appointment from the governor of the State.

The appointment was void as there was no vacancy. We must therefore affirm the judgment entered upon the decision below.

Judgment affirmed, with costs against the relator.

Talcott, P. J., and .Smith, J., concurred.

So ordered.


author: Smith, J.:

text:
    DANIEL PRATT AND CHARLES S. SYMONDS, as Assignees, etc., Respondents, v. NATHAN P. EATON and other, Appellants.

      Chapter 816 of 1868 — a eorpomtion created, wide)', cannot discount paper — assignees in bankruptcy of such, corporation, cannot recover money paid for such, paper — rights of a receiver.

    TMs action was brought by tbe plaintiffs, as assignees in bankruptcy of a safe deposit company, incorporated under chapter 816 of 1868, to foreclose a mortgage given by the defendant Eaton and wife, as collateral to a bond executed by him to secure any amount that might, at any time, be due from him to the company. At the time the company was adjudged a bankrupt, Eaton was indebted to it on notes made by him and discounted by it at an office of discount and deposit, kept by it in the city of Syracuse, where it carried on a large business in discounting notes.

      .Beld, that the discounting of the notes by the company was a violation of the restraining acts of this State, and vitiated the whole transaction, preventing a recovery of the money received by Eaton, as well as an action upon the notes themselves.
    That, as the debt could not be collected, the mortgage collateral to it could not be enforced.
    That the plaintiffs, as assignees in bankruptcy, stood in no better position than the corporation itself.

      Qucere, whether the money could have been recovered by a receiver of the cor* poration, appointed by a court of general equity jurisdiction.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee in an action to foreclose a mortgage.

      G. D. Oowles and Wm. O. Huger, for tbe appellants.

      D. Pratt, for tbe respondents.
   Smith, J.:

Tbe plaintiffs are tne assignees in bankruptcy of “ The People’s Safe Deposit and Savings Institution of tbe State of New York,” a corporation organized under tbe provisions of chap. 816 of tbe Laws of 1868 (vol. 2, p. 1839). Tbe mortgage, for tbe foreclosure of which this action was instituted, was executed by tbe defendants Eaton and bis wife, together with a bond of Eaton to which it was collateral, to Patrick Lynch, in trust for tbe corporation, to secure it for any indebtedness it might hold against Eaton, “ upon or by reason of any promissory note, bill of exchange, check, overdraft or otherwise.” At the time when the corporation was adjudged a bankrupt, it held four promissory notes made by Eaton, for the amount of which, being $950 besides interest, the plaintiffs claim the right to enforce the lien created by the mortgage.

The defence is, that the notes were discounted by the corporation in violation of law, and it is insisted that not only the notes, but also the loans evidenced by them, were void. The fact that the notes were discounted was admitted by the plaintiffs, as was also the fact that the corporation from its organization to its failure, and during the time when the notes were discounted, kept an office of discount and deposit in the city of Syracuse, and carried on a large business in the discount of notes and other commercial paper. By the terms of the act creating it, the corporation had power, among other things, to receive money on deposit, and to loan money on real estate security. There is nothing, however, in the language of the act to indicate that the corporation was vested with authority to discount notes. It was not incorporated for banking purposes expressly, and its charter is such that the power of discounting notes cannot bo implied. By the fourteenth section of the charter, the corporation was subjected to the liabilities and restrictions contained in part I, chapter 18, title 3 of the Revised Statutes, the fourth section of which title provides, that “no corporation created, or to be created, and not expressly incorporated for banking purposes, shall by any implication or construction, bo deemed to possess the power of discounting bills, notes or other evidences of debt,” etc. (1 R. S. [Edm. ed.], p. 600.) The corporation was also subject to the provisions of the statute known as the “ restraining act,” which, among other things, by its third section prohibits incorporated companies, not authorized by law, from making discounts, etc., and declares void all notes or other securities given to secure the payment of any money loaned or discounted contrary to the provisions of the third section. (1 R. S. [Edm. ed.], p. 712, §§ 3, 5.) There seems to be no reason to doubt the soundness of the defendants’ position that the corporation not only had no power to discount notes, but that, as it was prohibited by law from doing so, the notes given by Eaton to ■ secure the payment of money discounted were, for that reason, void.

But it is contended, on the part of the plaintiffs, that notwithstanding the notes are void, the loan was within the powers of the corporation and was valid, and they, as the assignees of the insolvent corporation and the trustees of its creditors and stockholhers, may compel Eaton to pay back the money which the officers of the corporation lent to him upon the notes thus discounted. The cases known as the Utica Insurance Company cases (Utica Ins. Co. v. Scott, 19 Johns., 1; Same v. Kip, 8 Cow., 20; Same v. Caldwell, 3 Wend., 296; Same v. Bloodgood, 4 id., 653) are cited by the respondents’ counsel in support of the position, that even if the corporation were suing in its own name, it might recover the money lent, although the notes are void. But the soundness of those decisions has been repeatedly questioned, inasmuch as they permitted the violator of the law to recover upon a contract constituting that violation. (New Hope Co. v. Poughkeepsie Silk Co., 25 Wend, 650; Tracy v. Talmage, 14 N. Y., 189; Curtis v. Leavitt, 15 id, 98; In re Jaycox v. Green, bankrupts, MS. op. of Hunt, J., U. S. Circuit Court. North. Dist. of N. Y.) And the better opinion seems to bo, that if the corporation were suing in its own name, the fact that it was particeps criminis would prevent its recovery of the money parted with in the illegal transáction, on grounds of public policy. (New York Trust and Loan Company v. Helmer, 12 Hun, 35.) This is not upon the ground merely that the transaction was ultra vires, but that it was unlawful. The distinction between want of power and illegality is an answer to the argument derived from the cases which hold that when the question is simply one of capacity to contract, a party who has had the benefit of the contract cannot, in an action upon it, question its validity. Among them are The Steam Navigation Company v. Weed (17 Barb., 378), and the cases there cited by Parker, J.; Whitney Arms Co. v. Barlow (63 N. Y., 62); Bushnell v. Chautauqua County Bank (10 Hun, 378), and many others that might be named.

