author: Hardin, J.:

text:
    ADELAIDE L. POST and Others, Appellants, v. FRANCIS O. MASON and Others, Executors, etc., Respondents.

      Legacy to the attorney who draws a will — he must prove affirmatively the absence of fraud, and undue influence — the probate of a will of personal property is conclusive after one year.

    Where a legacy is left to the draughtsman of a will, who is at the time and for many years prior thereto has been the legal adviser'of the testator,~it rests upon him to establish affirmatively that the testator acted with full knowledge of all the surrounding circumstances, and to prove that the transaction was free from all fraud or undue influence- on his part.
    The probate of a will of personal property becomes, after the expiration of one year from -the' time it was admitted to probate, conclusive, and a court of equity has no power in a collateral action to set aside the probate except for fraud in the proceedings in which it was procured.
    The probate is conclusive as to the disposition therein made of the personal property, notwithstanding the fact that the will relates to both real and personal property.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action at a Special Term after special issues had been settled and tried before a jury, and from an order denying a motion for a new trial of such issues.

      W. F. Cogswell and A. McDonald, for the appellants.

      E. C. lapham, for the respondents.
   Hardin, J.:

John Post died at Geneva, Ontario county, on the 28th day of September, 1874, leaving him surviving, his widow Adelaide, his son Clarence and his daughter Leonora.

Upon the 18th day of September, 1874, he made, executed and published his last will and testament, in which he named the defendants as executors. On the — day of -, 1874, the executors presented the will to the surrogate and obtained citations which were served upon the widow and children, and upon the return day the widow and children duly appeared before said surrogate.

A guardian ad litem was appointed by the surrogate for the children, and such proceedings were duly had before the surrogate that the will was duly proven and duly admitted to probate on the 24th day of October, 1874, and the executors (the defendants) duly ■qualified and took upon themselves the due execution of their duties as executors. They proceeded in the discharge of their duties, and set apart for the widow the sum of $40,000, the amount of the legacy given to her in and by said will, and likewise to the children, to wit: To the son certain real estate and the $34,000 capital upon which, he was to receive the income, and a capital of $40,000 upon which the income was to be paid to the daughter for a specified time. They also set apart $20,000 to pay the legacy to the Ontario County Orphan Asylum, and they set apart and paid certain minor legacies. The personal estate amounted to about $190,000, and after paying ■the expenses and commissions in the settlement of the estate, and a small indebtedness, there remained about $17,513.66 to pass under ■the residuary clause to the three persons named as executors.

In August 4, 1876, Adelaide L. Post filed á petition with the surrogate of Ontario county, praying for a citation to the executors “ to render an account of their proceedings as executors and trustees under the will of John Post, deceased.”

A citation was issued returnable September 11, 1876. On the 19th day of August, 1876, the executors applied to the surrogate by petition for a .citation requiring the next of kin, legatees and creditors of the deceased, to appear before him on some day therein to be specified, to attend to the settlement of their accounts as such executors. A citation was accordingly issued by the surrogate returnable October 23, 1876. On that day the parties appeared and the executors filed their accounts duly verified, and both proceedings were adjourned to the 26th day of December, 1876.

Thereafter the accoimting was duly had, and the accounts of the ■executors and trustees were duly settled by and before said surrogate. The commissions allowed upon $186,012.94 were $6,105, .and the residue was found to amount to $17,513.66.

In May, 1878, the widow and children commenced this action, 1st. To set aside and vacate the probate of said will; 2d. To declare that said will is not the last will and testament of John Post, deceased; 3d. To have declared and have adjudged that the nineteenth item of said testament is void and of no effect, and that as to the- remainder and residue of said estate, the said Post’ died intestate; 4th. And that the plaintiffs are the owners of said property as cestui que trusts of said defendants as such trustees; and 5th. For an accounting and for further relief.

The defendants served their answer herein, and thereafter by an order of the Special Term the following issues were settled, viz.:

First. Was the said John Post at the time'he made and executed the last will and testament, bearing date the 19th day of August,. 1874, of sound and disposing mind and memory, and competent to-make said will ? Yes.

Second. Was the said paper, dated August 19,1874, read over by or to said John Post at the time of or before the execution thereof by him, and did he then understand the same and all the provisions thereof? Yes.

Third. Was the execution of that paper, dated August 19, 1874,. by the said John Post, procured by undue influence? No.

Fourth. Was the said John Post at the time he made and executed his last will, which was admitted to probate, bearing date the 13th day of September, 1874, of sound and disposing mind and memory, and competent to make and execute said will ? Yes.

Fifth. Was the paper dated September 13,1874, read over by or to said John Post at the time of or before the execution thereof by him, and did he understand the same and all the provisions thereof? Yes.

Sixth. Was the execution of that paper dated September 13,. 1874, by the said John Post, procured by undue influence ? No.,

Seventh. Was the probate of the will of September 13, 1874, by the surrogate of Ontario county, obtained by means of any false or fraudulent representations by the defendants Bradley Wynkoop and Francis 0.- Mason, or either or both of them, that .Mrs. Adelaide-L. Post was informed of the contents of the will and desired the probate thereof; and if so who made such representations? No.

Eighth. Was the said Adelaide L. Post in any way informed of' the contents of said will, and especially of the nineteenth item thereof, and if so, when? Yes, on the 14th day of October, 1874,. on the reading of the will by Judge Mason, and on the 2d day of October, 1875.

Ninth. Did the defendants Bradley Wynkoop and Francis 0. Mason, or either of them, intentionally prevent the plaintiffs, or-■either of them, from becoming informed as to the contents of. said will dated September 13, 1874, during any part of the year next ensuing the probate thereof, and if so, during what part of said year? No.

Filed November 1, 1879.

The trial took place at the Ontario circuit before the court and a jury. The jury made the several answers which appear in answer to the several questions. A case was made, and a motion thereupon was made for a new trial before the same justice who presided at the trial in the circuit, and it was denied and judgment was ordered for the defendants.

From such judgment and order denying anew trial, the plaintiffs bring this appeal. The nineteenth clause of said will was, viz.:

Nineteenth. All the rest, residue and remainder of my estate, real and personal not hereinbefore disposed of, I give, devise and bequeath unto my friends Alonzo "Wynkoop, Bradley Wynkoop and Francis O. Mason, who are hereinafter nominated as the executors of this my will in equal shares.”

By the last clause of the will they were nominated and appointed executors. Another will was executed by the deceased on the 19th ■day of August, 1874, containing provisions in some unimportant particulars differing from the one before us. Both wills were drawn at the request of the deceased by the defendant Francis O. Mason, an attorney and counselor of this court, and he was present-when they were executed.

The defendant Bradley 'Wynkoop was also a lawyer, and he, after the execution of the last will, prepared a schedule of the assets of the deceased at his request. Both of the ’W’ynkoops named as executors with the defendant Mason were cousins of the deceased.

The principal question discussed before us in the argument of these appeals, arises out of the instructions given by the trial judge at the circuit and refusals to charge as requested by the plaintiffs’ counsel. The court charged, viz.: “ The plaintiffs hold the affirmative upon all these questions and must furnish you a preponder anca of evidence upon each of them.” An exception was taken to such •charge. The plaintiffs requested the court to charge the jury, that the will having been written by Mr. Mason, who is a legatee, and is shown to have been for yearn before it was made the legal adviser of Mr. Post, the same is presumed to be fraudulent; that the law itself, without any evidence at all, presumes that it was obtained by fraud; that the presumption was against the will until it was overborne by satisfactory evidence.”

The court declined to charge as requested, and an exception was taken by the plaintiffs. Upon the argument before us it was urged by the learned counsel for the appellants, that the ordinary rule in transactions between attorney and client is, that the attorney is bound to establish affirmatively that the transaction was made by the client, with full knowledge of all material circumstances known to the attorney, and was in every respect free from fraud on his part or misconception on the part of the client, and that a reasonable use'was made by the attorney of the confidence reposed in him,” and that this rule in its full force and vigor is applicable where, as in the case before ns, the attorney and draftsman takes a-benefit by way of a money legacy under the will prepared by him for the testator to execute.

Upon the other hand, the learned counsel for the respondents contends that the rule which obtáins in the purchase of property, where the title is in dispute, or a contested cause of action, of an attorney from his client,” is not applicable to the case before us.

We have looked into the authorities to some extent and it seems to us the weight of authority is with the appellants.

Barry v. Butlin (1 Curteis, 637), and the comments and approval and application of the principle of that case by the court in Crispell v. Dubois (4 Barb., 393); Evans v. Ellis (5 Denio, 640); Nexsen v. Nexsen (2 Keyes, 229); Davoue v. Fanning (2 Johns. Ch., 252); Robertson v. Caw (3 Barb., 415), opinion of Willard, J., and cases there cited; Rogers v. Lee M. Co. (13 Reporter, 59); Newhouse v. Godwin (17 Barb., 259); Newman v. Paine (2 Vesey, 200, and notes); Montesquieu v. Sandys (18 id., 312, note 1); Gibson v. Jeyes (6 id., 266); Whitehead v. Kennedy (69 N. Y., 466; Kinne v. Johnson (60 Barb., 71); Wilson v. Moran (3 Bradf., 181); Coffin v. Coffin (23 N. Y., 1), was not decided upon the question here involved.

Assuming, therefore, in the further consideration of the case, that the judge was in error in refusing to charge as requested, shall we reverse the judgment entered upon his decision and findings hired upon the verdict of the jury ? It clearly appears from the findings of the jury that there was no fraud practiced by the defendants in-respect to the probate of the will.

The jury have negatived all the allegations in the complaint in that regard. They have found that Mrs. Post was informed of the contents of said will, and especially of the nineteenth item thereof, within one year after the probate thereof, and that she was so informed on the 14th day of October, 1874, and also on the 3d- day of October, 1875, when the will was read to her by Mr. Mason, one of the defendants.

