text:
    Emma Roberts, Resp’t, v. Union Elevated Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Attorney and client—Lien.
    Where a settlement is had between the parties without the knowledge of plaintiff’s attorney, and a judgment in favor of plaintiff is satisfied, the satisfaction will he set aside to the extent of the attorney’s lien.
    Appeal from an order, granting a motion to set aside satisfaction of a judgment rendered in favor of plaintiff, and from an order denying a motion for a reargument.
    Hoadley, Lauterbach & Johnson, for app’lt; Stephen M Hoye, for resp’t.
   Dykman, J.

The plaintiff recovered a judgment against the defendant in this action for $175, damages, and $73.11, costs, which made together $248.11. , The defendant appealed from the judgment, and, pending the appeal, a settlement was reached between the parties, without the knowledge of the attorney for the plaintiff, through the intervention of William H. Grace. The sum paid upon such settlement was $225, of which Grace received $50, and the plaintiff $175, the amount of her verdict. Thereupon a motion was made by the plaintiff’s attorney to set aside the satisfaction of the judgment. That motion was argued, and an order was made setting aside the satisfaction of the judgment to the extent of $73.11, the costs of the plaintiff’s attorney, which he was allowed to collect. The defendant appealed from that order, and, while the appeal was pending, the defendant made a motion for a reargument of the original motion. That motion was denied, and the defendant has appealed from that order also. These orders are so obviously right and just that argument or authority in their support are unnecessary, although the orders are welVsustained by both. Both orders should be affirmed, with $10 costs and disbursements.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Sylvester Outhouse, Resp’t, v. Angeline Odell, as Executrix, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Costs—Disbursements—Executors.
    Where a claim against a decedent’s estate has been referred, disbursements may be allowed to the claimant, though no costs are given. .
    Appeal from an order, affirming taxation of costs.

      W. H. H. Ely, for app’lt; Smith Lent, for resp’t.
   Pratt, J.

It is clear from an examination of the case of Larkins v. Maxon, 103 N. Y. 680; 3 St. Rep. 642, that the provisions of the old Code (§ 317) were not repealed by Laws 1880, c. 245; Code Civ. Proc. At the time this decision was rendered, §§ 1835 and 1836 of the Code of Civil Procedure were in force, and now are in force, and § 317 of the old Code is in force, unless repealed by chapter 686 of Laws of 1893. The chapter last mentioned provides that, on the entry of the order of reference, the proceeding shall become an action in the supreme .court, and that the reference shall be governed on the question of costs by §§ 1835 and 1836 of Code of Civil Procedure. We therefore see that §§ 1835 and 1836 of Code of Ciyil Procedure are not inconsistent with § 317 of the old Code, and that disbursements can be allowed where no costs are given by the decision/ A distinction between costs and disbursements seems to have been maintained ever since the passage of § 317 of the old Code. The Laws of 1893 (chapter 686) make no reference to disbursements whatever; therefore there has been no change in the law in regard to disbursements since the decision in Larkins v., Maxon, supra. The Laws of 1893, before referred to, besides making the proceeding an action in the supreme court, provided that the referee, in allowing or withholding costs, should be governed bv §§ 1835 and 1836 of the present Code; and, as we have already seen, those sections make no reference to disbursements, and, notwithstanding those provisions, disbursements can be allowed. A remarkable construction is that the legislature, by passing chapter 686 of Laws of 1893, only intended to substitute a reference under the Revised Statutes for one under the Code, as they made ho mention of disbursements in that statute. By not repealing section 317 of the old Code, and making no allusions to the subject, I think it a fair inference that the legislature intended to make no change in the existing law on that subject. With some hesitation, we feel constrained to affirm the order with $10 costs and disbursements.


author: Per Curiam.

text:
    James Jarvis et al., as Commissioners, etc., App’lts, v. James M. Waterbury et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Office and officer—Term of office.
    Section 3, article 10 of tile State Constitution, does not apply to cases where the tenure of office is fixed by statute.
    2. Same—Commissioners of improvement.
    Since chapter 453 of 1889 provides that a vacancy, occurring in the office of commissioners of improvement, shall be filled by the remaining commissioners, the duration of their office is provided for by statute, within the meaning of such section of the Constitution.
    Appeal from an order, denying an application for the delivery of books, etc., to successor in office.