It is contended by the respondents’ counsel that the plaintiffs, as the assignees of the bankrupt corporation, suing in behalf of its creditors who are innocent parties, are in a better position. than the corporation itself, in respect to the claim in suit, and that, although the notes are void, the assignees can recover the money loaned, to pay the debts of the corporation. An analogy is sought to be traced between the position of the assignees and that of a receiver of an insolvent corporation, appointed by a court having general equity jurisdiction. It has been held in this State that in such a case, although the proceedings are taken under a statute of the State, the court in appointing the receiver acts as one of general jurisdiction, and not as exercising a special statutory power. (Bangs v. Duckinfield, 18 N. Y., 592.) And a receiver so appointed may not only treat as void all acts done in fraud of creditors, full authority to do so being given by the act of 1858 (Laws 1858, chap. 314), but he may sue for all moneys due to the insolvent corporation, and for all its property improperly disposed of in violation of the rights of either creditors or stockholders, for the purpose of paying the debts and dividing the surplus, if any, among the stockholders. (Nathan v. Whitlock, 9 Paige, 152; Osgood et al. v. Laytin et al., 48 Barb., 463; S. C., affirmed, 3 Keyes, 521.) So, too, an illegal transfer of the property of the corporation, by its officers, may be avoided by the receiver, unless the person claiming under it is a purchaser for value and without notice. (Gillet, Receiver, v. Phillips, 13 N. Y., 114.) There is no case, however, that we are aware of, holding that a receiver may recover in such a case as the one before us, and it is not necessary for us to decide the point. The case of an assignee in bankruptcy is not altogether analogous to that of a receiver appointed by a court of general equity jurisdiction. The circuit and district courts of the United States have only such limited equity jurisdiction, as is conferred upon them by positive law. And the powers of an assignee in bankruptcy appointed under the late bankrupt act were only those conferred by statute. Such assignee had no right of action to collect the assets of the bankrupt represented by him, other than the bankrupt himself would have had, except that he might have maintained an action to recover property conveyed by the bankrupt in fraud of his creditors. (U. S. R. S., §§ 5046, 5047; Laws of N. Y., 1858, chap. 314; Southard v. Benner, 72 N. Y., 424.) The present action is not one of that description.

It has been held by the federal courts, in some instances, that the question how a corporation should invest its funds is a question between itself and the sovereignty that created it, and not between the corporation and the borrower. (The Mut. Life Ins. Co. of N. Y. v. Wilcox [U. S. Dist. Ct., N. Dist. of Ill], 7 N. Y. W. Dig., p. 13; see, also, The Union National Bank v. Matthews, 19 Alb. L. J., 132.) The application of that principle to cases like the present one, while it would preserve the policy of the restraining acts, would also permit a recovery in the present case for the money loaned. But we do not understand it to be the law of the courts of this State. On the contrary, our Court of Appeals has recently held in a contest between the holders of separate moi’tgages, respecting the priority of lien, that under the provisions of the national banking act, which were construed to prohibit national banks from taking mortgages on real estate, except for debts previously contracted, a mortgage given to a national bank to secure future indebtedness is void. The decision proceeded upon the ground that the contract, being in violation of the statute, was void, and the courts will not enforce it. We understand the case to be in conflict with that of The Union National Bank v. Matthews (supra). In that case the Supreme Court of the United States held that while a national bank is prohibited by law from loaning money on real estate, yet if it does make a loan on such security the security is not void, but may be enforced. Mr. Justice SwayNe, delivering the opinion of the court, said : “ We cannot believe it was meant that stockholders, and, perhaps, depositors and other creditors, should be punished and the borrower rewarded, by giving success to this defence whenever the offensive fact shall occur. The impending danger of a judgment of ouster and dissolution was, we think, the check, and none other, contemplated by congress.” Were we at liberty to treat the question as an open one, we would be inclined to apply the rule there adopted to .the present case, but' we conceive ourselves bound to follow the opposite rule laid down by the court of last resort in this State.

The bond and mortgage of Eaton are merely collateral to the notes, and the illegality of the contract is a defence to them also, so far as it is sought to enforce them in this action.

In any view we can take of the case we are forced to the conclusion that the policy of the restraining acts, as construed by the courts of this State, requires us to hold that the discounting of the notes was illegal ; that the illegality vitiated the entire transaction,'and that no recovery can be had upon it.

The judgment should be reversed, and, as there is no reason to suppose that the facts of the case would be changed materially on a second trial, judgment should be ordered for the defendants, with costs to be paid by the plaintiffs out of any assets in their hands applicable to the purpose.

Mullin, P. J., and Talcott, J., concurred.

Judgment reversed, and judgment ordered for the defendants, with costs.


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    MYRON F. PARDEE, Respondent, v. SYLVESTER W. TREAT, WILLIAM HENDERSON AND HARVEY C. BEACH, Appellants.

      Deed — when it is in equity a mortgage — covenant in, to pay incumbrances — when the grantee is liable on.

    One Gaylord was the owner of certain real estate in the city of Rochester valued by him at $S0,000, which was subject to two mortgages of $20,000 each, aud other incumbrances amounting to about $10,000. lie was also indebted to the plaintiff to the amount of $5,000, and was defending an action brought by the plaintiff for its collection. Being- apprehensive of bankruptcy proceedings, he withdrew his answer, allowed the defendant to take judgment, and conveyed the property to him by a deed, with the consideration expressed therein of $54,689 (the amount of the incumbrances). The deed contained a covenant by which the defendant assumed and agreed to pay all the incumbrances and liens on the property conveyed thereby. The defendant at the same time agreed with Mrs. Gaylord to sell the property to her at the consideration expressed in the deed, on a day named, and she agreed to then pay him the said sum therefor

      Held, that the transaction was in fact a mortgage and not a conditional sale.
    That as, under any circumstances, the defendant would have a fund wherewith to pay the incumbrances (either the real estate or the consideration named in the deed), he was personally liable to the holders thereof on his covenant in the deed.

      Cfarnsey v. Rogers (47 IST. Y., 233), distinguished.
    Appeal from a judgment in favor of the plaintiff, entered on the decision of the court at the Oswego Circuit, a jury having been waived.
    This action was brought to recover the amount of a judgment docketed J une 2(5, 1874, in favor of one Larry Lewis and the plaintiff, against one Jolm B. Gaylord. Lewis had before the bringing of the action assigned Ins interest to the plaintiff. October 26, 1874, Gaylord and wife conveyed certain real estate owned by him to the defendants, the deed providing • ‘ that this conveyance is made subject to the mortgages, j udgment and taxes which are now a lien upon said premises, and which the said parties of the second part hereby assume and agree to pay, as part of the consideration hereinbefore named.'’
    The defendants claimed that the deed was only intended as a mortgage, and that, for that reason, they were not hable upon the said covenant.

      E. II. Avery, for the appellants.

      Edwin Allen, for the respondent.
   Smith, J.:

The plaintiff recovered upon the ground that by the covenant to pay prior incumbrances, contained in the deed executed by Gaylord and his wife to the defendants, the latter incurred a personal liability which can be enforced against them by the prior incumbrancers.