These findings are based upon conflicting evidence, and the decision of the trial judge accepted them as satisfactory when ordering judgment and making his decisión as the basis of his judgment.

We have looked into the evidence tending to support them, as well as that given by the plaintiffs of a contra tendency, and are satisfied with the correctness of such findings. Had the instructions been given which were asked for and declined, to which we have adverted, they would not have changed these findings.

We thereupon have a case provided for by section 1003 of the Code of Civil Procedure, which is applicable to this case. That: section declares that “an-error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial, may, in the discretion of the court which reviews it, be disregarded if that court is of opinion that substantial justice does not require that a new trial should be granted.”

Accepting the findings and decision that no fraud was practiced in respect to the probate of the will by the defendants, and also the findings that the plaintiffs knew of the nineteenth item of the will before the probate, and also that the adult plaintiff was informed of the contents of the will before the expiration of one year.from the probate, we may properly inquire whether a finding in accordance with the request asked for would aid the plaintiffs.

The complaint challenges the disposition made by the testator of a portion of his personal property under and by virtue of the nineteenth item of his will. From the case made at the trial, we learn that only personal property passed to the executors individually under the will. It is provided by section 29 of the Revised Statutes (2 R. S., 61) that “ the probate of any will of personal property, taken by a surrogate having jurisdi Mon, shall be conclusive evidence of the validity of such will until such probate be reversed on appeal or revoked by the surrogate as herein directed, or the will be declared void by a competent tribunal.” (2 R. S., 61.) Also section 30 of 2 Revised Statutes, 61, provides that “notwithstanding a will of personal property may have been admitted to probate, any of the next of kin to the testator may at any time within one year after such probate contest the same or the validity of such will in the manner herein provided.” Then section 31 provides : “For that purpose such relative shall file in the office of the surrogate by whom the will was proved, his allegations in writing against the validity of such will or against the competency of the proof thereof.”

Since the enactment of these provisions of the statute, it has been held that the decree of the surrogate cannot be impeached collaterally in respect to a will which relates to personal property. ( Vanderpoel v. Van Valkenburgh, 6 N. Y. [2 Seld.], 197.) These provisions apply to a will so far as it relates to personal property, even though it be a will relating, as the one before us, to both real and personal property. (Matter of Last Will of John Kellum, 50 N. Y., 298.) So far as it affects the disposition of the personal property of the testator, the probate of one year becomes conclusive, and equity has not jurisdiction in a collateral action to set aside the probate in the absence of fraud in respect to the probate. (Collier v. Idley’s Executors, 1 Bradf., 96 and cases cited; Burger v. Hill, 1 Bradf. Sur., 372; Brady v. McCosker, 1 Comst., 217; Dayton’s Sur., 168; Pemberton v. Pemberton, 13 Vesey, 290; 1 Story’s Eq. Jur., § 184, and Gould v. Gould, 3 Story, 537; Tarver v. Tarver, 9 Pet., 180; Gaines v. Chew, 2 How. [U. S.], 245, and cases cited; Armstrong v. Lear, 12 Wheat., 175, Story, J.; Colton v. Ross, 2 Paige, 398; Bogardus v. Clark, 4 Paige, 623; Muir v. Trustees Leaks and Watts Orphan, House, 3 Barb. Ch., 480.)

The court adopted the finding that there was no fraud in the probate, and expressly found that Adelaide L. Post was fully advised of the said will, and every part thereof, on the 14th day of October, 1874, by hearing the same read, and again on the 2d day of October, 1875, by having in her possession a certified copy thereof.

It was competent for the court to adopt this finding and give full effect to the same in pronouncing its judgment upon the issues between the parties. (Vermilyea v. Palmer, 52 N. Y., 472; Code, § 1003.) :

These views lead to an affirmance of the order and judgment, ■ with costs.

Dwight, J., concurred; Smith, P. J., not participating in the decision.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Petition of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY for the Appointment of Commissioners to Appraise Certain Real Estate of the City of Buffalo.

      Proceedings to take lands for a railroad — right of persons interested in them to he made parties —power of the court to impose conditions upon the granting of the appli1 cation to he made pan-ties.

    Where, after proceedings to acquire title to land for railroad purposes have been commenced other persons apply to be made parties thereto, upon affidavits which, if true, show that they have an interest in the premises and a right to use the same for certain specified purposes, the court cannot require them, as a condition of granting the application, to agree not to question the regularity of the proceedings or the right of the petitioner to maintain them.
    Appeal from an order made at the Erie Special Term upon an application of certain persons to be made parties to these proceedings.
    On the 14th day of July, 1881, the petitioner comménced proceedings under the general railroad law, to acquire title to certain lands of the city of Buffalo by the service of its petition and notice on the mayor of the city.
    The lands had originally been taken by the city for the purpose of constructing a water-channel, but that project had been long abandoned; and the land thus taken had never been dedicated to any public use. Upon the 2d day of August, 1881, the petitioner presented -its petition to this court at the Erie county Special Term, and the city of Buffalo appeared by its counsel and attorney, and consented that its interest in the lands in question might be appraised, and commissioners'appointed.
    ■Upon the presentation of that petition, the New York, Lake Erie and Western Railroad Company, The Pennsylvania and New York Canal and Railroad Company, and The Buffalo Creek Railroad Company, and others appeared by counsel, and read certain affidavits set forth in the appeal papers, and asked leave to be made parties to the proceeding, and to interpose answers to the petition.
    . The court, without proofs or • affidavits controverting any of the allegations of the appellants, denied the application unless the applicants elected to come in as parties to this proceeding for the purpose of being heard on the appointment of commissioners, and to have notice of all subsequent proceedings, to attend the appraisal, and to be heard on the question whether they were entitled to the damages to be awarded on the appraisal of the lands described in the petition.
    And also imposed a further condition, viz.: “ But however it is provided that if said parties elect to be made parties as aforesaid, they are not at liberty to question the regularity, of the proceedings herein up to and including the application for the appoinment of commissioners, and in no case shall said parties be at liberty to deny or contest the right of the petitioner to have an appraisal for the city’s interest in the.premises sought to be taken on the proceeding.”
    The applicants, who are now here appellants, elected not to come in upon the terms and conditions aforesaid, and thereupon the order was entered denying the application to be made parties, and from that order thus made this appeal was taken.
    ■ Bowen, Rogers c6 Locke, for the petitioner, respondent.

      Sprague, Milburn & Sprague, for the New York, Lake Erie and-Western Railroad Company, and the Pennsylvania and New York Canal Railroad Company, appellants.

      Oreen, McMillan & Gluck, for the Buffalo Creek Railroad Company, appellant.

      JS. 0. Hawks, for the city of Buffalo.
   Hardin, J.:

Section 20 of tlie General Railroad 'Laws (2 R. S. [6th ed.], 527, § 22 [§ 20]) confers upon the court power at any time to “ amend any defect or informality in any of the special proceedings authorized by this act as may be necessary, or to cause new parties to be added and to direct such further notices to be given to any pcvrty in interest as it deems proper.”

Under this section there was ample power in the court to allow the appellants to be made parties to the proceeding. Confessedly, the lands described in the petition belonged to the city of Buffalo after the consummation of the proceedings instituted to acquire them, and they were held “ charged with a specific public use,” in trust as public property. (Blake v. Bufalo Creek Railroad Co, 56 N. Y., 488.)

Prior to the 3d day of April, 1871, the Buffalo Greek Railroad Company constructed two single tracks over and across the lands, and made other expenditures upon the lands, with the knowledge and consent of the city of Buffalo.

It is averred in their papers presented to the Special Term that the said Buffalo Creek Railroad Company is now engaged in the operation of its road, and that its road extends across and the track is laid down upon a portion of the premises taken by the city of Buffalo for the South Channel, so called, within the bounds of outer lot 5, and lot, etc., “ and that the track was laid upon said lands in pursuance of a resolution of the common council of the city of Buffalo, passed October 25, 1869, and also in pursuance of a subsequent resolution passed October 15, 1872, construing the resolution of October 25, 1869, whereby permission was granted to said railroad company to maintain and operate its railroad and structures as then constructed upon and across the several streets, public grounds and highways of said city.” * * *

•It is averred that several large expenditures have been made with the knowledge and consent of the city, in reliance upon such consent and knowledge of the city, over and across the lands described in the petition and known as the South Channel.

No proof to the contrary of these averments was produced, nor was any affidavits presented which controverted the averments so made.

It was also averred that one of the conditions imposed by the city in its resolutions, was that the Buffalo Creek Railroad Company should “ change the line of its road as then located, * * * which

the said railroad company did,” and that to make such change it became and was necessary to construct it upon and over the said lands taken as aforesaid for the said South Channel, so called, by the city of Buffalo. These facts were not disproved in any manner by the petitioner.

Did they establish such. a case as within the provisions of the statute, that it was proper that the Buffalo Creek Railroad Com pany should be made a party to proceedings seeking to acquire the title to the lands for the uses and purposes of the petitioners railway company. The fourteenth section of the General Railroad Act, prescribes a rule for the petitioner, and says “the petition must also state the names and places of residence of the parties * * * who own or have or claim to own or have estates or interests in the said real estate.”

And section 15 of the act (ch. 140 of 1850) as it was amended by chapter 282 of Laws of 1854, declares “ on presenting such petition to the Supreme Court * * * all or any of the persons whose estates or interests are to be affected by the proceedings, may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it. The court shall hear the proofs and •allegations of the parties.”

It has been held that such disproving, such proofs must be given by legal evidence, and that an affidavit will not answer. (Buffalo and State Line Railroad Co. v. Reynolds, 6 How., 96, op. of Marvin, J.: New York and Erie Railroad Co. v. Corey, 5 How., 177.)