      Seward, Baker, for app’lts; Martin J. Keogh, for resp’ts.
   Per Curiam.

Affirmed, on opinion of the judge at special term, and on the additional ground that the remedy sought should have been by quo warranta.

Order affirmed, without costs.

The opinion of Mr. Justice GtAyuor, at special term, is as follows :

Section 3 of article 10 of the 'constitution of this state provides that, “ when the duration of any office is not provided for by this constitution, it may be declared by law, and if not so declared such office shall be held during the pleasure of the authority making the appointment.” This relates not only to offices existing at the time of its enactment, but also to offices created since. People ex rel. Lyndes v. Comptroller, 20 Wend. 595. But it relates only to cases where the appointment is continuous, and not to cases where the power of appointment is exhausted when once exercised. Bergen v. Powell, 94 N. Y. 591. In other words, and more plainly speaking, it does not apply to cases where the tenure of office is fixed by the statute. In the present case the statute (chapter 453, Laws 1889) fixes the tenure of office. Section 1 authorizes the supervisor to appoint five commissioners, who, shall be a body corporate, and known as the “Commissioners of improvement.” Section 3 provides that, whenever a vacancy shall occur through death, resignation, or refusal to act, the remaining commissioners shall appoint a person to fill the vacancy, and, in default of their so doing, the supervisor shall fill it. It is therefore obvious that the statute has provided for the creation of a body corporate by the appointment of five persons by the supervisor, and for its perpetuity by the filling of vacancies. The duration of the office of the commissioners is “ provided” for in this scheme of the statute. The statute makes the tenure unlimited. It creates a body corporate, with the attribute of perpetual succession by means of its own members filling vacancies. It cannot therefore be said that the statute does not provide for the duration of the office. Chapter 302 of the Laws of 1859 presents an instance of the appointing officer’s power being exhausted by making the appointments. People ex rel. Brown v. Woodruff, 32 N. Y. 361. The provision in section 3 that “ the said officers shall hold their respective offices for one year ” refers to the officers of the body corporate provided for in the preceding sentence,—the president, treasurer and secretary. It is also fatal to this application that the supervisor has never removed the three remaining members of the body corporate, if he had the power. It is aside from the case, but it should be considered whether the body has the power to act while a vacancy exists. People ex rel. Henry v. Nostrand, 46 N. Y. 375. The motion is denied without costs.


author: Brown, P. J. Pratt, J.

text:
    John Hutchinson, Resp’t, v. Ann Hutchinson, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Trusts—Statute of frauds.
    Under § 6 of 2 R. S., 134, a trust maybe proved by any writing subscribed by the trustee, but it cannot be proved by paroi. The statute of frauds cannot thus be set aside.
    Appeal from a judgment in favor of plaintiff.

      Cornelius E. Kene, for appl’t; Martin J. Keogh, for respt’t.
   Brown, P. J.

The judgment appealed from in this action has adjudged that a certain deed dated January 13,1871, executed by the plaintiff to the defendant, was not an absolute conveyance of the land therein described, but that the same was accepted and received by the defendant in trust for the plaintiff, and for his use and benefit It further adjudged that the plaintiff and defendant were tenants in common of said premises in equal proportions, and that the defendant should, within five days after the entry of the judgment, convey to the plaintiff an equal undivided one-half of the premises described in the complaint, and that she should forthwith account to the plaintiff for all rents and income received by her from said property. It awarded other relief, which is not necessary to be stated or referred to.