The principal grounds on which the appellants ask for a reversal of the judgment are, first, that the deed was never delivered to the defendants or accepted by them; and, secondly, that the deed, although absolute in form, was, in fact, a mortgage, and that, consequently, the covenant in question is not one which the prior incumbrancers can enforce, but is for the benefit of the grantor or mortgagor only, to protect his property by advancing money to pay his debts.

We are satisfied that the evidence supports the finding of the judge, that the deed was delivered to the defendants and accepted.

The question whether the transaction between Gaylord and wife and the defendants was a conditional sale, as found by the judge, or a mortgage, is not so clear. The facts upon which the question turns may be briefly stated. At the time of executing the conveyance Gaylord was embarrassed by debts, and was apprehensive that proceedings in bankruptcy would be instituted against him. He owed the defendants over $5,000, for which they had sued him, and he had put in a defence. He owned real estate in the city of Auburn valued by him at $80,000, which was subject to two mortgages of $20,000 each, the junior of which was in process of foreclosure. There were subsequent incumb-rances on the property, consisting of judgments and taxes, amounting to about $10,000, making a total incumbrance of about $55,000, including the defendants’ claim in suit. In these circumstances the parties made an arrangement, in pursuance of which Gaylord withdrew his answer and let the defendants take judgment, and he and his wife conveyed the said real estate to the defendants, by a deed absolute in form, in which the consideration expressed was $54,689 (which was supposed to be the-exact amount of the indebtedness above mentioned). The deed contained the covenant in question. At the same time the defendants executed to Mrs. Gaylord a contract in writing and under seal, by which they agreed to convey said property to her on her paying to them the said sum of $54,689 by the 1st day of January, 1881, with interest, which she therein agreed to do, and by which also they agreed she should have immediate possession. She also agreed to keep the buildings insured and to pay all taxes. The contract to deed to the wile was insisted on by Gaylord, as a condition of the conveyance. These facts are established by uncon-troverted testimony. It seems clear that the only object of the defendants in entering into the arrangement was to secure their debt, and that Gaylord’s purpose was to gain time, in the hope that before the contract matured he would be able to pay the amount of the incumbrances and redeem the property. Gaylord still remained the debtor of the defendants, one of the objects of the arrangement being to enable them to put their claim into judgment without further delay, and to make it a lien on the real ■estate so conveyed. .The continued existence of the debt we regard as controlling evidence that the transaction was intended as a mortgage and not as a conditional sale. Clearly it would have been so, if the contract of sale had been to Gaylord instead of his wife. (4 Kent’s Com., 144, note [a], and cases thei’e cited.) But it is apparent that Gaylord caused the contract to be made to his wife for his own benefit, and because he was embarrassed by his debts. We incline, therefore, to the opinion that the deed is to be regarded as a mortgage.

But whether the transaction is a mortgage or a conditional sale, we think that the covenant of the defendants makes them personally liable to the holders of the incumbrances which they covenanted to pay. That such is the case, if the transaction was a sale, is not questioned. (Burr v. Beers, 24 N. Y., 178; Campbell v. Smith, 71 id., 26.) But the appellants’ counsel contends that the case of Garnsey v. Rogers (47 N. Y., 233) is authority for the position that no such liability exists if the conveyance is, in fact, a mortgage. That case is distinguishable from this. There, the terms of the defeasance enabled the grantor to annul the conveyance on paying simply the debt which he owed to the grantees, and stress was laid upon that fact in the opinion; in this case Mrs. Gaylord must pay the whole amount of the incum-brances assumed by the defendants, as well as the debt owing to them, in order to acquire the title. So that, in any event, the defendants receive into their hands a fund with which to pay the prior incumbrances — in money, if the terms of the defeasance are complied with — if not, in the land itself, which is worth more than the amount of all the incumbrances. Thus, they become the principal debtors for the assumed incumbrances, as between themselves and Gaylord, and are within the principle of Burr v. Beers. Had the contract provided that Mrs. Gaylord should be entitled to a conveyance on payment of the defendants’ judgment only, the case would have been materially different. Another particular in which Garnsey v. Rogers differs from this case is, that there the grantor had redeemed, in pursuance of the condition of the defeasance, before the suit was commenced.

We have examined the other exceptions in the case, and are of the opinion that they do not point out any material error. The real question in the case is the one above considered. We think the judgment should be affirmed.

Talcott, P. J., and HardiN, J., concurred.

Judgment affirmed.


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    WILLIAM MUDGETT, as Executor of CHALES MILLER, Deceased, Respondent, v. GEORGE W. GOLER AND FRANCES T. GOLER, his wife, Appellants.

      Bond — when it may be contradicted by parol evidence, for the purpose of showing usury.

    In an action to foreclose a mortgage, given as collateral to a bond, regular and valid upon its face, parol evidence is admissible to show, for the purpose of establishing the defence of usury, that the mortgagor agreed to and did pay interest thereon at the rate of ten per cent per annum.
    Appeal from a judgment in favor of the plaintiff, entered on a decision made at the Monroe Special Term,

      J. & Q. Van Voorhis, for theyappellants.

      James L. Angle, for the respondent.
   Smith, J.:

This is an action to foreclose a mortgage, given by the defendant Golc'r and wife to the plaintiffs’ testator, Miller. The defence is usury. The mortgage was collateral to a bond executed by the defendant, conditioned for the payment of the sum of $5,500, in three years from date, with interest semi-annually. The consideration of the bond and mortgage was a loan of the sum of $5,500. At tne trial, the defendant gave evidence tending to show that, at the time of giving the bond and mortgage, the borrower agreed to pay interest at the rate of ten per cent per annum, and that he had paid interest at that rate, semi-annually, up to the time of the death of the mortgagee. The court did not pass upon the evidence, but ordered judgment for the plaintiffs on the ground, as we gather from the opinion, that as the alleged usurious agreement contradicted the bond and mortgage, it could not be established by parol evidence. That ruling presents the only question in the case. Whatever our opinion of the question might be, if it were an open one, we regard it as decided adversely to the views of the Special Term. Macomber v. Dunham (8 Wend., 550) we regard as a ease in point. Merrills v. Law (9 Cow., 65) is.an authority on the point, although reversed (6 Wend., 268) on other grounds. Austin v. Fuller (12 Barb., 360) decides the precise question. Other cases to the same effect are cited in Cow., Hill and Edward’s notes to Ph. Ev. [ed. of 1859], vol. 2, p. 673, note 494.