The application was in effect that the Buffalo Creek Railroad Company might be made a party, so that its allegations might be received, and it be thus furnished an opportunity to present legal evidence of its allegations.

Prima facie upon the papers used on the application to be made -a party, it was shown that the appellant was interested in the lands, had an interest in the use of the lands under the permission and resolutions of the city council sufficient to bring it within the provisions of the statute. The extent of its interest was not important. It claimed to own or have estates or interests in the said real estate. (Redfield v. Holland Purchase Ins. Co., 56 N. Y., 351.)

The learned judge at Special Term seems to have recognized that the appellants had some interest in the premises, as he proposed to allow them to have notice of the appraisal and of subsequent proceedings.

If they have an interest in the lands sought, then the statute declares that the petition must “ state the names and places of residence.” If the statute requires all persons interested to have notice, and to be named in any petition presented, then the court cannot, with propriety, say that a person who has been left out of the petition by design or by accident is not, upon timely application, entitled to be made a party to the proceedings.

The appellants are not to be made parties for the sole purpose 'of breaking down these proceedings,” as the respondents’ learned counsel suggests was the object of the application, but rather are they to be brought in for the purpose of protecting any “ interests ” they may, have in the premises sought to be taken by the proceedings.

If the proceedings are well founded and within the provisions of the law they cannot be broken down by the parties who ask to be heard before the court determines the important question affecting, their rights. The statute seems to contemplate the presence in court of all persons who own or claim to own any fee, estate or interest in the premises; and that being the fair intent and spirit of the statute it is no answer to the application of a person who seeks to be made a party to protect his interests, to say that he has another remedy, or that some other tribunal can protect his estate or interest. He may well reply, I propose to avail myself of an opportunity the statute has given me in these proceedings, and therefore I ask that the proceedings be amended by bringing me in as a party.” We think the Special Term fell into an error in endeavoring to place conditions upon the rights of the applicants, and that the applications should have been granted.

The applications of the New York, Lake Erie and Western, and of the Pennsylvania Canal Railroad Company, were based upon somewhat different facts than the application of the Buffalo Creek Railroad Company, but we think they were prima facie brought within the statute, and that they should have been allowed to come in and be made parties that their allegations and proofs might be heard and considered.

The Pennsylvania and New York Canal and Railroad Company avers: That the owners of said premises prior to the taking of said proceedings in 1857, including the Pennsylvania and New York Canal and Railroad Company, have ever since, with the consent of the cityj remained in the quiet possession of the same; * * * that the lands * * * have been occupied with the consent of the city by the then owners thereof and their grantees, including the Pennsylvania and New York Canal and Railroad Company, who have built such extensive structures thereon, and that the city has thereby and by its other proceedings in the premises heretofore set forth, recognized the right of possession of said owners and their grantees;” and it is further averred that “ the Pennsylvania and New York Canal and Railroad Company has the lawful right to hold and occupy lands which are embraced in the description contained in the petition;” and that the Pennsylvania Company has certain legal and equitable interests in a portion “ of the property.”

The papers used upon the application of the New York, Lake Erie and Western Railway Company, contain similar averments mutatis mutandis.

None of the allegations were denied. The view we have taken of the applications renders it unnecessary to determine whether the South Channel property can be taken from the city under proceedings based upon the General Railroad Act, because the property is held for a public use, and therefore that act does not apply. (See Sweet v. Buff., N. Y. and P. R. R. Co., 79 N. Y., 293 ; Matter of Ninth Avenue, 45 N. Y., 729; Park Commissioners v. Armstrong, 45 id., 234; Blake v. Buffalo Creek R. R. Co., 56 id., 485; Matter of Rochester Water Comrs., 66 id., 413; In re City of Buffalo, 68 id., 175.)

Nor do we pass upon the questions relating to the effect of the statute of July 25, 1881 (ch. 672), prescribing a mode in which the city’s rights may be ascertained, valued and conveyed.

The order should be reversed and the proceedings remitted to the Special Term with instructions to grant the applications, with ten dollars costs and disbursements of this appeal to appellants.

Mullin, P. J., and Smith, J., concurred.

So ordered.


text:
    RILEY KNAPP, Respondent, v. JEREMIAH FOWLER, Appellant.

      Referee — power of, to allow a/mendments to the pleadings upon a trial — Ms action can only be reviewed by appeal— Code of Civil Procedure, sec. 1018.
    Under section 1018 of the Code’of Civil Procedure a referee has, upon the trial of an issue of fact, the same power to allow amendments to the summons and pleadings as has the court.
    The court at Special Term has no power, upon a motion, to review the action of a referee in granting an amendment to the pleadings, even though he may have directed the motion to be made and may have made the allowance of the amendment subject to the approval and ratification of the court.
    Appeal from so much of an order made at a Special Term, as allows the plaintiff to amend his complaint and directs a new trial.
    The action was brought to rescind a conveyance on the ground that it was procured by the defendant, by fraudulently representing that the maker of a bond and mortgage which constituted the consideration of the conveyance was solvent. The defendant denied the fraud and the issue was referred.
    The referee found as matter of law that “ upon the defendant’s own evidence and admissions upon the trial and the other testimony in the cause, that the said plaintiff is entitled to a judgment upon the ground of mutual mistake for the rescission of the said contract for the sale of the lot and premises so conveyed to the said defendant as aforesaid, upon the reassignment to him of the said bond and mortgage of the said Luther Brown, so assigned by the said defendant to the said plaintiff in payment for the said land as aforesaid, as demanded in the plaintiff’s complaint.
    “ The said plaintiff is entitled to an amendment, and leave is hereby given him to amend his complaint by conforming the same to the facts proved on'said trial as above stated and found upon the terms hereinafter stated, to wit, that he shall pay to said defendant or his attorney a trial fee on said trial, and also his disbursements incurred or paid for witness fees or otherwise on said trial, provided that on application to the court upon due notice to the defendant’s attorney, such amendment and the terms thereof shall be approved and confirmed, or if in any respect changed or modified such change or modification be complied with by said plaintiff.
    “ That if said amendment or the aforesaid direction or decision giving leave to the said plaintiff to make the same shall be confirmed by the court in the same, or in a modified form, then the said plaintiff shall be entitled to enter such judgment rescinding the said contract of sale or exchange.”
    The plaintiff gave notice of a motion to amend and to confirm the decision of the referee allowing the plaintiff so to do. The Special ,Term allowed the amendment and directed that the amended complaint be served upon the defendant’s attorney within five days after the service of the order so made, “the defendant to have the usual time to answer said amended complaint.” And the Special Term further ordered “ that the plaintiff shall pay thirty dollars trial fee of said action, and the costs of defendant’s witnesses on said trial heretofore had,.and ten dollars costs of this motion, and said costs are allowed as a condition of allowing the amendment, and the new issues to be tried before another referee.”

      John Gunmen, for the appellant.

      George Bullard, for the respondent.
   Hardin, J.:

Section 1018 of the Code of Civil Procedure declares upon the trial of an issue of fact the referee exercises also the same as the court, to allow amendments to the summons or to the pleadings.

Section 723 confers upon the court in broad terms power to amend any pleadings, and to conform the pleadings “ to the facts ] roved,,” when the amendment does not change substantially the claim or defense.”

The learned referee seems to have allowed the amendment under some doubt as to his power, and to have supposed the cases arising under the old Code questioning and limiting the powers of a referee were applicable.

The Chittenango Cotton Company v. Stewart (67 Barb., 423), and the cases there referred to, were decided before the'adoption of the sections to which reference has been made, sufra.

. The provision found in section 1018 of the Code of Civil Procedure is new and seems to confer “ the same power as the court ” possesses. TIence there was no occasion to have the amendment confirmed by the Special Term. Having been made by the referee, the confirmation was unnecessary, and if given would have been fro forma. The Special Term had no power to review the decision of the referee. That could be reviewed only upon an appeal in the mode prescribed for reviewing such decisions. (Stevens v. Veriane, 2 Lans., 90; Woodford v. Bucklin, 14 Hun, 445, and cases there cited.)

If the referee erred in allowing the amendment in question, or otherwise, his decision must be brought up by an appeal therefrom to an appellate court.

We think the Special Term fell into an error in attempting to overhaul it upon a motion. Nor should we, upon an appeal from its order, pass upon the merits of the decision made by the referee. He has ordered an amendment, and thereupon ordered judgment for the plaintiff conditionally. We may reverse the order made at Special Term. As the Special Term had not power to set aside his decision, we should not, while simply reviewing the action of the Special Term, determine whether the referee exceeded his power in allowing an amended complaint or not.

Certainly the question is not now properly before us. (Woodford v. Bucklin, supra.)

We should reverse the order of the Special Term and order the case back to the referee to determine fully and unconditionally and order such judgment as he deems proper, after further hearing to be brought on before him upon the usual notice.

Costs of this 'appeal to neither party.

Mullin, P. J., and Smith, B, concurred.

Order of Special Term reversed and the case sent back to the referee, to determine the same fully and unconditionally and to order such judgment as he deems proper, after a further hearing before him, to be brought on upon the usual notice. Costs of this appeal to neither party.


text:
    JOHN SULLIVAN, Respondent, v. JAMES TOOLE, Appellant.

      Fixtures — hop poles upon a farm are covered by a mortgage of the land — the lien of the mortgagee is superior to that of one taking a chattel mortgage of the hop poles for an antecedent consideration.

