author: Mayham, J.

text:
    New York and Lake Champlain Transportation Co., Resp’t, v. John Hurd et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    1. Evidence—Original answer competent as admission.
    While the service of an amended answer has the effect to supersede the original as a pleading, the original answer retains its character as an acL mission of the party and may be used as evidence against him, subject to being contradicted or explained by other evidence.

      2. Same—Weight of evidence.
    While it is the general rule that the court is bound to believe a disinterested, unimpeached and uncontradicled witness who gives evidence not in any way discredited or in itself improbable or incredible, it is not bound to give credence to a witness who is interested in the result of the action, and whose evidence is impeachable by circumstances or is against common experience and observation.
    This action was brought by the plaintiff to recover the amount claimed to be due them from the defendants under a contract dated the 29th day of April, 1884, between the plaintiff and defendants, by which the plaintiff agreed to transport all the lumber of the defendants by boats from Bouses Point to the city of New York and points named in the contract during the season of navigation, via Champlain canal. The contract fixed the compensation for transportation, and also stipulated the amount of damages to be paid by the defendant for each day after the first five days after arrival at destination.
    To establish the plaintiffs cause of action they introduced in evidence, under the objection by the defendant, the original answer of the defendant in this action, duly verified, admitting the amount which plaintiff claimed to be. due for transportation of the lumber. This admission was sought to be explained by one of the defendants upon the theory that at the time the answer was interposed the defendants were not fully aware of the facts.
    The plaintiff also introduced proof tending to show that by reason of delays occasioned by the acts of the defendants in overloading vessels, damage had occurred to the plaintiff under the contract, in answer to which the defendants introduced proof from which' they claim to establish that the delay was caused by the act of the plaintiff’s agents in improperly mixing the lumber with other lumber .belonging to other parties.
    The referee found in favor of the plaintiff for $254.43 on account of freight and $144 on account of damages, in all $394.43, with interest, upon which judgment was entered for the plaintiff, with costs, from which this appeal is taken.

      L. B. Bunnell, for app’lt; J. Sanford Potter, for resp’t.
   Mayham, J.

It is insisted, on the part of the appellant, that the admission of the original answer in evidence, under the objection of the defendant, was error, for which this judgment should be reversed. It is apparent that that evidence bore mpon a material part of the issue, and this court cannot assume that it did not affect the result, and if it was not competent evidence its admission would be error, for which the judgment should be reversed. But upon what principle can it be rejected as incompetent? It was a declaration by the defendant made with such deliberation and solemnity as to be conclusive upon him if the original answer had not been superseded by the amended answer. It is true that by the service of the amended answer it lost its conclusiveness as an answer and the party was no longer bound by it as such. But it nevertheless retained its character as an admission of a party and could be used as evidence against him, subject to being contradicted or explained by other evidence. There is no rule of evidence, nor do we perceive any principle of right that would be subserved by excluding a declaration of a party not privileged upon some rule of public policy, from being used against him as evidence, and this view seems to be sustained by authority.

In Strong v. Dwight, Balcomb, J., in granting a motion, allowing the defendant to amend a verified answer, says: “I hold * * that the original answer in this case on file is not to be altered by the defendant’s amendment; and that the proposed amendment should be made by making, verifying and filing an entire new amended answer so that the plaintiff can use the existing original answer as evidence on the trial to prove the defendant’s admission that he now asks leave to have striken out. Strong v. Dwight, 11 Abb. N. S., 325.

In Fogg v. Edwards two questions were raised, first, whether the plaintiff could use as evidence an original answer was superseded as a pleading by an amended answer, and, second, whether the plaintiff could use that part which operated in his favor as an admission of the defendant and disprove by other evidence that which operated against him, and the court say:

“We think the original answer was properly received as evidence under the circumstances. While the service of the amended answer had the effect to supersede the original as a pleading, it did not have the effect to render it inadmissible as evidence; it could be received for the latter purpose but subject to explanation. Fogg v. Edwards, 20 Hun, 90; Bearss v. Copley, 10 N. Y., 93.

Within these cases we think the original answer was competent as evidence of an admission of the defendant, and its reception as such by the referee was not error. Nor do we see any error in the rulings of the referee in his findings, or his refusals to find, for which the judgment in this case should be reversed. There was evidence in the case upon all the disputed questions of fact sufficient to sustain the findings of the referee, and although there was upon, some of the questions conflicting evidence, the referee having passed upon the same and found in favor of the plaintiff, this court will not in an evenly balanced case disturb the findings of the referee upon such disputed questions of fact. The chief controversy in the case arose over the freight on the boat “ Taft,” on which there was some, lumber consigned to Peck, Curtis & Shandly, and as to this freight Dunbar, the defendant’s agent, substantially con cedes in his letter to plaintiffs that it was properly chargeable to defendant, claiming, however, a small deduction on the ground that it should be charged at October, and not at November rates, under the contract.

This declaration the referee had a right to take in connection with the original answer as bearing upon the amount of defendant’s indebtedness, and the only evidence which seems to controvert this theory was that of the defendant Plurd, who against these facts says that the lumber transported on the Taft,” should be charged to Peck, Curtis & Shandly. The referee, with this evidence before him, was not bound as matter of law to find in accordance with the testimony of Hurd, the defendant. It is true, as a general rule, that while the court is bound to believe a disinterested, unimpeached, and un contradicted witness, who gives evidence not in any way discredited, or in itself improbable or incredible, it is not bound to give credence to a witness who is interested in the result of the action, and whose evidence is impeachable by circumstances or is against common experience and observation. New York and Brooklyn Ferry Co. v. Moore. 1 N. Y. St. Rep., 374.

In this case the referee heard the evidence, saw the deportment of the witnesses, and as his report has some evidence to support it, this court on appeal will not interfere to reverse the judgment.

The judgment entered upon the report of the referee must be affirmed, with costs.

Learned, P. J., and Landon, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People ex rel. Waring S. Weed v. Alfred C. Chapin, Comptroller of the State of New York.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    Practice—Certiorari—When issued—To review cancellation oe a DEED BT STATE COMPTROLLER—LAWS 1873, CHAP. 130—CODE ClVTL PROCEDURE, § 3133.
    Until a rehearing before the state comptroller has been had, of his determination to cancel a deed made by him of land on a tax sale, pursuant to chapter 130 of the Laws of 1873, a writ of certiorari to review said determination is prohibited by Code Civ. Pro., 3133.
   Mayham, J.

The relator in this proceeding asks that a writ of certiorari issue to review the determination of the comptroller in cancelling a deed made by the comptroller on certain lands in Delaware county on tax sale.

It appears from the papers on this application that the relator purchased at tax sale in November, 1881, 158 acres of land, in Hardenburgh Patent, Delaware county, and that afterwards on the 5th day of January, 1884, the comptroller executed and delivered his deed therefor to relator which was duly recorded in the Delaware county clerk’s office. On the 3d of December, 1886, the comptroller gave notice to the relator of an application to redeem on the proof of occupancy by Gilbert Post of a stone quarry on said premises, on the 23d day of November, 1883, and requiring him to show cause by filing proofs on or before the 14th day of December, 1886.

On this application to redeem, proofs by affidavit were filed on behalf of the occupant, and also proofs by affidavit on the part of the relator in the office of the comptroller, and the time for filing said proofs was extended by the order of the comptroller until the lOtK day of January, 1887. On the 9th day of February, 1887, the comptroller gave notice to the relator that he had personally examined the papers on file in the case and had ordered said tax deed to be cancelled. To review this action of the comptroller the relator asks for this writ.

The comptroller objects to the issuing of this writ, on the ground that the relator has not exhausted all prior remedies given by statute, and that he should have applied to the comptroller for an order setting aside the cancellation of this deed under the provisions of chapter 120 of the Laws of 1873.

Section 1 of that act provides that: “The comptroller of the state of New York shall have power to set aside any cancellation of sale made by him under the provisions of chapter 427 of the Laws of 1885: First. Whenever such cancellation was produced by fraud or misrepresentation. Second. Whenever such cancellation was produced by the-suppression of any material fact bearing upon the case. Third. Whenever the cancellation was made under a mistake of fact.”

It is difficult to conceive of a possible reason for setting aside this cancellation which would not come within one of these three grounds of review. Certainly no question could be raised before the court on certiorari which could not be raised before the comptroller on an application to him under the statute to set aside this order of cancellation; and it is no valid objection to such an application that the comptroller would be called upon to review his own decision.

The statute contemplates such a review and such a practice finds a parallel in a motion before a judge upon the minutes and exceptions taken at the trial for a new trial, a practice of daily and almost universal application. If, therefore, such a motion could be made before the comptroller, then the granting of the writ is prohibited by subdivision 3 of section 2122 of the Code of Civil Procedure.

That section prohibits the granting of this writ, where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the relator’s application. In the case of The People ex rel. Noble v. The Board of Commissioners of Pilots, 37 Barb., 126. In this case the relator claimed to be aggrieved by the action or decision of the board of commissioners of pilots; and the law allowed a rehearing before said board, but the relator instead of applying for such rehearing sued out a writ of certiorari, and the supreme court at general term in the first department unanimously held that the remedy of rehearing having been given the writ of certiorari should not be granted until such remedy has been exhausted.

Under the provisions of chapter 120 of the Laws of 1813, I think a rehearing before the comptroller could have been had. And if so, until such rehearing is had, the writ asked for is prohibited by section 2122 of the Code. If I am right in this conclusion, the examination of this . case upon the merits would be unnecessary and unprofitable.

