author: Beady, J.:

text:
    WILLIAM A. COLEMAN, Respondent, v. ANNIE B. PHELPS and others, Appellants.

      Stay of proceedings — when it should be granted during the pendency of an appeal from an interlocutory judgment— Oode of Oiril Procedure, §§ 1849, 1851.
    An interlocutory judgment' was entered in this action adjudging a deed given by the plaintiff to the defendant to have been procured by fraudulent misrepresentations and undue influence, and directing that it be given up and canceled, and also providing for a reference to take and state an account of the rents received from the premises and the payments made on account thereof. An appeal having been taken from the interlocutory judgment, an application was made for a stay of all further proceedings during the pendency thereof.

      Held, that the stay should have been granted.
    ■ Appeal from an order made at Special Term, denying the defendant’s motion for a stay of proceedings.

      Joshua M. Van Cott and G. McAdam, for the appellants.

      A. G. Vanderpoel, for the respondent.
   Beady, J.:

This action was commenced to procure the judgment of this court declaring that a deed executed by the plaintiff to one Thomas Coleman, Ms father, was obtained by fraudulent misrepresentations and an undue exercise of parental influence, and an interlocutory degree was made adjudging the deed to have been so obtained and to be utterly void, and further directing that it should be given up by the defendants to be canceled, and that the clerk of this court should cancel it by tearing off the signatures and the seals affixed thereto.

The decree further provided for a reference to take and state the accounts of the rents received from the premises covered by the conveyance and the payments made in reference to them, and making further provision for certain allowances upon the accounting to the plaintiff and to the defendants. An application was then made for a stay of proceedings founded upon an appeal from the interlocutory decree to the General Term of this court, which was denied. From the order expressive of this incident this appeal is taken.

Section 1319 of the Code of Civil Procedure declares that an appeal may be taken to the General Term of the Supreme Court from an interlocutory judgment rendered at a Special or Trial Term thereof, and section 1351 of that Code declares that such an appeal does not stay the execution of the judgment or order appealed from, unless the court, or a judge thereof, makes an order directing such a stay; and it further provides that such an order may be made, and may, from time to time, be modified upon such terms, as to security or otherwise, as justice requires. A stay of proceedings, therefore, seems to have been made dependent upon the discretion of the court or the judge to whom an application is made; but this means a legal and not an absolute discretion. In this case the interlocutory decree relates to and is dependent upon the judgment of the court declai’ing the deed which was assailed to have been improperly obtained and, therefore, to be null and void; and it is from that adjudication that the appeal is taken.

If, upon the appeal which was taken, the judgment should be reversed, an accounting would be unnecessary, because the plaintiff would not be entitled to it; and inasmuch as the property involved has been placed in the hands of a receiver and it is not in the power, therefore, of the defendants to prejudice the plaintiff, and as the accounting may become unnecessary, it seems to have been an erro- ' neous exercise of the discretion vested in the court below to refuse the stay.

The object of the legislature in providing for such an appeal was to avoid unnecessary litigation and, therefore, unnecessary expense, which would not follow if the proceedings demanded by the interlocutory decree were carried on, and subsequently rendered futile by a reversal of the main judgment, of which the interlocutory decree was predicated.

As already suggested, if the judgment in this case declaring the deed to be void should be reversed and a new trial ordered, non constat but that the second trial would result in a judgment declaring the deed to be valid. And this doubt is one which should be removed with the machinery which is set in motion for that purpose, by .appeal, before the ultimate proceedings are adopted and determined.

For these reasons we think that the stay should have been granted, and that the order appealed from should be reversed, but without costs.

Davis, P. J., concurred.

Present — Davis, P. J., and Brady, J.

Order reversed, without costs.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    WILLIAM R. McCREADY, Respondent, v. WILLIAM VAN ANTWERP, Appellant.

      Joint and several obligors — right of one to recover the proportionate pa/rt of a payment made by him, from his co-obligor.

    Tbe plaintiff and defendant having executed a joint and several bond, payment of which was secured by a mortgage upon real estate owned by them, the plaintiff paid the' whole of certain interest falling due upon the bond, and thereafter brought this action against the defendant to recover one-half of the amount so paid.

      Held,, that he should be considered as the equitable assignee of the claim of the obligees in the bond against the defendant to the extent of one-half of the payment so made, and should be allowed to maintain the action, subject to the right of the defendant to interpose any defense which he might have set up had the action been brought directly upon the bond by the obligees thereof

      Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      S. T. Freeman, for the appellant.

      Thomas Thatcher, for the respondent.
   Brady, J.:

It appears that the plaintiff and the defendant executed a joint and several bond or obligation by which they agreed to pay to certain trustees, on the 5th of December, 1882, the sum of $100,000, and to pay interest thereon semi-annually, on the fifth days of June and December in each year, at the rate of six per cent per annum, the bond being secured by a mortgage of even date on certain real estate belonging to them. Six months’ interest, which amounted to $3,000, became due and payable on the bond on the 5th day of December, 1878. The plaintiff paid the whole of it, namely, $3,000, $1,500 being paid on the 26th of December, 1878, and $1,500 on the 22d of January, 1879, with thirteen dollars and seventy cents on the latter as interest upon the $1,500, which was not paid when it became due. But the defendant paid nothing to the obligees in the bond in regard to that interest, and nothing to the plaintiff on account of the payment made for him.

The defendant and appellant interposed no set-off or counterclaim against the plaintiff or the obligees on the bond, and relies upon the proposition that the payment by the plaintiff was gratuitous; that he was not compelled to pay it, nor requested nor authorized to do so by the defendant.

It is apparent, however, that there was a delay in the payment of one-half of the $3,000, because it was not made until the 22d of January, 1879, although it became due on the 5th of December, 1878. The obligation in this case was joint and several, as already suggested ; and the bonds having been secured by a mortgage the right of the mortgagee to foreclose, if the interest were not paid, cannot be questioned. The non-payment of the interest imperiled the estate, for the protection of which the whole interest was paid, the plaintiff’s portion, as well as the defendant’s portion, and such payment may well be regarded as compulsory. An examination of the question presented leads to the conclusion that there is no good reason in law or in morals why the defendant should not be required to pay his part of the money thus expended, and inferentially for his benefit.

It is true that the rule of contribution applies to sureties and not to original joint debtors. But as the parties herein were not copartners they may be regarded as quasi sureties for each other; and if that be not a possible result, then the plaintiff ought in justice to be regarded and to be declared the equitable assignee of the claim of the obligees on the bond against the defendant to the extent of one-half of the interest due.

As already suggested there does not seem to be any reason, aside from some refinements growing out of the old rules of special pleading, why if two original debtors are bound to pay a sum of money and one pays the whole of it the other should not respond, particularly in a case like this where there are no copartnership complications. Where such a controversy as this arises between partners it is true a different rule would prevail, because the liability of each of them to the other would depend upon the result of an account to be taken, in which various transactions with various phases interpose.

There can be no injustice in the adoption of such a rule here, inasmuch as it would be controlled in its application by all existing rights, either as against the obligees on the bond or the plaintiff himself, for this would secure for the co-obligor for whom payment was made the ability to make any, defense which he could sei up if the action were brought directly upon the bond; besides, tc maintain the rigorous rale which is. called into requisition by the defendant might lead to great injustice. In a case like this, for example, where the bond is secured by a pledge of real estate, the plaintiff might be compelled to make several similar payments prior to the time when the mortgage became due in order to protect the estate from foreclosure, a proceeding which might be disastrous.

The defendant, as already suggested, being under obligations to pay, and having omitted to do so, and the omission exposing the pledge to sale, and having no defense except a technical one resting upon a doubtful rule of law in its general application, we think, for the reason assigned, that the judgment should be affirmed, with costs.

Davis, P. J., concurred.

Present — Davis, P. J., and Beady, J.

Judgment affirmed, with costs.


text:
    In the Matter of the Estate of JOHN MOFFAT, Deceased.

      Trustee — Ms commissions a/re to be computed upon the entire fund, indudiny semrities never converted by him into money.

    The commissions allowed, to a trustee are to be computed upon the entire fund in his hands, whatever may be the nature of the property, and even though he may transfer to the beneficiaries the same securities which were received by him at the time of the creation of the trust.
    Appeal from an order made at Special Term directing as to the distribution to be made of certain trust funds in the hands of the New York Life Insurance and Trust Company, and fixing the commissions to be received by it.
    In the year 1868 certain United States stocks of the par value of $56,600 were transferred to the New York Life Insurance and Trust Company, and also $5,575.37 in cash, to be held and retained by the company to pay certain annuities, and upon the death of Rachel M. Moffat, one of the annuitants, $50,000 of the moneys and stocks so delivered were to be divided equally between Sophia Y. Quackenbos and Maria Moffat. Rachel M. Moffat died in the month of September, 1879, and an application was then made by John M. Quackenbos, as executor of Sophia Y. Quackenbos, *that the moneys and securities to the amount of $50,000 be divided between him and Maria Moffat. It appeared that, from the time of the appointment of the trust company until the time of the distribution, no change had been made in the investment; that the bonds distributed under the order were the same which had been delivered to it; that from the time of the appointment the company had collected the coupons and paid the annuities and had received the commissions on the moneys received and paid out.
    The only question on the appeal was whether the trust company was entitled to commissions upon the par value of the bonds received by them and distributed under the order of Mr. Justice Donohue.