    Hop poles used in the raising of hops upon a farm, are covered hy a mortgage of the land, whether they are upon the farm at the time of. the giving of the mortgage or are subsequently brought thereon, and the lien of the mortgagee upon them is superior to the title acquired by one who, with knowledge of the prior mortgage and of the mortgagor’s insolvency, takes a chattel mortgage upon the poles immediately after their removal from the farm, to secure himself from liability for prior indorsements made by him for the accommodation of the mortgagor.
    Appeal from a judgment of the County Court of Oneida county, affirming a judgment of a justice of the peace in favor of the plaintiff for $107.82.

      E. II. Lamb, for the appellant.

      H. T. Utley, for the respondent.
   Hardin, J.:

Patrick Downey, on the 19th dayof October, 1878, executed and delivered to the plaintiff a chattel mortgage to secure the plaintiff against liability by reason of having indorsed a note of ninety-two dollars, dated April 5, 1878, made by Downey and held by one Julius Day. ■ Which chattel mortgage covered 100 hop poles theretofore used “ in raising hops on a farm then in the possession of Downey.”

The chattel mortgage was filed in the town clerk’s, office of Marshall, that being the town where the mortgagor resided.

When the plaintiff took his mortgage he knew the poles had just been taken from the farm, and that the farm was incumbered by a real estate mortgage held by Toole, the defendant, and that Downey was insolvent, and that as he phrases it, that Downey “ was skimming off all the poles.”

Defendant commenced, October 17, 1878, a foreclosure of his mortgage upon the farm, and recovered a judgment November 11, 1878, declaring there was $3,459.41 unpaid upon it, and the farm was sold upon the judgment for $750 (subject to a prior mortgage), and there remained a deficiency upon such sale of $2,768.05.

After confirmation of this sale and judgment entered for such deficiency against Downey in favor of this defendant, an execution was issued upon the judgment and the sheriff levied upon and sold the hop poles in question, and the defendant became the purchaser at such sale and thereafter took possession of the hop poles by returning them to the farm from which they were taken by Downey.

Plaintiff brought this action for the poles and recovered before the justice.for them. Was such recovery right? Under the circumstances surrounding the hop poles they were pcurt of the real estate covered by the mortgage held by defendant against Downey. (Bishop v. Bishop, 1 Kernan, 123; Noyes v. Terry, 1 Lans., 222; Goodrich v. Jones, 2 Hill, 142; Walker v. Sherman, 20 Wend., 655.) Downey, therefore, as against the defendant’s mortgage, had no right to remove them from the farm. (1 Jones on Hurt., § 428; Thomas on Murt., 46, and cases cited.) And as to the mortgagor, or those standing in his shoes, it makes no difference wdiether the poles were upon the farm at the time the real estate mortgage was given or were placed there afterwards. (Gardiner v. Finley, 19 Barb., 317; Rice v. Dewey, 54 Barb., 455; 1 Jones on Mort., §§435, 436.) Plaintiff having notice of the mortgage held by defendant when he took his chattel mortgage for an antecedent indorsement, parting with no fresh consideration, is in no better position as against the defendant in respect to the poles than Downey, whose rights he acquired. (Van Pelt v. McGraw, 4 Comst., 110; Scribner v. Beach, 4 Denio, 451.)

This case is distinguishable from Wilson v. Maltby (59 N. Y., 129), as there the defendant’s title to the severed property was held not affected by the real estate mortgage, because when they contracted for it and'severed it they did not know of the mortgage or intend to injure the plaintiff.

To the extent of the lien held by the defendant upon the real estate which remained unpaid by the foreclosure, he had an interest in the poles paramount and prior to any interest acquired by the plaintiff. (Trustees of Union College v. Wheeler, 61 N. Y., 89; Odell v. Montross, 68 id., 504.)

Defendant could maintain an action on the case against Downey for wrongfully severing the poles. ( Van Pelt v. McGraw, 4 Comst., 110; Wilson v. Maltby, 59 N. Y., 126; Lafflin v. Griffith, 35 Barb., 58.)

The extent of the injury to his security would be the limit of his-right of recovery.

Bank of Auburn v. Roberts (45 Barb., 421); Johnson v. White (11 id., 194), cited by the learned counsel for the respondent, does-not aid him, as there it was held that the injunction against removing timber should be limited to that not cut, unless a special case-was made to show irreparable injury, and following the rule stated by Chancellor Kent in Watson v. Hunter (5 Johns. Ch., 169), it was not denied in either case that a liability attached for severing-the fixtures. Indeed, the chancellor clearly states that trover is the proper remedy in cases like the one before him, where the plaintiff' had the legal title as trustee to secure a debt.

Nor does our rule in this State which considers a mortgage of' real estate as creating a lien, rather than vesting a title, change the question here involved. (61 N. Y., 89.)

We think the defendant established a defense and that a judgment should have been given for him by the justice.

Judgment of the County Court of Oneida county and that of the-justice reversed.

Smith, P.- J., and Dwight, J., concurred.

So ordered.


author: Dwight, J.:

text:
    HIRAM J. PURDY, Plaintiff, v. THE ROCHESTER PRINTING COMPANY, Defendant.
    Libel— when an article is libelous per se.

    An article published iu a newspaper stated in effect that a coroner, who was also a physician, had held an inquest on a man, supposing him to be dead, when he was in fact alive, and that the man would have been pronounced dead and buried alive but for the fortunate arrival on the scene of another physician, who discovered that the man was living and succeeded in resuscitating him. Held, that the article was libelous per se.

    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendant directed by the court.
    The action was brought to recover damages for the publication by the defendant of the following article, which was claimed to be a libel upon the plaintiff:

      “A Narrow Escape from being Buried Alive.— A well-to-do farmer found stiff and cold by the road-side; he is supposed to have been frozen to death; a coroner takes charge of the case and impannels a jury; the inquest interrupted by a physician, who declares the man to be alive; animation restored.
    “ About nine o’clock last Friday morning a stiffened body was found in the highway opposite the residence of John Morehouse, about two miles north of Seneca Falls. To all appearances the man was frozen, the limbs were rigid, the face was pale, the eyes had a glassy look and there were no signs of life. Mr. Morehouse placed the supposed corpse in a wagon and conveyed it to Seneca Falls, where he delivered it to the police. It was placed in Mr. Metcalf’s , store and Coroner Purdy was notified. A ease of this kind always attracts a crowd. The people gathered and scanned the face of the supposed dead man. Every one pronounced him dead — frozen to death. He was recognized as John Hammell, a farmer living two and a-half miles south of the village. He had started for home the night before, but apparently became bewildered and went north instead of south. About ten o’clock some one knocked at Mr. Morehouse’s door and asked for a drink of water. The family had retired, and supposing the stranger to be a tramp, he was told that the well was outside and he could help himself. This is supposed to have been Hammell, who was found near by the next morning. Coroner Purdy arrived, summoned a jury and began to inquire according to law how and by what means the man then and there lying dead came to his death. Dr. Lester looked at .the supposed remains and after a careful examination said the man was alive. They laughed at him, but he insisted so strongly that life was still within the stiffened body that Nicholas Durnir, a brother-in-law of the deceased, caused the body to be removed to his store. The coroner’s inquest was then interrupted, and the inquest and perhaps a funeral was averted. It was about 11 a. m. that Dr. Lester commenced his work of restoring life. Between two and three in the afternoon he was enabled to pry open his patient’s mo,nth and administer some hot sling. Soon vfter the eyes opened and closed and the physician felt sure of his case, while those who had contended that the man was dead were satisfied of their error. About seven o’clock in the evening he showed more signs of life and seemed to make, an effort to speak. He remained unconscious, however, until about four o’clock Saturday morning, when he awoke as from a long dream. He could not remember the past, however; knew that he started from home, but all after that was a blank. By nine o’clock Saturday morning consciousness was fully restored; and although his fingers, toes, nose and ears are badly frozen, he will recover. He was removed to his home Saturday afternoon. Mr. Hammell can thank Dr. Lester for the fact that the coroner’s jury did not return a verdict that he came to his death from exposure, that he was not placed in a coffin and buried alive, and that his family and friends were not called upon to mourn his unfortunate death.”

      Peter II. Van Aulcen, for the plaintiff.

      John Van Voorhis, for the defendant.
   Dwight, J.:

The action was libel. The plaintjff was a physician and surgeon, practising his profession, and was also one of the coroners of Seneca county. The alleged libelous publication consisted of an article in the newspaper printed by the defendant, representing in effect that the plaintiff as coroner had held an inquest on a man, supposing him to be dead, when he wás in fact alive, and that the man would have been pronounced dead, and buried alive, but for the fortunate arrival on the scene of another physician, who discovered that the man was living and succeeded in resuscitating him.

The complaint charges the publication with innuendoes to the effect that it was made of and concerning him in his profession of a physician, and in his office of a, coroner.

The judge at the circuit, after hearing all the evidence, directed a verdict for the defendant, on the ground that the publication was not libelous per se, and that there was no proof of express malice, but on the contrary that the allegation of malice was disproved. '

It is apparent that the correctness of this decision.turns upon the 1 first point involved, for if the publication was libelous per se, then no proof of express malice was required. In that case, viz., if the publication was libelous in itself, and was not true and not privileged, then the law presumes malice and the presumption is conclusive.

To make the publication libelous per se, it was only necessary ■that it should tend to bring the plaintiff into obloquy or disgrace, ridicule or disrepute. Can it be said that such was not the tendency of the publication in question? "Was it not calculated to bring disgrace or ridicule upon a physician to say of him, in substance, that he did not know on inspection whether a man was alive or dead ? And was there not the same injurious tendency in the comparison implied in the last statement of the narration, viz., that the man might thank Dr. Lester that he was not pronounced dead' and buried alive ?

It is true that the publication does not mention the fact that the plaintiff was a physician, but he was so in fact, and was known to be so by the public among whom he lived; and the publication had the same tendency to bring him into disrepute as a physician where he was so known, as if it had named him as such. It is not necessary to mention a man’s profession or calling in order to libel him in it.