The application for this writ of certiorari must be denied, without costs.


author: Learned, P. J.

text:
    Matter of the Proof of the Will of James Mackey, dec’d.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    1. Will—Execution of—Must substantially conform to the requirements OF STATUTE.
    Each of the several formalities required by statute in the execution ot a will must be substantially observed in order that it may be admitted to-probate.

      2. Same—Acknowledgement of signature by testator—Witnesses MUST SEE SIGNATURE.
    The statute requires that either the witnesses shall see the testator subscribe his name, or shall hear him acknowledge some subscription already made to be his. Held, That it was necessary that they should see the subscription thus acknowledged.

      Louis Hasbrouck, for appl’t; William H. Sawyer, for resp’t.
   Learned, P. J.

This is an appeal by the executors and legatees from the decree of the surrogate refusing to admit to probate a paper purporting to be the will of James Mac-key, deceased. There is but one question in regard to the proper execution of this paper. That is, whether the testator acknowledged to the subscribing witnesses that the subscription to the will had been made by him.

This is not a case like that of the Cottrell will (95 N Y. 329), where neither the surrogate nor the appellate courts believed the testimony of the subscribing witnesses; and where the probate was granted because the courts believed that all the requisites of the statute were in fact complied •with. In the present case there is no reason to doubt that the subscribing witnesses give an accurate account of all that took place. And the question must be whether the facts, as they state them, show a proper execution of the instrument.

The instrument had been drawn up by a lawyer at the request of the deceased, except the names and residences. The deceased had stated to the lawyer, at that time, that he wanted it for a friend who could not come and see the lawyer. The names and residences, (that is of the deceased and of the legatee and executrix), are in the handwriting of the deceased. The signature to the paper is in the handwriting of the deceased

The attestation clause does not contain the name of the testator or any date, except by reference to the date of the instrument.

The deceased told the two witnesses that the paper was his will, and that he wanted them to sign it. The paper was folded so that they could see only the attestation clause. They did not see the deceased sign the will, nor did they see his signature or seal; nor did they know that there was any signature or seal; nor did he acknowledge that any signature was his.

One of the witnesses says that a few days before that time he was at the house of the deceased, and deceased took the paper out of the envelope and read it to himself, and the witness says he was sitting some distance off and caught the reflection of the seal. But there is no evidence that the instrument had been signed at the time when the witnesses were requested to witness it. That is, unless the transaction which then took place as above detailed is to be considered evidence that the instrument had been previously signed. The attestation clause states that the instrument was signed in presence of the witnesses; not that the signature was acknowledged. This is plainly incorrect.

The statute requires either that the witnesses shall see the deceased subscribe his name, or‘shall hear him acknowledge some subscription already made to be his. This plainly implies that they shall see the subscription which the deceased thus acknowledges. Thus in the Phillip’s Case (98 N. Y., 267), the deceased produced the will, laid it on the table in front of the witness' “with his (the deceased’s) signature visible on the face of it/’ And the court say that the exhibition of the will and of the testator’s signature attached thereto, and the declaration that it was his last will, were a sufficient acknowledgment of the signature. So that the decision rested, among other facts, upon the exhibition to the witness of the testator’s signature.

It is well settled that each of the several formalities i’equired by the statute must be substantially observed. In re Hewitt, 91 N. Y., 261. And it certainly is impossible for a person, under the statute, to acknowledge that a signature has been made by him, unless the witness sees the signature which the person attempts to acknowledge.

Let us suppose (and there are no facts inconsistent with the supposition) that the deceased did not sign the instrument until sometime after the interview with the witnesses. In that supposition, the instrument was never duly executed.

■ We have examined the cases cited by the appellant, but we find no others which seem to us to need discussion in connection with this case. The simple question is whether the proof shows satisfactorily an acknowledgment of his signature by the deceased. We think it does not. The folding of the paper by the deceased so as to disclose only the attestation clause, shows that he did not exhibit, and did not intend to exhibit, his signature, if any then existed. Of course no special form is needed for such an acknowledgment. But the thing which is acknowledged must be seen by the witnesses. Very possibly also, if the facts were not known, the attestation clause might be presumptive evidence that the instrument was properly exécuted. But in the present case the facts are known and are clearly proved. It seems to us that the safe course in all questions of this kind is to follow the statute strictly. Attempts by court to relieve interested parties against imperfect execution of wills, while they may be made with very benevolent motives, lead to confusion and uncertainty in the law. The formalities required by the statute are not technical. They are intended as safeguards against fraud anci imposition. And it is best that they should be adhered to. although in some instances such adherence may disappoint would-be legatees. Even in those instances it is not a great evil that the property of a deceased should go to his heirs and next of kin.

We are of the opinion that the decision of the surrogate was correct.

Decision affirmed, with costs against appellant

Parker and Landon, JJ., concur.


author: Landon, J. Learned,P. J.

text:
    Eller M. Vedder, Resp’t, v. Oliver R. Larsing, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 24, 1887.)

    1. Practice—Judgment—Who may issue execution on transcript op JUDGMENT PROM JUSTICE’S COURT—CODE ClVIL PROCEDURE, §8 347, 3033 and 3048.
    The transcript of a judgment obtained in a justice’s court in Fulton county was filed in Fulton county, and a transcript of the Fulton county judgment was filed in Saratoga county clerk’s office. Meld, that the clerk of Fulton could issue execution under Code Civ, Pro.., § 347, and the clerk of Saratoga county could issue one returnable to his office under §§ 3033 and 3043. Ldarned, P J„, dissenting,
    3. Same — Order por leave to issue execution — Codc Cira, Pro. cedure, § 3017.
    Application for leave to issue execution after ten years could only be made in the Fulton county court under Code Civ. Pro , § 3017.
    Appeal from an order of the Fulton county judge, denying a motion made to vacate an order made by him, requiring the defendant to answer upon examination before a referee concerning his property.
    Plaintiff obtained judgment against the defendant before a justice of the peace of Fulton county, January 29, 1876, for $200. A transcript was filed and the judgment docketed in the Fulton county clerk’s office, January 29, 1876. A transcript of the Fulton county judgment was filed, and the judgment docketed in the Saratoga county clerk’s office, February 1, 1876. The affidavit upon which the order for examination was granted recites that an execution against the property of the judgment debtor was duly issued August 2, 1886, out of the Fulton county court and delivered to the sheriff of Saratoga county, the county in which the judgment debtor resided; that the judgment debtor has property which he unjustly refuses to apply upon the judgment.
    It did not appear upon the motion that any order had been granted allowing execution to issue in 1886, but a certified copy of such an order was presented upon the argument in this court.

      Emmett Blair, for app’lt; John M. Gardner, for resp’t.
   Landon, J.

The justices judgment became a judgment of the Fulton county court. Code Civ. Pro., § 3017. When the transcript was filed, the judgment docketed in Saratoga county, it had the like effect with respect to the enforcement thereof as if it had been rendered by a justice of the peace of the latter county, except that application for leave to issue an execution would need to be made in the Fulton county court. Section 3022. The county clerk issues the execution. Section 3017. The execution was properly issuable by the Saratoga county clerk. Sections 3022, 3043. And returnable to his office. Section 1367. But the Fulton county clerk might also issue it. Section 347. This order was made under section 2436. The Fulton county judge could make it. Section 772. The objection that there was no order for leave to issue the execution in 1886 is now obviated by the presentation of the order granting leave. As it appeared from the affidavit that more than five years had elapsed before the issuing of the execution, the affidavit was no doubt defective in not showing leave granted. Hutson v. Weld, 38 Hun, 142.

The order should be affirmed, but without costs.

Mayham, J., concurs.

Learned,P. J.

(dissenting) It seems to me that sections 3022, 3043 show that the execution should have been issued by the clerk of Saratoga county to the sheriff of that county, and not by the clerk of Fulton county.

I do not think the general language of - section 347 should be construed to affect these sections, subsequently passed and having a special reference to the matter in question.

The Code of Pro., § 64, subd. 13, was to the same effect.

And it is improbable that it was intended that an execution in such a case as this, might be issued by either of two county clerks.

Further, what official knowledge would the clerk of Fulton county have of the fact that the transcript had been filed and the judgment docketed in Saratoga county, and of the time of such docketing and filing? If a county clerk is to issue an execution (as he must in the case of a justice’s judgment) he must have official knowledge of the facts which are to be stated in "the execution. And that the clerk of Fulton county could not have had, when he issued an execution to the county of Saratoga, based upon the docketing of the judgment in Saratoga county.

There is nothing in section 1365 which helps the plaintiff.

I do not think there is any other defect in the proceedings. But this appears to me fatal.

The order should be reversed, and the order to examine defendant set aside, but without costs,.'


author: Learned, P. J. Landon, J.

text:
    Sarah Devoe, App’lt, v. George H. Davis, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 28, 1887.)

    Duress—Money obtained to keep husband out oe jail—Compounding a FELONY.
    Before a man can be permitted to retain $150 which he has obtained by working on the sympathy of a woman who fears that her husband may be sent to jail (especially where the claim against the husband is only twenty-six dollars), he should show to the satisfaction of the jury that the woman knew that she was paying the money to induce him to compound a crime. If the jury should believe that she thought her husband was arrested in a civil action, then they could not hold her culpable in paying the money. And they might find she paid it under duress. Landon, J., dissenting.
    Appeal from a judgment of the Ulster county court entered upon a non-suit granted by the court upon a trial before a jury.

      Charles A. Fowler, for app’lt; J, M. Fiero, for resp’t.
   Learned, P. J.

There was evidence sufficient to go to the jury on the question of duress.

The only matter to be examined is that of compounding a felony.