It is claimed by the respondents’ counsel that the decision, if erroneous, did not prejudice the appellants, as the evidence, if it had been considered, would not have been found sufficient to warrant the finding of a usurious agreement. We think the weight of the evidence should be first passed upon by the trial court, and the Special Term having declined to consider it, erroneously as we think, the judgment should be reversed and a new trial granted, costs to abide event.

Talcott, P. J., and HaiidiN, J., concurred.

So ordered.


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    THE GENESEE RIVER NATIONAL BANK, Respondent, v. MARGARET M. MEAD, as well in her own right as Executrix of the Will of JACOB A. MEAD, Appellant.

      Creditor's bill — will not lie till the remedy at law is exhausted — Sub. 4, of section 550 of the Code of Civil Procedure — what facts do not authorize an arrest under — when a motion to vacate an order of ari'est may be made.

    This action was brought by the plaintiff against the defendant, individually, and as executrix of J. A. Mead, deceased, upon an indebtedness of the deceased, consisting of two notes and a judgment, amounting in all to §1,500, The complaint alleged the appointment of the defendant as executrix July 2, 1877, and that she was sole legatee; that the only assets of the estate were about §500 worth of personal property, and land in Wisconsin, worth about §1,500; that shortly before his death the testator had assigned, without consideration, a policy of insurance upon his life to the defendant who had collected it; that defendant had filed no inventory of his estate and was about to leave the State and take the assets of the estate with her.

      Held, that the action could not be sustained as a creditor’s bill, as the plaintiff had not exhausted its remedy at law.

      That, upon the facta stated in the complaint, the defendant could not be arrested under sub. 4 of section 550 of the Code of Civil Procedure (the substitute for a writ of ne exeat).

    That the complaint did not state facts sufficient to constitute a cause of action, and that the plaintiff might move at any time after service of the complaint to vacate an order of arrest granted in the action upon affidavits containing the same allegations as the complaint.
    That such motion mig-ht be made more than twenty days after the order of arrest was served.
    Appeal from an order made at the Livingston Special Term, .denying a motion to vacate an order of aiTest. The action was brought by the service of a summons on the defendant on the 2d day of May, 1878, and on the same day the court granted, upon affidavits, an order of arrest. May 2, 1878, the defendant was arrested and gave security to abide the orders of the court. June 8, 1878, and after the service of the complaint herein, the defendant served notice of a motion to set aside the order of arrest, for the Geneseo Special Term to be held June 17, 1878, which motion was heard and denied.

      Jno. A. Vanderlijp, for the appellant.

      Bingham & Sutherland, for the respondent.
   Smith, J.:

The order of arrest was granted by the court upon affidavits, which were held to have made a ease within subdivision 4 of section 550 of the Code of Civil Procedure. That subdivision is said by Mr. Throop, in his notes, to provide a substitute for the writ of ne exeat. The order of arrest was served at the time of the commencement of the suit. The motion to vacate it was made after the service of the complaint. As it was not made until more than twenty days had elapsed after the arrest, it was properly denied for that reason (Code of Civil Procedure, § 567), unless the complaint shows that the case is not one of those mentioned in section 549 or 550 of the Code, in which latter case, according to-the last clause of section 558 of the Code, the motion to vacate may be made at any time after the filing or service of the complaint. It has been held by the General Term in the first department that to justify vacating an order of arrest, under the last clause of section 558, it must affirmatively appear by the complaint that the cause of action is such, that in no event could the defendant be arrested within section 549 or 550. (Sloan v. Livermore, 55 How. Pr. R., 85.) To the same effect are several Special Term decisions. (Williams v. Norton, 54 How., 509; Thompson v. Friedberg, id., 519; Mather v. Hannaur, 55 id., 1.) In each of the cases cited, however, the complaint alleged a good cause of action, although not a ground of arrest, and the arrest proceeded upon grounds extrinsic to the cause of action which were shown by affidavit, and there was nothing in the complaint to show that the ground of arrest set out in the affidavits did not exist. But, in the present case, the affidavits on which the order of arrest was granted, alleged substantially the same facts as did the complaint, and the position of the appellants’ counsel is, that neither the affidavits nor the complaint set forth facts which constitute a cause of action. If he is right in this, we think he is entitled to have the order vacated. The question then is, whether the complaint sets out a cause of action.

The complaint alleges, in substance, that Jacob A. Mead, at the time of his death, was indebted to the plaintiff, a banking corporation, upon two promissory notes and a judgment, the amount of each of which is set out in the complaint, being in the aggregate about $1,500. That Mead died at Mt. Morris on or about the 21st of April, 1877, leaving a will by which his widow, the defendant, was appointed executrix ; that the will was admitted to probate 2d July, 1877, and that she was the sole legatee. That the only assets of his estate were about $500 of personal, property in this State, and a lot of land in Michigan of the value: of about $1,500, except a policy of insurance in his own right,, upon his own life, for the sum of $8,000, which he transferred to> his wife, without consideration, a few months before his death-,, and while he was indebted to the plaintiff. That the defendant also had a policy of insurance on the life of her said husband for $2,000, and after his death she received the money on both policies. That the defendant has not filed an inventory or taken any steps in the surrogate’s court towards the settlement of the estate of said Mead, and that she is about to remove her residence from this State to Denver, Colorado, and to take the assets of the estate with her. The complaint prays that the defendant, as executrix, may be required to account in this court for the assets of the estate, including the real estate in Michigan, and that the assignment- of the said policy of insurance to her may be declared to be fraudulent and void as against the plaintiff, and the proceeds thereof be decreed to be applied to the payment of the plaintiff’s debt. The action appears to have been commenced in May, 1878.

It is insisted by the appellant’s counsel that the complaint attempted to set forth several different causes of action — some against the defendant in her representative capacity and others against her individually. That, we think, is a misapprehension. As we read the complaint it professes to state but one cause of action. The action is brought by a creditor, whose claim is partly in judgment and partly in simple contract, to reach the assets of the deceased debtor, which are alleged to be in the hands of the defendant. As she claims the assets partly as executrix and partly in her own right, she is properly sued in both capacities. Inasmuch as the complaint undertakes to set out but one cause of action, the order of arrest should not be vacated, unless the complaint shows affirmatively that the plaintiff is not entitled to relief against the defendant in either capacity in which she is sued.

It is urged on the part of the appellant that the plaintiff is not entitled to relief against the defendant individually, for the reason that the plaintiff has not exhausted its remedy at law, no execution having been issued on the judgment against. Mead, and also for the reason that it is not alleged that the assignment to her of the policy of insurance was made with intent to defraud creditors.