      R. E. Robinson, for the appellant, the New York Life Insurance and Trust Company.

      Roe <$¡ MaekUn and Ira Shafer, for the respondents.
   Brady, J.:

In the year 1868, the New York Life Insurance and Trust Company were appointed, by order of this court, trustees of a trust fund amounting to $60,000 and upwards. The trust had been created by an agreement and assignment in trust, whereby the income was to be paid over as directed, and upon the death of Rachel M. Moffat, one of the annuitants, $50,000 of the principal was to be divided equally between two persons named. Rachel M. Moffat died in September, 1879, and, on an application for that purpose, an order was made directing the distribution in accordance with the agreement and assignment in trust already mentioned.

It appeared that the trust estate was made up of United States bonds of different denominations of the par value of $16,600, and cash to the amount of $5,575.37, but that the fund had increased since the creation of the trust.

It was conceded on the application for the distribution which was directed, and when the question of commissions arose, that the New York Life Insurance and Trust Company were entitled to commissions on the- cash item mentioned; but it was insisted that they were not entitled to commissions on the rest of the fund. The learned justice presiding at Special Term sustained that view and hence this appeal.

Trustees are entitled to commissions at the same rates as executors, and these rates are established by statute (2 R. S., 93, § 58, as amended), which are five per cent upon the first $1,000, two and one-half per cent upon the next $9,000, and one per cent upon the balance. A trustee is granted commissions as compensation for the discharge of the duties imposed upon him by the trust, involving responsibility, care and often the exercise of judgment, which depends upon many things resulting from thought and investigation, and the commissions are computed upon the entire fund held in trust of whatever the property consists. The vice-chancellor, In the Matter of De Peyster (4 Sandf. Ch. Rep., 511), said that in respect of stocks, bonds and mortgages the law was well established that the trustee is entitled to his commissons on discharging himself, although he transfers to his beneficiaries, or to new trustees, the entire stocks and securities which came into his hand at the outset of his trust; and this doctrine was recognized and reiterated in the case of Cox v. Sehermerhorn (18 Hun, 16).

It is said by the respondent that the vice-chancellor, In the Matter of Jones (4 Sandf. Ch. R., 615), declared that the trustee was not entitled to these commissions. This is a very extraordinary error, because the vice-chancellor made no such decision. On the contrary, he expressly recognized the right of the trustee to commissions if he continued to discharge the duties of the trust, but withheld the commissions because he asked to be relieved of the trust and was so relieved on terms, one of which was that he should not. have his commissions.

The case of Schenck v. Dart (22 N. Y., 420) does not conflict with this view. It was there held that the executors would not be allowed commissions upon the transfer of corporate stock which was specifically bequeated to legatees, and which involved no other labor than to hand it over to the persons designated to receive it.

The duties of the New York Life Insurance and Trust Company were entirely different. They were to hold the securities and money and their accumulations, and to pay over and divide part of them upon a certain contingency arising, as the order made in reference to the distribution indicates, and which directs that after making certain payments to counsel, the company should pay, assign and transfer one-half of the moneys and securities remaining in their possession belonging to said principal of said trust fund, except the $10,000 mentioned in said trust agreement and therein intended to be preserved until the decease of the annuitants named in the will of John Moffat, deceased.

The management of the trust estate involved collecting coupons and interest, and the care and custody of the securities and the division of a part of the fund, which is very different from merely handing over securities to a legatee designated to be their recipient.

We think for these reasons that the order appealed from was erroneous, that the commissions, amounting to the sum of $696.75, should have been allowed, and that the order should be modified by allowing them, but with ten dollars costs and disbursements.

Davis, P. J., concurred.

Present — Davis, P. J., and Brady, J.

Order modified as directed in opinion, with ten dollars costs.


text:
    MARIE ANTOINETTE WITTHAUS, Appellant, v. FREDERICK C. C. SCHACK, Respondent.

      Fraudulent representations — by husband inducing conveyance of dower interest by the wife— Code of Oivil Procedure, § 829 not applicable to the wife’s testimony as to the representations made.

    The plaintiff brought this action to set aside a deed, executed by herself and her deceased husband, by which certain real estate owned by the husband was conveyed to the defendant upon trust to pay the debts of the husband. She alleged that she was induced to execute the deed upon the representations then made to her by her husband, that it -was in conformity with a proposed deed of trust in which she had agreed to unite, and that relying upon the truth of such representations, and believing the instrument to be what her husband said it was, she executed it without reading it; that the representations were false and that her husband was of unsound mind at the time he made them.

      Meld, that she was entitled to maintain the action to recover the value of her dower right in the property.
    That she was a competent witness to testify to the representations made to her by her husband, as against the defendant, and was not disqualified by section 829 of the Code of Civil Procedure.

      Appeal from a judgment, entered upon a trial at Special Term dismissing the plaintiff’s complaint.

      Charles A. Damson, for the appellant.

      Lewis Sanders, for the respondent.
   Brady, J.:

The plaintiff is the widow of Rudolph A. Witthaus, and on the 23d of December, 1876, united with him in the execution of a deed of trust of real estate in the city of New York, part of it lying north and part of it south of Fifty-ninth street, and released thereby her inchoate right of dower in the premises described. She alleges that she was induced to execute the deed upon representations, made at the time of its execution by her husband, that it was in conformity with the proposed deed of trust to which she had already assented and in which she had agreed to unite, and that, relying upon the truth of such representations,-and supposing the instrument to be what her husband said it was, she executed it without reading it; that what she had consented to was to release so much of the real estate owned by her husband as lay north of Fifty-ninth street in this city, and that the only amount which she proposed to secure to the defendant in this action was the sum of $9,000; that she had never agreed to secure Ida Mummer, nee Schaek, for any amount whatever, and that she would not have executed the instrument in question had she supposed it to contain any conditions other and different from those embraced in her previous agreement. The plaintiff further alleges that her husband was of unsound mind when he made such representations, although she was not aware thereof. On the trial she offered to prove these representations. She offered to prove also the alleged unsoundness of her husband’s mind. But the testimony was all excluded.

The deed executed was one of trust, and by which the party of the second part was to convey the premises, respectively, in such manner and form as would in his judgment produce the best price that could be realized from the same, and was to apply the money obtained from such sales, as the same should from time to time be received, in paying off and satisfying, pro rata, the claims due and owing by the plaintiff’s husband, as recited in the deed.

It will be perceived that the debts themselves were not released, and that the property conveyed was to be employed in discharging them, as already mentioned, to such an extent as its proceeds would permit. The defendant was not a purchaser, therefore, for value, and took the deed subject to all existing equities. One of these equities was the inchoate right of dower in the premises in favor of the plaintiff. That right was a subsisting and valuable one, if it had not been conveyed, to protect and preserve which she could maintain an action (Simar v. Canaday, 53 N. Y., 305), and it is one which the law creates on the instant of marriage for the benefit of the wife, and for which she is not indebted to the husband except by the mere act of union. She does not acquire it by assignment, or deed or conveyance from him directly or indirectly.

The evidence which it was designed that she should give in reference to her case, and by which it was to be established, was objected to upon the ground that she was an incompetent witness under section 829 of the Code of Civil Procedure, and the objection would appear upon first blush to have been well taken, but on an examination it was found to be valueless. The defendant’s title to her inchoate right of dower acquired by the deed which she executed was derived through her directly and not through any title or interest of her husband. It was her separate estate, and it was a subsisting right which she could protect and for any injury to which she could maintain an action. (See Simar v. Canaday, supra.)

It is true that the fraud complained of was practiced by her husband, but in reference to this right she was, on all the authorities, entitled to as much protection from his acts as from those of a stranger. She did not seek herein to interfere in any way with the title which was acquired through his instrumentality to the estate which her husband possessed in the lands conveyed, but to show that her husband, by a fraud practiced upon her, had deprived her of a title which the defendant enjoyed without any consideration other than the payment, or partial payment, of debts due by her husband and not discharged. She is pursuing by legal means an equity which she was improperly induced to convey to the defendant, and between whom and her the transaction took place, although accomplished by another’s agency. She does not attempt to assail the conveyance executed by her husband or by herself, except so far as to assert that it was obtained from her by representations which were false; and as she occupied towards her husband, in regard to her dower, an entirely independent position and one which he could not control, her action seems to be entirely within the usual and ordinary rules of evidence.

The plaintiff’s case, briefly stated, is that she owned property in her own right, which was taken from her by fraud committed by her husband, who was the quasi agent of the defendant, the latter receiving it for the payment of his and other debts and not upon any new consideration. As an assignee for the benefit of creditors he occupied no higher ground than her husband would if living. It is the manner of the taking of property by her husband for the defendant’s benefit of which she complains, and about which she has a right to be heard.

The defendant does not, as already suggested, derive his title to her dower from her deceased husband, but from her, and the transactions and communication with the deceased relate to the negotiations for its transfer which was accomplished. The plaintiff was not to be examined against an executor or administrator or survivor of a deceased person deriving his title from, through or under a deceased person, by assignment or otherwise, concerning a personal transaction between the witness and the deceased relating to such title. This is not an action against the executors of the plaintiff’s husband, or against a person deriving his title through or under a deceased person to the subject matter in controversy, but against a person deriving title from her, the plaintiff, through the fraudulent instrumentality of a person deceased, and her evidence relating thereto is not within the prohibition, therefore, of section 829 of the Code. It may be said of this section, as remarked of section 399 of the old Code, by Johnson, J., in Cary v. White (59 N. Y., 340) : The various phrases employed in the statute to express the-relation to the deceased which precludes testimony from the opposite party, as to personal transactions or communications with the deceased, indicate that the ruling idea is that of succession in interest to the deceased. It is against his executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee or survivor, that evidence of his personal transactions and communications with the other party cannot be proved by such party. The party standing in each, of these relations is considered as representing an interest which the deceased had, or is claimed to have had, at the time of the transaction or communication sought to be proved, which interest has subsequently devolved on such party. When, therefore, the interest of such party is not in this sense derived from the deceased, but was vested in the party by title superior to, and exclusive of the deceased person at the time of the transaction proposed to be proved, he ought not to be regarded as occupying either of the relations'which the statute protects, although in some literal sense he may stand in such relation.”

