text:
    James B. Thomas Resp’t, v. The Moravia Foundry and Machine Company et al., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887.)

    1. Mortgage—Foreclosure of—Sale.
    The rule is that where different portions of mortgaged premises are successively mortgaged, they are to be sold on foreclosure of the mortgage covering the whole premises, in the inverse order of incumbranpe.
    2. Same-^Surflus moneys—Distribution of.
    On January 10, 1883, the defendants, Disk and Russell, the mortgagors named in several certain mortgages, were owners as tenants in common of two separate parcels of land. At the same time the said Russell was the individual owner of two other parcels of land. On said January 10, 1883, said Disk and Russell executed to plaintiff two mortgages on all four parcels of land. Subsequently thereto, on July 12, 1884, they executed and delivered to the defendant company a mortgage upon one of the said parcels (“ the store lot”), owned by them as tenants in common. Afterward, on August 27, 1884, they executed and delivered to the plaintiff a third mortgage which embraced only the other parcel (“the mill lot”), which they held as tenants in common. Held, that the defendant company could insist that the plaintiff’s first two mortgages should be paid out of the proceeds of the sale of the premises embraced therein, exclusive of the parcel (“ the store lot ”) covered by its mortgage; the fund derived from the sale of those parcels being more than sufficient for that purpose.
    Appeal by the defendant, The Moravia Foundry and Machine Company, from an order of the Monroe special term directing the distribution of the surplus proceeds in a mortgage foreclosure action after the payment of the two mortgages first mentioned and described" in the complaint and in the final decree.
    The plaintiff and the defendants, The Watertown Steam Engine Company and Henry F. Steele, applied on the hearing as respondents and demand that the order be affirmed.

      H. Greenfield, for app’lt; Hazleton & Allen, for pl’ffi Mason & Rose, for The Watertown Steam Engine Company; Frank C. Avery, for Henry F. Steele.
   Barker, J.

The facts upon which the legal propositions are based may be briefly stated: On the 10th day of January, 1883, the defendants, John Lisk and Abial L. Russell, the mortgagors in the several mortgages mentioned in the complaint and in the judgment, were the owners as tenants in common of two parcels of land which in all the proceedings in the action have been treated by all the parties as separate and distinct parcels, and are so described in the mortgages. Upon each of said parcels there existed at that time a mortgage lien less in amount than the value of the property. At the same time the said Russell was the individual owner of two other parcels of land upon which there were also mortgage liens. None of the owners of these several liens were made parties to this action, and all the mortgages and judgments in which the parties to this action are interested are subsequent and subordinate to said several liens.

On the said 10th day of January, 1883, the said Lisk and Russell executed to the_ plaintiff the two mortgages first described in the complaint, and there was due upon them at the time of the entry of final judgment the aggregate sum, including interest and premiums paid for insurance, $4,863.94.

Subsequent thereto, and on the 12th day of July, 1884, the said mortgagors executed and delivered to the appellant, The Moravia Foundry and Machine Company, a mortgage upon one of said parcels owned by them as tenants in common and distinguished from the other parcels as the store lot; and the same was recorded on the 12th of July, 1884, which was subsequent to the recording of the said prior mortgages to the plaintiff.

Subsequently thereto, and on the 27th day of August, 1884, the said mortgagors executed and delivered to the plaintiff a third mortgage, which embraced only one of the parcels which they owned as tenants in common and is distinguished from the other parcels as the min lot, upon which there was due at the time of the entry of final judgment the sum of $1,092. The judgment contains a direction, that the four parcels of land embraced in the plaintiff’s first two mortgages be sold in the following order: First, parcel B; second, parcel D, which were the premises owned by Russell individually; third, parcel C, known as the “store lot,” being the parcel embraced in the appellant’s mortgage; fourth, lot A, known as the “mill lot,” which was embraced in the plaintiff’s third mortgage. On the sale parcel B brought $100, parcel D $825, parcel C $2,200 and A $4,000, making an aggregate sum of $7,125.

The final judgment directed that out of the proceeds the costs of the suit and the plaintiff’s first two mortgages and interest be first paid, which then amounted in the aggregate to the sum of $4,863.92. The surplus remaining after satisfying this part of the decree, it will be observed was more than sufficient to pay the plaintiff’s third mortgage, which was a lien upon the mill lot and is about equal to the amount which thea ppellant claims is due upon and secured by its mortgage upon the “store lot.”

The real and substantial question in dispute between the parties is, which of these mortgages should be first paid out of the surplus arising upon.the sale of all the mortgage premises % The appellant’s position is, that as its mortgage was executed and recorded prior to the plaintiff’s third mortgage, it is in equity a lien upon the surplus moneys superior to the plaintiff’s third mortgage and should be first paid. The final judgment did not dispose of this controversy. It contains a provision, that out of the proceeds of sale, “properly applicable thereto,” there be paid to the plaintiff the sum of $1,092. the amount found due on his third mortgage, and then directs, that in all other respects the rights and equities of all the parties be reserved until the further order of the court.

It is not claimed by the plaintiff that this provision of the decree establishes that his third mortgage should be paid prior to the appellant’s mortgage, and he concedes that that question was left open for further consideration.

After the premises were sold the referee’s report of the sale was confirmed and the amount of the surplus moneys ascertained, the court made the order of distribution, from which the appellant appeals, which provided that out of such surplus there be first paid to the plaintiff his third mortgage, amounting to the sum of $1,092, with interest from the 11th of March, 1886.

The question presented is first to be considered as between the plaintiff and the appellant. By the application of a well settled equitable rule the appellant may insist that the plaintiff’s first two mortgages should be paid out of the proceeds of the sale, derived from a sale of the premises embraced therein, exclusive of the parcel covered by its mortgage.

The fund derived from the sale of those parcels was more than sufficient for that purpose. The effect of a distribution made on this basis will be to secure to the appellant the application of the entire sum realized on the sale of the parcel covered by its mortgage, or so much thereof as may be necessary to pay the same in full. The appellant’s mortgage will be thus fully protected and nothing will be taken from the plaintiff, as he will thereby secure the full satisfaction of both of his mortgage hens, which are prior in point of time to the appellant’s.