In Haynes v. Rudd (102 N. Y., 372; 2 N. Y. State Rep., 45), after stating the ordinary doctrine that fraud or duress would authorize a party to recover back money, the court said: “Such a right does not exist and cannot be enforced where the consideration of the contract thus made arises entirely upon, or is in any way affected by the compounding of a felony.”

Now, it will be seen by the opinion in that case, and by the opinion in the same case (83 N. Y., 251), that the court assumed that the person who paid the money under duress knew that the consideration was the compounding of a felony. For the opinions speak of the parties as being in pari delicto. This phrase means that each is equally culpable. And there can be no culpability in this respect in a party who does not know that the consideration of the contract, or of the payment of the money, is the compounding of a felony. Compounding a crime is itself criminal. Penal Code, § 125.

Assuming for the present ta matter which seems to me doubtful) that the complaint against Cyrus Devoe stated a crime, we must see whether it is conclusively shown that the plaintiff knew that, in paying the money, she was giving a consideration for the compounding of a crime.

Her husband came with a constable and told her they had taken him on a warrant, and that Davis had caused the arrest. She went to Davis. He said Cy., her husband, had lied to him. Besides he had been coEecting in money that he had no right. He told her to go to her husband and he would explain. She says she gave her bank book because she expected they would take her husband to jail, if she did not. She asked her husband what the trouble was, and he said Davis wants me to pay him $150, and burst out crying. She said, I suppose he means to send you to jail.

Now it is quite consistent with this that the plaintiff beEeved that her husband was arrested on a civil process. There is no indication that she knew that he was charged with any crime.

It is true that the complaint, sworn to by Davis, states that Cyrus Devoe (plaintiff’s husband) had by false pretenceobtained from Davis twenty-six dollars by falsely pretending that he was authorized to demand the same for Davis with intent to defraud Davis. It is not easy to see how a man can falsely obtain money from another by pretending that he is authorized to demand the same for that other. Davis must have known whether Devoe was entitled to demand money from him, for and on behalf of him, Davis.

On this complaint Devoe was arrested and this plaintiff,„ to keep her husband from jail, paid Davis $150 of her own money deposited in a savings bank.

Davis himself knew that she had this money in the bank, for he had made the deposit for her.

Now, before a man can be permitted to retain $150 which he has obtained by working on the sympathy of a woman who fears that her husband may be sent to jail (especially where the claim against the husband is only $26), he should show to the satisfaction of the jury that the woman knew that she was paying the money to induce him to compound a crime. If the jury should believe that she thought her husband was arrested for lying, or for not paying over money he had collected for Davis (in whose employ he was) then they could not hold her culpable in paying this money. And they might find that she paid it under duress.

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

Mayham, J., concurs.

The action was to recover money paid to the defendant by the plaintiff while under alleged duress. The plaintiff’s husband was in the employ of the defendant as a peddler. The defendant procured a warrant from a justice of the peace for the arrest of plaintiff’s husband upon a charge of obtaining from defendant twenty-six doHars by means of false and fraudulent representations. This warrant was placed in the hands of a constable, who arrested plaintiff’s husband and brought him before the justice. The defendant and the prisoner, before the magistrate, made an agree,ment that the matter should be settled by obtaining money upon the plaintiff’s bank book. The plaintiff had an account in the savings bank, and a bank book, in which about $170 stood to her credit. This the defendant knew. The justice postponed the examination of the prisoner until the next day. The constable and the prisoner then went to the plaintiff’s house and informed her that her husband was under arrest and that the defendant had caused it. The plaintiff then went and saw defendant and asked him what-was the trouble, and defendant told her that her husband had lied so him, something about a sack of rags, and besides that he had been collecting in money without right, and told' her to ask her husband, that he could explain. She went-back to her house and, in order to prevent her husband, being taken to jail, she delivered her savings bank book and an order to the constable. The constable released her husband, obtained $150 from the bank upon the bank book, paid it to the defendant and the prosecution was never further proceeded with.

The plaintiff also testifies that she did not learn before delivering the bank book the particulars of the charge-against her husband, that there were questions she wanted to ask him but did not because her children were present.

Upon the close of the plaintiff’s testimony, the court directed a non-suit. The plaintiff requested to go to the jury upon thequestion whether the defendant did not obtain the money by means of the complaint, which request was refused.

The court was requested to hold that the complaint before the justice did not charge any offense, which request was. refused.

Landon, J.

(dissenting) Although the plaintiff may have been under duress and coercion because of the arrest of her husband, and her fear that he would be taken to jail and be convicted of crime, yet if she paid the defendant the money to-compound the offense, and if that offense was a felony, she cannot recover. Haynes v. Rudd, 102 N. Y., 372; 2 N. Y. St. Rep., 45. The evidence shows that she knew there was an offense charged against her husband; she did not know the particulars of it; but whatever it was she paid her money to compound it, and thus voluntarily accepted the-effect of its true character upon her right to recover back her money.

The charge against her husband, as stated both in the-complaint of the defendant and the warrant issued by the justice was, that Cyrus Devoe, on or about the 12th day of December, 1886, at the town of Marbletown, “ did designedly and by false pretence, obtain from him (this defendant) the sum of twenty-six dollars, by falsely and fraudulently stating and representing that he (Devoe) was authorized to demand and receive the same for and on behalf of George H. Davis (this defendant), with intent to cheat and defraud said Davis.”

Whatever may be thought of this statement as a pleading, it is a statement, substantially in the language of the statute, of the offense of obtaining money by false pretence. 2 R. S., m. p. 677, § 53. Such offense is a felony. The case of Fassett v. Smith (23 N. Y., 252) seems to hold otherwise, but in view of the emphatic dissent from its' conplusion in this respect, expressed in the case of People v. Lyon (99 N. Y , 210) it must be regarded as overruled.

The judgment of the county court must therefore be affirmed, with costs.


text:
    John B. Beaman, Resp’t, v. Nelson Lyon, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    1. Bills and notes—Evidence—Possession.
    The possession oí a note is prima facie evidence of delivery, and in the absence of proof to the contrary, the court must hold that it was delivered. It is also sufficient evidence prima facie of consideration.
    2. Same—Evidence—Varying a written contract.
    Evidence was oSered to prove an oral agreement made at the time of the giving of the note in question, to change the time of payment. Held, incompetent, as it would vary a written contract.
    3. Same—Effect of word " surety " preceding name of maker.
    The defendant was liable, as maker of the note, although the word “ surety” preceded his signature.
    Appeal from a judgment for plaintiff.

      I. & J. M. Lawson, for resp’t, William H. King, for app’lt.
   Learned, P. J.

The defendant was liable, as maker of the note, although the word “surety” preceded his signature. It was good pleading to set forth the note in the complaint. Code, § 534. The note is sufficient evidence prima facie of consideration.

The testimony offered by the witness Lochrow was properly excluded. So far as it went, it was intended to prove payment, or partial payment. And this had not been pleaded.

Payment must be pleaded; and that rule is in force, notwithstanding the formal allegation in a complaint of non? payment. If payment had been made, it could be pleaded by the defendant, although it had not been made by him.

The offer to prove an agreement of the parties to extend the time was properly rejected. It was evidently an offer to prove an agreement made at the . time of the giving of the note. In other words it was an offer to change a written ■agreement by contemporaneous conversation. It was not an offer to prove a subsequent agreement, on a valid consideration, changing the time of payment.

The possession of the note by plaintiff is prima facie evidence of delivery. And in the absence of proof to the contrary the court properly held that it was delivered.

Judgment affirmed, with costs.

Landon and Bockes, JJ., concur.


author: Landon, J.

text:
    Samuel Pruyn et al., Appl’ts, v. Eugene Lynch, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 24, 1887.)

    1. Practice—When Code of Civil Procedure does not take place of Code of Procedure—Code Civ. Pro., §§ 3349 and 3352—Laws 1880, chap. 245.
    It was the intention by the saving clauses in the Code of Civil Pro" cedure, sections 3349 and 3352, and of the repealing act, chapter 245, Laws 1880, section 3, to continue the provisions of the old Code with respect to actions and proceedings and the effect thereof to which the new Code by express words was made inapplicable.
    3. Same—Costs—Appeal from justice’s court—Code of Procedure, § 371.
    On the 1st of September, 1880, an appeal was pending in the county court in this action. Judgment had been obtained by the plaintiff in the justices’ court. The defendant had appealed to the county court and had demanded a new trial. In his notice of appeal the defendant claimed that the judgment should have been more favorable to him. No offer to allow" judgment under Code of Procedure, section 371. was made by either party within fifteen days thereafter. In May, 1886, the plaintiffs served an offer on defendant to allow judgment to be taken against them, wholly reversing the judgment without costs, which offer defendant refused to accept. The defendant failed to obtain a more favorable judgment than the plaintiffs offered them. JHeld, that the defendant must pay costs from the date of the offer to be taxed under the Code of Procedure.
    Appeal from an order of the special term, refusing costs to the plaintiffs and affirming the clerk’s taxation in favor of the defendant.
    On the 1st of September, 1880, an appea, was pending _n the county court in this action. Judgment had been obtained by the plaintiffs in the justices’ court for forty dollars and six cents damages and five dollars costs. The defendant had appealed to the county court and had demanded a new trial. In his notice of appeal the defendant claimed that the judgment should have been more favorable to him; in that it should have been against the defendant for only ten dollars arid costs; also that it should have been in defendant’s favor for costs. Ho offer to allow judgment was made by either party within fifteen days thereafter. In May, 1886, the plaintiffs served an offer on defendant to allow judgment to be taken against them wholly reversing the judgment without costs. Defendant refused to accept the offer. The action was then certified by the county judge to the supreme court and was tried at the circuit in September, 1886, when plaintiffs recovered a verdict for thirteen dollars and ninety-three cents. Each party claiming costs, they were awarded to the defendant.