These positions seem to be well taken. So far as the relief sought against the defendant individually is concerned, the suit is a creditor’s-bill to set aside the assignment and reach the proceeds of the policy of insurance. It is well settled that, to maintain an action to collect a debt out of assets that can be reached only in equity, the creditor must first exhaust his remedy at law, .by the recovery of a judgment, the issuing of an execution thereon, and the return of the same unsatisfied. (Estes v. Wilcox, 67 N. Y., 264; Crippen v. Hudson, 13 id., 161.) A simple contract creditor cannot maintain the action. (Reuben v. Joel, 13 N. Y., 488; Dunlevy v. Tallmadge, 32 id., 457.) The case of. Loomis v. Tift (16 Barb., 541), cited by the respondent’s counsel, proceeded upon special circumstances which do not exist in this case.

The respondent’s counsel argues that it was not necessary to allege that the assignment of the policy was fraudulent, inasmuch as the complaint alleges facts from which the conclusion of fraud may be drawn by the court. But the question of fraud is one of fact, and a fraudulent intent must be alleged as well as proved. Besides, the facts alleged are not inconsistent with an honest intention. The complaint shows that the debtor had sufficient property remaining after the assignment to pay the plaintiff’s claims, and it does not appear that he was owing other debts.

Belief is sought against the defendant as executrix, on the ground that she has not filed an inventory and is about to remove from the State. For the omission to file an inventory there is an ample remedy in the surrogate’s court. The filing of an inventory may be compelled by attachment. (2 R. S., 85, §§ 17, 18.) A remedy is also given in the surrogate’s court, where an executor has removed, or is about to remove, from the State. In such case the surrogate, on complaint being made, may require such executor to give bond with sureties, like those required by law of administrators, and on his neglecting to do so may supersede his letters and appoint an administrator. (2 B. S., 72, §§ 18 to 21.) The latter remedy, however, may not have the effect to prevent the administrator from removing from the State with the assets, and, therefore, it may not be a bar to an application for equitable relief in a proper case. But we think a mere intention to remove from the State does not bring the case within the statute. Section 555 of the Code of Civil Procedure provides that a person prosecuted in a representative capacity cannot be arrested as therein prescribed, except for his personal act. This seems to contemplate something more than a mere intention to do an act. Mr. Throop says in his note to the section that it was modeled upon 2 Revised Statutes, 348, § 9, substituting the last clause for the words, “ unless they shall have incurred a personal obligation to pay the debt or demand claimed.” It is doubtful, to say the least, whether the complaint or the affidavits impute to the defendant any “ personal act ” which makes her liable to arrest within the meaning of the section referred to. The only “act” ascribed to her is her omission to file an inventory. The remedy for that omission has already been pointed out. Her purpose to leave the State, although openly avowed, can hardly be called an “ act.” We are of the opinion, for the reasons given, that the order appealed from should be reversed, and the order of arrest vacated, with ten dollars costs and disbursements of the appeal, and ten dollars costs of the motion to vacate, to the appellant.

Talcott, P. J., and Hardest, J., concurred.

Order of Special Term reversed, and order of arrest vacated, with ten dollars costs and disbursements of appeal, and ten dollars costs of motion to vacate.


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    JAMES F. GREEN, as Administrator of, etc., of WILLIAM GREEN, Deceased, Appellant, v. ANDREW J. SANDERS, Collector and Special Administrator of, etc., of WILLIAM GREEN, Deceased, Respondent.

      Special administrator — section 24 of chapter 460 of 1837 only provides for his expenses, but not foi' Ms compensation ■ — ■ he entitled to the same fees as executors, to be computed on the value of the whole estate received by him.

    There is no statute providing for the compensation of a special administrator or collector. Section 24 of chapter 460 of 1837 relates only to his expenses and not to the compensation for his own services.
    He is, however, within the equity of the statute relating to executors and administrators, and entitled to the same fees and commissions.
    His commissions are not to he based, simply, upon the actual money received and paid out, but upon the value of the whole estate received, and passed over by him.
    A decree of a surrogate will not be reversed because it allows a gross sum to the administrator for his services, if it appear that it does not exceed the amount of his statutory fees.
    Appeal from a decree of the surrogate of Cayuga county, made on the settlement of the accounts of the respondent as special administrator.

      8. Edwin Day and W. E. Hughitt, for the appellant.

      S. E. Payne, for the respondent.
   Smith, J.:

The appellant challenges the surrogate’s allowance of the gross sum of $1,000 to the special administrator for his services. It is insisted that commissions only should have been allowed, at the rate fixed by statute for executors and administrators, and only upon the amount of money which passed through the respondent’s hands. There is no statute providing for a compensation to special administrators or collectors, except section 24 of chapter 460 of the Laws of 1837, which is in these words : “ Every collector so appointed shall have authority to collect the goods, chattels, personal estate and debts of the deceased, and to secure the same at such reasonable expense as the surrogate shall allow,” etc. Under this provision the amount of compensation provided for is left to the discretion of the surrogate, and if the section relates to services as well as expenses, the allowance, in the present case, cannot be disturbed, unless there was an abuse of discretion. We think, however, that the provision cited has no reference to compensation for services, and that there is no express provision of statute fixing such compensation. But it does not follow that a special administrator is to receive no compensation for his services. As was held by the chancellor In re Roberts (3 John. Ch., 42), in the case of a committee over a lunatic, he is within the equity of the statute fixing the compensation of executors and administrators. At the time when that case was decided, the statute of 1817 was in force, which authorized the Court of Chancery to make a reasonable allowance to executors and administrators. (Laws 1817, chap. 251.) Under that statute, the chancellor, in the case cited, fixed the compensation at the rates which were afterwards adopted in the Revised Satutes and are now in force, as subsequently amended. (2 R. S., 93, § 58, Laws 1863, chap. 362, § 8.) We think the case is within the equity of the statutes cited.

Although the surrogate erroneously allowed a sum in gross, the allowance is not to be sot aside for that reason, unless it exceed the commissions to -which the collector was entitled, at the rates fixed by the statute. Those rates are, for receiving and paying out money, five per cent on the first $1,000, two and one-half per cent on the next $10,000, and one per cent on the remainder, in addition to expenses. (Laws 1803, supra.) We think, however, the allowance is not to be confined- to the money that passes through the hands of the collector. In many cases, an allowance thus limited, would bo a very meager and inadequate compensation. The duty of the collector is to preserve the estate and turn it over to the executor or administrator when appointed. He cannot sell, except by order of the surrogate to preserve the estate. Ho may have the custody and care of a large amount of securities, or of valuable animals, herds of cattle or the like, for years, without handling any considerable amount of money. The present case illustrates the position. The respondent accounted for property valued at over $104,000. Very little of it was money — over $43,000 was in mortgages, and over $7,000 in stock and cattle on five different farms. The estate was in his hands over two years and a half. We think a proper basis for the allowance of the commissions of the special administrator, in this case, is the value of the estate received and passed over by him. As the sum allowed does not exceed the commissions to which the respondent was entitled on that basis,' the error in the form of the allowance worked no harm.