The cases are decisive of the question as between parties whose mortgage liens stand in the same relation to each other as these do as to point of time and accruing under the same circumstances. We only need to apply the general rule as stated in Bernhardt v. Lymburner (85 N. Y., 172), viz: Where there are several successive grantees of different portions of mortgaged premises, the land on foreclosure, is to be sold in the inverse order of alienation and this secures the equitable rights of the parties as between themselves. The first grantee of part of the mortgaged premises, who has purchased for full value and without any agreement to assume the mortgage, may justly claim that the burden of the incumbrance should be cast in the first instance upon the remaining lands of the grantor, and the second and other grantee takes subject to the equity of the prior grantee. The same principle is applicable to the case of successive mortgagees of parts of the mortgaged premises, on a foreclosure of the prior mortgage of the whole property where by its application, the equitable rights of the parties will be secured. See, also, Stuyvesant v. Hall, 2 Barb. Ch. Rep., 151.

The appellant was a mortgagee in good faith, and it maybe assumed, that when it accepted the same it was with a full knowledge of the equitable rule that the remaining parcels covered by the plaintiff’s mortgages would bé first sold in satisfaction of the debt secured thereby. Nothing has been disclosed in this case which should result in a defeat of this expectation.

The appellant’s mortgage was intended as a security for the payment of eight notes made by the mortgagors, Lisk and Russell, and indorsed by it as an accommodation indorser. Upon some of those notes a judgment has been recovered by the Moravia National Bank against the maker and indorser in the sum of $1,007, which was docketed in the Seneca county clerk’s office. Upon some of the other notes a judgment has been also recovered by another party and against the makers alone for the sum of $552. It does not appear that the appellant has paid either of the notes or any part of the said judgment recovered against it by the bank upon a portion of the notes so indorsed by it. The defendant, the Watertown Steam Engine Company holds two mortgages executed by Lisk and Russell upon parcels “A" and “ C,” both of which are subsequent in point of time to the appellants and to the plaintiff’s third 'mortgage.

That company appears upon this appeal, and contends for an affirmance of the order chiefly upon the ground that ■the appellant may, in view of these facts, seek protection against its liability as indorser by a resort to separate funds, one of the premises recovered by its mortgage and the other the lands and premises upon which the judgment recovered by the Moravia Bank is a lien, and invokes the application of the rule that where a creditor having a lien on separate funds should not be permitted to proceed with the collection of his debt so as to disappoint the creditor who has a lien only on one of them.

This question is not properly up for consideration on this appeal. The appellant has had no opportunity to establish the extent of its liability as indorser of the notes of the mortgagors, nor was the question up at the time of the making of the order of distribution, whether the appellant should resort to some other fund in the first instance for the purpose of securing indemnity against its liability as indorser. The order of distribution directed the payment of the plaintiff’s third mortgage out of the surplus funds before any proceeds should be applied in discharge of the appellant’s mortgage. That is the error relied upon for a reversal of the order of distribution, so far as any has yet been made. The order goes no further, but directs, that if there is any surplus of the proceeds of the sale, after paying the plaintiff’s third mortgage, that the same be paid into court for the use of the person or persons entitled thereto as may be hereafter determined.

As the matter must come again before the court for a final order of distribution and upon that hearing the question can be investigated as to how much may be due the appellant upon its mortgage, and the question now presented by the respondent, the Watertown Steam Engine Company, can also at the same time be considered. The facts upon which those questions are founded will be more fully and satisfactorily presented then than they now appear by this record.

So much of the order appealed from as directs the payment of the plaintiff’s third mortgage in the first instance out of the surplus money and the particular fund out of which the same be paid is reversed. The other provisions of the order are affirmed without costs of this appeal to either party. This will result in leaving the entire surplus subject to the further order of the court.

Smith, P. J., Haight and Bradley, JJ., concur.


source: Caselaw Access Project

author: Smith, P. J.

license: Public Domain

text:
    Louis Sanders, Resp’t, v. A. E. Rhewbottom, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887.)

    1. Amendment of proceedings—When allowed nunc pro tunc.
    The defendant was sued by the name of A. E. Rhenbottom, the complaint stating that her Christian name was unknown to the plaintiff. The summons and complaint were served upon her personally. By an error of the clerk in docketing the judgment in the county where it was obtained, her name was misspelled, but in the transcript, filed thereafter in another county, and in the docket, as well as in the execution issued in that county her name appeared as in the summons and complaint. Held, that the error was merely clerical and did not prejudice the defendant, and that orders disregarding the mistake as a ground for setting aside the proceedings and ordering an amendment nunepro tunc, without prejudice to third persons, should be affirmed.
    2 Reference—To take proofs—Findings of referee have no weight except as opinion.
    Upon a motion made to set aside the proceedings, under an execution issued at the instance of an assignee of the judgment, among other reasons, on account of a prior assignment thereof, to which he was a stranger, an order having been made referring the matter to a referee to take proofs: Held, that his findings from the evidence were mere opinion; that the question was open for the court to determine on the return of his report, and that the finding of the court on that fact not being specifically stated, must be presumed to be such as to sustain the order made by the court.
    Appeal from, three several orders of tho Monroe special term.

      James Wright, for app’lt; W. E. Hughitt, for Augustus T. Center, assignee for Louis Sanders, pl’ff. resp’t.
   Smith, P. J.

Judgment in this action was recovered against the defendant by default for $324, and entered in Hew York county, September 6, 1875. Subsequently in the same month the judgment was docketed in Cayuga county and an execution was issued to the sheriff of that county, which was returned unsatisfied. In April 1886, the respondent Center, claiming to have an assignment of the judgment from the plaintiff issued another execution thereon to the sheriff of Cayuga. Thereupon the defendant moved to set aside the judgment, the transcript and docket thereof and the execution, on the ground that the original judgment is void, it not being against the defendant by her real name, Agnes E. Ehenbottom; that the transcript filed in Cayuga county is not a transcript of the original judgment; and also on the ground that one W. F. Osborne is the owner of said judgment by an assignment from the plaintiff prior to that under which Center claims. The special term denied the motion to set aside the judgment and execution, and on motion of defendant referred it to a referee to take proof and report with his opinion whether prior to the assignment to Center, the plaintiff had assigned the judgment to Osborne, either personally or as president of the Osborne and Cheeseman company, doing business at Ansonia, Connecticut. The order also denied the defendant’s application to refer the question as to the validity of the judgment. From that order, except the provision granting a reference, the defendant appealed.