The facts upon which the judgment is based, as they have been determined by the trial court, are as follows: Prior to January 13, 1871, the plaintiff and defendant, who are brother and sister, were tenants in common of the real estate described.in the complaint. On that day, by a bargain and sale deed, expressing a consideratian of one dollar, the plaintiff conveyed his interest in the land, consisting of'an undivided one-half thereof, to the defendant. The plaintiff’s testimony, as to the transaction which resulted in the execution and delivery of the deed was, in substance that, after the title was taken in both their names, he and the defendant entered into possession. Shortly thereafter the defendant said to him that it was not necessary to have both names in the deed; that one was sufficient, and he said he was satisfied to have the property pnt in her name, so long as he got his share; that she said he would get his share, and he accordingly went to a lawyer’s office with defendant, and executed the deed; and that he understood that his title was the same after as before the conveyance, and that it did not affect his ownership at all. The conrt found the facts to be that the deed was signed by the plaintiff, and delivered to and accepted by defendant, upon the distinct agreement between the plaintiff and defendant that it would in no way affect or destroy plaintiff’s interest in the property, and that the deed should not be construed as vesting the title absolutely in the defendant, but that she was to hold the same for the joint use and benefit of the parties. The appellant has discussed upon his brief very fully the proposition that neither the allegations of the complaint nor the testimony of the plaintiff was sufficient to establish such a fraud or misrepresentation as would justify a court of equity in setting aside the conveyance. But that element is eliminated from the case by the concession of the respondent in his first point, that “ no fraud is charged against the defendant in the procuring of respondent’s signature to the deed.” Neither does the case present those elements usual in constructive or implied frauds. There was no fiduciary relation between the parties. They did not occupy relations to each other where the defendant naturally exercised any influence over the plaintiff. She owed no duty to him whatever. The parties were laboring people, of little education or information. The court has found as a fact that the defendant could neither read nor write, but that is not found to be the fact with reference to the plaintiff. The evidence would not permit the conclusion-that the defendant had overreached the plaintiff, and taken any undue advantage of him, so as to charge her as a trustee ex maleficio, and impress upon the land a trust by reason of constructive fraud. The plaintiff, at the time of the execution of the deed, was about forty-two years of age, and there is nothing in the evidence to indicate that he was not as fully informed as to his rights and fully as able to protect them as the defendant. The case does not present a mutual mistake or misapprehension of the respective rights of the parties. The plaintiff understood the transaction perfectly. He intended to convey his interest in the land to the defendant, and he relied for his protection upon the verbal agreement to hold it in trust for him.

Such being the case presented, the judgment cannot be sustained. The statute of frauds (2 Rev. St. 134, § 6) provided that “ no estate or interest in lands * * * nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created unless by act or operation of law or by a deed or conveyance in writing subscribed by the party, created, granting, assigning, surrendering or declaring the same or by his lawful agent thereunto authorized by writing." Section 7 provides that the preceding section shall not be construed “ to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same." Under this statute, a trust may be proved by any writing subscribed by the trustee, but it cannot be proven by paroi. The reported cases where it has been attempted to establish the trust by paroi evidence are numerous, but the decisions are uniform that the statute cannot thus be set aside. Cook v. Barr, 44 N. Y. 156; Levy v. Brush, 45 id. 589; Wheeler v. Reynolds, 66 id. 227; Hutchins v. Hutchins, 98 id. 56; Hurst v. Harper, 14 Hun, 280 ; Hubbard v. Sharp, 11 St. Rep. 802; Bauman v. Holzhausen, 26 Hun, 505 ; Gould v. Gould, 51 id. 9 ; 20 St. Rep. 674. The statute excepts from its operation trusts arising “ by implication or operation of law.” Without referring to adjudged cases for the meaning of these words, it may be said, in a general way, that, aside from resulting trusts and trusts declared pursuant to settled rules of equity applied to the presumed intention of parties, the term has reference to trusts ex maleficio, where the court proceeds upon the proof of fraud, and enforces agreements notwithstanding the statute. But a mere breach of an oral agreement to convey an interest in land is not such a fraud as will authorize the court to interfere. Wood v. Rabe, 96 N. Y. 414. The testimony of the plaintiff may be construed to create a paroi trust in the land for his benefit, or a paroi agreement to reconvey the land to him at his request. In either view, the contract, not being in writing, was within the statute of frauds, and void. The statute of frauds was not specifically pleaded as a defense. The answer, however, alleged that defendant had an absolute title to the land under the deed from the plaintiff, and that the facts set forth in the complaint did not constitute a cause of action, and upon the trial, before any testimony was given, the defendant moved for judgment upon the pleadings. The point we have considered, and upon which our decision rests, is sufficiently presented by the exception to the denial of that motion. The judgment must be reversed, and there should be a new trial.

Pratt, J.