This view covers the plaintiffs case. It does not present one of the exceptions specified in section 829 of the Code, and the courts cannot allow any that are not therein contained. (Lobdell v. Lobdell, 36 N. Y., 334.)

For these reasons it is thought the judgment appealed from was erroneous, and must be reversed.

Davis, P. J., concurred.

Present — Davis P. J., and Brady, J.

J udgment reversed.


author: Davis, P. J.;

text:
    THOMAS B. LEGGETT and others, Executors, etc., Appellants, v. FREDERICK A. LEGGETT and others, Respondents.

      Bxecutors — when liable for debts whichfhey hme neglected to collect — When children of a legatee take from the testator and not from their parent — Power of a surrogate to constmie a will.

    Appeal from a decree of the surrogate of the county of New Tort, entered on the final accounting of the executors of the last will and testament of "William H. Leggett, deceased.
    The testator directed his executors to collect all debts owing to him by any of his children, and he defined the debts intended so to be collected in the following words:
    “ All moneys owing to me by my children will be evidenced by charges on my account books, or by their notes or bonds in my possession; all indorsements made by me for or on account of any of my children, for which my estate shall become chargeable, shall be charged as debts owing by those of my children for whom such indorsements were made, and shall be paid by them.”
    The sixth clause of the will was as follows:
    ■ “ Sixth. All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever the same may be, I give, devise and bequeath to the executors of this my will hereinafter named, in trust, however, to hold and possess the same for and during the term of the natural life of my wife, * * * the net income of my said residuary estate, after the payment of the annuity hereinbefore devised to my wife, shall be applied by my said executors as follows, viz.: They shall yearly and every year divide the same in eight equal parts, and pay over one of said equal parts to each of my eight children, and in case of the decease of any one or more of my said children before the division of my estate as hereinafter provided, leaving lawful issue, the share of such net income belonging to such deceased child shall be distributed and divided unto and among the lawful issue of such deceased child.”
    He nominated four of his sons, Edward W. Leggett, Thomas B. Leggett, John W. Leggett, and Francis W. Leggett, to be his executors. The testator died on the 23d day of December, 1863, and on the 19th of January, 1864, his will was admitted to probate, and letters testamentary were granted to the executors named in the will. At the time of his death, his sons Edward ~W. Leggett and Francis W. Leggett were indebted to him on their partnership notes in the sum of $14,950, and his sons Thomas B. Leggett and John W. Leggett were indebted to him on their partnership notes in the sum of $17,000, and his son Augustus "W. Leggett was indebted to him on a bond in the sum of $1,764.81. The executors did not collect any portion of the principal of those debts, but required the several debtors to pay the interest that accrued upon such debts annually, which interest they treated as part of the income of the estate, to be annually divided and paid under the provisions of the sixth clause of the will, after using sufficient thereof to continue two insurance policies on the life of Francis W. Leggett, in the aggregate sum of $8,000, and insurance policies on the lives of Thomas B. and John W. Leggett, each in the sum of $8,500. They paid to Francis W. Leggett the sum of $7,500 to discharge a specific legacy given to him by the will, and they paid the net annual income of the residuary real estate secured by the first provision of the sixth clause of the will to the several children of the testator, as therein directed, without collecting any portion of the principal of the debts above mentioned, or restraining any portion of the legacies given to the several indebted children. The amount of such payments exceeded in the aggregate the gross amounts of their respective indebtedness.
    The court at General Term said: “ Upon this state of facts the surrogate held that the executors were chargeable in their accounts with the amount of such indebtedness. The learned surrogate, in considering this branch of the case in his opinion, says: ‘ The first clause of the will clearly states the duty of the executors to collect the debts due to the estate by the children of the decedent, and it is too clear for argument that the executors had no right either to pay themselves, or any other legatees, any portion of the income upon their legacies until they had first collected the amount of their respective debts to the estate, and it was their obvious duty to have appropriated such income, so far as it would go, to the liquidation of their respective debts, and to the extent of the payment to the debtors of the estate they must be charged.’ ”
    This view of the surrogate is, we think, sustained by the statute and by abundant authority, and we see no reason for disturbing it or doubting its correctness. (Adair v. Brimmer, 74 N. Y., 558; Smith v. Kearney, 2 Barb. Ch., 533 ; Courtenay v. Williams,■ 3 Hare, 554; Campbell v. Graham, 1 Bus. & M., 453; Jeffs v. Wood, 2 P. "Wins., 128; Bamon on Assets, 469; 2 B. S. [Edm. ed.], 86, § 13.)
    Edward "W. Leggett, one of the children and executors of the decedent, died on the 27th day of January, 1865, about thirteen months after the death of the testator. He died intestate, leaving him surviving eight children, all but two of whom are still living. It does not appear what amount, if any, of the annual net income of the estate had been paid to Edward W\ during his life. But it appears that such children were regarded by the surviving executors as standing precisely in his position with respect to the indebtedness of the estate, and to them was annually paid the net income of one-eighth of the residuary estate, less an amount sufficient to keep down the interest on Edward’s indebtedness. The amount thus charged to the children of Edward for interest on his debt to the estate and retained by the executors seems to have been in the aggregate $8,432. "With this sum the learned surrogate has charged the executors in their account, and decreed that it be accounted for by them to the children of Edward W". Leggett.
    The question of the rights of the children depends upon the first provision of the sixth clause of the will, which was operative and controlling at the time of the accounting, the widow of the testator then being living. That portion of the will declares that the executors shall invest and keep invested the residuary estate in the manner therein prescribed, and after payment of the annuity given to the widow, shall divide the net income of such estate into eight equal parts, and pay over one of such equal parts to each of the eight children, and in case of the decease of one of said children leaving lawful issue the share of such net income belonging to such deceased child shall be distributed and divided into and among the lawful issue of such deceased child. The question here presented is whether the share thus given to the lawful issue of one of the testator’s children, who may have died while this provision of the will is controlling, is chargeable in law or equity with his indebtedness to the testator’s estate remaining unpaid at the time of his death.
    The title to the whole residuary estate is, by the provision, devised and bequeathed to the executors, to be held by them until by the decease of the widow a subsequent provision of the same clause shall become- operative and controlling. The only interest which either of the children of the testator took is in the net income which should accrue prior to his or her death. Upon such death the subsequently accruing income is given directly to the children of the decedent’s child, and the legacy to such children is, by force of this provision of the will, derived from the testator their grandfather, and not from their deceased parent. Upon the death of Edward W. Leggett, therefore, his children were entitled to receive one-eighth of the net income of the residuary estate by virtue of a direct bequest to them from the testator, and not as heirs or next of kin of Edward W. Leggett. They were not liable for their father’s debts, because the bequest was made to them by their grandfather, and he had not thought proper to charge it with such liabilities. Erom the time of the death of Edward, therefore, his children were entitled to receive one-eighth of the income of the residuary estate, under the first provision of the sixth clause, without any deduction for Edward’s unpaid indebtedness.
    This is the conclusion reached by the learned surrogate, and we think it is correct.
    It is insisted by the learned counsel for the appellant that the surrogate had no right to dispose of this question, because it involved a disputed construction of the will of the testator, and upon that question he cites JBevcm v. Cooper (72 N. Y., 317). That authority is, of course, controlling in all cases to which it is applicable. But we think it ought not to be extended beyond cases falling clearly within it, as otherwise almost every accounting by executors affecting the rights of devisees and legatees will be subjected to unnecessary delays and embarrassments. In this case, however, we think nothing more was required of the surrogate than to apply legal principles to the disputed provisions of the will. It requires no construction of the will, within the meaning of Bevan v. Cooper, above cited, to hold that the direct gift of one-eighth of the income to the grandchildren of the testator, upon the death of their father, as made by the provision above referred to, is not subject to the payment of the indebtedness of their parent to the testator’s estate. For that question depends altogether, as we think, upon the application of legal principles to a plain provision of the will, which neither requires nor permits any- “ construction.”

      John E. Burrill, for the appellants.

      Ira O. Miller, for the respondents Frederick A. Leggett, Susan B. Martin, Charles P. and Lester Leggett.

      Thomas E. Hubbard, for the respondents Catharine M. Allen, Margaret A. Foote and Sarah A. Belden.
   Opinion by

Davis, P. J.;

Brady, J., concurred.

Present — Davis, P. J., and Brady, J.

Decree affirmed, with costs.


author: Per Curiam.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SOPHIA G. VANDERVOORT, Executrix, etc., of CHARLES VANDERVOORT, Deceased, Appellant, v. EDWARD COOPER, Mayor, and JOHN KELLY, Comptroller of the City of New York, Respondents.