The referee reported among other things that the plaintiff had not made a valid assignment of the judgment prior to his assignment to Center. To portions of the report the defendant and Center filed exceptions at special term and the exceptions taken by each party were overruled, and the original motion to set aside the execution on the ground that Center was not the owner of the judgment was denied. And it was ordered that the judgment and docket in New York and Cayuga and the execution be amended nunc pro tunc, by inserting the full name of the defendant, without-prejudice to any application the defendant might be advised to make with reference to the report of the referee. At a subsequent term the defendant moved that the report of the referee be set aside and a new reference be ordered, which motion was denied. From the last two orders the defendant appealed, writing them in one notice.

The defendant’s motions for relief so far as they rested upon an alleged misnomer were properly denied. The' defendant was sued by the name of A. E. Ehenbottom. The complaint stated that her Christian name was unknown to the plaintiff. The summons and complaint were served upon her personally. By an apparent error in the clerk’s-office in New York, her name in the docket of judgment there is “A. E. Ehenbottan,” but in the- transcript filed in Cayuga and in the docket there, as well as in the execution,, her name appears to be the same as in the summons and complaint. Plainly the defendant was not prejudiced. The mistake was that of the clerk of the court. The orders disregarding the mistake as a ground for setting aside the proceedings and ordering an amendment, nunc pro tunc,, without prejudice to third persons, should be affirmed.

In respect to the question of a prior assignment, the proofs, reported by the referee show that sometime after Sanders, obtained the judgment he instituted proceedings in bankruptcy and was declared a bankrupt. He endeavored to effect a composition with his creditors, among whom was the Osborne and Cheeseman Company, of which Osborne was the president. The claim of the company was for over $1,200. By the terms of the compromise the creditors were to release their debts on being paid twenty-five per cent. Among the proofs reported by the referee was testimony on the part of the defendant tending to show that Osborne made a secret arrangement with Sanders by which his company was to receive a bonus of $125 in cash and an assignment of the judgment in question in addition to the twenty-five per cent, as a condition of releasing the debt of the company.

That testimony was controverted, so that the proofs reported by the referee were conflicting as to whether Sanders agreed to assign the judgment to Osborne or his company. The affidavits read on the motion at special term presented the like conflict. The question was, therefore, an open one for the special term to decide on the coming in of the referee’s report. The referee held that the judgment was in fact assigned, but that the assignment was void as being against public policy and fraudulent. The order of reference gave the referee no power to decide. He was merely to take proofs and report them to the court with his opinion. His finding had the force of an opinion only. The order of reference in that form was granted on motion of the defendant. As has been said, the question of fact was left an open one to be decided by the court on the coming in of the report. It does not expressly appear how the court disposed of that question, but as all intendments are in support of the order, it is to be assumed that it was decided in the respondent’s favor, nothing appearing to the contrary. We are not prepared to say that a finding that no assignment was made to Osborne or his company is against the weight of the evidence. The alleged agreement was positively denied by Sanders in his testimony before the referee and in his affidavit read on the motion.

Again, if there was an agreement to assign, the question is fairly raised by the testimony whether the agreement was not executory merely. It was an oral agreement. No writing was executed. Nothing was delivered. So far as we have discovered from the record, neither Osborne nor his company exercised any control over the judgment, or claimed the right to control it, till after the assignment to Center. Assuming that the agreement was executory, it cannot be enforced. It was against public policy and void. If Osborne were a party to this proceeding, and were seeking to enforce the executory agreement, or to avail himself of it to defeat the title of the respondent, the law would not aid him. The defendant is in no better position, and upon the assumption that the agreement to assign was executory, her contention fails.

Upon either of the grounds above stated the special term may have reached the conclusion that the assignment to Center gave him the title to the judgment and the right to enforce the same by execution.

The several orders appealed from should be affirmed, with ten dollars costs of one appeal only and disbursements in each.

Barker, Haight and Bradley, JJ., concur.


author: Haight, J.

text:
    Albert Wells, by Guardian, etc., Resp’t, v. Frank Dawson et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887)

    1. Judgment obtained in justice’s court—Appeal prom—Stay op execution.
    One of the defendants had recovered a judgment against this plaintiff in an action in a justice’s court, and issued thereon a body execution and delivered it to a constable. Thereafter an appeal was taken to the county court, and an undertaking was filed with the justice, and a copy was served upon the constable holding the execution, which was not, however, certified by the justice to be a copy, nor was there an affidavit thereto attached showing it to be such, and that the original had been filed or delivered to the justice. The notice of appeal was served upon the party who had issued the execution, but it was doubtful whether or not a copy of the undertaking was ever served on him. Subsequently, this plaintiff was arrested under the execution. This action was brought to recover damages for such arrest and imprisonment. Field, that on the appeal to the county court, it was necessary also to serve a copy of the undertaking upon the respondent in order to stay proceedings upon the execution.
    2. Same—Service op undertaking on appeal—Code Civ. Pro., §§ 3050, 3051, 3048, 1335.
    It is provided by Code Civil Procedure, section 3050, that in order to stay the proceedings upon the execution, the appellant must give an undertaking, a copy of which, with notice of the delivery thereof, must be served with the notice of appeal, and in like manner. Held, that the words “ delivery thereof ” were explained by Code Civil Procedure, section 3051, requiring the delivery to be made to the justice or his clerk; that the provision that a copy of the undertaking, with a notice of delivery, should be served with the notice of appeal, and in like manner required the service, according to the Code Civil Procedure, section 3048, relating to the manner of serving the notice of appeal, and that the undertaking, with the notice of delivery, must be served with the notice of appeal upon the respondent in like manner as the notice; that this was further made evident by the concludingsentence of Code Civil Procedure, section 3050, stating that Code Civil Procedure, section 1385 applied to each undertaking.
    3. Same—Question erroneously withdrawn from consideration of JURY.

      Held, that it was erroneous to take from the consideration of the jury the question as to the service of the undertaking upon the plaintiff in the former action.

      Appeal from a judgment entered upon the verdict of a jury at the Ontario circuit.

      John Gillette, Jr., for resp’t; P. Chamberlain, Jr., for app’lts.
   Haight, J.