The respondent was allowed certain payments of taxes made by him, including the fees of the tax collectors, at the rate of five per cent. There was a period of thirty days within which the taxes might have been paid at a charge of only one per cent for fees. It is insisted, by the appellant, that the surrogate erred in crediting the respondent with the extra four per cent, which he might have saved to the estate if he had paid in season. Upon this point the respondent testified as follows: “ He,” the tax collector, “ came to see. me several times, but I could not get any agreement about it. Lastly, he came and said he would have to levy and sell, and then there was some agreement made between the attorneys for the parties.” The testimony is not very explicit, but as the witness was afterwards cross-examined by the appellant’s counsel, and his attention was not called to that part of his testimony, nor was it contradicted in any respect whatever, it is to be presumed that the appellant accepted it as the true version of the matter, and that the action of the respondent, in regard to paying the taxes, was acquiesced in by the respective parties.

A point is made that the surrogate received and acted upon an ex parte affidavit of the respondent, after the proofs were closed, without notice to the appellant. There is no evidence that the reception of the affidavit was without notice to the appellant. The averment to- that effect in the petition of appeal is denied in the answer. Besides, if the admission of the affidavit was erroneous, it was innocuous, as there is ample evidence outside of it to sustain the surrogate’s decision.

The decree should be affirmed, with costs.

Talcott, P. J., and Hardest, J.. concurred.

Decree of surrogate affirmed, with costs to respondent, to be paid by appellant out of the estate.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. RICHARD E. HATFIELD AND RICHARD E. HATFIELD, Appellants, v. THEODORE S. COMSTOCK, Respondent.

      Constitution, art. 10, seat. 5 — appointment to fill a vacancy in an elective office— when the term of the appointee expires.

    In the fall of 1876 one Brown was elected superintendent of the poor in Oneida county for the full term of three years. On October fourth, 1878, he was removed from that office by the governor, and on October twenty-second the defendant was appointed to fill the vacancy. At the general election in November, 1878, the relator was elected superintendent of the poor.

      Held, that section 5 of article 10 of the constitution was applicable to this office, and that the term of office of the defendant expired on December 81, 1878.
    Appeal from a judgment in favor of the defendant, entered on a decision rendered at the Oneida Circuit upon a trial by the court, without a jury.

      JRisley & Stoddard, for the appellants.

      Nicholas N. Neman, for the respondent.
   Smith, J.:

On the 4th of October, 1878, a vacancy was created in the office of superintendent of the poor in Oneida county by the removal, by the governor, of Thomas J.. Brown, who was elected to the office in the fall of 1876 for a full term. On the 22d of October, 1878, the board of supervisors appointed the defendant to fill such vacancy. At the general election in November, 1878, the relator and another person were voted for by the electors of said county for that office. The relator received a large majority of the votes cast, and the board of canvassers gave him a certificate of election. He took the oath of office, filed a bond, and on the 1st day of January, 1879, demanded the office of the defendant, who refused to deliver the same, and still holds it.

The defendant claims that his appointment held good for the remainder of the unexpired term of his predecessor Brown, or until the 31st of December, 1879 ; while the relator insists that such appointment expired on the 31st of December, 1878.

Section 5 of article 10 of the constitution of this State is in these words : “ The Legislature shall provide for filling vacancies in office, and in case of elective officers no person appointed to fill a vacancy shall hold his office, by virtue of such appointment, longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.”

The principal question in the case is, whether the office in question is one to which the provisions of that section respecting elective offices apply.

For the defendant if is argued that the section applies only to such elective offices as are mentioned in section one of the same article, to wit — sheriffs, clerks of counties, including .the register and clerk of the city and county of New York, coroners and district attorneys, in respect to whom the latter section provides that they “shall be chosen, by the electors of the respective counties, once in every three years, and as often as vacancies shall happen.”

We are not prepared to adopt that construction ; on the contrary, we think that section five applies not only to the elective offices named in section one, but also to all those made elective by the Legislature pursuant to section two of the same article of the constitution. That section was adopted in the constitution of 1846, and is now in force. Under its provisions the Legislature has made the office of county superintendent of the poor elective. (Laws of 1847, chap. 498; 1854, chap. 188.)

The defendant’s counsel contends that by reason of the provision in the act of 1854, that such officer shall be elected “ triennially,” the election in 1878 occurring, as it did, two years after the last preceding election of a superintendent in Oneida county, was unauthorized. But that provision, we think, is limited and modified by section five of article ten of the constitution above cited, and is to be read in connection with it. Thus read, its meaning is that the election is to be held triennially, unless a vacancy occurs during the term, in which case the office is to be filled at the first annual election after the vacancy happens.

The want of notice did not invalidate the election. (The People ex rel. Davies v. Cowles, 13 N. Y., 350.)

The judgment appealed from should be reversed, and judgment ordered for the relator, with costs.

Talcott, P. J., and Hardest, J., concurred.

So ordered.


author: Hardin, J.;

text:
    JOHN P. HIER AND BRUCE S. ALDRICH, Appellants, v. BENJAMIN B. ODELL, Respondent, Impleaded with CHARLES S. BETTS.

      Withd/rawal of one partner from a fvrm — what notice to former dealers with the firm is sufficient.

    Appeal from a judgment in favor of the respondent, entered on the report of a referee, dismissing the plaintiffs complaint.
    The action was brought to recover for goods sold and delivered to the firm of Betts & Co. Prior to March 20, 1875, the defendant Odell was á member of that firm. He then sold out and retired, and Prime became a member of the firm. After such dissolution the agent of the plaintiffs, one Clayson, was at the store in Baldwinsville, soliciting an order in behalf of plaintiffs, foi goods. Betts then informed Clayson that Odell had retired, and gave Clayson an order for goods, with notice that Odell had retired. That order was filled by the plaintiffs. After that Betts & Co. gave other orders to the plaintiffs direct, and received goods which were not paid for.
    The plaintiffs were prior dealers with the firm, and Clayson did not give the plaintiffs actual notice of the retirement of Odell from the firm, and the plaintiffs had no actual knowledge of such retirement, prior to the accruing of the bills in suit.
    The court at General Term said : ■“ The notice which Clayson, the agent of the plaintiffs, received of the retirement of Odell was given while the agent was in the course of his employment engaged for the plaintiffs. The sale then made by the plaintiffs, through their agent Clayson, was to the new firm, of which Odell, the defendant, was not a member.