      Mandamus — light of a respondent, when an application is made for a mandamus, to move to vacate prior orders allowing a mandanms —1870, chap. 383 — power of the mayor and comptroller to determine as to the validity of claims presented, under their power “ to audit"

    Appeal from orders of the Special Term vacating two former orders granting writs of mandamus against the mayor and comptroller, and denying a motion for a writ of mandamus on the petition of the relator.
    The relator moved for a mandamus to compel the mayor and comptroller to audit a certain claim of her testator, arising upon a contract between liim and tbe city for tbe erection of a public market. She set forth in her petition, among other facts, that there had been two previous writs of mcmdamus, in the first of which an order had been made by the Special Term, in September, 1873, granting a peremptory writ of mandamus requiring the audit of the claim by the then mayor and comptroller; that they wholly neglected and refused to obey said writ, and that afterwards, on the 23d of June, 1874, an order was granted to show cause why an attachment should not issue against them for their alleged contempt ; that no further proceedings were had thereon, and that afterwards, on the 14th of September, 1874, the testator died; that afterwards, on further application to the Special Term, and on or about the 1st day of November, 1876, an alias writ of peremptory mcmdamus was issued against the then mayor and comptroller commanding them to audit the claim of said testator at the sum of $36,661.45, with interest from June 16, 1871, but that said mayor and comptroller did not obey said writ, and have neglected and refused to comply with the same. She then set forth that the persons then occupying the offices of mayor and comptroller had ceased to hold such office, but that Edward Cooper and John Kelly had, respectively, become mayor and comptroller and she had made a demand upon them to audit the claim and they had neglected and refused so to do. A cross motion was made by the respondents to vacate the two orders granting peremptory writs of mandamus as above stated. The court, as appears by its order, denied the motion for the writ of mcmdamus and vacated the two former orders granting such writs.
    The court at General Term said: “ The long period that elapsed between the granting of the former writs and the present motion seems to show great laches on the part of the relator, in not pursuing her alleged rights against the city. It was not incorrect practice on the part of the respondents to bring before the court, by their cross motion, the propriety of vacating the orders granting the writs; and we think it was within the power of the court to reconsider the orders and to vacate them if they appeared to have been improperly or improvidently granted. Belmont v. Erie Bmboay Company (52 Barb., 637) is an authority for such action, and that case is cited with approval by Rapallo, J., in Biggs v.
      Pursell (74 N. T., 379). The relator, instead of pursuing the remedies already granted, chose to come into court upon all the facts existing in the case and present her new application upon its real or supposed merits. The court was not bound to regard the former orders as conclusive adjudications in her favor, but upon the motion of the respondent to vacate them was entitled to take such action as in its opinion the justice of the case demanded. "We think it was not error to vacate the previous orders. The latter was erroneous, in that it was made after the death of the testator without having brought in any authorized representative; and the former, we think, was erroneous on its face in having arbitrarily commanded the mayor and comptroller to audit a claim at a fixed and specified amount. (Howland v. Mldredge, 43 N. V., 457.) It was too late to correct that error by appeal, and since the relator chose to seek redress by application for a new mamdam,us, we think it was within the. power of the court to reopen and consider the former applications and vacate the orders then made. They had become stale and unprofitable by the laches of long non-user, and should not be left to annoy the present respondents.
    The mcmdamus was sought under the first section of chapter 383 of the Laws of 1870, which contained the following appropriation for building the eigthteenth ward market: ‘ And for liquidating all debts and liabilities incurred by the commissioners in erecting said market, $59,000, to be audited by the mayor and comptroller.’ We think this provision clothed the mayor and comptroller with the power to audit the debts and liabilities mentioned therein, in the usual sense of that word, by using their judgment as to the existence and the just amount of the debts and liabilities, and that it was not competent for the Special Term to order the audit to be made at an arbitrary and fixed sum. The intention of the legislature was to confer upon those officers the power to ascertain and determine the amount of just claims entitled to be paid out of the sum appropriated. It was not a mere formal or clerical duty that-was conferred upon them, but so far as related to the payment of any debts and liabilities claimed under the act they were to sit in judgment upon the questions of both liability and amount. We think, therefore, that the order of the Special Term, so far as it affects the previous writ of mamdamus, should be affirmed.

      But upon the facts before us we think it was error to deny to the relator all relief. There was certainly some small portion of the moneys appropriated by the provision of the act'remaining in the treasury. That fact is a conceded one. There is also a controversy as to whether another and more considerable portion of the moneys is not still in the treasury, or has not been paid out without authority and under circumstances entitling the relator to raise the question that that may also be applied to her claim.
    We think, since it has been settled by the judgment of one tribunal, that she cannot maintain any action without an audit, and since it is apparent that under the law nothing can be paid to her out of the provision referred to until an audit has first been made, that a mandamus was proper in the case directing the mayor and comptroller to proceed to audit the claim for the purpose of ascertaining the extent of actual indebtedness and liability thereon. As we have already said, this, of necessity, submits to those officers the power of determining, pro hao vice, the legality of the claim as well as its amount, for those facts are necessarily involved in the question whether it is a ‘ debt or liability ’ within the meaning of the provision above cited.”

      Richard O. Gorman, for the relator.

      Francis Lynde Stetson, for the respondent.
   Opinion

Per Curiam.

Present — Davis, P. J., and Brady, J.

Order affirmed in pai’t, and as to residue reversed and mandamus granted as dii’ected in opinion, without costs to either party.


author: Per Gwriam.

text:
    Gustav Pantzar, Appellant, v. The Tilly Foster Iron Mining Company, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion

Per Gwriam.


author: Brady, J.

text:
    Theron S. Atwater, Appellant, v. Andrew Diraaci, Jr., and others, Respondents.

   Judgment affirmed. Opinion by

Brady, J.


author: Davis, P. J.

text:
    Charles H. Tenney and another, Appellants, v. Moritz Mautner and others, Respondents.

   Order reversed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    William Heath and James M. Ellis, Appellants, v. Cornelius A. Mahoney, Respondent.

   Motion for a new trial denied. Judgment ordered for defendant on verdict. Opinion by

Davis, P. J.


text:
    George C. Wetmore, Respondent, v. B. A. Hegeman, Executor, etc., Appellant.

   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    The People of the State of New York ex rel. Henry Murray and the said Henry Murray, Respondents, v. James E. Coulter, Appellant.

   Order affirmed, without costs. Opinion

Per Curiam.


text:
    John B. Thompson, Appellant, v. William M. Pritchard and John Lee Smith, Respondents.

   Appeal dismissed, with costs. Opinion by

Brady, J.


text:
    Roswell A. Roberts and Augustus T. Post, as Executors, etc., Appellants, v. S. Chittenden and others, Respondents.

   —Judgment affirmed. Opinion by

Davis, P. J.


text:
    Benjamin T. Babbitt, Respondent, v. Edwin H. Crampton, Appellant.
   Order reversed; order to be entered as directed in opinion; order to be settled on two days notice before Mr. Justice Brady. Opinion by

Brady, J.


text:
    Henry F. Voessing and others, Appellants, v. Clementina Voessing and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Davis, P. J.


text:
    John Percy, Appellant, v. James Wood, Respondent.

   Judgment affirmed. Opinion by

Davis, P. J.


text:
    The People of the State of New York ex rel. William H. Barnes, v. James R. Angel, Justice, and William Taylor.
   Proceedings reversed, with costs. Opinion by

Brady, J.


text:
    Elizabeth C. Merchant, as Executrix, etc., Appellant, v. Frederick Opperman, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Emma S. Falkland, Appellant, v. St. Nicholas National Bank, Respondent.

   Order affirmed, without costs. Opinion by

Davis, P. J.


text:
    Maria Lucrecia De Rivas and others, Appellants, v. Ana Rivas De Herques and Carlos Marti, as Executors, etc., Respondents.

   Order modified as directed in opinion. Opinion by

Davis, P. J.


text:
    Mary F. Rogers, Plaintiff, v. Sarah James and others, Defendants. Edward F. James, Purchaser, Appellants

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    James W. Clarke, sole acting Executor of Flora C. Clarke, Respondent, v. William H. Leupp, Appellant, Impleaded with Hannah M. Jacobs and others.
   —Judgment and order affirmed, with costs. Opinion by

Brady, J.


text:
    George S. Goodale, as Receiver, etc., Appellant, v. The Central National Bank of the City of New York, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    Samuel Wilson v. Thomas Greig.
   Order reversed, with costs. Opinion by

Davis, P. J.


author: Brady J.

text:
    Cornelius Brinkerhoff, Respondent, v. Sarah S. Perry, Appellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady J.


text:
    The Mayor, etc., of the City of New York, Appellant, v. The Tenth National Bank of the City of New York, Respondent.

   Order reversed and motion denied, without costs to either party. Opinion by

Davis, P. J.


text:
    Hannah Conklin, Respondent, v. Seth T. Merwin and Mary Louisa Merwin, Appellants.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    Andrew E. Williams, Appellant, v. Anna S. Dias, Respondent.

   Reargument ordered.


author: Daniels, J.

text:
    William H. Racey, Respondent, v. The Erie Railway Company, Appellant.

   Judgment affirmed. Opinion by

Daniels, J.


text:
    Marcus A. Bettman, Appellant, v. Adelaide Steinreich and others, Respondents.

   Judgment affirmed. Opinion by

Daniels, J.


text:
    Heloise Keller, as Executrix, etc., of Charles M. Keller and Henry Waterman, Appellants, v. The West, Bradley and Cary Manufacturing Company, Respondents.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    James Dolan, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Judgment affirmed. Opinion by

Daniels, J.


text:
    John B. Manning, Appellant, v. Bernard Reilly, Respondent.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Daniels, J.


text:
    Samuel Gross and others, Appellants, v. Aaron M. Clark, Administrator, etc., Respondent.

   Order affirmed, with costs. Opinion by

Daniels, J.


text:
    Frederick K. Clark, Appellant, v. Aaron M. Clark, Respondent.

   Order affirmed, with costs. Opinion by

Daniels, J.


text:
    Mary Bowman, Respondent, v. Samuel D. Gates, Appellant, Impleaded, etc.
   Order affirmed, with costs. Opinion by

Daniels, J.


text:
    Mark M. Stanfield, Plaintiff, v. James T. Leavitt, Impleaded with others.
   Motion denied, with ten dollars costs. Opinion by

Daniels, J.


text:
    Abel Horton, Respondent, v. Jacob R. Shipherd, Appellant.
   Order affirmed, with costs. Opinion by

Daniels, J.


text:
    William H. Garner, Respondent, v. William H. Gladwin, Appellant.