This action was brought to recover damages for an alleged false imprisonment of the plaintiff. The defendant Frank Dawson had recovered judgment against the plaintiff for the willful and malicious killing of a valuable hound dog belonging to Dawson, before' a justice of the peace. After the recovery of such judgment a body execution was issued thereon and delivered to one Homer Webb, a constable. Thereafter an appeal was taken from the judgment to the county court, and an undertaking was filed with the justice and a copy was served on the constable who held the execution, but it was not certified by the justice to be a copy, nor was there an affidavit attached thereto showing it to be a copy and that the original had been filed or delivered to the justice. The notice of appeal was duly served upon the respondent Dawson, but it is a controverted question of fact as to whether or not a copy of the undertaking was ever served upon the respondent Dawson. About three weeks thereafter the defendant French, who was the attorney for Dawson, called upon the constable Webb and procured the ■ execution and delivered it to the defendant Heenan, who was a constable, and who took the plaintiff thereunder and conveyed him to the jail of the county, where he was subsequently released by the county judge upon a writ of habeas corpus. The damages claimed in this action is for such arrest and imprisoment. The court, upon the trial, held and decided that as to the defendants Dawson and French, the plaintiff was entitled to recover, and that the only question for the jury was as to the amount of damages, and refused to submit, to the jury the question whether or not a copy of the undertaking on appeal was served upon the defendant Dawson, to which decision the appellants duly excepted.

The only question which we consider it necessary to determine upon this appeal, is as to whether or not further proceedings upon the execution had been stayed by the service of the copy of the undertaking upon the constable. Section 3050 of the Code provides that “If the appellant desires a stay of execution, he must give a written undertaking executed by one or more sureties, etc. * * - A copy of the undertaking, with a notice of the delivery thereof, must be served, with the notice of appeal, and in like manner section 1335 of this act applies to such -undertaking.”

Section 3051 provides that “The delivery of the undertaking to the justice or to his clerk, appointed pursuant to law, and service of a copy thereof and of notice of the delivery thereof, stays the issuing of an execution upon the judgment. If an execution has been issued, the service of a copy of the undertaking, certified by the justice or the clerk, or accompanied with an affidavit showing that it is a copy and that the original has been duly filed upon the officer holding the execution, stays further proceedings thereunder.”

It is contended on the part of the plaintiff that under the latter clause of this section proceedings upon the execution are stayed by the service of a copy of the undertaking upon the constable holding the execution, and that it is not necessary to serve a copy of the undertaking upon the respondent in the action. Such, however, does not appear to. us to be the proper construction of the provisions referred to. The two sections must be considered together. The first section referred to, as we have seen, provides that if the appellant desires a stay of execution, he must give an undertaking, a copy of which, with the notice of the delivery thereof, must be served with the notice of appeal and in like manner. The words “delivery thereof” are fully explained in the next section, which requires the undertaking to be delivered to the justice or his clerk, etc.'

Section 3048 provides for the service of the notice of appeal upon the respondent, and the words “in like manner,” appearing in section 3050, require that the undertaking, with a notice of the delivery of the original to the justice or his clerk, must be served with the notice of appeal upon the respondent in like manner that the notice of appeal is. served. That this is so, still further appears by the concluding sentence of the section, which is, that section 1335 of this act applies to such undertaking. That section provides that the respondent may, within ten days after the service of a copy of the undertaking with a notice of the filing and so on, serve upon the attorney for the appellant a notice that he excepts to the sufficiency of the sureties.

Then follow provisions requiring the sureties to justify and procure allowance thereof, and fór a failure so to do it is the same as if no undertaking had been given. The right to except to the sureties, and to have them justify, is a substantial one, and we have no power to deprive a party of it. If the plaintiff’s construction is correct in reference to the concluding clause of section 3051, then straw bail maybe given and the respondent be deprived of the security that he is entitled to under the Code. If a copy of the undertaking is not served upon him he cannot except to the sureties within ten days from the service thereof on him, and require them or other sureties to justify. ■ It appears to us that it might, with equal propriety, be claimed that it was not necessary for the original undertaking to be delivered to the justice, for under this clause of the section if execution has been issued the service of a copy of the undertaking, certified by the justice to be a copy, or accompanied with an affidavit showing that it is a copy, upon the officer holding the execution, stays further proceedings thereunder. But such cannot be the meaning of the provisions referred to. If the appellant desires a stay of execution he must deliver the original to the justice or his clerk, in accordance with the provisions of the Code, and must serve a copy, with the notice of such delivery, upon the respondent, with the notice of appeal, and if an execution has been issued he must also serve a copy of the undertaking, either certified by the justice or accompanied with an affidavit showing that it is a copy, etc., upon the officer holding the execution.

It follows that proceedings upon the execution were not stayed unless a copy of the undertaking, with the notice, was served upon the respondent Dawson. The court having refused to submit this question to the jury the exception thereto was well taken.

The judgment should be reversed and a new trial ordered; costs to abide event.

Smith, P. J., Barker and Bradley, J. J., concur.


author: Barker, J.

text:
    Miles W. Barse, Resp’t, v. Henry J. Morton et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed February, 1887.)

    1. Equitable assignment—Orders for oil on pipe line—Acceptance.
    The defendant made and delivered to one Dilworth, for a valuable consideration, orders on the United Pipe Line, in the following form: “ October 20, 1881, the United Pipe Lines, Pass to the credit of Charles R. Dilworth 1,000 barrels crude petroleum, subject to your customary rules and regulations, and charge to the account of H. J. Morton & Co.” Held, they constituted an equitable assignment of the oil to Dilworth, although they were never accepted by the pipe line company, on which they were drawn.

      %. Same—Duty of bailee of assigned property.
    It was the duty of that company acting as the bailee of the owner of the oil, to deliver the same to Dilworth on being notified of the transfer. After the orders were delivered, the defendants could not effectually revoke the same without the consent of the holder.
    3. Same—Duty of drawee to hold property subsequently coming INTO HIS POSSESSION.
    The circumstance that the oil was not in the hands of the drawee at the time the orders were dated, does not change the rule. When oil applicable to the payment of the orders passed into the possession of the drawee, the orders became effective, and the equitable transfer was accomplished. They created an equity which would seize hold of the oil as soon as it passed into the custody of the pipe line.