      “Tbe plaintiffs thus derived a notice of the retirement of the defendant Odell, and although Clayson did not actually communicate it to the plaintiffs, they must be held bound by it. The sale made to the new firm, after such notice to Clayson, did not bind Odell who had retired from the firm. (Ingalls v. Morgan, 10 N. Y., 184, and cases there cited; Horton Com. on Agency, § 178; Theobald on Pr. & Agency, § 140; Page v. Brooks, 18 Ill., 37; Sutton v. Dillaye, 3 Barb., 529; Lindley on Part [3d ed.], 422; Collyer on Part., § 531; Davis v. Keyes, 38 N. Y., 94; President v. Qomien, 37 id., 323.) ”

      Hunt & Weaver, for the appellants. Le lioy Morgan, for the respondent.
   Opinion by

Hardin, J.;

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed.


author: Brady, P. J.:

text:
    LOUISA T. BUDD, Respondent, v. GEORGE D. MUNROE, Appellant, Impleaded with LINDLEY MURRAY AND THE EMPIRE CITY FIRE INSURANCE COMPANY, Respondents.

      Ceriificate of stack — words “ in trust ” in, is notice to a pwehaser of the rights of the true owner— Costs to one defendant against Ms co-defendant.

    The plaintiff allowed a certificate, for ten stares of insurance stock owned Tby ter, to te issued to one “Lindley Murray, in trust,” to enable Mm to become a director in tte company. Subsequently Murray, without authority, transfei’red the stock to one Munroe, to secure money borrowed of him at that time. Munroe noticed the words “ in trust ” in the certificate, but was told by Murray that he had control of the stock and could transfer it if necessary.

      Held, that the words “in trust” imposed upon Munroe the duty of ascertaining the authority of Murray to hypothecate the stock, and that plaintiff was entitled to recover it.
    That in an action brought by the plaintiff, in which her right to the stock was established, and to wMch the insurance company and Munroe were defendants, a judgment for costs was properly rendered in favor of the company against Munroe.
    Appeal from a judgment entered upon the report of a referee, in favor of the plaintiff, declaring her to be the sole owner of ten shares of stock of the Empire City Fire Insurance Company, and directing the defendant Munroe to surrender up for cancellation tbe certificate of stock held by bim, and from a judgment in favor of tbe insurance company against tbe defendant Munroe, for costs.

      William Wirt Hewitt, for tbe appellant.

      J. A. Shoudy, for tbe respondent, Budd.

      F. F. Marbury, Jr., for tbe respondent, Tbe Empire City Eire Insurance Company.
   Brady, P. J.:

Tbe plaintiff was tbe owner of tbe ten shares of stock in controversy, tbe title to which stands in tbe name of Lindley Murray, in trust, and a certificate, therefor, was issued in that form. Murray bad no title to tbe stock, but tbe plaintiff allowed tbe certificate to be issued, as stated, to enable bim to become a director in the company. Murray subsequently borrowed $1,000 from the defendant Munroe, and deposited with bim as collateral security for the payment of tbe loan the certificate of stock in question, together with an instrument purporting to be a transfer of tbe certificate signed Lindley Murray, in trust, but tbe stock was never transferred on tbe books of the company to Munroe. It appears that when the loan was applied for by Murray and tbe certificate was offered as security, tbe attention of tbe defendant Munroe was called to the words “ in trust in tbe certificate, and be spoke to Murray about it, who answered that tbe stock wás bis or that be bad control over it, and could transfer it if necessary. Tbe defendant seems to have relied entirely upon this explanation or statement of Murray, and to have made no other investigation for the purpose of ascertaining tbe terms of tbe trust or anything regarding it.

Upon those facts it is quite apparent that if tbe plaintiff can be divested of her title by the transfer of Murray, which was made without her consent, it can only be on tbe prmciple of estoppel, and that principle docs not spring out of tbe facts narrated, because not only did it appear from tbe certificate that Murray held tbe stock in trust, but it also appears from tbe transfer itself, which was signed by Murray, in trust.

There are several adjudications in kindred cases which establish tbe doctrine, that the words “ in trust ” contained in tbe certificate were notice to all into whose hands the instrument might fall, and, therefore, imposed the obligation to inquire as to the authority of the person named as trustee or holding the trust, to sell or hypothe-cate the subject of the trust. (Sturtevant v. Jaques, 96 Mass. [14 Allen], 523; Bancroft v. Consens, 95 id. [13 Allen], 50; Trull v. Trull, id., 407; Shaw v. Spencer, 100 Mass., 389; Duncan v. Jaudon, 15 Wall., 165.)

The appellant urges upon the consideration of the court the point, that the loan of the stock for the purpose of enabling 'Murray to become a director was against public policy. No case decisive of this proposition was cited and none has been found. It does not appear from any fact or circumstance in this case, that there was any intention to evade any statute or to violate any rule of public policy. So far as it can be ascertained, the transfer may have been for the purpose of securing the services and experience of a person as a director which would be valuable to the company, and enure to its benefit and advantage.

For these reasons the judgment must be affirmed, with costs. In regard to the appeal from that part of the judgment by which costs are given to the Empire City Fire Insurance Company, it is only necessary to say, that that company was brought into court by no fault of its own, but by the assertion of an unlawful claim upon the part of the defendant Munroe, and it is just that it should be indemnified for the expenses attendant upon its proper representation in this controversy.

Ordered accordingly.

INGALLS, J., concurred.

Present — Beady, P. J., Ingalls and Daniels, JJ.

Judgment affirmed, with costs.


text:
    JAMES MARSH, Appellant, v. JOSEPHINE M. BROWN and others, Respondents.

      Advancement — a mere entry in lUs boohs by a testator is insufficient to establish it — Section 829 of the Code of Civil Procedure — when a party '¡nay testify as to a personal transaction with the deceased. .

    A mere entry by a testator in one of bis books is not sufficient to show that he has made an advancement to one of his children, unless the fact of such advancement he established by evidence aliunde.