(concurring).—This is an appeal from a decree in favor of the plaintiff, declaring that a deed given by the plaintiff, dated January 13, 1871, of one undivided half interest in certain real estate in Westchester county, is void, etc. The action was commenced on the 13th of January, 1894. The defendant is a sister of the plaintiff. It appears that on the 7th of October, 1870, they purchased the property at a sheriff’s sale at the price of $850, and took a deed in their jointnames, and each contributed portions of the purchase money, the plaintiff considerably more than the defendant, and they joined in a mortgage for $500, to pay the balance of the purchase money, which the plaintiff afterwards paid off, and took an assignment of the mortgage, which he now holds, and upon which he commenced a foreclosure suit that- is now pending and undetermined. The mortgage was paid off prior to May 28,1873, and the assignment recorded on that day. The plaintiff alleges in his complaint that prior to and after October, 1870, and up to the 13th of January, 1871, the defendant continually and persistently represented to the plaintiff, who was illiterate and entirely destitute of business bnowlege and ability, that it was annoying and unnecessary that both names should appear on the tax book or in the deed, and that it was only the occasion of extra annoyance, and she could manage and protect their joint interests more easily, and that his interest would not be affected, relinquished, or destroyed thereby. He also alleges that defendant has collected all the rents of said property; that he never intended to convey said property; that defendant has not kept her promise, but now ■claims title to the whole property, and denies the plaintiff has any title or interest in said property; and that he has always retained joint possession of said property with the plaintiff. No fraud is charged or proved on part of the defendant to induce plaintiff to sign the deed. The defendant denies the whole story of the plaintiff as to the cause of his making the deed. There can be no. doubt, from the evidence, that plaintiff signed the deed well know ing that the effect of it was to put the whole title in the name of the defendant, for her to manage, pay taxes, and take entire charge of the property, as she has continued to do for more than 20 years previous to the suit. This is also evident from the fact that when he paid off the mortgage he took an assignment of it, and on the 3d of November, 1893, commenced an action of foreclosure upon it, naming Ann Hutchinson as sole defendant. The question is, can a deed, understandingly and voluntarily given, after such a lapse of time, be wiped out of existence by paroi evidence such as is disclosed in this case ? The claim is that the plaintiff should retain his interest in the land notwithstanding the deed. To prove this, it was necessary to vary by paroi the terms of the deed. It is to be observed that the decree here is not for a specific performance of a promise made by defendant, but a decree that the deed was void, without a particle of evidence that it was obtained by deceit, fraud, or duress. If it is claimed that the defendant received it in trust for the plaintiff, the answer to that is that a trust in lands cannot be created without an instrument in writing. If it is assumed that the deed was given upon a promise which has not been kept, the statute of limitations has long since barred a recovery. This is a stale demand, that ought not to be encouraged by a court of equity. 12 Am. & Eng. Enc. Law, p. 534, and cases there cited; Story, Eq. Jur. § 1520. In no view of the case can the action be maintained. • Judgment reversed, and new trial granted.


author: Brown, P. J.

text:
    Abraham Simon et al., Resp’ts, v. John H. Vanderveer, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Vendor and purchaser—Title.
    A pending action, brought to establish title to, or lien upon, land does not, of itself, nor does a duly recorded notice of its pendency, make the o title defective, or create a lien on the land.
    2. Same.
    A vendee of real estate is not justified in refusing to accept the title tendered upon the sole ground that a third person asserts or claims some interest therein.
    Appeal from a judgment, entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      Herbert T. Ketcham, for app’lt; Jacob Manheim, for resp’ts.
   Brown, P. J.

The respondents are vendees of real estate in the city of Brooklyn, under five contracts of sale; and this action is against their vendor, to recover the amount paid on the purchase, with interest, together with expenses of the examination of the title. At the close of the testimony, both parties having moved for a direction, the court directed a verdict in favor of the respondents, for the amount claimed. The ground of the action is that the defendant’s title was defective, or sufficiently doubtful to be unmarketable.

The contracts of sale were all executed and bear date in June and July, 1891. The deeds were to be delivered and the purchase money paid on October, 5, 1891; and this time was subsequently •extended, by agreement, to October 5, 1892. On that day, defendant tendered deeds for the land, proper and sufficient in form; and plaintiffs were ready and willing to fulfill their part of the contract, but objected to the title on the' sole ground that it was defective and incumbered by reason of a certain action then pending between one George W. Dalton and the appellant, in which action a lis pendens and complaint had been filed in the clerk’s office of Kings county on September 29, 1892. The answer denied that the appellant’s title was defective or incumbered, and averred that- he was ready and willing to carry out the contract, .and convey a good title to the respondents. It is unquestioned that prior to February 25, 1891, the appellant’s title was good. On that day he entered into a written contract with Dalton, which, .after reciting that appellant was the owner of sixty-five acres of land in the twenty-sixth ward of Brooklyn, set forth the following agreement of the parties : Dalton was to act as agent for the ■•appellant in the surveying of said property, opening streets through the same, laying out lots, and for the sale thereof. Appellant was to accept $3,000 per acre for the land, the number of acres to be determined by the survey. He was to pay the cost of the improvements, and the cost thereof was to be added to the aforesaid •stated sum per acre. He was to accept in payment of said stated value of said property all purchase money paid and purchase-money mortgages received under all sales to be made, until the total sum of money and mortgages received therefrom should equal the price of the total number of acres at said price of $3,000 per acre. The fifth provision of the contract was as follows:

“5th. It is hereby further agreed by and between the within-named John H. Vanderveer and George W. Dalton that after said sales (as hereinbefore mentioned) of all or a portion of above-named premises the proceeds of said sales are to be paid out as follows, viz.: The said John H. Vanderveer is first to be paid the total sum of number of acres at the stated price of $3,000 per acre, the same to be determined by said survey to be made, with the further total sum paid out for all of said improvements as hereinbefore provided. The remaining part of said plot of land, or profits thereof, after the above is fully complied with, to be paid out in manner following, viz.: The said John H. Vanderveer is to receive three-quarters—that is, seventy-five (75) per cent.—thereof, and the said George W. Dalton is to receive the balance, one-quarter—that is, twenty-five (25)‘per cent.—thereof.”

The contracts with the plaintiffs were made pursuant to this agreement. They were witnessed by Dalton, and refer to the lots by numbers upon a map made by him. It is plain that, under this contract, Dulton did not acquire any title to or interest in the land. The plain intent and agreement of the parties was that the land should be sold, and appellant should receive $3,000 per acre, together with the cost of the improvements. After such sum had been paid in cash, and purchase-money mortgages received from sales, the proceeds from the sale of the balance of the land were to be divided between Dalton and the appellant in the proportion specified in the fifth clause of the contract. It was not contemplated that Dalton should have any estate in or incumbrance upon the land itself. The title was always to remain in the appellant, and was to pass fronf him to the purchasers of the lots. The contract did not, therefore, impair the appellant’s title, or create any incumbrance thereon, and no claim or assertion of any interest in the land by Dalton could, as a fact, create any defect therein.

It is the respondents’ claim that they established their cause of action by proving the pendency of the action between Dalton and the appellant, and the filing of the lis pendens, and that they were not bound to introduce the contract between them. This claim amounts to nothing on this appeal, as the contract was put in evidence" by the appellant, and the court’s final ruling in directing a verdict was based upon it, and involves its construction. In holding that the title was doubtful and unmarketable, we think the learned trial court erred. The burden rested upon the plaintiffs to prove their alleged cause of action. The gist of their claim was that the appellant’s title was defective by reason of some incumbrance thereon held by Dalton. The-fact essential to plaintiffs’ case, to be proven, was not that Dalton claimed an interest in the land, but that he possessed such an interest, or that the claim which he asserted was based upon such facts, that the result of the trial of an action in which the claim would be at issue would be doubtful. A pending action brought to establish title to or lien upon land does not, of itself, nor does a duly-recorded notice of its pend-ency, make the title defective, or create a lien on the land. Hayes v. Nourse, 114 N. Y. 595; 24 St. Rep. 569. The introduction in evidence of the lis pendens and complaint, and proof of their filing in the clerk’s office, did not, therefore, show that the title was defective. It only showed that Dalton asserted some interest therein. The plaintiff was bound to go further, and show the facts on which the claim rested. “A vendee who refuses to take title upon the ground of defect therein must point out the objection, and give proof tending to establish it, or to create such a doubt in respect thereto as to render the title unmarketable. If defect or doubt is disclosed on the face of the record title, he need go no further, but if it depends upon some extrinsic fact, not disclosed by the record, he must show the fact which j ustifies his refusal to accept the title tendered.” Greenblalt v. Hermann, 144 N. Y. 13; 62 St. Rep. 859. The defect alleged in the appellant’s title did not appear on the face of the record. It depended upon the contract, which was alleged in Dalton’s complaint. When the plaintiffs rested their case, they had established no cause of action, as he had shown only that Dalton asserted some claim to the land. They had not shown that it was founded on fact, or raised a question of such doubt as to make the appellant’s title unmarketable. When the contract was introduced by the appellant, it appeared conclusively that Dalton had no interest in the land. A vendee of real estate is not justified in refusing to accept the title tendered upon the sole ground that a third person asserts or claims some interest therein. His refusal must rest upon some substantial grounds, and the burden is cast upon him to show the facts which render the title defective. In Ferry v. Sampson, 112 N. Y. 415; 21 St. Rep. 577, it was said, in speaking of an objection to a title under a decree in partition, that:

“The rule is not. absolute that a disputable fact, not determined by the judgment, is in every case a bar to the enforcement of the sale. It depends in some degree upon discretion. If the existence of the alleged fact which is supposed to cloud the title is a possibility merely, or the alleged outstanding right is a very improbable or remote contingency, which, according to ordinary experience, has no probable basis, the court may compel the purchaser, in such a case, to complete his purchase.”

In that case an objection to the title was overruled, although there was no proof of the death of a former owner of the land, or, if dead, that he had not left a widow or heirs at law, surviving him.

In Shriver v. Shriver, 86 N. Y. 575, it was said f

“If a title depends upon a fact which is not capable of satisfactory proof, a purchaser cannot be compelled to take it.”

We are of the opinion that, under the contract with the appellant, Dalton acquired no interest in or lien upon the land, and that the trial court should have so ruled. The judgment must be reversed and the complaint dismissed, with costs.

All concur.


author: Per Curiam. Dykman, J.

text:
    David Sandman, Resp’t, v. Horace Seaman, et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Fraudulent conveyance—Inference.
    A fraudulent intent may be inferred, upon a conveyance by a husband to his wife, from the inadequacy of the consideration, where he was indebted at the time and thereby deprives himself of all power to pay the obligation.
    Appeal from a judgment in favor of plaintiff.

      J. J. Bennett, for app’lt; John S. Griffith, for resp’t.
   Per Curiam.

Judgment affirmed, on the opinion of the court at special term.'

Dykman, J.

(dissenting).—This is an appeal from a judgment entered upon a decision of a judge, after a trial before him, without a jury. The action was brought to set aside a deed of conveyance of real property made by the defendant Horace Seaman to the defendant Estelle F. Seaman, who is his wife, upon the ground of fraud. The basal facts are these: The plaintiff, as

the agent of Fisher and Levy, sold a bill of goods to the defendant Horace Seaman in July, 1890, amounting to $129.25. The defendant Horace paid a part of the bill, and a balance of $89.27 remained unpaid in January 1891. The plaintiff paid that balance to Fisher and Levy, at the request of the defendant Horace, who promised the plaintiff to repay him in a few days. Upon being requested to make such payment, the defendant Horace gave the plaintiff his promissory note for the amount, payable in three months, which the plaintiff accepted. When that note became due, it was not paid, and the defendant Horace gave the plaintiff a new note for the amount of the old one and the accrued interest, payable in four months, and upon this last note the plaintiff obtained the judgment which forms the base of this action. On the 27th day of December, 1892, the defendant Horace was arrested, and imprisoned in Raymond Street jail, in Kings county, upon an execution issued against his person upon the judgment of the plaintiff. He was admitted to the jail limits January 3, 1893, and it does not appear that he has ever been discharged therefrom. The judgment upon which he was imprisoned was $203.22. On the 7th day of March, 1891, the defendant Horace executed to his wife a deed of conveyance for certain real property in Queens county, and the trial judge has found that such conveyance was executed and accepted for a consideration far below the actual value of the premises, and with the intent to hinder, delay, and defraud the creditors of the husband, and especially the plaintiff.