   Order affirmed. Opinion by

Daniels, J.


text:
    Daniel Adams and others, Appellants, v. Abraham W. Godfrey, Respondent. Charles H. Isham v. The Same. John T. Willitts v. The Same. George H. Appold v. The Same. Loring A. Robertson v. The Same. Louis F. Robertson v. The Same. Hoffman Atkinson v. The Same.
   Orders modified as directed in opinion, without costs to either party. Opinion by

Brady, J.


text:
    John Paret and Frederick E. Bacon, Respondents, v. Michael Segall, Appellant.

   Order reversed and motion granted, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Henry H. Morange, Appellant, v. Jesse E. Morange, Respondent. Same v. Same.
   Order affirmed, with ten dollars costs on one appeal. Opinion by

Davis, P. J.


text:
    William Gerlach, Appellant, v. John Herduysfelder, Respondent.

   Order reversed, with ten dollars costs and disbursements.


text:
    John H. Hodges, Executor, etc., v. Cornelius Perrine.
   Order affirmed, with ten dollars costs.


text:
    Ludolph A. Tullygraff v. Lemuel H. Baldwin and another, Appellants.

   Order affirmed, with ten dollars costs.


text:
    David J. Johnson, Respondent, v. Cameron Coal Company, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Edward Harmon, Trustee, etc., v. Anthony S. Hope.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Joseph Leavy v. Matthew Leavy.
   Order vacated; order entered as directed. Mem.

Per Curiam.


text:
    Margaret Kassebaum v. Hannah Kassebaum.
   Papers on appeal to be corrected as directed in memorandum.


text:
      JOHN H. HARDT and others, Appellants, v. HERMAN SCHULTING, Respondent.

      Judgment — cannot be used, as a set-off while am appeal therefrom, is pending

    The plaintiff cannot have a judgment recovered by him, from which an appeal has been taken by the defendant, set off against the costs of two motions awarded to the defendant in the same action.
    Appeal from an order denying the plaintiffs’ motion to set-off a judgment in their favor, or so much thereof as was necessary, against the costs of two motions awarded to the defendant in the same action.

      William Watson, for the appellants.

      Charles Bainbridge Smith, for the respondent.
   Brady, J.:

The plaintiffs having obtained a judgment in this action, and the defendant having obtained orders directing the payment of the costs of two motions, the plaintiffs sought to set-off so much of the judgment recovered in their favor as would extinguish the motion costs. It appeared however upon the application, when presented to the court below, that tbe defendant had appealed from tbe plaintiffs’ judgment.

Tbe learned justice presiding at the Special Term said that when one of tbe judgments is appealed from there can be no set-off in respect to costs.

The spirit of tbe rule in relation to tbe setting off of costs, as stated in Harris v. Palmer (5 Barb., 106), seems to be that tbe subject matter of tbe set-off must be clear and indisputable and conclusive upon tbe party, and must have passed tbe or deal of a judicial determination in a case where a court bad acquired jurisdiction of tbe party, either by his appearance or personal service of tbe process upon him. And in tbe case of Pierce v. Tuttle, reported in the 51st of Howard’s Practice Reports, 193, tbe precise question presented in this case was disposed of by tbe General Term of tbe fourth department, they having declared that a judgment could not be set-off against another if an appeal were pending as to either of them. Tbe case of Terry v. Roberts (15 How. Pr., 65), which declares that an appeal from a judgment suspends tbe right to set-off, is cited with approval in tbe opinion of Mullen, J., who also considered tbe case of Hoag v. Hoag (6 How. Pr., 201), in which a set-off was ordered in tbe event of tbe affirmance of tbe judgment appealed from, and be declared that tbe first case mentioned was affirmed on appeal to tbe General Term, whilst tbe last case stood utterly alone. He also refers to tbe case of De Figaniere v. Young (2 Robertson Supr. Ct., 670), in which it was held that a judgment could not be set-off when an apjieal was pending. Tbe order made by tbe court below is therefore sustained by two judgments rendered at tbe General Term, tbe result being that where tbe judgment appealed from is suspended, it has not sufficient vitality to become tbe subject of a set-off.

Por these reasons tbe order appealed from must be affirmed, with ten dollars costs and tbe disbursements of tbe appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    JOSEPH NEUBERGER and PHILIP BENZ, Appellants, v. WILLIAM B. WEBB, Respondent, Impleaded, etc.

      Answer — verification of, by an attorney — when it cannot be stricken out as sham.

    An answer denying any knowledge or information sufficient to form a belief as to the truth of material allegations of the complaint, which is verified by the defendant’s attorney, who gives as a reason why the verification was not made by the defendant, that the latter was not a resident of the county in which the attorney resided, and states that the grounds of his belief were statements made to him by his client, raises an issue, and it cannot be stricken out on motion as sham.

      Kay v. Whittaker (44 N. Y., 565), distinguished.

      Qucere, as to the respective liability of the attorney and client in case the answer be false.
    Appeal from an order made at a Special Term, denying a motion to strike ont an answer as sham, or for judgment on the answer as frivolous, except so much of said order as refuses judgment upon the answer as frivolous.

      Arthur R. Robertson, for the appellants.

      James Flynn, for the respondent.
   Brady, J.:

This action was brought to recover a demand against the defendants, arising from the purchase of butter which the defendants sold on commission as alleged in the complaint. The defendant William B. Webb interposed a separate answer, in which he admitted the partnership of - the defendants, and as to each and every other allegation in the complaint denied any knowledge or information thereof sufficient to form a belief. The verification of his answer was made in Kings county by Arthur Murphy, Jr., who was his attorney and who stated that he resided in that county. He then averred that the answer was true of his own knowledge, except as to the matters therein stated to be on information and belief, and that as to those matters he believed the same to be true. He gave as a reason why the verification was not made by the defendant that the latter was not a resident of or within the county of Kings, and stated that the grounds of his belief were statements made by his client to him.

The form of denial adopted was justified by section 500 of the Code of Civil Procedure, which authorizes a general or specific denial, or of any knowledge or information thereof sufficient to form a belief ; and this mode seems to be allowed even in cases where the knowledge of the truth of the averment thus controverted is supposed to be possessed by the party making the denial. Such a form of denial, even by a person conversant with the facts set out and which he controverts, was in the view of the legislature at the time of the adoption of the Code of Civil Procedure, as shown by the provisions of section 524 thereof, which declare that an allegation that the party has not sufficient knowledge or information to form a belief with respect to a matter, must be regarded for all objects, including a criminal prosecution, as an allegation that the person verifying the pleading has not such knowledge or information. The section was new when it was adopted, and its object is declared to have been to settle a question in respect to which the authorities were discordant. The verification by the attorney is justified by section 525 of the Code, which provides that where the party is not within the county Of which the attorney is a resident and capable of making the affidavit, the verification may be made by his agent or attorney, and when made by an attorney, by section 526 he is required to state the grounds of his belief upon all matters not stated of his knowledge, the reason why it is not made by the party, and the reasons for his belief.

The object of these sections was to make it equally criminal for a party to deny sufficient knowledge or information to form a belief, in regard to the material allegations contained in the complaint, as to make a positive denial if the denial was untrue.

No opinion was rendered upon the decision of the motion in the court below, but the appellant seems to have been satisfied with so much of the order as covered the proposition that the answer was not frivolous, because the notice of appeal was from every part of the order, except so much of it as refused judgment upon the answer as frivolous. The appeal, consequently, is from the refusal of the court to strike out the answer as sham, i. e., false, which, as there were denials of material allegations in the complaint, was correct under the authorities. (Wayland v. Tysen, 45 N. Y., 281; Newman v. Supervisors of Livingston County, id., 691; Thompson v. The Erie Railroad Company, id., 468.)

The appellant’s counsel seems to think that in Kay v. Whittaker (44 N. Y., 565) the Court of Appeals overruled the case of Wayland v. Tysen; but this is a mistake. It was held in that case, which it is true was decided subsequently to the case of Wayland v. Tysen, that a defense interposed on information and belief might be stricken out as false. But this in no way conflicts with the proposition that the denial of a material allegation of the complaint in the form allowed by statute cannot be stricken out as sham.

It is not necessary here to determine what responsibility the attorney for the defendants has assumed in making the verification of an answer, which denies facts presumably within the knowledge of his client, nor is it necessary to suggest what liability the defendant has taken upon himself in that respect. The answer in its form, coupled with the allegation in the complaint, suggests serious doubts as to his good faith; but that view was not considered at the Special Term, and cannot very well be investigated under the law as it now stands. The form of the answer must, therefore, be sustained. If the answer and verification to it were framed malafides, it is not improbable that the law furnishes a remedy.

We think the order appealed from should be affirmed, but without costs.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, without costs.


text:
    ELBERT S. JEMISON and others, Appellants, v. THE CITIZENS’ SAVINGS BANK OF TEXAS, Respondent.

      Open commission — order allowing one to issue is not appealable.

    An order allowing an open commission to issue, as authorized by sections 893 and 894 of tbe Code of Civil Procedure, is not appealable to tbe General Term.
    Appeal from an order made at Special Term, granting a motion for an open commission to issue to take testimony at Jefferson, Texas.

      Francis C. Barlow, for the appellants.