    ■Where, on an application by a child for his share of his father’s estate, the executors claim to deduct a sum alleged to have been advanced to him by the deceased, and to prove such advancement, put in evidence an entry made by the testator in one of his books, the child is entitled, under section 829 of the Code of Civil Procedure, to testify in reference to such advancement, and explain or deny such entry.
    Appeal from a decree of the surrogate of the city and county of Now York, confirming the report of a referee, denying the claim of the appellant to be allowed the sum of $12,500 from the estate of his father.
    James Marsh died in October, 1872, leaving a will which contained, among others, the following provisions :
    “ Second. I give and bequeath to my said wife, during her natural life, for her own maintenance and support, and for such of the children as remained at home and as aforesaid, all the income from my estate, both real and personal. Subject, however, to the payment out of said income of all taxes, assessments, repairs, insurances, water rents or other charges, and subject also to the payment of the legacies hereinafter mentioned.
    “Third. The arrangement in the preceding sections are to be accepted by my wife in lieu of all claim of dower in my real estate.
    “ Fourth. I desire and direct that after the decease of my wife, that my children share my property equally, share and share alike, but until the final distribution none of them shall receive more than ten thousand dollars ($10,000).
    “ Fifth. The payments that have been made to the children, out of the estate, are viz. : To Walter has been paid in cash, ten thousand dollars ($10,000). To Josephine has been paid in bonds, five thousand dollars ($5,000). Josephine is to receive her board and lodging free of charge whilst remaining at homo and unmarried, as an equivalent for the larger sum paid Walter ; but should she marry or leave home she shall then be paid out of the estate, the further sum of five thousand dollars ($5,000).
    “ Sixth. James shall receive the interest on the sum of five thousand, dollars ($5,000) and board and lodging free of charge. When he wishes, he shall receive from the estate the sum of ten thousand dollars ($10,000) in cash, at which time the interest on the five thousand dollars ($5,000) and free board and lodging shall cease.
    “ Seventh. On the decease of my wife, my estate shall be surrendered up to the heirs, to be divided by them among themselves equally, share and share alike, including the descendants of any deceased child, in such a manner that the descendant of any deceased child shall together receive the share to which such child if living would have, been entitled.”
    James claimed that some stock of the American Fertilizer Company, which had been given to him by the testator while living, was not an advancement, and that he should be allowed $12,500 beyond his distributive share.

      F. M. Pavey, for the appellant.

      G. F. Horne, Field & Deyo, and Owen & Gray, for the respondents.
   Brady, P. J.:

The proceedings in this matter are based upon the petition of the appellant, from which it appears, among other things, that the final accounts of the executors had been filed, and referred to Charles Price, as auditor, and that on the accounting the petitioner claimed that ho was entitled to $10,000, because it was specifically given to him by the will of his father, and further that his claim was rejected because certain shares of stock in the American Fertilizer Company wore transferred by the testator to the petitioner, and were charged against him in the testator’s books, as an advancement of $12,500.

The appellant sought by his petition to have the decree, founded upon the report of the auditor, set aside, upon the ground that he had evidence by which he could establish satisfactorily that the entry in the boohs was not in fact an advance to him. The prayer of the petitioner was granted, and so much of the decree as disallowed the claim was referred for further examination. Upon the reference, and on examination of the appellant, an entry in the books of the testator was shown to be in his handwriting as follows:

Dr. JAMES MARSH, Jr.

The appellant had testified on his examination in chief, that he had received from his father or his estate nothing other than the share of the estate on distribution, except his commissions as executor.

He admitted that he had received certain shares of the stock of the American Fertilizer Company, but denied that they were an advance.

There is not in the case any evidence of the value of this stock; Perhaps it may be said there is no evidence on that subject, except that of the petitioner, who said that it was worthless. Whether the item of $12,500, charged against the appellant in the books, is to be regarded as an advance, depends entirely upon the entry, and the collateral proofs tending to sustain its accuracy. After it was put in evidence, the appellant was asked whether it was a correct charge, and the question was objected to, on the ground that it tended to give evidence of a transaction between the witness and James Marsh, deceased, and was therefore contrary to the provisions of section 829 of the Code of Civil Procedure. It was excluded and an exception noted. He was also asked, “Were you present when that entry was made ? ” Same objection, ruling md exception. He was also asked whether he ever saw that entry before his father’s death. Same objection, ruling and exception. .He was asked if he could explain that entry. Same objection, ruling and exception. He was then asked if he ever received $12,500 in cash from his father. Same objection, ruling and exception.

It was held in the case of Lawrence v. Lindsay (68 N. Y., 108) that the making of advances must be proved by evidence aliunde which, in connection with the books, would be sufficient to prove the fact, and that the entries are not to be taken as true in the absence of such evidence. In other words, proof that the advances were made must be given aside from the entries. And this was held in a case in which the testator provided by will that any advancement made by him to, or for account of his children or either of them, and evidenced by entries in his books of account, should be taken from the amount or charged upon the share of such child or children. In this case these two elements do not concur, except upon the statement of the appellant that he received the shares of the stock of the company mentioned, to an amount equal to that stated in the entry in the testator’s books. But the evidence of the appellant upon that subject is accompanied by the statement that the shares so received were worthless.

I do not understand why, when the entry of the testator was put in evidence, it was not susceptible of explanation by the appellant, because, by section 829 it is provided, that where an executor, administrator, committee or person deriving title or interest, is examined in his own behalf, or the testimony of a deceased person is given in evidence, concerning the same transaction or communication, an exception is made to the general rule established by that section, excluding evidence of a transaction with a deceased person.

In this case the entry of the testator was the evidence of a deceased person. It was his declaration that upon the 6th of January, 1871, he had advanced or given in cash to the appellant the sum of $12,500. And the appellant was prohibited by the referee from answering any questions in reference to this, by way of explanation, denial or otherwise.

It was said in the case of Smith v. Christopher (3 Hun, 585) that if & party interested testifies to declarations of a deceased person, the prohibition contained in section 399 of the former Code did not apply, and kindred declarations in opposition were admissible. And this seems to be a j ust and reasonable view of the case under consideration. The testator gave a sum of money by will to the appellant, and when the application was made for it the response was given that he had received the same, as appeared from an entry in the books of his father, the testator, and this was used against him and regarded as conclusive in connection with his testimony that the sum charged against him was in fact certain shares of stock in a company, which were worthless. The right to answer such evidence seems to be expressly given by section 829 of the Code. And on principle and in justice, it seems to be clear that declarations of a deceased person may be met and overcome by similar declarations made to the party in interest. Again, assuming that the shares of stock were designed as an advancement of the sum of $12,500, it must have been upon the supposition that they were worth that amount at the time they were given, and this supposition is overcome by the evidence, which was taken before the referee, and from which it cannot be said that they were worth any such. sum. If regarded as an advancement their value only should be charged against the appellant, and this view would seem to render another investigation necessary, even if the construction of section 829 adopted were erroneous. I entertain no doubt, however, of these propositions. And for these reasons think that the decree should be set aside, and further investigation had. -

Ordered accordingly.

INGALLS, X, concurred.

Present — Beady, P. J., and Ingalls, X

Decree set aside and further investigation directed.