We think it must be held that the publication was libelous per se. If so, it was error to hold that proof of express malice was necessary, or that the presumption of malice could be rebutted.

It was no doubt competent for the defendant to prove all the circumstances of the publication in mitigation of damages; if possible to reduce the legal malice to the minimum, —but the publication being held to be libelous, and conceded to be false and not claimed to be privileged, there was no complete defense possible ; the plaintiff was entitled to a verdict; it was for the jury to say whether for nominal or substantial damages.

For the error indicated the motion for a new trial must be granted.

Smith, P. J., and Hardin, J., concurred.

New trial ordered, costs to abide the event.


text:
    DAVID W. BALDWIN, Appellant, v. JOHN F. MOFFETT and GILDEROY LORD, Trustees, etc., and Others, Respondents.

      Usury — when the lender cannot claim to be subrogated to the rights of one whose incumbrance was paid off by the money borrowed.

    The plaintiff purchased thirteen out of forty bonds issued by one Sherman, the payment of which was secured by a mortgage given by Sherman upon land owned by him, which was then subject to a prior mortgage. The plaintiff purchased the bonds upon the condition that the money paid by him should re used to discharge the first mortgage. This was done, and a satisfaction.' thereof was duly recorded, whereupon the bonds were delivered to the plaintiff. These bonds having been subsequently declared void, because purchased at a usurious discount, the plaintiff sought in this action to have the first mortgage revived and foreclosed.

      Held, that the action could not be maintained.
    Appeal from a judgment, entered on the report of a referee dismissing the complaint.
    On the 15th of April, 1874, the defendant Wooster Sherman, for the purpose of securing the payment to Charles E. Appleby of the sum of $20,000 and interest, executed to Appleby the bond mentioned and described in the complaint, and as collateral security for the payment thereof Sherman and wife on the same day executed the mortgage mentioned in the complaint. The mortgage was duly recorded. The bond and mortgage- became due on April 1, 1875, and there was unpaid thereon on April 1, 1876, the sum of $6,067.89. On or about September 28, 1875, the defendant Wooster Sherman executed forty bonds of $500 each, payable to bearer on the 1st day of October, 1880, with interest thereon at the rate of seven per cent, payable semiannually, the interest being represented by coupons attached’ to the bonds, and on the same day Sherman and wife for the purpose of securing the payment of the bonds, and as collateral thereto, executed to the defendants John F. Moffett and Grilderoy Lord, as trustees, for the benefit of such persons as might become purchasers of said bonds, a mortgage on the same premises described in the Applebv mortgage, -which contained the same condition as the bonds; and the further condition that if said Sherman should not pay the money secured by the bonds according to the terms thereof, then the said trustees and their successors in office were empowered to sell the mortgaged premises, and out of the moneys arising from such sale to pay the sums of money and interest by said bonds secured to be paid. Previous to the 25th of March, 1876, all of said bonds except fifteen had been sold by Sherman to different purchasers other than the plaintiff for full value, and the same were unpaid April 7, 1880. On March 25, 1876, the plaintiff loaned to Wooster Sherman the sum of $750, and as collateral security thereto received from him two of the fifteen bonds remaining unsold. At the time of the loan it was agreed between Sherman and the plaintiff that in case plaintiff should decide to purchase from Sherman the remaining thirteen of the bonds, together with the two above mentioned, then the loan of $750 should be deducted from -the purchase-price of the fifteen bonds. About the middle of March, 1876, Wooster Sherman employed T. H. Camp, president of the Jefferson County National Bank, to sell for him the bonds which had not been disposed of. On or about March 29, 1876, the plaintiff delivered to Camp, as agent for Sherman, his check on said bank, in which plaintiff had that amount of funds, for $6,375 to pay the balance due for the fifteen bonds before mentioned upon the usurious .agreement that the plaintiff should have the same at a discount of five per cent from the face value thereof, in addition to the seven per cent interest for Ms loan, and that out of the money paid for the bonds Camp should see that said Sherman should pay and discharge of record the mortgage to Charles E. Appleby, before mentioned; also that the bonds should not be delivered until the Appleby mortgage should be so paid and discharged of record. On March 29, 1876, the defendant Moffett delivered the thirteen bonds to Camp as agent for Sherman, to deliver to the plaintiff under the above agreement of sale, with instructions that the Appleby mortgage must be paid out of the proceeds of the sale. On the next day Camp caused the balance unpaid on the Appleby mortgage, to wit, $6,067.89, to be paid by his correspondent bank in New York, and received a satisfaction piece of said mortgage, which he delivered to the defendant Moffett, and the mortgage was discharged of record on April 3, 1876. The check of the plaintiff was not used at the bank, nor charged to Mm until April 1, 1876; but it and the bonds were held by the bank as security for the amount paid to Appleby upon Ms mortgage. On April 1,1876, after the receipt by Camp of the satisfaction piece, Camp charged the plaintiff with his check of $6,375, credited the amount to Sherman and charged Sherman with the amount paid to Appleby. A,.few days after this Camp informed plaintiff that the Appleby mortgage had been paid and discharged, and that the mortgage to secure the bonds was the first lien on the premises, and Camp then delivered to plaintiff the bonds so purchased by him. In, April, 1880, in an action in this court wherein the defendants Moffett and Lord, as trustees, and the plaintiff were plaintiffs, and Wooster Sherman and others were defendants, a judgment was entered in Jefferson county, upon a defense interposed by said Sherman and others, adjudging the thirteen bonds to be usurious and void, and that the plaintiff was not entitled to enforce the payment thereof. This action is brought to revive and foreclose the Appleby mortgage, in favor of the plaintiff, notwithstanding the satisfaction. Judgment has been entered on the report of a referee dismissing the complaint, and the plaintiff appeals to this court.

      Mullm do Griffin, for the appellant.

      McOarUn dk Williams and F. W. Hubbard, for the respondents. ■
   Dwight, J.:

The plaintiff’s theory of this case is, that he advanced the money to pay the Appleby mortgage at the request of Sherman, the mortgagor, and took the fifteen bonds in payment of the money so advanced and of the loan of $750 previously made by him to Sherman, in security for which he already held two of the fifteen bonds. This theory seems to have been devised to meet the 'doctrine of Patterson v. Birdsall (6 Hun, 632; S. C., 61 N. Y., 295), which is relied upon to support the plaintiff’s contention on this appeal. Unfortunately, this theory is not supported by the findings of the referee or the proofs on which they are based. The facts are clearly established, — they are not in dispute, — and they support no other theory of the case than that the-plaintiff paid his money for the bonds, upon the condition merely that out of it the agent of the mortgagor should satisfy the Appleby mortgage and cause it to be discharged of record. These are the very terms of the plaintiff’s letter to Sherman’s agent. He had no thought of purchasing the Appleby mortgage, nor as was the case in Patterson v. Birdsall (supra), did he propose to take a new security in lieu of the incumbrance to be discharged. His single purpose was to invest in the second mortgage bonds, which were to be made a first lien by the discharge of the prior mortgage. In the case of Patterson v. Birdsall, the plaintiffs already held and had paid the consideration for the subsequent incumbrance, and so had a right to redeem the land from the lien of the prior incumbrance and be subrogated to its security. They proposed to do this and to take a new mortgage to cover the amount of both the existing liens. The money which they advanced was advanced to pay off the prior incumbrance and for that purpose alone. In this view and for this reason, the payment of the prior incumbrance was regarded as a transaction separable from the usurious agreement for the new mortgage.

In this case the money of the plaintiff was not advanced for the purpose of paying off the prior mortgage, but for the purchase of the new mortgage bonds. . His requirement that the money should be used by the mortgagor to pay off the prior mortgage was merely a condition of his purchasing the bonds. The payment of .the prior mortgage was in -no sense his act, nor the money employed his money; it had become the money of the mortgagor, subject only to the condition that it should be employed in the manner specified. The condition would have been equally fulfilled if the mortgagor had employed other money for the purpose, or had procured the discharge of the prior mortgage by the substitution of other security.

The plaintiff, by his own use of the money, had obtained all he had bargained for, viz.: the new mortgage bonds, to be rendered the first lien by the discharge of the prior mortgage. That discharge was expected to operate only to advance the lien of the new mortgage; it was not intended to give him any interest in the old one. To give it that effect would be to make his money do double duty. If the purchase of the bonds had not been usurious, he could not have held both the old mortgage and the new bonds. The effect would have been, as has been said, merely to advance the lien of the second mortgage, and he would have taken the bonds for what they were worth with the first mortgage discharged. This he does now; he takes the bonds for what they are worth; unfortunately for him, they are void for usury, and because they are so, they derive no aid or advancement from the discharge of the prior mortgage. The condition under which he paid his money for them, has been performed, but it is of no avail to him, for the reason that the bonds themselves are void in his hands. This seems to us to be the whole of the plaintiff’s case, and if it is so, his action cannot be maintained.

The judgment dismissing the complaint should be affirmed.

Smith, P. J., and Hardin, J., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the General Assignment of COWING & CO., etc.

      Assignee for the benefit of creditors — right of a creditor to compel him to account— 1877, chap. 466 ; 1878, chap. 818.
    Under chapter '466 of 1877, and chapter 818 of 1878, providing for general assignments for the benefit of creditors, the County Court may, upon the application of a creditor, require the assignee to render an account, and this without bringing in all the parties interested in the estate or proceeding to a final settlement. But the order in the first instance should be a citation to show cause, and not an order absolute.
    Appeal from an order of the County Court of Seneca county, directing that a citation issue to the assignee Lathrop, requiring him to appear on a day named and to render an account of his proceedings.

      Charles A. Hawley, for the assignee, appellant.