      L. M. Brown, for app’lts; H. A. Howard, for resp’t.
   Landon, J.

As this action was commenced before September 1, 1880, the costs upon appeal are governed by the old and not by the new Code. Atkin v. Pitcher, 31 Hun, 352. It is remarked in this case that Garling v. Ladd (27 Hun, 112), holding that the new and not the old Code govverned the costs in a case like this, must be regarded as overruled by the court of appeals, in Matter of Weston (91 N. Y., 502). Be that as it may, a re-examination of the question convinces us that full force was not given to subdivision 11 of section 3347, Code Civ. Pro., in Garling v. Ladd. That subdivision provides: “ So much of chapters- * * 19 * * as regulates the proceedings to be taken in an action or special proceeding, and the effect thereof, applies only to an action or a special proceeding commenced on or after the first day of September, 1880.” Chapter 19 of the Code of Civil Procedure, regulates the proceedings to be taken in an action in a justices’ court, including appeals, and prescribes “the effect thereof” upon the right to costs, and hence cannot affect such right in this case. This subdivision also excludes so much of chapter 19 as regulates the proceedings in this action. Such proceedings must therefore be regulated by the old Code, or he without statutory regulation. ' It was undoubtedly the intention by the saving clauses in the Code of Civil Procedure, §§ 3349, 3352, and of the repealing act, chap. 245, Laws 1880, § 3, to continue the provisions of the old Code in force with respect to actions, and proceedings and the effect thereof, to which the new Code, by express words, was made inapplicable.

The plaintiffs did not accept the privilege given them by section 371 of the old Code, to offer to correct the judgment in any of the particulars mentioned in the notice of appeal, but did avail themselves of the privilege given them by subdivision 5 of section 366 of the old Code. This subdivision provides'that “either party may, at any time before trial, serve upon the opposite party an offer in writing to allow' judgment to be taken against him * * to the effect in such offer specified, and with or without costs.” The section further provides that in case the party to whom such offer be made shall not accept it, ana shall fail to obtain' judgment more favorable to him than the judgment offered, he “shall not recover costs, but must pay the other party’s costs from the date of the service of the offer.”

Here the appellants failed to obtain a more favorable judgment than the respondents offered them. The respondent offered in effect to waive all recovery, and recovered $13.93. We must compare results without including costs in order to determine which party is entitled to costs.

It follows that the appellant “ shall not recover costs but must pay tho other party’s costs from the date of the service of the offer,” namely, May 11, 1886.

The same result would follow, if we give force to the proceedings taken under the old Code before September 1, . 1880, and regard the new Code as applicable to the subsequent practice and the respondent’s offer of judgment made under section 3072.

The order of the special term is reversed with ten dollars ■costs and printing disbursements, and costs of the appeal in the court below are allowed the plaintiffs from May 11, 1886, to be taxed under the Code of Procedure.

Parker, J., concurs; Learned, P. J., not acting.


text:
    People ex rel. Franklin N. Wright, Resp’t, v. Reuben Willard, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    Village officers—Written appointment necessary—1 Rev. Stat., p, 118, § 19.
    Under 1 Revised Statutes, p. 118, § 19, it is necessary that the appoint ment of village officers shall he manifested by a commission, signed by the presiding officer of the board or body, or by the person making the appointment.
    Appeal from a judgment in favor of the relator.

      D. O’Brien, for resp’t; Lee S. Anibal, for appl’t.
   Learned, P. J.

1 Revised Statutes, m. p. 118, § 19, says: " The commission of all other officers (meaning other than those previously mentioned) where no official provision is made by law, shall be signed by the presiding officer of the board or body, or by the person making the appointment.” People ex rel. v. Murray (70 N. Y., 521) holds strongly the necessity of a written appointment, and goes far to modify the authority of People v. Fitzsimmons (68 N. Y., 514). At any rate, both cases concur in the necessity of a writing, signed by some one authorized to sign. The question then must be whether there is any special provision made by law for the signature of commissions issued to village officers, or whether such commissions fall under the general rule of the Revised Statutes. It is claimed by the relator that the general act for incorporation of villages (chap. 291, Laws of 1870) makes such special provision. Title 2, section 10, authorizes the board of trustees to fill any vacancy. That provision gives them the power, but does not prescribe how its exercise shall be manifested. Section 13, title 8, requires a record to be kept, and section 16 provides that every rule and resolution may be read in all places from the original records.

Row, the provision of the Revised Statutes is general. In many cases the board, or body, making the appointment must have a clerk or secretary, whose duty it is to keep a record. Such records are generally admissible in evidence. Can it be then that, in making this provision, the legislature overlooked this fact? Did they not rather intend that, in SO' important a matter as the appointing to office, a commission, signed by the presiding officer, should always be issued?

In section 17 they had provided that certificates of boards of canvassers should be evidence of election. And they might have provided in a similar manner for resolutions of appointment signed by clerks of boards.

Now it seems to us that the above cited provision in the act for incorporation of villages in regard to resolutions, could not have been intended to supersede the general law of the Revised Statutes in respect to commissions. The village act speaks of rules, resolutions and proceedings. It has no special reference to appointments. And we think it could not have been intended as a special provision, made by law, for the commissioning of appointees. And it must be noticed that the power of the board to fill vacancies is not confined to vacancies in their own body. So that, if the resolution in the records is good in the case of a trustee, it is good also in the case of any other village officer, whose vacant place the trustees may fill. We think that the language of the Revised Statutes implies that some paper is to be issued to the appointee.

Judgment reversed and complaint dismissed with costs, against relator»

Mayham, J. concurs ; Landon. J., not acting.


text:
    People ex rel. George Huntly, Resp , v. Edward E. Mills, Commissioner of Highways in the Town of Schroon, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887 )
    1. Highways—Discontinuance of—Laws 1875, chap. 481—Laws 1880, chap. 114.
    Although the mode of discontinuing roads may be changed by Laws 1880, chap. 114, yet the cases in which that power can be exercised remain the same as in Laws 1875, chap. 481, and is only in regard to old useless and unnecessary roads. It does not mean a uselessness existing at the laying out of the road.
    2. Same—Validity of—When opening of cannot be attacked.
    In proceedings taken to compel the commissioners of highways of a certain town to attach a certain road to a road district or to make said road into a separate road district, the validity of the proceeding by which the road was opened cannot be attacked.
    Appeal from an order of special term granting a mandamus requiring the defendant to take certain action as to a road.

      A. H. Bevins, for resp’t; Waldo, Grover & McLaughlin for app’lt.
   Learned, P. J.

This is an appeal from an order of the-special term, granting a mandamus requiring the defendant to attach a certain road to a road district or to make said road into a separate road district.

The affidavit of the relator sets forth certain proceedings by which application was made in due form to the commissioner of highways to lay out the road in question. It details the proceedings and the decision finally made by the commissioner; August 31, 1885, laying out the road; the presenting by the land owners of their claims for damages for the amounts awarded them by the jury; the assessment of those sums and the payment thereof to such landowners. It recites that in 1885 the commissioner laid out money and performed labor on said highway to make it fit for travel. It avers that the defendant, the present commissioner, refuses to attach the road to any road district or to make it a separate district or to do anything requisite to make said highway fit for travel. Attached to this affidavit are copies of the proceedings in relation to the opening of this road.

The defendant states that prior to the present proceedings he had appointed overseers of the highways and made assessments for highway labor. He shows facts which tend to prove that he has no money applicable to this road.

He states that prior to the commencement of the present proceeding, a petition to discontinue the road was served on him; and pending these proceedings another : copies of both being annexed, and he intends to discontinué it.

He states facts tending to show that the road is not necessary, and will be expensive to maintain.

After the hearing of the motion for a mandamus, as appears by the opinion of the special term and by the papers, the defendant made an order discontinuing the road.

There certainly is great doubt whether the order of discontinuance, of which the learned justice states that a copy was sent him after the case had been submitted, should be considered at all. What the relator would have said in opposition, if it had been presented at the hearing, cannot now be known. The motion for a mandamus was made April twentieth. This alleged order of discontinuance is said to have been made May fourth. Plainly the question before us should be decided on the facts as they were presented at the argument. If there has been, or should be, subsequently a valid discontinuance of this road, then the attaching it to a road district will probably be of little use to any one.

A very long argument has been made as to the validity of the proceedings to open this road; but no question of that kina appears in the defendant’s affidavit. He says he is going to discontinue this road. Then there is, or was, a road which might be discontinued. His predecessor opened the road by a formal order. It does not appear that the persons whose land was taken were dissatisfied. In fact the affidavit shows that they have been paid their damages. How then does it lie with the defendant, a successor of the commissioner who laid out the road, to assert the irregularity of. proceedings taken by his predecessor and acquiesced in by those affected thereby? The assent of the persons whose land is taken is expressed by their acceptance of the damages and by their acquiesence. And even the defendant treats the road as a highway by expressing his intention to discontinue it.

If this present proceeding were against the same commissioner, who laid out the road and declared it a highway, it would be strange for him to insist on the invalidity of his own proceedings, to which those affected thereby had never ■objected. And this defendant stands in the same position with his predecessor. If any of the persons whose land was "taken had objected to the defendant’s acting in respect to this road, another question would arise. But as the case stands, we think that in this collateral proceeding we should not review the proceedings of defendant’s predecessor.