      Samuel A. Blatchford, for the respondent.
   Brady, J.:

The commission issued in this ease was authorized by sections 898 and 894 of the Code of Civil Procedure, but the power exercised was one which had theretofore been asserted and maintained. The appeal taken from the order granting it cannot be sustained, this court having declared in three adjudicated cases, and in several not reported, that an order allowing a commission to issue is not appealable. The question is with us, therefore, res adjudicata. (Thatcher v. Bennett, cited at page 555 of Voorhees’ Annotated Code [ed. 1870], referred to and approved in Treadwell v. Pomeroy, 2 N. Y. S. C. [T. & C.] Rep., 470; Wallace v. American Linen Thread Company, 46 How. Pr., 402.) These adjudications render it unnecessary to treat the subject elaborately, as the reasons upon which the judgment of this court is based are to be found in these cases. They have not yet been overruled by the Court of Appeals. We have not been referred to any decision bearing directly upon the question.

There are a class of cases in which, although the court below may have acted in the exercise of its discretion, an appeal from the order made may be successfully taken, but this is not one of them.

Whatever inconvenience the defendant may be subjected to by the issuance of an open commission must be experienced also by the plaintiffs, and it becomes the duty of both, under such circumtances, for the protection of their respective rights,. to see to it that each of them is properly represented at the examination of the witnesses.

There are many cases in which an open commission must con tribute to the administration of justice, and although we do not deem it necessary to consider the merits of the application upon which the order appealed from rests, yet, nevertheless, this may have been a case in which the issuance of the commission was eminently proper. Indeed we are bound to assume that it was such or it would not have been granted.

The appeal should be dismissed, with ten dollars costs and the disbursements of the appeal to abide the event of the action.

Davis, P. J., and Daniels, J., concurred.

Appeal dismissed, with ten dollars costs and disbursements.


text:
    WILLIAM L. MAY, Appellant, v. WILLIAM T. MOORE, JOHN H. TINGUE, FRANK CONOVER and EVERETT HOUSE, Respondents.

      When the court must appoint a referee in place of one uiho refuses to\ serve — Code of Civil Procedure, § 1011, as amended hy chap. 542 of 1879.
    Under section 1011 of the Code of Civil Procedure, as amended hy chapter 542 of 1879, when the referee to whom the parties have agreed to refer the action refuses to serve, the court must, on [the application of either party, appoint another referee unless the stipulation expressly provides otherwise.
    Appeal from an order made at a Special Term appointing a referee in place of one to whom the parties had agreed to refer the action but who had refused to serve.

      Samuel D. Adams, for the appellant.

      Menzo Diefendorf, for the respondents.
   Brady, J.:

This action was commenced to recover damages for the breach of a contract, in January, 3 880. The cause having been on the Circuit day calendar awaiting trial for some time, the attorneys for the respective parties entered into a stipulation to refer it to Willis S. Paine, Esq., who refused, however, to serve. In November, 1880, and after such refusal, on the motion of the defendant’s attorney, an order was granted by which John E. Ward, Esq., was appointed referee in the place instead of Willis S. Paine, Esq., who had declined to act in that capacity.

Section 1011 of the Code of Civil Procedure provides that, except in certain cases mentioned in section 1012, the whole issue or any one of the issues in an action, either of fact or of law, must be referred upon the consent of the parties, manifested by a written stipulation signed by their attorneys and filed with the clerk; and, further, that where the stipulation does not name the referee he may be designated by the court on the motion of either party. That section was amended in 1879 (see chap. 542, Laws of 1879), and the amendment- provides that if the referee named in the stipulation refuses to serve the court must appoint another unless the stipulation expressly provides otherwise. There is no doubt that it was in consequence of the compulsory character of this provision that the referee was named by the learned judge presiding at the Special Term, where the motion was made. This legislation in effect declares that when a reference has been agreed upon if the referee named refuses to serve the court must appoint another, unless the stipulation expressly provides otherwise, and it is only necessary that one of the parties should initiate the movement to compel the result contemplated by the statute. The case referred to by the appellant of Devlin v. The Mayor (11 Weekly Dig., 116) is not analogous, because the referee died, and the case in the Court of Appeals to which reference is made, of Preston v. Morrow (66 N. Y., 452), has no application because that case was decided before the amendment of 1879, to which allusion has been made.

We regard the statute as imperative and for that reason the order appealed from must be affirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J.:

text:
    COTTON W. BEAN, Appellant, v. LAURENT J. TONNELLE, Respondent.

      Supplementary proceedings — Code of Oivil Procedure, § 2458 — not applicable to judgments on which executions have leen returned unsatisfied prior to September 1, 1880 — Effect of the failure of an applicant to show that no previous application has leen made— General Pule No. 25.
    Section 2458 of the Code of Civil Procedure, providing that proceedings supplementary to execution cannot be instituted upon a judgment recovered for costs only, does not apply to a case where such a judgment was recovered, and an execution issued thereon was returned unsatisfied prior to September 1, 1880?
    The failure of the applicant to show, as required by General Rule No. 25, that no previous application for the order has been made is an irregularity which authorizes but does not compel the court to refuse to grant the order or to vacate it after it has been granted.
    Appeal from an order denying a motion made to set aside an order in supplementary proceedings requiring the defendant to appear and be examined concerning his property.

      Dudley R. Horton, for the appellant.

      C. W. Pleasants, for the respondent.
   Daniels, J.:

The judgment recovered in this case was against the plaintiff for the costs of the action, and as the proceedings were not instituted until the 19th of October, 1880, it is claimed in support of the appeal that they were at that time unauthorized, for the reason that proceedings of this nature for the examination of á judgment debtor cannot be taken where the judgment is for costs alone. The objection has been presented because of the language upon this subject of section 2458 of the Code of Civil Procedure. It appeared by the affidavit upon which the order for the examination of the debtor was made that the judgment was recovered on the 8th day of March, 1879, and that a transcript of it had been filed in the office of the clerk of the county in which the plaintiff resided. It was also stated that an execution upon the judgment against his property had been issued to the sheriff of that county, and that such execution had been returned wholly unsatisfied. It is not stated when the execution was returned. But as it was issued on the 16th of September, 1819, it may be presumed to have been returned at the expiration of sixty days from that time. For it then became the duty of the sheriff to return it. When that was done, the defendant became entitled to institute proceedings of this nature for the examination of the judgment debtor. The right at that time had fully accrued to him. For that reason it was not divested by means of the. section of the Code of Civil Procedure defining the cases in which such proceedings may be taken. For by section 3352 it was further provided that nothing contained in the provisions of that act, not included in chapter four which has no application to proceedings of this nature, should render ineffectual or otherwise impair any right which lawfully accrued before those provisions of the Code were enacted, which went into effect on the 1st of September, 1880, unless the contrary was expressly declared in the provision in question, but that the statute previously in force upon the' subject shall still, so far as it may be necessary to maintain such right, remain in force, notwithstanding the repeal thereof. No express declaration of a different nature is contained in the provisions of the Code of Civil Procedure relating to supplementary proceedings for the examination of judgment- debtors. And because of that circumstance this section so far has restrained their application as to exclude the present proceeding from their control. The creditor had the right to institute these proceedings upon an affidavit showing that the requirements of the preceding Code on this subject were complied with, and the affidavit which was the foundation of the order made was sufficient for that purpose. The case in this respect seems to differ from that of Armstrong v. Cummings, decided by Mr. Justice Lawrence.

It was not necessary that the affidavit upon which the order was made should show that the judgment had been recovered upon the personal service of the summons. That was not required by the provisions of the Code still governing these proceedings. And besides 'that the order was for the examination of the plaintiff himself. The right to it in no view depended upon the necessity of the summons haying been served upon the party in whose favor the judgment was recovered. The affidavit did not comply with the rule requiring that it should be shown that no preceding application had been made for the order. But that was a simple irregularity not absolutely entitling the plaintiff to a dismissal of the proceeding. There was nothing from which it could be suspected that any previous application for the order had been made, and the judge who made it was not positively required by the terms of the rule to dismiss it because of this defect. He had the power to do so, but considered under the circumstances that it would not be wise or equitable to exercise it. After the proceeding has progressed as far as it now has it would not be just to the parties to dismiss it simply because of this omission. The real objection, to it is of a more substantial nature, and as that has been found to be incapable of being sustained, the orders which were made should not now be disturbed.

That from which the appeal has been taken should be affirmed. But because of the defect already mentioned it should be without costs to either party.

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

Order affirmed, without costs.


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    CHARLES BLOOMINGDALE, BENJAMIN BLOOMINGDALE and ISAAC RHINE, Appellants, v. BABETH LISBERGER, Respondent.

      Married woman — when her separate estate is not charged with the payment of her notes— assignment by, of a policy of insurance upon the life of her husband.