      Howland, <& Wheeler, for the petitioner, respondent.

       Decided October, 1881.

   Dwight, J.:

The order was made on the petition of a creditor, and directed that a citation issue requiring the assignee to appear on a day named and render an account. It is objected that the order should have been for a citation to show cause, and not for a citation absolute in its terms.

An examination of the existing statute relating to assignments for the benefit of creditors, discloses some apparent inconsistencies in its provisions for calling the assignee to account, which may have been caused by successive amendments not carefully adjusted to portions of the former statutes left unrepealed. It was no doubt, the intention of the legislature in all the successive enactments, to provide that the assignee might be required in a proper case to render an account on the application of a creditor of the assigned estate; and this, independent of the final accounting or settlement of the accounts of the assignee. (Laws of 1860, chap. 318 ; Laws of 1877, chap. 166 ; Laws of 1878, chap. 318.) Unfortunately, that intention is not as clearly expressed in either of the later enactments as in the original statute of 1860. By section 1 of that act it is provided that the county judge shall have power, upon the petition of any creditor, after the lapse of one year from the date of the assignment, to issue a citation compelling the assignee to appear and show cause why an accounting shall not be made, and to decree payment, etc.

The act of 1860 was repealed by the act of 1877. The latter statute (sec. 11) provides for a citation requiring the parties to show cause why an accounting and settlement should not be had, and that this may be required on the petition of a creditor (or of other parties mentioned) after the lapse of one year, etc. Section 12 of the same statute provides that the citation issued on the petition of a creditor may be addressed to and served upon the assignee alone, but that on the return of such citation the assignee may have a general citation issued to all the parties interested.

The act of 1878 amends section 11 of the act of 1877, and as amended that section now provides for a citation to be issued by the County Court to all parties interested, requiring them to appear and show cause why a settlement of the account of proceedings of the assignee should not be had, and if. no cause is shown, to attend the settlement of such account. The provisions of the section as to the persons by whom and the time within which a petition may be presented for such citation remain as in the act of 1877, and section 12 remains unchanged.

We have, then, by the act of 1877, as amended by that of 1878, a provision in berms for no other citation than one to all parties interested, requiring them to show cause why a settlement of the accounts of the assignee, should not be had ; and yet section 12 continues to provide that when the citation is issued on the petition of a creditor, it may be addressed to and served upon the assignee' alone. There is also the general provision in section 25 to the effect that the court may exercise the power of a court of equity in reference to the trust and all matters involved therein.

Upon the whole, then, we have no difficulty in concluding that, notwithstanding some confusion in its terms, the statute still provides, as it did in 1860, for requiring the assignee to account on the petition of a creditor, and this without the necessity of bringing in all the parties or proceeding to a final settlement of the accounts. We are also of the opinion that this should be done by a citation to show cause. Such is the citation in terms provided for by the statute in all its stages of amendment. Such a citation conforms the proceeding in question to what seems to have been the better practice of surrogates before the Code (See Redf. Surrogate, 365; Gratacap v. Phyfe, 1 Barb. Ch., 485), and to what is positively prescribed by the present Code in all analogous proceedings in the Surrogates’ Courts. (See, as to citations to account of executors and administrators, guardians and testamentary trustees, respectively, Code of Civil Pro., §§ 2726, 2727, 2808, 2850.)

This practice is also in harmony with that of courts of equity in the enforcement of trusts, in which a trustee can never be required to render an account at the suit of any person until he has had an opportunity to meet the allegation of such person that he is entitled to have an accounting.

Under the provisions of the statute and in conformity to the practice in analogous proceedings, as well as upon considerations of justice and convenience, we think that the order in this case, in the first instance, should have been for a citation requiring the assignee to show cause why he should not render an account.

The order appealed from is for that reason reversed, but as the question under the statute is a new one, the reversal is without costs to either party as against the other.

Smith, P. J., and Hardin, J., concurred.

Order appealed from reversed.


author: Smith; P. J.:

text:
    WILLIAM R. SEWARD and Others, Respondents, v. HENRY F. HUNTINGTON, Appellant, Impleaded, etc.

      Agreement between joint indorsers to secure equality of payment — when it protects the holders of the notes indorsed — a holder is not deprived of the benefit of it, because his note is indorsed by an additional person.

    Jones, Lord and Spencer, each executed to the plaintiff as trustee, a real estate mortgage for $25,000 to secure the performance of an agreement entered int'o between them, in accordance with the terms and conditions therein expressed. After reciting that they had jointly indorsed several promissory notes of a manufacturing company, which were then outstanding, to an amount exceeding $50,000; that it might be necessary for them to continue to indorse like notes, to an amount not exceeding $60,000, at any one time; that each of them was interested in the company and the payment of the said notes, the agreement provided that the parties agreed, each with the others, that they would severally pay one-third of the amount of said notes which should fall due and which the company should fail to pay, and that if either of said parties should fail to pay his proportion of the notes, and if either should pay more than his proportion thereof, he should recover from the one so failing, an amount equal to his aliquot part including a just proportion of all costs. The agreement also provided that in case any party should fail to pay his aliquot part, and the same should have been paid by either of the other parties, the trustee should, on the request of the party so having paid, foreclose the mortgage and repay him the amount so paid.

      Held, that the agreement and mortgage were intended not only to secure equality of payment among the contracting parties, but also to secure the payment of the notes referred to, and that the holders of such notes were entitled to join with the trustee in enforcing the mortgage, though no request therefor had been made by any of the contracting parties.
    That the mortgage of each was a security in the hands of the trustee held for the benefit of the other two indorsers who, as to one-third of the debt, were in the position of sureties, and that the holder of the debt was entitled to take advantage of and enforce the securities given to secure the sureties.

      Held, further, that the fact that a note was indorsed by a fourth person in addition to the three contracting parties, did not take it out of the terms and scope of the agreement.
    Appeal from a judgment, entered on a trial of this action at the Monroe Special Term.

      Theodore Bacon, for the appellant.

      J. B. Perkins, for the respondents.
   Smith; P. J.:

The mortgage, to foreclose which this action is prosecuted, was executed by Jones (to whose interest in the mortgaged premises the appellant Huntington, claims to have succeeded), in pursuance of an agreement of even date with the mortgage made by Jones, Lord and Spencer. By that agreement .each of the contracting parties agreed with the others, among other things, to execute to the plaintiff Seward, in trust, a real estate mortgage in the sum of $25,000, as a security for the performance of the said agreement on the part of said mortgagor. Further by the terms of the agreement, after reciting that, they had jointly indorsed several promissory notes of the Rochester Iron Manufacturing Company, which were then outstanding to an amount exceeding $50,000, and that it might be necessary for said parties to continue to indorse like notes, to an amount not exceeding $60,000 at any one time, and that each of said parties was interested in the said company and in the payment of the said notes so indorsed, and to be indorsed by them jointly, the said parties agreed, each with the others, that they would severally pay one-third of the amount of said notes which should fall due and the said’ company should fail to pay, and that if either of said parties should fail to pay his proportion of said notes, and either of said parties should pay more than his part thereof, he should recover from the one so failing, an amount equal to his part, including a just proportion of all costs. In the mortgage it was stated that such mortgage was intended as a security for the payment of the sum of $25,000, according to the terms and conditions expressed in the said agreement. This suit is brought by the said trustee and the holders of certain notes to the amount of $51,835.52, which they claim are within the provisions of the said agreement, to enforce the said mortgage as a security for the payment of one-third of the sum last mentioned, and the judgment appealed from grants that relief.

The judgment proceeds upon the idea that the object of the agreement and the trust was to secure by the mortgages of the respective parties, first, the payment of the notes of the company described in the agreement, not exceeding the amount therein specified, and secondly, to secure equality of payment among the several contracting parties.

The appellant contends that equality of payment among themselves is the only object which the contracting parties had in view. That contention rests largely upon a clause in the agreement which provides that in case any one of the parties shall fail to pay his aliquot part, and which either of the parties shall have paid in whole or in part, the trustee shall, on the request of the party so having paid, foreclose the mortgage made by the party who has failed to pay and collect an amount sufficient to pay his aliquot part and reimburse the party who shall have so paid. And the argument deduced therefrom is, that as neither of the parties has paid anything or requested the trustee to foreclose, the mortgagor is not in default and this action cannot be maintained.

But the clause referred to is not exclusive. The agreement does not provide in any part of it, expressly or by reasonable implication, that the trustee shall have no power to foreclose in any other case than the one indicated in the clause referred to. On the contrary, the mortgage itself, after declaring that it is intended as a security for the payment of the sum of $25,000, according to the terms and conditions of the said agreement and declaration of trust, gives a power of sale to the trustee in case default be made in the payment of the principal or interest thereby intended to be secured, or any part thereof. The general reference thus made to the terms and conditions ” of the agreement takes in the stipulation of each party to pay one-tliird of the debt, as well as the stipulations intended to produce equality of payment. Indeed, the latter stipulations could not 'become operative until some one of the parties had paid more than his aliquot share. In short the agreement, as we construe it, created a trust for the benefit of the holders of the notes described, as well as for the benefit of each of the contracting parties, as against the others.

The consideration for the agreement thus construed is obvious. Before the agreement, each party by his indorsement, was liable for the whole debt. True, if either should pay the whole he might enforce contribution against the others. But by the agreement, each obtained something more than the right to compel contribution, to wit, a specific lien on the real estate of the others, conditioned absolutely for the payment of their respective shares. Thus, as between themselves, each party became the principal debtor and the others his sureties as to one-third of the debt. The mortgage of each is a security in the hands of the trustee for the benefit of the sureties' of the mortgagor, and upon the principle that the creditor may enfore the securities held by the surety, the holder of the notes may compel the application of the security to the purpose for which it wTas put into the hands of the trustee. And as the power of sale is in the trustee, he is properly joined with the creditors in the action. This action does not concern the trust created by the agreement of the contracting parties as between themselves, and for that reason the clause requiring payment and request by one ■of the indorsers, as a condition precedent to the right of action, does not apply.