      4. Same—Non-negotiable instruments—Transfer of by blank indorsement. °
    Before the maturity of the orders, Dilworth indorsed the same in blank and caused them to be delivered to a third party. Held, that the mode and manner of making the transfer was sufficient for that purpose. That the holder of the orders would be authorized to write a formal assignment over the indorser’s signature.
    5. Same—Naked possession does not prove title.
    The mere naked possession of the orders indorsed by the payee in blank, without other evidence that the payee intended to part with his title, would not be sufficient to prove a title to the same in the holder. They are not negotiable instruments.
    6. Same—Custom of trade as to transfer—What can be proved by.
    It was not competent to prove the custom (in the transfer of this class of orders), for the purpose of showing that by the force and effect of it the payee could be deprived of his title without his consent, or that the same could be construed in any other manner than that required by law.
    An appeal from a judgment entered upon a verdict in the plaintiff’s favor for damages and costs $6,738.81, and from an order denying the defendants’ motion for a new trial founded upon the minutes of the court.
    The legal proposition presented by this appeal arises upon two exceptions, one' taken to the refusal of the court to grant a non-suit, and. the other to the denial of the defendants’ motion at the close of all the evidence asking the court to direct a verdict in the defendants’ favor.
    In October, 1881, Charles R. Dilworth was the owner of and interested in several parcels of oil lands upon which were located producing wells which he sold and transferred to the defendants, and they agreed to pay, therefor, 59,000 barrels of oil. Of this amount they delivered on the day of sale 10,000 barrels, and for the balance they made and delivered to Dilworth orders on the United Pipe Line Company, all payable in the future, each for 1,000 barrels, and in the following form:
    "Bradford, Pa., October 20, 1881.

      The United Pipe Pines:

    Pass to credit of Charles R. Dilworth 1,000 barrels crude petroleum, subject to your customary rules and regulations, and charge to the account of H. J. Morton & Co.”
    At the time of the making and delivery of the orders the defendants had no oil in store. The oil produced from the lands after the purchase was stored by the defendant with the Pipe Line Company. Six of the orders, being those in suit, were made payable on the 20th of October, 1882. Before these orders were payable Dilworth endorsed the same in blank, and they passed into the hands of C. B. Wiser, who, before their maturity, sold and delivered them to the plaintiff. On the day they were made payable they were presented to the Pipe Line Company and the oil, demanded, which was refused. Before that time the company, with the consent of the defendants, delivered oil in this amount to the payee, who, at that time, had endorsed and parted with the possession of the orders, of which the defendants were informed. The plaintiff purchased the orders from Wiser before their maturity, paying therefor a valuable consideration.

      Cary & Bumsey, for app’lts; J. B. &. M. B. Jewell, for resp’t.
   Barker, J.

The orders were founded upon a good consideration, and they therefore constituted an equitable assignment, of the oil to Dilworth, although they were never accepted by the Pipe Line Company on which they were drawn. It was the duty of that company, acting as the bailee of the owner of the oil, to deliver the same to Dilworth on being notified of the transfer. After the orders were delivered the defendants could not effectually remove the same without the consent of the holder. The cases establishing the rights of the parties under instruments of this character are decisive. Morton v. Naylor, 1 Hill, 583; Parker v. City of Syracuse, 31 N. Y., 376.

The case of Alger v. Scott (54 N. Y., 14), cited by the appellant’s counsel does not support their position, but affirms the rule as stated where the order is based upon a good consideration.

The circumstance that the oil was not in the hands of the drawee at the time the orders were dated does not change the rule, for when oil applicable to the payment of the orders passed into the possession of the drawee, by the direction of the defendants, the orders became effective, and the equitable transfer was accomplished. The parties to the agreement anticipated that the oil produced from the wells located on the lands, or other oil which should be secured by the defendant from other sources, would be delivered to the Pipe Line for the purpose of meeting the orders, and thus discharging the drawers’ indebtedness to Dilworth. As the oil had not been produced and delivered to the Pipe Line Company when the transaction took place, the orders could not operate, eo instanti, to transfer the title to the oil, but they nevertheless created an equity which would seize hold of the oil as soon as it passed into the custody of the Pipe Line Field v. Mayor, 2 Seld., 179.

If Dilworth had remained the owner of the orders it is clear he would have had a perfect right of action against the defendants in case of their non-payment on due presentation. After Dilworth had indorsed the orders and delivered them to Wiser, the defendants consented that the Pipe Line Company might deliver to Dilworth the quantity of oil mentioned in the several orders in suit.

It is conceded by the defendants that the judgment should be sustained, if, by the evidence, a case was made fairly estabhshing that Dilworth had transferred his title to the orders and the plaintiff had acquired the same. We think that the evidence tended to prove a state of facts that justified the jury in reaching the conclusion that Dilworth intended to sell and transfer his title to the orders to Wiser, and to carry out that purpose delivered the same to him, and that the latter disposed of the same to the plaintiff for a good consideration. Before the maturity of the orders, Dilworth indorsed the same in blank, and caused them to be delivered to Wiser. It appears from the evidence that when the lands were sold, Wiser had an equitable interest therein and was at that time engaged in managing and operating the wells located thereon, and was present and participated in the negotiations which resulted in the sale. ■ We think this evidence indicates that it was the intention of Dilworth to part with his title to these orders, and to transfer the same to Wiser. It does not appear that Dilworth in any maimer had discharged his obligation to Wiser, arising out of the latter’s equitable interest in the lands sold and conveyed to the defendants.

It is fairly established that Dilworth intended to part with his title. The mode and manner of making the transfer was sufficient for that purpose. The holder of the orders would be authorized to write a formal assignment over the endorser’s signature. Dunn v. Commercial Bank, 11 Barb., 580.

We do not intend to hold that the mere naked possession of the orders endorsed by the payee in blank, without other evidence that the payee intended to part with his title, would be sufficient to prove a title to the same in the holder. They are not negotiable instruments.

The plaintiff was permitted to prove that it was the custom of banks and traders, dealing in this class of orders drawn on the Pipe Line, to purchase the same when endorsed in blank by the payee, and that it was also the custom of the Pipe Line to deliver the oil to the holder on their presentation, thus endorsed, without other evidence of the holder’s title. This evidence was objected to by the defendants as incompetent and immaterial. We think it was. competent as bearing upon Dilworth’s intention when he endorsed and delivered the orders to Wiser.