    The defendant’s husband and others being indebted to the plaintiffs for goods previously sold and delivered, the defendant, to procure an extension of the time of payment, joined with her husband in making, in the State of Virginia, four promissory notes payable at future periods in the State of Pennsylvania. The notes did not expressly charge the defendant’s separate estate with their payment, and by the laws of Pennsylvania and of this State she was not liable upoa them, although by the laws of Yirginia contracts so executed are held to be a charge upon the separate estate of a married woman. The defendant at the time possessed no separate estate except two policies of insurance issued upon the life of her husband, by companies incorporated under the laws of this State, which were payable to her. At the time of the making of the notes the defendant’s husband in her presence, informed the person who took them of the existence of the policies. Thereafter her husband died.
    In an action upon the notes:

      Held, that the question whether the giving of the notes under the circumstances of the case operated to charge, with their payment, the amount due to the defendant upon the policies, was to be determined by the laws of this State, as the companies issuing the policies existed under its laws.
    That if the policies were within the protection of the acts authorizing married women to insure the lives of their husbands (chap. 187 of 1858, as amended by chap. 656 of 1866) no charge was created, as the mode of assigning the wife’s interest, prescribed by chapter 821 of 1873, had not been complied with.
    That if they were not within the protection of the said acts, then, as the premiums were probably paid by the husband, the policies belonged to him and could only be reached by proceedings instituted against his- personal representatives,
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      Chambers, Boughton & Prentiss, for the appellants. :

      B. F. Einstevn, for the respondent.
   Daniels, J.:

This action was brought to recover the amount unpaid upon four promissory notes made by the defendant and S. Lisberger, her husband, payable to the plaintiffs. At the time when they were made he with other persons were indebted to them for goods previously sold and delivered. The notes were payable at future periods of time, and were evidently given to secure the extension of the term of credit and that was sufficient to constitute a lawful consideration for them on behalf of the present defendant; for forbearance of the time of payment of a debt is a legal consideration for the liability of a third party iri form becoming bound for its payment. (Grocers' Bank v. Penfield, 7 Hun, 279; affirmed, 69 N. Y., 502.) But as the defendant was at the time when she signed the notes a married woman, the fact that a proper consideration for them existed was not enough to render her liable for the payment of the debt according to the laws of this State. (Second National Bank of Watkins v. Miller, 63 N. Y., 639.) And it is conceded in the case that the law is substantially to the same effect in the State of Pennsylvania where these notes were made payable. Neither under the laws of this State nor those of Pennsylvania, therefore, did the defendant become liable for the payment of these notes, inasmuch as no charge was in terms made of the amount payble upon her separate estate. But in the State of Virginia, where the notes were made, the obligations of a married woman upon contracts of this form and nature, subscribed by her merely as the surety of her husband, have been held to be a charge upon the separate estate owned by her at the time. (Barnett v. Hamp’s Exr., 25 Grat., 481; Darwell v. Smitz’ Admr., 26 id., 878.) As the defendant was not liable for the debt for which the notes were given before they were executed by her, she became in effect a surety for her husband by subscribing them, and under the law of the State of Yirginia • the notes were chargeable as against her upon any separate estate at that time owned by her. The question therefore arises whether, under the liability to which she became subjected at the time when she made the notes in the State of Yirginia, they can now be enforced against, her. Neither at that time nor at any time since then was she the owner of any other property than that of two policies of insurance, effected upon the life of her husband with insurance companies created and doing business under the laws of this State. These policies were obtained by him, but by the terms of each of them they were made payable to the defendant upon the death of her husband. He has since died, and the amount of the insurance is now a valid and subsisten! claim in favor of the defendant. By the laws of this state a married woman was authorized to insure the life of her husband in her own name, or that of any other person with his consent, for her sole and separate use, and the insurance so effected was declared to be free from the claims of his creditors, or those of his representatives. (Chap. 187 of the Laws of 1858, as amended by chap. 656 of the Laws of 1866.)

These policies do not appear to have been issued in the name of the wife or that of any third person as her trustee, but as the amount of the insurance was made payable to her upon the death of her husband, they were still substantially in conformity to this provision of the statutes, and for that reason within its protection the same as though they followed the literal terms of the law as to their form.

They were insurances for her benefit, and as the loss was made payable to her in terms, they were substantially in her name, as they were required to be by the terms of the acts empowering her to effect such insurances. Though not strictly within the language of the law, they were within its spirit and intent, and that appears to have been the legislative understanding of the effect of these provisions by the enactment of chapter 821 of the Laws of 1873. For by that any policy in favor of a married woman has been referred to as within the scope of the authority provided by the statutes allowing her to make insurance for her own benefit upon the life of her husband. (Laws of 1873, ch. 821, § 2.)

It has been urged that her right to the moneys which might accrue to her by the terms of these policies, was in fact subjected to the payment of these notes. But all that transpired upon this subject took place when the notes were signed, and that consisted in the statement made by the husband to the person who took the notes, in which he said in the presence of the defendant, “ you are now perfectly safe, because I am insured for ten thousand dollars for her benefit.” And what was so said created no charge upon these policies, or the moneys payable to the defendant, by their terms. They were effected in this State in companies exisiting under the laws of this State, and for that reason were controlled as to their disposition by its laws. And while it was provided that a married woman might assign or transfer her interest in such insurances at the time when these notes were made, still that could only be done in the manner prescribed by the statute, and that was either by her last will and testament, or an instrument of that nature, or by a deed duly executed and acknowledged in the same manner as is required by law to pass her dower right in the lands of her husband. (Chap. 821, Laws of 1873, §2.) No attempt was made whatever to comply with what this statute has prescribed for the purpose of transferring such an interest, and for that reason the plaintiffs did not become entitled to claim it. What was said at the time when tlie notes were made was entirely ineffectual for this purpose under this provision of the law. So it was as the preceding statutes were enacted, for by them the policies as well as the am ount due upon them were wholly protected against liability for the debts of the defendant’s husband. These were his debts and she was simply a surety for their payment, and for that reason they formed no legal claim in favor of the plaintiffs against the moneys held under the terms of these policies. That was held in the case of Barry v. Equitable Life Assurance Society (59 N. Y., 587).

And the fact that the notes were made in Yirginia does not change the application of this principle, because the policies themselves were obtained in this State from insurance companies existing under its laws. (Id., 594.)

Even if it should be held that the insurances were not within the protection of the statutes which have been referred to, because they were not issued in the name of the wife, or that of some other person as her trustee, no change would be made in the rights of the plaintiffs against her. Eor if the policies were not within the protection of the terms of the statute, then as the premiums were probably paid by the husband they .would be his property, capable only of being reached by proceedings against his personal representatives. (Id., 593.) To enable the plaintiffs to maintain their action against the defendant at all, as she had no other separate estate than the right to demand these moneys under the terms of the policies, it was necessary that the debts mentioned in the notes should have been made a charge upon this interest. But that was not done by anything transpiring between these parties. They wholly failed to comply with what has been required for that purpose by the terms of the act of 1813. And because of such failure the provision of the statute declaring that the insurance should be free from the claims of creditors of the husband, apply in their full force to the case, and thereby prevent this indebtedness from becoming a charge upon the moneys due to her .under the terms of these policies. The judgment in the case was right, and it should therefore be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed


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    MARGARET MANNING, Administratrix, etc., Appellant, v. THE QUICKSILVER MINING COMPANY and WILLIAM H. MARSTON, Respondents.

      Undeclared and undivided earnings of a company — a/t'e inddents to the shares of stock, and canmt he assigned separately from them.

    The owner of certain preferred shares of stock in a mining company, after having sold the same and delivered the certificates thereof to one person, assigned to another all his right, title and interest in and to the interest due upon the shares of stock which he had previously owned. By the terms of the certificates the company agreed to pay interest upon them annually out of its net earnings, at the rate of seven per cent per annum for each year, provided so much had been earned in the year preceding. It did not appear that any separation of this interest from the other funds of the company had ever taken place, or that any of the earnings had been in any form appropriated or assigned to the payment of this interest.

      Held, that the right to recover the interest was merely an incident to the shares themselves, and depended upon the title thereto, and that the assignee of the said interest could not sue to recover the same and compel the company to account therefor.
    Appeal from a judgment, entered upon orders sustaining demurrers interposed to the complaint.

      John B. Dos Passos and Stephen P. Nash, for the appellant.

      William Dorsheimer, for the respondent Marston.

      Joshua M. Van Cott and John Winslow, for the respondent, the Quicksilver Mining Company.
   Daniels, J.

The complaint in this action alleged that Jameson, Smith & Cutting were the duly registered owners, on the books of the Quicksilver Mining Company, of certain shares of its preferred stock, and that they were the owners of these shares in May, 1813. It also alleged that S. J. Drake in the same manner owned other shares of that stock on the days mentioned in the complaint. After that time it was stated that Jameson, Smith & Cutting and S. J. Drake sold, assigned and transferred to purchasers all of their preferred shares of such stock, and delivered the certificates for the same to the purchasers, and since then that the defendants Kemp & Marsden had succeeded to or represented such purchasers. It was then averred, after stating the appointment of the plaintiff as administratrix, that after the assignments made of the shares themselves, Jameson, Smith & Cutting and Drake, by separate instruments in writing, assigned and set over to the plaintiff as administratrix all their right, title and interest in and to the interest due upon the shares of stock which they had so previously owned.

This was followed by the allegation that the plaintiff had demanded an accounting and payment of the amount due from the quicksilver company, which had neglected to account for or pay any part of the amount demanded. By the terms of the certificates held for the stock, the company agreed to pay interest upon it on the 1st day of May, 1871, and annually thereafter out of its net earnings, at the rate of seven per cent per annum for each year, provided so much in the year preceding had been earned.

It is not stated in the complaint that any separation of this interest from the other funds, income or earnings of the company had ever taken place, or that the earnings or any part of them had been in any form appropriated or assigned to the payment of the interest. The complaint in substance simply showed the assignment of the shares to one party, and the assignment of the interest after that had been done to the plaintiff in this action. This was held by the Special Term not to be sufficient to entitle the plaintiff to maintain this action.

The interest which had accrued at the time when the shares were assigned was simply an incident or accessory of the shares themselves. The right to it depended wholly upon the title to the shares, and as no moneys had been appropriated in any form for its payment, the authority to demand it was wholly dependent upon that title. In this respect the case was not distinguishable from that of interest unpaid upon a contract, and the right to recover that has been held to be dependent upon the title to the debt itself. (Clarke v. Alexander, 8 Scott’s New Repts., 147, 165; Florence v. Drayson, 1 Com. Bench [N. S.], 584.)