The objection that the notes held by the plaintiffs were indorsed by a fourth person in addition to the three contracting parties, and, therefore, are not within the terms of the agreement, we think is not well taken. Doubtless the contract is to be strictly construed, and is not to be extended beyond its terms. On the other hand it is not to be construed in such a way as to render it of no effect, if such a construction can be avoided. So far as the. evidence shows, all -the notes of the iron company, whether outstanding when the agreement was made or executed thereafter, were indorsed by the four. They were, therefore, the only notes that could have been had in view and to which the agreement could relate, and it must be assumed that they are the very notes for which the parties intended to provide. Upon any other construction the agreement was wholly inoperative, even in respect to the stipulations made to secure equality of payment. If it be suggested that the parties may have contemplated that in the future the indorsements should be made by three alone, and to such only should the agreement relate, the answer is that the agreement relates as well to past indorsements outstanding as to future indorsements, and it clearly implies that the parties were to continue to indorse as they had already done. What consideration induced the parties to the agreement to assume the payment of the share of the fourth indorser, or whether they relied solely on their right of contribution against him, does not appear and we need not inquire.

The case was disposed of in accordance with these views by the learned judge at Special Term, and we have not attempted to do anything more than to add a few suggestions to what is so well said in his opinion.

The position taken by the appellant’s counsel on the argument of the appeal, that there is nothing in the case to show that there may not be other notes outstanding as much entitled as those provided for in the judgment to resort to the mortgage securities presents no difficulty. The existence of the fact suggested is not to be presumed without proof, and the burden of proof in respect to it is on the party asserting it. There was no offer to prove such fact at the trial, and there was no suggestion that there are other parties whose presence before the court is necessary to a complete determination of the action. In that state of things the presumption is that the only notes entitled to share in the avails of the mortgages are those proved at the trial.

As we are prepared to affirm the judgment on the grounds above expressed it is unnecessary to consider the point urged by the respondents’ counsel that the appellant Huntington has no interest in the matter which entitles him to maintain an appeal..

The judgment should be affirmed, with costs.

Hardin and Dwight, JJ., concurred.

Judgment affirmed, with costs.


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    FIRST NATIONAL BANK OF MILWAUKEE, Appellant, v. JOHN N. SMITH, Respondent.

      Statute of limitations — what payments do not stop the running of it.

    The plaintiff, being the holder of certain drafts drawn by the defendant to the order of and indorsed by one Boardman, entered into an agreement with the latter whereby, in consideration of the conveyance of certain real estate to the plaintiff, it agreed to release him from all liability upon the drafts and to pay to him one-half of all sums that should be collected from the defendant on said drafts, and thereafter, upon the said conveyance being made, it delivered a certificate to Boardman to that effect. Subsequently the defendant settled with Bcardman by conveying to him certain land in satisfaction of the claim held by Boardman against him, and received an assignment of Boardman’s interest in the certificate given to him by the plaintiff.

      In an action by the plaintiff upon the drafts:

      Held, that the payment to Boardman was not intended to and did not operate as a payment upon the drafts, and did not take the plaintiff’s demand out of the statute of limitations.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee in Monroe county. The action was brought to recover the amount of four drafts described in the complaint bearing date in August and September, 1864, drawn by the defendant on one Darius Young, for $16,640.39, payable to the order of one Elisha Boardman, and by him indorsed and transferred to the plaintiff.
    The defense was the statute of limitations.

      John Q. Van VoorMs, for the appellant.

      George II. Humphrey, for the respondent.
   Hardin, J.:

After the drafts went to protest and prior to September 26, 1866, the plaintiff entered into an agreement with Boardman, in consideration of a steam mill at Avoca, Wisconsin, “ to release the said Boardman from all liability and demands arising out of the drafts ” and further agreed “ to pay said Boardman one-half of all sums that shall be collected from said Smith hereafter on said claims.”

On the 26th of September, 1866, the' said Boardman having fulfilled his agreement on his part, the plaintiff certified that fact to Boardman, and also “ he is now free from liability upon the claims named whatever, a/nd entitled to one-half the amount collected of J. N. Smith,” the defendant. Such arrangement was known to the defendant, and in August, 1870, he opened a negotiation for 'the purpose of effecting a settlement and compromise of his liability to said Boardman. That resulted in an arrangement that the defendant should execute a/nd deliver to Boardman a deed conveying some land in Iowa to Boardman’s son and pay also thirty-three dollars and sixty-two cents in money (that being the sum required to free the land from taxes), in satisfaction of Boardman’s claim then held and owned by him .against said Smith. Subsequently, and in 1871, Boardman’s son having received a deed of the Iowa lands, and the thirty-three dollars and sixty-two cents having been advanced, executed a paper evidencing the consummation of the arrangement, and upon the bach of the agreement given by the bank, in these words, viz.:

“ For value received I this day assign my interest in the within to John N. Smith.

“E. BOARDMAN.”

What was the effect of this arrangement between Boardman and Smith ? It is insisted in behalf of the plaintiff that it amounted to a payment by Smith the defendant upon his debt, under such circumstances as to justify an implication of an acknowledgment of the residue of the debt, and that it was evidence from which an intention to renew the original promise or debt may be inferred. The referee held otherwise and decided that the arrangement with Boardman was not a payment to th% plaintiff, nor a payment upon any claim in suit owned by the plaintiff separately or jointly with said E. Boardman.

After Boardman arranged with the plaintiff he was free from all liability to the plaintiff; evidently the plaintiff’s officers so understood the effect of the arrangement which they entered into with Boardman.

Manifestly, no obligation remained upon Boardman to account for and pay over to the bank any part of the sum which he should obtain from Smith, to indemnify him for the moneys so paid by Boardman to the bank to effect a settlement and compromise with the bank. Nor did Boardman and Smith understand, when they arranged in 1870 or 1871, that any part of the adjustment contemplated a payment to the bank of the avails of the adjustment. Boardman had been obliged to pay and was entitled to indemnity. He sought such indemnity and Smith yielded, and to effect it agreed to convey the Iowa lands, not as a payment upon the original debt, as such, but to reimburse Boardman for the moneys he had been required to pay, as a surety upon the drafts.

We think it would be doing violence to the intention of the parties to hold that there was an intention to collect the original debt, or any part of it out of Smith, and an intention on the part of Smith to pay Boardman as the holder of any part of the original debt. It was rather an intent to reimburse a surety for moneys he had been obliged to pay by reason of his indorsement.

The case therefore lacks the element of payment on the original debt, from which an intention to renew the original debt may be implied or inferred. (Shoemaker v. Benedict, 1 Kern., 185; McLaren v. McMartin, 36 N. Y., 90; Harper v. Fairley, 53 id., 442; Smith v. Ryan, 66 id., 354.) As was said by Raparlo, J., in Harper v. Fairly (supra): “ It is impossible to spell out of the transaction any new promise of the debtor * * * to pay the residue of the debt.”

The agreement of the plaintiff was to release the said Board-man from all liability and demands arising out of the drafts, which is entirely different from an agreement to assign him a portion of the original debt. The paper of 26th April, 1866, declared that Boardman “ is. now free from liability upon the claims named.” That is not an assignment of a part of the original debt.

But it is insisted that the further words, viz., “ and entitled to one-half the amount collected of J. N. Smith,” make Boardman the owner of an undivided one-half interest in the claim, and the bank the owner of the other half, but we do not so construe the words. They do not provide for a sale of half the debt or claims to Board-man; they rather contemplate an ownership in the bank of the whole debt, and stipulate “to pay,” when “collected,” one-half of all money which said Smith shall pay or be made to pay to the bank.

Smith v. Miller (25 N. Y., 619) is referred to by the appellants, but there the agreement or receipt given by the sheriff for the money stated that the judgment was not to be canceled “ if the plaintiff will assign the judgment,” and he did subsequently assign the judgment and adopted and verified the act of the sheriff, and therefore the court properly held that the judgment was pjurchased and not paid by the money delivered to the sheriff. Gram v. Cadwell (5 Cow., 489) is distinguishable from the case in hand. There the remaining partner was to have the settlement of the business of the dissolved firm, and that fact was known to the defendant, and it was held that he improperly dealt with the outgoing partner after such notice.

Carrington v. Crocker (37 N. Y., 336) is pressed upon our attention as applicable to the case before us, but in that case Fullerton, J., says: If the demand had been severed by a valid agreement before the payment was made, then ‘the payment would necessarily have applied solely to the extinguishment of Pardee’s interest. But that was not the case,” * * * and he adds, “ Carrington could have compelled Pardee to account to him for one-half the $200 ” (the payment).

In the present case the release to Boardman was before the settlement made by the defendant with him, and as we have , already., intimated, the circumstances and relations of the parties were such that Boardman was not liable to account to the bank for the property and money which he received from the defendant.

¥e reach the conclusion that no promise or payment which can be construed as evidence of a promise was made by the defendant to the creditor, or to one liable to account to the creditor, and that the transactions in 1870 and 1871 between Boardman and the defendant did not have the effect to take the plaintiff’s demands out of the statute of limitations. (Bloodgood v. Bruen, 4 Seld., 368; Wakeman v. Sherman, 5 id., 85.)

The judgment must be affirmed.

Smith, P. J., and Dwight, J., concurred.

Judgment affirmed, with costs.


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    OLIVER DRAKE SMITH, Respondent, v. MICHAEL I. G. ZALINSKI, Appellant, Impleaded, etc.