Indeed, the learned justice, in his opinion, says that no question was made by the defendant that the road was not Serly laid out and the damages properly assessed and . So that the position now taken seems to be an afterthought. We come then to that point on which the learned justice has made a most full and careful argument; the point that the alleged order of discontinuance was invalid. Now it seems to us that it is necessary to examine this point. It does not appear by the order appealed from whether or not the order of discontinuance was used on the hearing. It is not distinctly mentioned. By the date, it appears that that order was made subsequent to the argument of the motion and subsequent to the date of the order granting a mandamus. This then was a matter of which the relator had no proper notice. He had no opportunity to contradict it, or to be heard in regard to its effect.

We have examined the opinion of the learned justice, and it seems to us to be sound. The present case is much like that of People ex rel. v. Griswold Com. (67 N. Y., 59); and the views of the learned justice seem to be in harmony with that decision. It is claimed by the appellants that chapter 114, Laws of 1880, contains no provisions as to when a highway may be discontinued in the towns affected by that chapter. But that chapter excepts such town from chapter 431, Laws of 1875, which said nothing about discontinuance of highways. And it may well be said that although the mode of discontinuing roads may be changed by the act of 1880, yet the cases in which that power can be exercised remain the same. And the decision above cited shows that the power is to be exercised only in regard to old, useless and unnecessary roads. “It (the language) does not mean a uselessness existing at the laying out of it” (the road).

Were it proper to pass upon the effect of the alleged order of discontinuance, we should probably agree with the able1 opinion of the learned justice. But we think that it is better to pass on the case as it stood when submitted. This indeed was the view of the learned justice.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Parker, JJ., concur.


text:
    Thomas W. Brownell, App’lt, v. Town of Greenwich, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    1 Town bonds to aid railroads—Must be conformable to law.
    Bonds issued by commissioners under the provisions of the acts authorizing towns to bond themselves to aid in the construction of railroads, must be conformable to law, or they are invalid as such, and cannot be collected of the town, and the holder is charged with knowledge of any defects; there is no such thing as a bona fide holder of such bonds.
    2 Same—When issued—Laws 1869, chap. 907 —Laws 1871, chap. 925.
    Pursuant to a judgment, duly filed and entered of record in the county clerk’s office of Washington county, the county judge of said county appointed commissioners for the puiposes set forth in chapter 907, Laws 1869, who entered upon the discharge of their office and prepared eighty bonds for $500 each, purporting to be the town bonds of the town of Greenwich, which were subscribed and sealed by them as commissioners, and dated March 21, 1871, payable on July 1, 1891, with interest coupons attached for the payment or interest semi-annually. Plaintiff purchased five of said bonds on July 1, 1871, paying therefor in cash the par value. The railroad company, to aid which these bonds were issued, paid the interest on said bonds until 1877, and the town of Greenwich paid it for the three following years,and took up the coupons. Thereafter the town refused to pay interest, on the ground that the bonds were void, being issued contrary to the said statute, for only twenty years. Held, that the bonds were not issued, in the legal sense of that term, until they were negotiated, and hence had no legal inception till July 1, 1871; that they were then valid under the amendment of said law, contained in chapter 925, section 6, Laws 1871. Totter v. Town of Greenwich, 33 Hun, 331, distinguished.
    S. Same—Date of issue—Presumption.
    The legal presumption is that bonds were issued at the time they bear date, but that presumption may be overcome by proof that they were issued at a different date.
    4. Same—Effect of over-issue—Effect of issue of void bonds.
    An over issue of bonds subsequent to the time that said bonds were issued, or a previous issue of void bonds, would not defeat the validity of the bonds in question.
    5. Same—How ratified by town officers.

      Held, that the town, through its officers had ,so far as they were capable, ratified the acts of the commissioners by accepting the railroad bonds and recognizing the validity of the town bonds by voluntarily paying several installments of interest.
    ■6. Same—Presumption as to acts of commissioners.
    It must be assumed that the commissioners did their duty, in the absence of any proof to the contrary.
    7. Submission under Code Civ. Pro., §§ 1279, 1280, 1281—Estopped from denying facts conceded in case submitted.
    This action was submitted on an agreed state of facts, under the provisions of Code Civil Procedure, sections 1279,1280 and 1281. The said case contained, among other things, a recital that “ the county judge of Washington county duly adjudged, determined and ordered, as set forth in his judgment or order then made, of which the following is a copy;” then followed the formal adjudication of the county judge, reciting the jurisdictional facts. Held, that with this concession it does not lie with the defendant to challenge the jurisdiction of the county judge to pronounce the judgment.
    This action comes before this court upon a submission of a case containing an agreed state of facts under the provisions of sections 1279, 1280 and 1281 of the Code of Civil Procedure.
    The action which this submission is intended to determine was commenced between these parties on the 31st day of December, 1884.
    The case shows that the plaintiff is of full age and a resident of Washington county, and that the defendant is a municipal corporation and constitutes one of the towns of Washington county. That the Greenwich and Johnsonville Eailroad Company is and was at the times referred to in the stipulation a corporation duly organized and incorporated under the laws of the state of New York as a railroad corporation, and as such has constructed and is operating a railroad between the village of Johnsonville, in the county, of Eensselaer, and the village of Greenwich, in the town of ■Greenwich, in the county of Washington, and has its principal office and depot and terminal buildings in the town of Greenwich. The case shows that in 1870 said railroad company was endeavoring to extend said railroad into the town of Greenwich, in the county of Washington, and for that purpose and to raise the necessary funds therefor, authorized and caused to be issued bonds for $50,000 secured, by second mortgage on said railroad and it franchises. That on the 21st day of March, 1871, the county judge of Washington county duly adjudged, determined and ordered as set forth in the judgment or order made and which is fully set out in the case and constitutes a part of the same.
    In and by that judgment it is recited that certain taxpayers of the town of Greenwich have applied to the county judge of Washington county, state of New York, the county in which said town is located, by their petition duly verified and presented under and by virtue of the provisions of chapter 907 of the Laws of 1869, setting forth the due incorporation under the laws of New York of the said. Greenwich and Johnsonville Eailroad Company. That said petitioners are severally tax-payers of said town of Greenwich whose names respectively appear upon the last preceding tax-list or assessment-roll of said town owning and. representing a majority of the taxable property within the limits of said town, and that said petitioners were a majority in numbers of the tax-payers on the last preceding tax-Est or assessment-roll of said town, and that said petitioners by said petition asked and desired that bonds of said town of Greenwich may be created and issued in the manner specified in said chapter 907 of the Laws of 1869 to the amount of $40,000, and said town bonds be invested in the second mortgage bonds of said railroad company at eighty cents on the dollar.
    The said judgment further recites the reading of said petition, and of the order granted on the presentation thereof, and of the taking due proof of the notice issued thereon, and after due publication of said notice and of the facts set forth in said petition, the order proceeds to adjudge and determine that the allegations of said petition are proved and established, and that the said petitioners do represent a majority of the tax payers of the town of Greenwich, in Washington county, as shown by the last preceding tax list or assessment roll of said town, and do represent a majority of the taxable property of said town upon said Est or roll. This judgment was duly filed and entered of record in the county clerk’s office, of the county of Washington, on the 21st day of March, 1877.
    The case also shows that the taxable property of the town of Greenwich, on the last preceding tax Est or assessment roll, was $1,404,696.
    The case also shows that immediately after the entry of the aforesaid judgment, the county judge of Washington county appointed three commissioners, who were residents and free holders within the town of Greenwich, to be commissioners for said town for the purposes set forth in chapter 907, of the Laws of 1869, and that such commissioners duly accepted and qualified as such and entered upon the discharge of said office. That said commissioner prepared, or caused to be prepared, eighty bonds of $500, each purporting to be bonds of said town of Greenwich, subscribed and sealed by them as commissioners, and dated March 25th, 1871, payable on the 1st day of July, 1891, with coupons attached for the payment of the interest semi-annually at the rate of seven per cent, per annum; said bonds were numbered consecutively from one to eighty, and placed in the hands of one Andrews, who was also the treasurer of the railroad company for sale, with directions to sell the same for said commissioners, and who proceeded to do so as opportunity offered at par for cash, and place the proceeds to the credit of the railroad company, and after completing the sale of the entire series, he delivered to said town commissioners the railroad mortgage bonds amounting to fifty thousand dollars. None of the funds received by Andrews went into the hands of the railroad commissioners.

      Among, the purchasers of said town bonds, was this plaintiff, who about July 1, 1871, purchased No. 17, 18, 19, 20 and 21, paying therefor in cash the par value of $2,500, and is stiff the owner and holder of said bonds.
    The railroad company paid the interest on said bonds until the year 1877, and for the years 1877, 1878 and 1879 the town of Greenwich paid the interest semi-annually to Brownell, and took up the coupons. Since 1879, the town has made no provisions for the payment of the interest on, or coupons of said bond, and refuses to do so, on the ground mainly that by chapter 907, of the Laws of 1869, the bonds are required to run thirty years, and bonds given for twenty years are therefore unauthorized and void.
    The plaintiff before the commencement of this action made various demands of the supervisor of said town of Greenwich for payment of the coupons, payment of the interest, payment of the $25,00 and interest, the issue of thirty year bonds, etc., all of which were declined and refused, the defendant insisting that by reason of the defects in the bonds and the irregularities in their issue no liability exists against the town of Greenwich which can be now enforced either at law or in equity.

      Westfall & Whitcomb, for pl’ff; Smith, Fursman & Cowen, for def’t.
   Mayham, J.