It is disclosed by the case that Dilworth was familiar with this.custom. It also appears by the defendants’ proofs that it was Dilworth’s intention that the orders should be presented by Wiser to the Pipe Line Company for payment at their maturity, but, as the defendants claim, for his own account. If the evidence was competent for the purpose indicated, then it was properly received. It was not competent to prove the custom for the purpose of showing that by the force and effect of it the payee could be deprived of his title without his consent, or that the same could be construed in any other manner than that required by law.

The main dispute on the trial was whether the orders were delivered to Wiser as assignee and owner, or as the agent of Dilworth, to present them to the Pipe Line Company and receive the oil on the payee’s account. The evidence tended to support both contentions, and we are of the opinion that the verdict of the jury was conclusive against the defendants on that question. In his charge the learned trial "judge presented that question to the jury and instructed them that the defendants would be entitled to a verdict in their favor unless they found that Dilworth intended to transfer the title to the orders to Wiser, and if they found he did so intend, then their verdict would be for the plaintiff. Neither party excepted to the charge, and the case was submitted to the jury upon that single issue.

Judgment and order affirmed, with costs.

Smith, P. J., Haight and Bradley, JJ.; concur


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    George W. Church, Resp’t, v. Della Church, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887.)

    1. Divorce—Action for—Rule 73—Interpretation of.
    It is provided by rule 73 of the general rules of practice, that a judgment shall not be rendered for a divorce unless it appears that five years have not elapsed since the discovery of the fact that the adultery charged in the complaint had been committed, and where, at the time of the offense charged, the defendant was living in adulterous intercourse with the person with whom the offense is alleged to have been committed, that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff. Held, that this latter clause had reference to cases where the parties were living together in adulterous intercourse.
    2. Same—Code Civ. Pro., § 1758—Adultery of plaintiff bars right to decree — When alleged in answer must be passed upon at trial.
    It is provided by Code Civil Procedure, § 1758, that the plaintiff is not en-entitled to a divorce, although the adultery of the defendant is established, where the plaintiff has also been guilty of adultery under such circumstances, that the defendant would have been entitled, if innocent, to a divorce. Held, that an action for a divorce having been referred to a referee and the adultery of the plaintiff having been alleged in the answer, it became an issue necessary to be determined by the trial, and that the court could not assume that a conclusion of law found by the referee that the plaintiff was entitled to judgment, was a finding of this issue in the negative.

      Appeal from a judgment of the Yates special term entered upon the report of a referee awarding the plaintiff a divorce upon the ground of the adultery of the defendant.

      Calvin J. Huson, for resp’t; John T. Knox, for app’lt.
   Haight, J.

The evidence is undisputed that the plaintiff and defendant were husband and wife, and that they ceased to live together in the year 1876; that the defendant took a house on Main street in the village of Penn Yan, nearly opposite of the residence of William Sheldon and has since continued to reside there; that during that time she has been supported by Sheldon, who has visited her house two or three times per day during most of that period, taking to her provisions and usually spending his evenings with her; that in the evenings the door was fastenedluid the windows so closed as to make the light within not observable without; that he usually stayed until about nine or half-past nine o’clock in the evening and on some occasions had been there until one and two o’clock in the morning and on the occasions of three different fires had been at her house at all times of the night, back and forth quieting her fears; that defendant and Sheldon’s wife did not visit together; that she had no means of support other than that furnished by Sheldon, and he admits that he has taken a considerable interest in her welfare and had it at heart and that he has been locked in a room alone with her when her child was there and when it was not there, and she admits that she loved Sheldon as a brother. There is controverted evidence to the effect that Sheldon was seen by a neighbor upon the walk in the front of the defendant’s house in the evening; that he then passed by but shortly after returned and entered the house; that after remaining in the house a while he opened the door and the neighbor whistled; that thereupon he closed the door and after a while again opened it and the neighbor made other noise; that thereupon the door was again closed, and the same was repeated at intervals for half a dozen times; that he remained as late as two or three o’clock in the morning when he finally came out and went across the street to his own home.

We are not inclined to interfere with the finding of the referee that the defendant “ on divers days and times during the six years before the commencement of this action committed adultery with one William Sheldon at her residence on Main street in the village of Penn Yan, N. Y.” But the referee has also found as a fact that during all this time she was living in open adultery with Sheldon at her residence. If this latter finding is permitted to stand then there is a serious question as to the right of the plaintiff to recover, for he concedes in his testimony that he had heard of Sheldon’s going to her house as early as the winter of 1876 and after he had moved to South Bend, Indiana, under date of January 20th, 1879, he writes Sheldon for $300 and urges that it be sent to him stating that he has reason to believe that Sheldon would prefer that he would remain away from Penn Yan and give up his claims to the defendant to him, Sheldon. He then proposes in his letter that if the money is sent that he will sign a paper giving up all claims upon her and, that such paper would be better than a divorce for her. It is thus quite apparent that he understood the relation existing between the defendant and Sheldon at this time.

Eule 73, among other things, provides in substance that a judgment shall not be rendered for a divorce unless it appear that five years have not elapsed since the discovery of the fact that such adultery had been committed; that is, the adultery charged in the complaint; and also where at the time of the offense charged the defendant was living in adulterous intercourse with the person with whom the offense is alleged to have been committed, that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff. The latter clause of the rule has reference to cases where the parties are living together in adulterous intercourse; and if the latter clause of the finding of the referee to which we have referred is to be sustained, then there is evidence tending to show that he had discovered such intercourse more than five years before the commencement of this action. But it may be said on behalf of the plaintiff that the evidence does not sustain this finding of fact by the referee; that the evidence is undisputed that Sheldon during all this time has lived with his own wife in his own residence and has not lived with the defendant at all, and that under section 1758 of the Code he is only required to show that the action was commenced within five years after the discovery of the offense charged in the complaint. The plaintiff, however, has not appealed, and we do not see how he can urge that the report is against the evidence or that it should be disregarded. But, however that •may be, we are of the opinion that a new trial must be granted for still another defect appearing in the referee’s report.

The answer charges adultery on the part of the plaintiff with various women. Two women testify to having had adulterous intercourse with him. They are corroborated by the testimony of two other witnesses, and yet the referée in his report has failed to find upon the question of the plaintiff’s adultery. True, he comments upon it in his opinion, but his opinion is not a part of the record and can not be treated as such. Section 1758 of the Code provides that the plaintiff is not entitled to a divorce, although the adultery of the defendant is established where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce. His adultery having been charged in the answer, it became an issue necessary to be determined by the trial, and under this provision of the Code the court is prohibited from granting a divorce to the plaintiff if he is also guilty of adultery.