      Evidence — order of substitution — when the motion papers and order of substitution are admissible in evidence upon the trial, to establish the transfer of the interest of the original plaintiff to his successor.

    After the commencement of this action, which was brought to foreclose a mortgage, the plaintiff made a general assignment, and thereafter his assignee was, by an order granted upon a motion made upon due notice to the defendant, substituted as plaintiff in his place and stead. Upon a trial before a referee the order and motion papers were against the defendant’s objection and exception received in evidence.

      Held, that the papers were properly received in evidence, and that, in the absence of proof to the contrary, they proved the transfer of the bond and mortgage to the plaintiff and his ownership thereof.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee in Seneca county, in an action to foreclose a mortgage brought in the name of William C. Gilman.
    After the joinder of issue herein, Gilman was convicted of the crime of forgery, and made a general assignment (including the mortgage in suit) to Oliver Drake Smith, who, upon a motion made upon notice to the defendant and a petition and affidavits, was by the Special Term duly substituted as plaintiff in the place and stead of Gilman. The order directing the action to be continued in the name of Smith was made January 2, 1878. The issues were referred and upon the trial the plaintiff offered the motion papers and the bond and mortgage in evidence. They were, against the defendant’s objections and exceptions, received. When the plaintiff rested the defendant insisted:

      First. That the plaintiff had shown no right to recover.

      Second. That it did not appear that the plaintiff had any title or interest in the bond and mortgage.
    Third. That there was no allegation in the complaint showing that the plaintiff had any interest in the subject of the action.

      Fourth. That there was no competent evidence of the plaintiff’s interest in the bond and mortgage described in the complaint.
    The answer contained only the defense of usury. The referee ordered judgment for plaintiff.

      Wm. C. Huger and G. Wilcoxen, for the appellant.

      Charles A. Hawley, for the respondent.
   Hardin, J.:

Application to substitute Smith as plaintiff instead of Gilman, was made upon notice under section 756 of the Code.

If no application had been made to the court the action would have continued in the name of Gilman as plaintiff, and the defendant without amending his answer, upon leave granted, would - not have been in a situation to contest the ownership of the bond and mortgage by Gilman.

Such ownership was averred properly in the complaint, as it is stated the same were executed and delivered to .Gilman. That averment excluded all other persons and was equivalent to an allegation of title to the same in Gilman.

The allegations as to the execution and delivery of the bond and mortgage, are admitted by the defendant who is now appellant.

The facts constituting Gilman’s title sufficiently appeared to answer the requirements of the rule laid down by Folger, J., in Scofield v. Whitelegge (49 N. Y., 261).

When the application was made to the court, the fact was before it that Gilman, prior to the execution of his assignment to Smith, was the owner of the bond and mortgage. It was averred in the petition of Smith that he had succeeded to the title of Gilman. It was incumbent upon the petitioner to make a clear prima facie case of ownership, as a condition precedent to the exercise of the court’s discretion, upon the question of whether the action should continue in the name' of Gilman, or be further prosecuted in the name of Smith. (Boynton v. Hoyt, 1 Denio, 53; St. John v. West, 4 How Pr., 334, op. of Selden ; St. John v. Croel, 10 How., 257; Sheldon v. Havens, 7 id., 268.)

If there was doubt about the prima fade ease, thus required to be shown, and which was shown upon the application for leave to continue the action in the name of the assignee, it should have been shown upon the motion or by a subsequent motion. As it was expressed in Moore v. Hamilton (44 N. Y., 667): “ If from any special circumstances the reference or trial court should not continue the party aggrieved must apply to the court for relief, by motion.”

As was assumed by the court in Washoe Tool Manufacturing Company v. H. Fire Insurance Company (7 Hun, 77; S. C. affirmed, 66 N. Y., 613) presumptively the defendant cannot be injuriously affected or exposed to the danger of another recovery,” and if a state of facts exist which would overcome thq prima facie case required to be made, the same should be presented to the court in opposition to the motion to continue, or subsequently. ■

Isham v. Damison (3 Thomp. & Cook, 746) is in point, and the conclusion there stated is binding as an authority upon us.

The court said in that case, viz.: “ The objection to the pleadings that there was no allegation in them that Isham was dead, and no proof of it on the trial, was all disposed of by the fact that the suggestion of the death had been made and the court on motion had passed on the fact of his death and admitted the executrix to prosecute.”

So in the case before us the court had passed upon the prima facts case made touching the assignment of the cause of action by Gil-man to Smith, and that was sufficient until the defendant showed special circumstances as furnishing a basis for relief.” (Moore v. Hamilton, supra; Bond v. Smith, 4 Hun, 49 ; Underhill v. Crawford, 29 Barb., 664.)

There is nothing in Riggs v. Pursell (74 N. Y., 370) in conflict with the views expressed (supra), as that case declares that an order is not conclusive as an adjudication, as a fact which might have been but which was not actually litigated. (Evans v. Cleveland, 12 Hun, 140, cited by the appellant was reversed in 72 N. Y., 486.)

The affidavit, petition and notice of motion and proof of service' thereof were admitted to show the status of Smith and not to establish the facts set out in them. This was not error.

The foregoing views lead to the conclusion that no error was committed upon the trial. Upon the argument of this appeal I was of the impression that the defendant had never had an opportunity to require common law proof of the execution of the assignment of the mortgage by Gilman to Smith, and that no proof of the assignment was given upon the trial, and therefore that no recovery could be had upon the evidence by Smith; but attention has been since given to the authorities cited supra, and I must yield to their force.

If the defendant had desired to put in issue such assignment, and desired to escape the force to be given to such an order as was made by the Special Term, he might have appeared and contested upon the motion; or he might subsequently have applied for leave to amend his answer so as to aver that Smith was not the assignee of the mortgage, and probably he might have given evidence upon the hearing before the referee, as the case then stood, tending to show that Smith had no title (as the order evidenced) to the mortgage. Having omitted these opportunities, he is now concluded, according to the force of the authorities quoted {supra), by the prima facie case made against him at the trial.

The judgment must be affirmed, with costs.

Smith, P. J., and Dwight, J., concurred.

Judgment affirmed, with costs.


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    PASCAL P. PRATT and Others, Appellants, v. WILLIAM A. STEVENS and Others, Respondents.

      General assignment — requisites of the affidavit to the inventory, by the debtor— Chap. 466 of 1877.
    Where the inventory required by section 3 of chapter 466 of 1877, to be presented . to the county judge by a debtor who has made a general assignment, is verified by the debtor, the affidavit must be an absolute one that the inventory is in all respects just and true. An affidavit to the effect that the inventory is just and true “ to deponent’s best knowledge, information and belief ” is insufficient.
    A general assignment rendered void by a failure to file an inventory, as required by section 3 of chapter 466 of 1877, is not rendered valid by the subsequent repeal of the said section.

    Appeal from a judgment in favor of the defendants, entered on the report of a referee.

      Sherman S. Rogers, for the appellants.

      James Wood, for the respondents.

      See chapter 818 of 1878.

   Dwight, J.:

This is an action in the nature of a creditor’s bill to set aside a general assignment chiefly for the want of an inventory madé and filed in compliance with the statute.

The assignment was executed in January, 1818, before the amendment of that year in the statute regulating general assignments (chap. 466. of 1877); and when the statute, after prescribing the requisites of an inventory, went on to provide as follows : “ In case an inventory shall not be made and filed within thirty days by the debtor or the assignee, the assignment shall be void.”

Among the prescribed requisites of the inventory which is thus to be made and filed, is an affidavit to be made by the debtor that the inventory “ is in all respects just and true,” or by the assignee that the same “ is in all respects just and true, to the best of his knowledge and belief.” The inventory in this case was verified by the debtors, and the affidavit was to the effect that the inventory was just and true “ to deponent’s best knowledge, information and belief.”

If this was a verification at all, it certainly was not the verification required by the statute. It is not even such as the statute requires of the assignee in case the inventory is made by him; that is required to be verified to the best of his knowledge and belief.

The affidavit required of the debtor is an absolute one that the inventory is in all respects just and true. This is an affidavit which can properly be made only by one who knows, of his own knowledge, the truth of all matters which he assumes to verify. And .the fact that the statute prescribes another verification for the assignee, in case the inventory is made by him, indicates that the difference is not a matter of form, but of substance. The debtor is supposed to know whereof he affirms; if he does not know, he cannot make the affidavit required of him. In that case the assignee may verify the inventory, and of him the absolute verification is not required; he may verify upon the best of his knowledge and belief.

The statute provides that in case an inventory shall not be made and filed within thirty days, by the debtor or the assignee, the assignment shall be void.

The question is, what will satisfy the requirement of “ an inventory ? ” Plainly, not any paper which the parties may produce and please to call an inventory, but a paper containing all the substantial requisites prescribed by the statute. Among these requisites is an affidavit, and an affidavit of a particular character; and so special is the requirement in this particular, that one affidavit is prescribed for the debtor and another for the assignee. This affidavit is wanting in this case. There is an affidavit, but it differs substantially from that required. We think it must be held that the paper so verified was not the inventory required by the statute, and that for want of such an inventory the assignment was void.

The position suggested by counsel for the respondents, that the provisions of the act of 1877, declaring an assignment void for want of an inventory, only imposed a penalty, and that the repeal of that provision before this action was commenced, divested the plaintiffs’ right to enforce the penalty, is clearly untenable.

An assignment made under the provisions of the act of 1877 was governed by those provisions and, being void by that statute when it was made, it cannot be rendered valid by a subsequent modification of the statute.

If these views are correct, the referee erred in dismissing the ■plaintiffs’ complaint, and the judgment must be reversed and a new trial ordered, with costs to' abide the event.

Smith, P. <T., and Hardin, J., concurred.

So ordered.