Unless the case is distinguishable from Potter v. Town of Greenwich, (26 Hun, 326, affirmed in the court of appeals, 92 N. Y., 662), then the result in that case must be decisive of this. That was an action upon one of the same series of bonds as the one in suit in this action, and the action in that case was to reform the bond so as to make it conform to the statute, chap. 907, Laws of 1869, and in case said- bond could not be so corrected, then that the defendant be decreed to pay the plaintiff $500, the face value of said bond with the accrued interest on the same. ■ And it was held that the plaintiff was not entitled to either kind of relief asked for.

But it is insisted by the learned counsel for the plaintiff that the case at bar differs essentially in the fact presented and in the relief sought, from the case of Potter v. Greenwich above referred to, and that that difference is so marked that the decision in the latter case is not an authority against the plaintiff’s right to recover in this. It is true that by the case as now presented some of the questions before the court in Potter v. Greenwich are definitely settled by the agreed facts in the case. We think the jurisdiction •of the county judge of Washington county to pronounce the judgment authorizing the issue of bonds by commissioners and the exchange of the same for second mortgage railroad bonds is clearly established by the stipulation and is not an open question in this case for adjudication by this court. The case makes the parties unite in saying that: “on the 21st day of March, 1871, the county judge of the county of Washington duly adjudged, determined and ordered as set forth in his judgment or order then made, of which the following is a copy.” Then follows the formal adjudication of the county judge reciting the jurisdictional facts, and adjudging that the requisite number of taxpayers of Greenwich representing the requisite amount of taxable property of said town had duly petitioned in compliance with the requirements of the law as it at that time existed. With this concession it does not he with the defendant to challenge the jurisdiction of the county judge to pronounce the judgment. If the county judge had not had jurisdiction both of the parties and the subject matter, he could not have “duly adjudged and determined,” as by the case it appears he did; and a judgment having been duly entered, under and in pursuance of the statute, it became binding upon the parties and like any other judgment of a court of record could not be assailed collaterally.

Section 2 of chapter 907 of the Laws of 1869, provides that: “Such judgment and the record thereof shall have the same force and effect as other judgments and records in courts of records in this state.”

Nor can the appointment and qualification of the commissioners be questioned in this case. The case shows that the county judge, “duly appointed” the commissioners for the purposes set forth in chapter 907 of Laws of 1869, and that said commissioners duly accepted said office, took their official oath, and entered upon the discharge of their duties as commissioners. Under the agreed state of facts for the purposes of this action, these commissioners became such de jure, and were clothed with all the powers conferred by the statute upon such railroad commissioners. All the preliminary steps contemplated by the act of 1869 having been complied with to clothe the commissioners with full authority to act, and they having assumed to act as such commissioners by issuing bonds to the amount of $40,000, purporting to be town bonds, issued under chapter 907 of the Laws of 1869, in which the town, by its commissioners, declares itself indebted to the holder of said bond in the sum of $500 with semi-annual interest and the said commissioners so appointed and acting having sold said bonds at par for cash to the plaintiff, and with the proceeds and avails thereof and of other similar bonds, having purchased for and delivered to said town $50,000 in par value of the second mortgage bonds of the Greenwich and Johnsonville railroad company, which so far as appears from the case said town still holds, the question arises, are these bonds so radically defective by reason of their having been issued to run twenty years instead of thirty years as represented by the act above referred to, that they cannot be upheld and sustained so as to represent a valid claim? And if so, does such defect in the bond divest the purchaser and holder thereof of all power to invoke any legal redress for the money invested, and leave the defendant in the unmolested enjoyment of the benefits derived from the use of the plaintiff’s money in the construction of a railroad within its territory with all its attendant advantages of facilities for transportation, increased valuation of property; and the $50,000 in second mortgage bonds of the Greenwich and Johnsonville Railroad? It is well-settled in this state that bonds issued by commissioners under the provisions of the acts authorizing towns to bond themselves to aid in the construction of railroads, must be conformable to law, or they are invalid as such and cannot be collected of the town, and that the holder is charged with knowledge of any defects; or in other words there is no such thing as a bona fide holder of such bonds. Cagwin v. Hancock, 84 N. Y., 532; Angel v. Town of Hume, 17 Hun, 374; Horton Thompson, 71 N. Y., 513; Potter v. Town of Greenwich, 26 Hun, 330.

If these bonds are to be treated as issued at the time they bear date, then they come clearly within the provisions of chapter 907 of Laws of 1869, which alone was in force at that time, and which required such bonds to become due and payable at the expiration of thirty years; and as these bonds had but twenty years to run, they were in their physical shape, upon their face, void. Potter v. Town of Greenwich, 26 Hun, 326.

If, however, they were not deemed issued until the time of their actual sale by the agent of the commissioners to the plaintiff, then the purchaser took them under the provisions of law then in force. Angel v. Hume, 17 Hun, 374. The bonds were actually sold by the commissioners to the plaintiff on the 1st day of July, 1871, who on that day paid the agent of the commissioners the sum of $2,500 in cash and received five town bonds of the par value of $500 each. At the time of that sale the provision of section 6 of chapter 907 of the Laws of 1869 had been amended by section 6 of chapter 925 of Laws of 1871 by adding at the end thereof as follows: "The said commissioners may issue the said bonds, payable at any time they may elect less than thirty years, any law heretofore passed to the contrary.” But the same section provides that not more than ten per cent of the principal of the whole amount of bonds issued shall become due and payable in any one year. This amendment would doubtless authorize the commissioners -to issue the five bonds bought by plaintiff at the time of that purchase, for twenty instead of thirty years. I think that it cannot be successfully maintained that the bonds were issued in the legal sense of that term until they were negotiated, they did not become a valid subsisting obligation against the town until they were negotiated. And the town could not be made liable either for principal or interest while the bonds remained unnegotiated in the hands of the commissioners.

They had no legal inception until they were delivered to some person as an evidence of a subsisting debt against the town. It cannot be pretended that the commissioners or Andrews, their agent, had any such title or interest in the bonds as would enable them to enforce them against the town. And it is well settled “if no party to the instrument who, prior to the holder, could himself bring an action on it against the maker, then no prior party ever owned it, and the holder, being the first owner, must be. held as having loaned the money to the maker. Eastman v. Shaw, 65 N Y., 522.

The bond was, therefore, not issued until it was negotiated for value, and hence had no legal inception until purchased by the plaintiff, July 1, 1871. The law of the bond at that time was that it might be issued by the commissioners for any length of time less than thirty years, fiotwithstanding the prohibition contained in chapter 907 of the Laws of 1869.

Although the legal presumption is that these bonds were' issued at the time they bear date, yet that presumption may be overcome by proof that they were issued at a different date. Elsey v. Metcalf, 1 Den., 323, 326.

The presumption of issue at the date is directly overcome by the statement in the case that plaintiff purchased, received and paid for them July 1, 1871, and as the plaintiff had a right to rely upon the law then in force, we do not see how the fact that these bonds ran for twenty instead of thirty years can effect the validity of the bond in his hands.

But it is said by the defendants that the same act which confers the discretion as to the length of time these bonds are to run upon thé commissioners, restricts the amount that shall be made to fall due in any one year, and that in that respect these bonds were issued in violation of law. The case does not show when the other bonds were negotiated, and it does not appear whether they were sold before or after this sale to the plaintiff. Suppose these five bonds were the first bonds sold, then it could not be pretended that these five bonds were an over-issue of bonds maturing at the same time, and if regular in all other respects they would be valid as to amount.

If regular, therefore, at the timé of the purchase by this plaintiff, could they be affected in his hands by the subsequent over-issue of bonds of a similar character by the commissioners ? The answer seems obvious that they could not.

Or supposeihat before the passage of section 6 of chapter 925 of the Laws of 1871 the commissioners had issued more than ten thousand dollars in these bonds due at the same date, would the issue of those void twenty-year bonds prohibit the commissioners after the passage of chapter 925 of Laws of 1871 from issuing five $500 bonds under the last mentioned act ?

The answer seems equally clear that it would not. It would seem from the above statements that upon the points discussed there is nothing that defeats the validity of these bonds in the hands of the plaintiff. In Potter v. Town of Greenwich (26 Hun, 331), the court hold that the bond in suit in that case was issued under chapter 907 of the Laws of 1869, and that for that reason was void because it was for twenty years and not for thirty years as required by that act, and the court of appeals affirms that decision (92 N. Y., 662), but that case does not seem to discuss the question of the effect of the provisions of chapter 925 of the Laws of 1871, and the whole question seems to be discussed as arising under chapter 907 of the Laws of 1869.

In that respect, therefore, this case is different from the case of Potter v. Greenwich (supra), and if this be so, the decision in that case not being predicated upon a state of facts such as appear in this case, is not controlling and does not conclude the plaintiff in this action.

All the essential benefits which the tax-payers of the town contemplated at the time they petioned for leave to bond the bond were realized, accepted and adopted by the town and the tax-payers thereof, or so far as appears by this case in the full enjoyments of its fruits; and the town through its officers have, so far as they are capable, ratified the acts of the commissioners by accepting the railroad, bonds and recognizing the validity of the town bonds by voluntarily paying several installments of interest, and while it is true that the payment of the interest after the bonds were issued would not be an estoppel, yet it is at least a recognition of the validity of the bonds and a ratification of the acts of the commissioners in issuing the same. And the courts have in some instances treated such ratification as equivalent to an original agreement.

I think the subsequent acts of the town and its officers may be taken and treated as an admission on the part of the town that the bonds in suit were issued under chapter 925 of the Laws of 1871.

In Peterson v. Mayor (17 N. Y., 449), the court of appeals, discussing the question of the ratification by a corporation, says: " This ratification may be by express assent or by acts and conduct of the principal inconsistent with any other supposition, than that he intended to adopt and own the act done in his name. I am of the opinion that the principle is as applicable to corporations as to individuals.”' Peterson v. Mayor, 17 N. Y., 453.