It follows that the court cannot award judgment until this issue is determined, and we cannot assume that the conclusion of law found by the referee, to the_ effect that the plaintiff is entitled to judgment, is a finding of this issue in the negative.

This question was passed upon in the first department in the case of Price v. Price (9 Abbot [N. S.], 291), and forms a precedent which we think should be followed.

The judgment should be reversed and a new trial ordered before another referee, costs to abide the final award of costs.

So ordered.

Smith, P. J., and Barker, J., concur; Bradley, J., not voting. _


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    Edwin S. Conners, Resp’t, v. Charles A. Bullis et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887.)

    Contract—Modification—Evidence—When material.
    One Emerich made a contract with defendants to peel a quantity of hemlock bark for defendants, for which they agreed to pay a certain price per measured cord. Subsequently, Emerich delivered his contract to the plaintiff, abandoning the job. The plaintiff finished the work under the contract. On the trial, the defendants offered to show that a subsequent contract had been made with Emerich; that the bark was to be weighed instead of measured. Held, this evidence would have been material had there not been a subsequent agreement between the plaintiff and defendants on the subject.
    Appeal from a judgment entered upon a verdict at the Cattaraugus county court, and from an order of that court denying motion for new trial.

      J. J. Inman. for app’lts; O. S. Vreeland, for resp’t.
   Haight, J.

This action was originally brought in justice court. A trial was had resulting in judgment in favor of the plaintiff for $163.78. An appeal was taken to the county court and a re-trial had resulting in a verdict in favor of the plaintiff for $172. From that judgment and the order denying a new trial appeal was taken to this court.

It appears that on the 17th day of May, 1883, the defendants entered into a written contract with one Emerich to peel a quantity of hemlock bark for which they agreed, to pay him $1.75 per cord, the bark to be measured. In June following Emerich delivered his contract to the plaintiff and left the country, abandoning the job. The plaintiff finished the work under the contract so abandoned by Emerich and now seeks to recover pay therefor. On the trial the defendants offered to show that a subsequent contract had been made with Emerich to the effect that the bark was to be weighed instead of measured. This evidence was excluded by the court and exception was taken by the defendants. Undoubtedly this evidence would have been competent, if the plaintiff was performing the work as the assignee of Emerich; but all of the parties agree that there was a subsequent agreement between the plaintiff and defendants, shortly after Emerich left, in which the subject of weight was determined. The plaintiff testified that Cornell, the foreman of the defendants, said that Emerich, before he left, had consented to take weight and he asked plaintiff if he had as soon take weight as measurement; that plaintiff told him he would if he would agree to get the bark out and ship it as fast as it was peeled; that he did not propose to have it lie in the woods two or three days; and subsequently and during the same conversation he testified that he said that he would not take weight and that Cornell assented to that, and said that he could go on with the peeling of the bark. The evidence of Cornell and the defendant Charles A. Bullís is to the effect that the plaintiff agreed to peel the bark and take weight instead of measurement. A question of fact was thus presented for the jury and the question is narrowed to a determination as to what was agreed upon between these parties upon this occasion. In view of this evidence we regard the modification of the contract by Emerich as immaterial. It appears that by measurement there were 242 cords of bark peeled, whilst by weight at the tannery, allowing 2,200 pounds for a ton, there were but 211 cords.

Upon the trial the plaintiff introduced in evidence a letter written to J. S. Whippel, by one French, signed Bullís Brothers. This letter was objected to by the defendants, and an exception was taken to its admission. It appeared from the evidence of one of the defendants that French was their bookkeeper; that he did not write letters unless he was directed to do so; that he did not know whether he was authorized to write this letter or not; that he did not know of his ever having written letters without authority, and does not suppose he did.

We do not deem it necessary to determine whether or. not this testimony was sufficient to permit the letter to be read in evidence, for whether it was or not, the letter did not do the defendants any harm. There is not a word in it that is in conflict with the defendants’ theory of the case, and it is entirely silent upon the question of the weight or measurement of the bark.

It follows that the judgment and order should be affirmed.

Smith, P. J., Barker and Bradley, JJi, concur.


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    Margaret Murphy, App’lt, v. Louis P. Ross, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed February 11, 1887)

    1. Account stated—Mutual assent to items and balance is necessary TO CONSTITUTE—MAY BE INFERRED.
    In order that there may be an account stated, there must be a mutual examination of the claims presented by each of the parties, and an agreement between them as to the correctness of the allowance and disallowance of such claims, and of the balance struck upon the adjustment of the accoupt. The agreement of the parties need not, however, be express, but may be inferred from circumstances, as by the retention without objection of an account rendered.
    3. Same—What necessary to be proved in order to open account STATED.
    An account stated can only be opened upon proof by the party seeking to do s6 that he has been misled by fraud, mistake, or manifest error.
    Appeal from a judgment, entered in Monroe county, • upon the report of a referee.

      Forsyth <& Forsyth, for app’lt; David Hays, for resp’t.
   Haight, J.

This action was brought for a co-partnership accounting. The defense was an account stated and settlement in full. It was admitted in the pleadings that the co-partnership was formed under a written agreement; that it continued in force from September, 1877, until about the 1st of January, 1880, when the same was discontinued by mutual consent. It is claimed on the part of the defendant that on the 15th day of December, 1879, an inventory was taken and an account stated, which was examined by both parties and acquiesced in as correct, and that thereupon the co-partnership was terminated, and they entered into other and different arrangements. The referee found as a fact that there was an account stated and settlement on or about the 15th day of December, 1879, as claimed by the defendant and as a conclusion of law that the complaint should be dismissed. To these findings the plaintiff excepts, and the question thus presented becomes the important one to determine on this appeal. The contract by which the parties became co-partners was to carry on the business of , manufacturing boots.