■ The same rule has been applied to the determination of the right to the undivided earnings of corporations from which dividends should be made for the benefit of the owners of their stock. As long as those earnings continue to be but a portion of the funds of the company without any division or appropriation of them to the payment of the dividends, it has been held that the right to the money has no separate existence from the title to the shares (City of Ohio v. Cleveland & Toledo R. R. Co., 6 Ohio, 489), and this right has been maintained and sanctioned to the same extent by the consideration which has been given to it in the courts of this State. Where an actual division of the earnings has taken place and an appropriation of them has been made to pay the dividends, the owner of the share at that time is entitled to receive them. The right to the money is after that separated from, and for that reason capable of being recovered by the owner of the shares, even though they may be afterwards transferred to another person. (Hill v. Newichawanick Co., 8 Hun, 459.) But where no such division or appropriation has been made, there the earnings constitute a part of the general property of the company in which the owner of the shares is entitled to participate only by virtue of his title to the shares themselves. (Hyatt v. Allen, 56 N. Y., 553; People v. Assessors, 76 id., 202.)

This subject has since been further examined in the case of Boardman v. Lake Shore and Michigan Southern Railroad Company, not yet reported. In that case it was held by the Court of Appeals that the assignment of the shares themselves transferred to the purchaser the right to the dividends upon them which had then been earned, as long as they had not been declared by the corporation. This is a decided authority against the right of the plaintiff to maintain this action. For if the right to such undivided earnings would pass to a purchaser of the shares, certainly the same result attended the assignments of the certificates upon which the interest is claimed by the plaintiff in this action. The determination from which this appeal has been taken is right, and the judgment should be affirmed.

Davis, F. J., concurred.

Fresent — Davis, P. J., and Daniels, J.

Judgment affirmed.


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    JAMES McMULLEN, Appellant, v. PATRICK RAFFERTY, Respondent.

      Statute of limitations — when an action upon a non-negotiable note, pa/yable on demand with interest, is ba/rred — lohen am, indorser thereof is not affected by payments made by the maker.

    As against the maker or as against one who has indorsed his name upon the hack of a non-negotiable promissory note, payable on demand with interest, the statute of limitations begins to run from the time of the making and delivery of the note.
    The party so indorsing such a note is not estopped from setting up the statute of limitations as a defense, by the fact that he has alleged in his answer that payments have been made upon the note by the maker thereof, and that he claims that the same should be applied to reduce the amount due thereon, so long as it does not appear that such payments were made by his direction or have not been ratified by him.

      First National Bank of Utica v. Ballou (49 N. Y., 155) distinguished.
    Appeal from a judgment in favor of the defendant, entered on a verdict directed by tbe court on tbe trial of tbe cause at Circuit, on tbe ground tbat tbe claim was barred by tbe statute of limitations; and also from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before whom the action was tried.
    The action was commenced on February 24, 1879, on two nonnegotiable promissory notes for $1,200 each, dated tbe 20th day of February, 1873, made by one William J. Hughes, payable to tbe plaintiff on demand, with interest from tbe 1st day of January, 1873, and indorsed by tbe defendant.
    Hughes died on tbe 5th of December, 1878, and letters testamentary were issued to tbe defendant and another, as executors of bis will, on tbe 20th of January, 1879. On the 19th of February, 1879, payment of tbe notes was demanded of the defendant, as executor, and on tbe next day notice of protest and non-payment was given to tbe defendant; whereupon, on the 24th of February, 1879, this action was brought.
    Tbe answer sets up, among other things, “ tbat tbe maker paid tbe interest on both sets of notes from tbe time of the original loan every six monthsand also, “ tbat tbe said. Hughes, in his lifetime, paid on account of the $2,400 referred to, * * * various sums of money, which, with the interest thereon to April 1, 1879, amount to the aggregate sum of $1,138.27, which * * this defendant claims should be applied in part payment of the amount claimed in this action.”

      John E. Burrill, for the appellant.

      Warren C. Brown, for the respondent.
   Daniels, J.:

This action was brought to recover the amount unpaid on two promissory notes made by William J. Hughes and indorsed by the defendant. It was not commenced until the 24th day of February, 1879, and because of that circumstance the statute of limitations was relied upon and held to be a defense. The notes were not negotiable, but they were made payable on demand to the plaintiff with interest. As the law of this State has been settled in its application to instruments in this form, the period during which an action may be brought for the recovery of the debt begins to run at the time when they are made. A different construction was intimated to be proper as to the parties to a promissory note payable with interest in the decision of the case of Merritt v. Todd (23 N. Y., 28, 34). The point, however, which was presented for determination in that case was simply that of the liability of the indorser, and what was there said upon this subject has since been “so far restricted as to include only the liability of such a party. (Wheeler v. Warner, 47 N. Y., 519.) As to the maker himself, although the obligation may be payable with interest, the principal still exists, which subjects it to the operation of the statute of limitations from the time when the instrument is made. And the same principle seems to be applicable to the liability of the present defendant. For while he placed his name on the back of the notes, he still, as they were not negotiable, did not incur the liability of a mere indorser. His liability on the contrary has been settled to be either that of an additional maker of the obligation or a guarantor of its payment. (Richards v. Warring, 1 Keyes, 576, 579, 582; Cromwell v. Hewitt, 40 N. Y., 491.) And for that reason the case is not within the decision which was made in Merritt v. Todd (supra).

If by placing his name upon the back of the notes the defendant became an additional maker, he incurred no greater obligation than that of Hughes, who was the former maker of the instruments, and he would consequently be entitled to the same application of the statute of limitations in his favor. And if his contract was that of a merqguarantor, the obligation imposed upon him was that he would pay the debt if Hughes failed to do so. And as such failure did arise out of the maturing of the notes themselves at the time of their delivery, the defendant then became liable, and the statute for that reason immediately began to run in his favor. The presumption is that he placed his name upon the notes at the time when they were made. (Pinkerton v. Bailey, 8 Wend., 600.)

And that presumption seems to be supported by the circumstances attending the making and indorsement of these instruments, as they have been construed by the courts. An action against the maker must be brought within six years from the making of the contract. (De Lavallette v. Wendt, 75 N. Y., 579-583; Hirst v. Brooks, 50 Barb., 334.) These decisions rest upon the principle that the debt created by such an obligation is due at once. And if that be true as to the actual maker, it must be equally so as to the party who placed his name upon the back, and for that reason becomes in judgment of law another maker, or a guarantor, for the payment of the debt. Whatever may be the true nature of his obligation it must mature as soon as a default in payment has taken place. For that reason a party whose name is placed upon the back of such an instrument at the time which it was made cannot be rendered liable beyond the period of six years from the time when the default in payment is made.

It has been insisted, however, that the defendant has precluded himself from taking advantage of the provisions of the statute by the allegations contained in his answer. The portion of the answer which is relied upon as sustaining this position is that relating to payments claimed to have been made upon the debt. It is not averred that the defendant himself, either directly or indirectly, made these payments, but it is stated that Hughes in his lifetime made them from time to time by way of paying the interest accruing up to the 1st of April, 1879, and that averment is followed by the claim made by the defendant that the payments should be applied in part payment of the amount claimed in the action.

The case of the First National Bank of Utica v. Ballou (49 N. Y., 155) is relied upon as an authority depriving the defendant of the benefit of the statute because of these allegations.

But in that case it appeared that the payments had been made by the maker of the paper for the benefit and in the name of the defendant, and that he either authorized or afterwards sanctioned the act of the maker in making such payments. For that reason it was held that he had ratified the act of the maker so far as he professed to act on behalf of the defendant. From these features of that case it will be seen that it differs materially from the present case. For while it did appear that such payments as were alleged in the answer had been made, they were still made by Hughes upon his own account. There was no intention either on his part or on the part of the defendant that the payments should be made by him as the agent of the latter, and such was not the fact; but they were made solely and wholly by Hughes as the principal debtor, for the purpose of discharging in part the obligations existing against himself. Incidentally, it is true, they benefited the defendant. But they were not payments made by him. Neither were they claimed to be so in the answer in the action. The claim, on the contrary, was that Hughes had made the payments, and because he had made them upon these obligations, they should be applied by way of reducing their amounts. To deprive the defendant of the benefit of the statute it was necessary that the payment should be made by him, or by some person acting for him and under his authority, or whose act in that form should afterwards be adopted or ratified by him. The fact that Hughes, the maker of the paper, made the payments for the purpose of reducing his own liability, and incidentally that of the defendant, was not sufficient for that purpose. (Hulbert v. Nichol, 20 Hun, 455; Smith v. Ryan, 66 N. Y., 352.) And no such agency, ratification or adoption as the law requires to deprive the defendant of the benefit of the statute, can reasonably be inferred from the simple circumstance that he claimed that payments made by Hughes should be applied in reduction of the amount demanded by the plaintiff in the action. It was not intended by the defendant to make Hughes his agent by the allegations contained in his answer. No such import can reasonably be given to the terms which were employed, and the absence of such an intent is clearly disclosed by what immediately afterwards followed. For the defendant then formally availed himself of his right to the benefit of the statute by alleging as a defense that the cause of action did not accrue within six years before the commencement of the action. The intention of the defendant, as it was disclosed, was simply to assert his right to the reduction of a debt because of the payments which Hughes himself had made, and in that way to restrict the recovery to what might be owing to the plaintiff in case, for any reason, he should be deprived of the benefit of the other defense arising under the statute of limitations.

There was no impropriety in the defendant availing himself of these several defenses, and the fact that he relied upon one should not deprive him of his right to resort to the other, when that was no part of the design or purpose of his answer.

.The judgment in the case appears to have been right, and it should accordingly be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs to the respondent.