In Hoyt v. Thomson’s Ex’r (19 N. Y., 218), the court says: “ A corporation may, like an individual, ratify the acts of its agents done in excess of their authority, and such ratification may, in many cases, be inferred from an informal acquiescence in and approval of those acts.”

To the extent, therefore, that the act of the town by its officers tends to show a ratification of the validity of these' bonds, those acts may properly be considered in determining this case. Nor can this court indulge in any inference not, supported by the facts against the validity of these bonds. On the other hand, it is the duty of the court to hold, (unless the contrary appear from the case) that these commissioners did their duty according to law, and that the-bonds in suit were issued under the act of 1871, and were not in excess of the amount which the commissioners were authorized to sell, maturing at the time mentioned upon the face of the bond.

In Whiting v. Town of Potter (18 Blatchf., 165), the court say: It must be assumed that the commissioners, did their duty * * in the absence of any proof to the. contrary.”

All the apparent equities being in favor of the plaintiff in this case, and upon the view we have taken of the facts-presented, there being no legal objection to the validity of the bond in suit, we are of the opinion that the plaintiff is entitled to recover in this action the interest due and unpaid on these bonds represented by the unpaid coupons.

Learned, P. J.. and Landon, J., concur.


author: Rollins, S.

text:
    In the Estate of Lemuel B. Clark, deceased.

      (Surrogate’s Court of New York County,

      Filed March 24, 1887.)

    Judgment entered after death of judgment debtor—Priority of payment—Code Ciy. Pro., §§ 763 and 1310.
    The petitioners in the lifetime of the decedent brought an action against him. He interposed a demurrer, which was overruled, and an interlocutory judgment was entered against him. Said judgment granted him. leave to withdraw his demurrer and to answer within twenty days, on payment of costs. It directed that in case he failed to comply with its. provisions, final judgment should he entered against him in favor of the plaintiffs for a specified sum. Before the expiration of the twenty days Mr. Clark died. Final judgment was nevertheless entered against him on the twenty-first day, pursuant to the provisions of Code Civil Procedure, §§ 763 and 1210. Held, that this judgment, if duly docketed as the statute directed, had precisely the same force and effect as to priority of payment that it could claim if this decedent had died on the day after its entry.

      Cornell, Secor & Page, for Horace Secor, Jr., and others, petitioners; George W. Cotterill, for Mary J. Clark, executrix, etc., of Lemuel B. Clark.
   Rollins, S.

These petitioners in the lifetime of the decedent brought an action against him. He interposed a demurrer. His demurrer was overruled and an interlocutory judgment was entered against him on May 29, 1886. That judgment granted him leave to withdraw his demurrer and to answer within twenty days on payment of costs. It directed that in case he should fail to comply with its provisions final judgment should be entered against him in favor of the plaintiffs to recover the sum of $1,500, with interest and costs..

Before the expiration of the twenty days and on the ninth day of June, 1886, Mr. Clark died. Final judgment was nevertheless entered against him on June 19, 1886, pursuant to the provisions of sections 763 and 1021 of the Code of Civil Procedure.

The judgment creditors seek by this present proceeding to obtain a decree directing the respondent, who is the executrix of the judgment debtor’s estate to pay the amount of their judgment.

The respondent’s answer shows that unless the claim of these petitioners is entitled to preference over specialty and simple contract debts, no direction for its satisfaction can now be made without imperiling the rights of other creditors entitled to equality of payment.

The order of priority which the representative of an estate must observe in the payment of debts is prescribed by section 27, title 3, chap. 6, part 2, Rev. Stat. (3 Banks, 7th ed., 2298). It is as follows:

“First. Debts entitled to a preference under the Laws of of the United States.
“Second. Taxes assessed upon the estate of the deceased previous to his death.
“Third. Judgments docketed and degrees enrolled aqainst the deceased according to the priority thereof respectively.”

It is judgments “against the deceased,” it will be observed, and not judgments “against the executor or administrator of the deceased” that are thus preferred above recognizances, bonds, notes, etc., which make up class four.

It is indeed expressly declared in the next succeeding section (section 28) that the obtaining a judgment against a decedent’s executor or administrator upon a debt to the decedent shall “not entitle such debt to any preference over others of the same class.”

But it is provided by section 763 (supra), that, “if either party to an action dies after an accepted offer to allow judgment to be taken, or after a verdict, report or decision, or an interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the names of the original parties.”

Of such a character was the final judgment, whose payment is now sought, following as it did an interlocutory judgment within the meaning of section 1021 (supra), which declares that the decision of the court upon the trial of a demurrer, must direct the final interlocutory judgment to be entered thereupon. Where it directs interlocutory judgment, with leave to the party in fault to plead anew or amend, it may also direct that final judgment be entered if the party in fault fails to comply with any of the directions given or terms imposed.”

Section 1210 provides that “where a judgment for a sum of money, or directing the payment of money, is entered against a party after his death, a memorandum of the party’s death must be entered with the judgment in the judgment book,” etc. “Such a judgment,” the section proceeds to say, “does not become a hen upon the real property or chattels real of the decedent, but it establishes a debt to be paid in the course of administration.

Section 763 (supra), is founded upon section 4, title 1, chap. 7, part 3, Rev. Stat. (3 Banks, 5th ed., 669), which declares that “after a verdict shall be rendered in any action, and after a plea of confession in a suit brought, if either party die before judgment be actually entered thereon, the court may, within two terms after such verdict or plea, enter final judgment in the names of the original parties.”

Section 1210 (supra), is a substantial re-enactment of section 7, title 4, chap. 6, part 3, Rev. Stat. (3 Banks, 6th ed., 638). The concluding paragraph of the latter section is almost literally the same as the concluding paragraph of section 1210.

In Nichols v. Chapman (9 Wend., 452, 456), it was held that a judgment entered after the death of the party against whom it had been obtained, was entitled to priority of payment over simple contract debts, being a judgment by relation against the deceased in his lifetime. See also, Salter v. Neaville (1 Brad., 488); Bernes v. Weisser (2 id., 212);. Mills v. Jones (2 Rich. S. C. Law, 393).

I am referred, by the respondent’s counsel, to Matter of Clark (15 Abb. Prac., 227), which contains an intimation, of Clerke, J., at variance with the doctrine of the foregoing cases, but the intimation is obiter and is made without argument or citation of authority.

In Burnet v. Holden (1 Lev., 277), judgment upon a verdict in assumpsit had been obtained after the defendant’s, death and before the day in banc. The plaintiff brought. scire facias against the defendant’s executor. The executor pleaded a debt due to himself, and insisted that, by right of his executorship, he could lawfully apply the assets-of his estate to the satisfaction of his own claim, in preference to the claim of the plaintiff, which had not been pressed to-final judgment in the defendant’s lifetime. Judgment was-given for the plaintiff.

The doctrine of the case just cited was upheld in Colebeck v. Peck (2 Ld. Raym., 1280), and in Saunders v. McGowran (12 M. & W., 221).

In Ainslie v. Radcliff (7 Paige, 439), Chancellor Walworth declared that the direction usually contained in decres for the distribution of a decedent’t personal assets, among his creditors, i. e., “to pay the debts in due course-of administration,” was a direction, not to disregard legal priorities, but rather to respect them and to satisfy the debts accordingly.

I have no hesitation in holding that the judgment here in question, if it had been duly docketed as the statutes, directs, has precisely the same force and effect that it could claim if this decedent had died on the day after its entry.


text:
    Estate of Eliza Eisner, Deceased.

      (Surrogate's Court, New York County,

      Filed March 30, 1887.)

    1. Temporary administrator—Accounting—Power of surrogate — Code Civil Pro, § 2739.
    The power of the surrogate upon the accounting of a temporary administrator is substantially the same under Code Civil Procedure, § 2739, as his authority upon the accounting of an executor or administrato--inchief.
    '¡3. Same—Jurisdiction of surrogate.
    The surrogate has jurisdiction under said section to hear and determine all claims in which an executor is interested and the circumstance that he is jointly interested in the demand does not affect the authority of the surrogate to adjudicate with regard to it.
    'g. Same—When they go out of office—Code Civil Pro., § 2668.
    Temporary administrators appointed under the first subdivision of section 2668 of Code Civil Procedure go out of office, as of course upon the issuance of permanent letters.

      Pending a controversy over the probate of this decedent’s will, one of her sons was appointed temporary administrator of her estate. Upon his accounting, after the will had been admitted to probate and letters testamentary had been issued to its executors (one of whom was the temporary administrator himself), the contestants sought to introduce before the referee to whom the issues of the accounting were submitted, certain testimony tending to show that a firm whereof the temporary administrator was a member, was indebted for rents due upon property of the estate, which such firm occupied under a lease.
    It appeared that the firm admitted its liability in a certain sum, but that the objectors to the account insisted that it was liable in a larger sum.
    The referee held that the surrogate had no jurisdiction to determine the question of the firm’s indebtedness. Upon the motion to confirm the referee’s report the surrogate rendered the following decision.

      George W. Carr, for temporary administrator; George P. Avery, for Samuel Eisner; Samuel P. Levy, for Sophia Freund et al.; Nathan Hann, for special guardian.
   Rollins, S.

Section 2739 of the Code provides that whenever, upon the judicial settlement of the account of an ex-executor or administrator, “a contest arises between the accounting party and any of the other parties * * * respecting a debt alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, the contest must be tried and determined in the same manner as any other issue arising in the Surrogate’s court.”