There is no proof in the case of any intent to defraud creditors, except the inferences to be drawn from the transaction itself and the surrounding circumstances, and they are insufficient to justify an implication of fraud against the wife. The evidence is uncontradicted which proves an indebtedness from her husband to her in a considerable sum of money, and the law is well settled that a debtor has a legal right to appropriate his property to the payment of one creditor in "preference to another, and it follows that no fraud can be predicated upon such a transaction. All the wife has done in this case is to receive a conveyance of the property in question from her husband in payment of his liability to her, and no fraud can be inferred against.her therefor, because the law justifies her act. The only ground for an inference of fraud or fraudulent intent against the husband is the fact that the property was worth more at the time of the transfer than the husband owed his wife. Assuming the fact to be so, is that a sufficient ground for the inference of a fraudulent intent ? This deed can only be nullified for fraud, and cannot be set aside in this suit for inadequacy of consideration: yet that is all we have, and even that is not very glaring. As we have seen above, a debtor may turn over property to pay one creditor in preference to another, and the exercise of that right signifies an intention to prevent that other from collecting his claim. The very act which the law authorizes has the effect to hinder and delay creditors who are not preferred. Jewett v. Noteware, 30 Hun, 194. Our conclusion is that the finding of fraud is unsupported by evidence, and also that the title of the wife was unimpeached, because it appeared that there was a valuable consideration for the conveyance, and it did not appear that she was aware of any fraudnlent intenten the part of her husband. Starin v. Kelly, 88 N. Y. 421. Under such circumstances, fraud cannot be imputed to the wife, and the conveyance to her cannot be disturbed. We cannot determine the legal effect of the imprisonment of the defendant Horace upon the execution issued against his body upon the judgment of the plaintiff against him, because the facts are not set up in the answer in this action ; and although the evidence was introduced without objection, and is contained in the record, we cannot order an amendment of the answer so as to make it conform to the proof, because the amendment would introduce a new defense. Upon the first ground discussed, the judgment should be reversed, and a new trial granted, with costs to abide the event.

The opinion of Mr. Justice Bartlett at special term is as follows :

The statement made by Horace Seaman, upon his examination in supplementary proceedings, as to the consideration moving from his wife for the conveyance of the property to her, seems to me more credible than his statement on the trial of the present action. Assuming the consideration to have been $1,000, and having regard to the fact that there was a mortgage of $1,000 on the premises, she seems to have acquired the place for about $3,000 less than it was worth, for the evidence indicates that its value was not less than $5,000. This discrepancy is sufficient to warrant the inference of a fraudulent intent in disposing of it at a time when the owner was in debt to the plaintiff, and was putting off the payment of his debt, especially when we find that, by conveying this property away, he deprived himself of all power to pay the obligation. The constructive imprisonment of the defend' ant Horace Seaman within the liberties of the jail was terminated by operation of law, under § 111 of the Code of Civil Procedure, upon the expiration of six months after it began. That period had expired before this case came on for trial, and hence the defendant was not then constructively in custody. The taking of the body of a debtor in execution bars the creditor from all other-remedy for the collection of the debt so long as the imprisonment continues. Koenig v. Steckel, 58 N. Y. 475. It would seem, therefore, that the defendant might have obtained a stay of proceedings if he was on the limits when the summons was served. He does not appear, however, to have raised the objection that the-remedies of the creditor were suspended, or to have brought the-matter in any way to the attention of the court, until the trial, when it was too late, because, as already suggested, the constructive imprisonment had then come to an end. There must be judgment for the plaintiff, with costs against the defendant Horace Seaman.


author: Dykman, J.

text:
    Auguste Dorn, App’lt, v. Town of Oyster Bay, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Towns—Liability.
    To recover against a town for injuries caused by an obstruction in the highway, it must be made to appear that such obstruction existed by real son of the neglect of the commissioners of highways of the town.
    2. Same.
    Such commissioners are not bound to constant vigilance and inspection; of the roads.
    3. Same.
    The evidence, in this case, was held not to be sufficient to charge the-commissioner of highways with knowledge of the fact that the road was-obstructed by snow.
    Appeal from a judgment of nonsuit.

      Grout, De Fere & Mayer (Paul E. De Fere, of counsel), for app’lt; F. H. Van Vechten, for resp’t.
   Dykman, J.