The defendant testified in substance that on December 15, 1879, an inventory was taken by Murphy, the husband of the plaintiff, at the factory; that the prices were all made and carried out by him and brought to the defendant’s store; that the total, as shown by the inventory, was credited to the factory and the total production of the factory was given credit for at that time, and the factory was charged with everything that had been paid out and a balance was struck. This showed a deficiency of $1,054.39; that the factory had sustained a loss during the year of that amount. He further testified that this inventory was a great surprise to the parties; that they had been anticipating a profit; that the figures were afi gone over again; that they went over to the factory to see if any errors had been made in the account and that the matter was all talked over in a general way; that Mr. Murphy was shown the figures and he said he could not account for it; that regret was expressed on both sides; that Murphy said he had no money to pay any losses, and the defendant told him that he would let it rest for the present and see what the future would bring forth; that they then made an agreement for the future. He further testified that never thereafter did the plaintiff or anyone on her behalf make any objections to the correctness of the account as stated.

Henry B. G-orden, the defendant’s bookkeeper, testified that he participated with Mr. Murphy in making up the account in December, 1879; that the account showed a loss; that he delivered Mr. Murphy a statement of each of the accounts at the end of the settlement; that at the time of the account of December 15,1879, Murphy brought to the office an inventory of the effects of the factory; that he took the inventory and added to it all that the factory had produced in that year, as shown by the books, in account with the factory, and from that account deducted the disbursements of the factory for that year, which result showed a loss of ten hundred and odd dollars; that he handed the result to the defendant and Mr. Murphy; that Murphy not being satisfied with the result took his inventory back and went over it again thoroughly and could make it no different. That the defendant to make sure that everything was correct went through the books personally himself and .examined every item in the year’s settlement and could make the result no different, he or Mr. Murphy. That they met again in the office in the presence of the witnesses about a week afterwards and figured it all over, and went over a recapitulation of the thing ecarfully together and could make the thing no different. That the conversation about the loss which Mr. Murphy and the defendant had in his presence was that they could not see where there should be a loss. Mr. Murphy said he was disappointed in it; that defendant told the witness to close the account and charge the account to profit and loss, as he could make it no different. That was in Murphy’s presence. Murphy said he was disappointed in it, and Mr. Eoss sympathized with him and said he was sorry there was a loss and not a profit. That neither Murphy nor anybody else made any further objection to the correctness of the balance.

John Murphy, sworn on behalf of the plaintiff, testified that he was the husband of the plaintiff; that an inventory was taken December 15, 1879; that himself and his son and the defendant took the inventory; that they entered it on the book, and the defendant came over and checked off each article; that the inventory was taken in the factory, and after it was completed the defendant took it to the store; that the witness went over to the store a few days afterwards and the defendant said that the factory had sustained a loss of between $600 and $700; that the witness said he was. not surprised; that the defendant asked him where he suspected the loss was, and witness told him that when he cut the goods down from three to nine dollars a case the factory would show a loss; he was dissatisfied and walked into the packing-room and says: “Murphy, if-the . factory sustains a loss I will stand the loss;” that there had been no steps taken to settle until now. Defendant told him in the presence of witness’ son that he would cancel the claim; that the defendant saw the witness again and asked what he proposed to do in the matter, and the witness told defendant that he would not work another hour in that way; that he was satisfied things were not right; that defendant then made the proposition to hire him by the year.

On his cross-examination Murphy testified that at the time of the last inventory taken in December, 1879, the result showed a loss', and after the result was arrived at the defendant and himself went to the factory and went over the figures again to make certain that it was correct; that they went over the figures to see if they could find any mistake in the figures of the inventory, and could not find any.

Other evidence was given upon the subject, but none that materially changes that to which we have alluded. The rule is that in stating an account there must be a mutual examination of the claims of each other by the parties, and a mutual agreement between them as to the correctness of the allowance and disallowance of their respective claims, and of the balance as it is struck upon the final adjustment of the account. .That their minds must meet as in making other agreements, and they must both assent to the account and the balance as correct; but that this agreement and assent need not be direct and express, but may be implied from circumstances. For instance, if one party presents his account to the other and the latter makes no objection, it may well be inferred that he is satisfied with and assents to it as correct; or, if an account be made up and transmitted by one party to another by mail, and the latter keeps it for a considerable time without making any objection, he may be deemed to have acquiesced in it. An account stated can only be opened where the party objecting shows clearly that he has been misled by fraud, mistake or manifest error. Lockwood v. Thorne, 11 N. Y., 170; S. C., 18 id., 285, 288; Stenton v. Jerome, 54 id., 480, 484; Quincey v. White, 63 id., 370, 377; Young v. Hill, 67 id., 162, 172; Harley v. 11th Ward National Bank, 76 id., 618; Volkening v. De Graaf, 81 id., 268; Sharkey v. Mansfield, 90 id., 227; Sampson v. Freedman, 102 id., 699, 701, 2 N. Y. State Rep. 434.

When we come to apply the rule as established by these authorities, we find that it is substantially undisputed that on the 15th of December, 1879, an inventory was taken, the account was figured up and a statement was made by the bookkeeper and given to Mr. Murphy and the defendant. That they were both surprised and disappointed at the result and they themselves again went over the inventory, stock and the accounts for the 'year to see if any mistake could be discovered. That Murphy declared that the loss was the result of cutting the prices upon the stock and this was” doubtless the fact, That thereafter the co-partnership business terminated by the mutual consent of the parties, and other arrangements were made by which Murphy was employed by the defendant. It further appears that no further question was raised in reference to the correctness of the account until the commencement of this action which was on the 31st day of December, 1884, five years after the account had been stated. It consequently appears that there was an acquiescence in the account for that length of time and the inference is such as to justify the findings and conclusions of the referee.

Again, it is contended that John Murphy was not the authorized agent of the plaintiff and that she was not bound by the settlement made by him. It appears however that she personally had nothing to do with the conduct of the business; that the talk in reference to forming the co-partnership was conducted by her husband and the agreement itself provides that “ The said Ross is to furnish the capital to such an amount as he may see fit and to buy all the stock, tools and fixtures to the best advantage, with the assistance of John Murphy, the husband of said Margaret Murphy, who is to represent said Margaret Murphy as her agent, and to devote all his time and attention to said manufacturing and shall manufacture and deliver to said Ross hoots at the following prices.”

And again, the contract provides “the said Margaret Murphy by her husband is to draw at the rate of ” etc. The articles of co-partnership were signed by her and it appears to us that the provisions referred to are sufficiently broad to constitute Murphy her husband, her general agent in the matter.

None of the exceptions to the admission of evidence appear to be well taken. The judgment should be affimed, with costs.

Smith, P. J., Barker and Bradley, JJ., concur.