This section applies, I think, to temporary administrators as well as to executors and administrators in chief. Article 2, title 4, chapter 13 of the Code of Civil Procedure contains the only statutory provisions regulative of executors’ and administrators’ accountings, and unless those provisions are broad enough to cover accountings of temporary administrators, there is a casus omissus in the statute.

Section 2724 provides the procedure for the compulsory accounting of an “ executor or administrator.” Section-2725 declares that “a surrogate’s court may compel a judicial settlement of the account of a temporary administrator at any time.” This section contain no reference whatever to executors or administrators in chief.

Section 2726 provides that “a petition praying for the judicial settlement of an account, and that the executor or administrator may be cited to show cause why he should not render and settle his account, may be presented in the case prescribed in either of the last two sections,” etc,

It is therefore apparent that so far as compulsory accountings are concerned, the term “administratorr” is broad enough to include the term “ temporary administrator.” I cannot doubt that the authority of the surrogate upon the accounting of a temporary administrator is substantially the same as his authority upon the accounting of an executor or administrator in chief.

Now it was held by the court of appeals in the case of Shakespeare v. Markham (72 N. Y., 400), that under the provisions of the Rev. St. relating to the mode of proving the claim of an executor or administrator against his decedent’s estate (section 33, title 3, chapter 6, part 2 of the Revised Statutes, 3 Banks [5th ed.], 175), the surrogate had jurisdiction to hear and determine “all claims in which an executor was interested,” and that “the circumstance that he is jointly interested in the demand does not affect the authority of the surrogate to adjudicate with regard to it.”

I have found no decision as to the jurisdiction of the surrogate upon the accounting of an executor or administrator to pass upon the claim of the estate of the accountng party’s decedent against a firm of which the accounting party had been a member; but it seems to me that since the taking effect of section 2739, the reasoning of Shakespeare v. Markham is as applicable where the accounting party is a debtor as where he is a creditor of his decedent’s estate.

Exception is taken to the referee’s fourth conclusion of law to the effect that the temporary administrator, upon making the payments which shall be directed by the decree settling his account, and upon delivering the property of the estate'to the executors is entitled to his discharge and to the revocation of his letters. It is claimed» that his responsibility will not determine until the administration of the estate shall be completed, unless before that time his letters shall be revoked in a proceeding brought expressly for such revocation by some, person interested in the estate.

I think that this position is unsound. Section 2684 of the Code of Civil Procedure provides, that where, after the issuance of letters of administration on the ground of a decedent’s intestacy, his wall shall be admitted to probate and letters testamentary thereon shall be granted, the decree according probate must revoke the former letters:

I doubt whether any reason can be suggested why this provision should have been limited to letters of administration granted on the ground of intestacy, except this: that there is involved in the very term “temporary administration the notion that the authority of such an officer is extinguished by the issuance of letters testamentary or letters of administration.

Section 2685 of the Code of Civil Procedure provides for the compulsory revocation of the letters of an “ executor or administrator. ’’ In the eighth subdivision of that section there is an express reference to temporary administrators. This reference serves to indicate that such officers are included within the general term “administrators.” But this subdivision provides only for the case of temporary administrators appointed under the second subdivision of section 2668 that is, of temporary administrators upon the estates of absentees.

This circumstance confirms me in the opinion that temporary administrators appointed under the first subdivision of section 2668 go out of office as of course upon the issuance of permanent letters. Matter of Lewis, 17 Wk. Dig., 311.

I decline, however, to cancel the administrator’s bond. Section 2596, Code of Civil Procedure.


author:
Rollins, S.
      Parker, J.,

text:
    In the Estate of George E. Thompson, Deceased.

      (Surrogate’s Court, New York County,

      Filed April 12, 1887.)

    1. Legacy in satisfaction of a debt—Wild.
    The will of testator directed his executor to reduce his entire estate to money and dispose of the proceeds as follows: “ Tirst. My wife to receive $100 in cash.” * * * “ Third. My mother to receive the sum
    of $1,650, being the amount of borrowed money due her, also interest on the same as may appear by my note held by her for above amount.” Held, that the third clause gives a legacy in satisfaction of a debt.
    2. Same—Statute of limitations—Code Civ. Pbo., § 1819.
    The mother died shortly after the son. And the executor of testator filed his account when it was objected that the claim of the mothePs executor for the balance of the $1,650 remaining unpaid was barred by the statute of limitations. Held, that under Code Civ. Pro., § 1819, the statute had not commenced to run against the representative of the deceased legatee.
    3. Same—Statute of limitations—What constitutes a fabtial payment SUFFICIENT TO TAKE A CLAIM OUT OF THE STATUTE.
    Within four years of the filing of said account the executor of the testator and of the deceased legatee had with each other certain personal business transactions upon the settlement of which it was ascertained that the latter was indebted to the former in a certain sum. The testator of the said legatee, with the approval of the executor of testator, credited his estate with payment of a like sum in part satisfaction of the a'oresaid claim of the testator’s mother. Held, that even if the claim be regarded, not as a legacy, but as a debt, the above payment took it out of the operation of the statute.

      Andrew J. Provost, attorney for executor; Charles Hervey Jackson, attorney for contestant.
   Rollins, S.

The will of this testator directed his executor to reduce his entire estate to money, and to dispose of the proceeds as follows :

“First. My wife to receive $100 in cash * * *
Third. My mother to receive the .sum of $1,650, being the amount of borrowed money due her ; also interest on the same as may appear by my note held by her for above amount.
Fourth. All the balance of my estate, after paying the items hereinbefore named, shall be paid to my wife and child, the same to be equally divided between them.”

At the date of this will (March 7th, 1876), the testator was in fact indebted to his mother in the sum of $1,650 for borrowed money, and that indebtedness was evidenced by his two promissory notes, one for $1,150, dated September 1st, 1874, and the other for $500, dated January 1st, 1876. He died in August, 1876. His mother died in March of the year following ; the notes in question thereupon came to the hands of her executor, one Keese. At various times prior to April, 1880, Keese received from this decedent’s executor (Armstrong) sums of money amounting in all to $200, in part satisfaction of the claims of the estate of the testator’s mother against the estate of the testator himself.

Subsequently, Keese and Armstrong had with each other ■certain personal business transactions upon the settlement of which on May 31st, 1883, it was ascertained that the former was indebted to the latter in the sum of $13.44. Instead of discharging this indebtedness by the actual payment of money, Keese, with Armstrong’s approval, credited this estate with payment of a like sum in part satisfaction of the aforesaid claim of the testator’s mother.

On October 14th, 1886, Armstrong filed in this court an account of his administration. Certain objections were interposed, and the issues thus raised were submitted to a referee whose report is before me for confirmation.

, The referee finds that the provision in the third clause of the will {supra) is in the nature of a legacy, and that, even if this were not the case, the claim of Sarah Thompson’s estate as a creditor of this decedent would not be barred by the Statute of Limitations.

The latter finding involves the notion that the transaction between Armstrong and Keese above referred to must be treated as, in substance a payment of $13.44 by the former as decedent’s executor to the latter as executor of the dece- ■ dent’s mother. I think that the. referee has reached a correct conclusion.

It is not essential to the validity of his bequests that a testator should use the word “give” or the word “bequeath, ” or any other word of similar significance.

The very terms employed by this testator in the article of his will now under consideration, were held in Hiars v. Bedgood, 9 Leigh, 361, to constitute a legacy.

Parker, J.,

pronouncing the opinion of our court of ap-' peals in Orton v. Orton, 3 Keyes, 486, approves the definition of a legacy which is to be found in Bacon’s Abridgement, viz., a “ gift or bequest by testament,” and declares that, “the word gift is not limited in its meaning to a gratuity, but has the more extended signification of a thing given, either as a gratuity or as a recompense.”

I think that the provision here in dispute is a legacy in satisfaction of a debt and that in view of section 1819 of the Code of Civil Procedure, the Statute of Limitations has not as yet begun to run against the representative of the deceased legatee. Nor is the enforcement of the claim of Sarah Thompson’s estate barred by the Statute of Limitations, even though the claim be regarded, not as a legacy, but as a debt.

In May, 1883, it would not have been entirely proper for Amstrong to have satisfied it in whole or in part, whether he had or had not been at that time in possession of funds belonging to the estates, and if he had made payments out of his own pocket he would thereby have entitled himself to reimbursement out of the estate moneys thereafter coming to his hands.

If Keese had actually paid Armstrong the sum of $13.44 and Armstrong had handed back to Keese the identical money on account of the Sarah Thompson claim, it cannot be doubted that the transactions would have taken the claim out of the operation of the Statute of Limitations. And this was in effect what actually took place.

Section 395 of the Code of Civil Procedure which makes an .acknowledgement or promise contained in a writing signed by the party to be charged thereby the only competent evidence of a new or continuing contract whereby to defect the Statute of Limitations expressly declares that, “ This section does not alter the effect of a payment of principal or interest.”

“Payment of a debt,” says the court of appeals of Virginia in Huffmans v. Walker (26 Grat., 314), “is not necessarily a payment of money, but that is payment which the parties contract shall be accepted as payment.”

It was held in Maber v. Maber (L. R., 2 Exch. Cas., 153), that in determining whether a transaction claimed to be a payment has had the effect of taking the case out of the Statute of Limitations, the true test is this: Would the transaction have supported a plea of payment if the creditor had brought an action?

Tried by this test the present case seems to me a plain one. In its essential features it closely resembles the one last cited. See, also, Hooper v. Stephens, 4 Ad. & El., 71; Rodger v. Arch, 10 H. & G., 333; Amos v. Smith, 1 id., 233.

I do not think it necessary to discuss any of the other exceptions to the report of the referee. The report is in all things confirmed. _