The towns of this state are the primary political divisions. As they exist here, they were unknown to the common law, and are all of statutory creation. They were erected and organized by statute, and all their duties and obligations are prescribed by statute, and they derive their capacity and powers from the same source. In the early history of the state, their capacity was limited, and their duties and liabilities were but few. By the Revised Statutes, each town, as a body corporate, had capacity to purchase or hold property for certain purposes, to sue and be sued, and to make certain contracts in relation to corporate property and affairs. Modern legislation has, however, enlarged their capacity, and indued them with powers, and imposed upon them obligations, similar to those possessed by municipal corporations. During the war of the Rebellion, the legislature passed laws directing the different towns to borrow money to pay bounties to soldiers, and issue bonds of the town as security for its payment. About the year 18 65, several special statutes were enacted by the legislature providing for the opening and grading of wide avenues in Westchester county, and directing the county treasurer to issue bonds of the several towns through which the avenues were to be constructed to pay for the improvements. It was decided that the legislature possessed the power to direct the improvements, and impose the burden ot" paying therefor upon the different towns. People ex rel. McLean v. Flagg, 46 N. Y. 401. So the towns were made legal entities, and clothed with power to incur obligations, and become liable for their payment. Finally the legislature has declared that “ a town is a municipal corporation, comprising the inhabitants within its boundaries, and formed for the purpose of exercising such powers, and discharging such duties of local government, and administration of public affairs, as have been or may be conferred or imposed upon it bylaw.” Laws 1890, p. 1211, § 2. So the liability of towns for injuries caused by defects or obstructions in highways is also the result of modern legislation. Planting themselves upon the fact that the towns had no ownership or interest in the highways within their borders; that even their use did not pertain exclusively to the inhabitants of the towns, but only in common with the whole people; that the officers having the care of the highways were not the agents of the towns, and received no instructions from them—the courts in the earlier cases refused to entertain suits against the towns for the recovery of damages for accidents on the highways therein. As late as the year 1864, the right to maintain such actions was substantially denied in the court of appeals in the case of Garlinghouse v. Jacobs, 29 N. Y. 300, and it was said in that case that from the organization of the state government, down to 1820, there was known no instance in this state of an attempt to enforce a civil remedy in respect to highways. Finally, in 1870, the court of appeals decided in favor of the right to maintain such actions against commissioners of highways. Hover v. Barkhoof, 44 N. Y. 113. After that time actions of that character were frequently sustained, down to 1881, when the towns were made liable, by a special statute (Laws 1881, c. 700), for damages to persons and property sustained by reason of defects in highways and bridges, in cases where the commissioners of highways were then liable therefor. In 1890 the towns were made absolutely liable for all damages to persons and property sustained by reason of defects in highways or bridges existing by reason of neglect of commissioners of highways of such town. Laws 1890, p. 1181. This examination manifests the gradual development of the powers and liabilities of the towns in this state, and shows that the underlying reason for the liability of the town for injuries sustained upon the public roads is the negligence of the commissioners of highways. The case before us is an appeal by the plaintiff from a judgment entered upon a nonsuit at the circuit, and from an order denying a motion for a new trial on the minutes of the court. The suit is for the recovery of damages resulting from the death of the plaintiff’s intestate, which is alleged to have been caused by the defective condition of a highway in the town of Oyster Bay, existing by reason of the negligence of the commissioners of highways of that town. The material facts are these : The plaintiff was driving two horses attached to a covered baker’s wagon on Tuesday, the 21st day of February, 1893, between six and seven o’clock in the evening, along a public highway between Bethpage and Farmingdale, in the town of Oyster Bay. The wagon was upset in a bank of snow, and the rear part fell upon the daughter, and she was killed. A snowstorm, accompanied with wind, commenced in that locality five or six days previous to the accident, and continued with more or less regularity and severity, until three o’clock on Monday, the day before the accident. Tne snow was blown and drifted into the road for about one-eighth of a mile in the vicinity of the accident. The snowbank was about three feet deep at that point. Before a recovery can be had against a town in an action of this character, it must be made to appear that the obstruction in the highway which caused the injury existed by reason of the neglect of the commissioners of highways of the town, and we find the record in this case destitute-of proof to establish that essential fact. The time which elapsed between the cessation of the storm of snow and wind at three o’clock on the afternoon of Monday and six o’clock in the evening of Tuesday, when the accident happened, was insufficient to afford time to the commissioners of highways to ascertain the existence of the obstruction in the highway, and an opportunity to remove the same. The duty of commissioners of highways in relation to the removal of obstructions or the reparation of defects is a qualified one. They are required to exercise reasonable care, under all the circumstances, and their negligence is the omission of such care. The towns in this state are not required to maintain the highways within their borders in a condition of absolute safety, and their commissioners of highways are not bound to constant vigilance and inspection of the roads. Ordinary care is the limit of responsibility, and that, denotes such care and conduct on their part as a reasonable and prudent person would ordinarily exercise under similar circumstances. Lane v. Town of Hancock, 142 N. Y. 510; 60 St. Rep, 112. Tested by these rules, the evidence was entirely insufficient to support a verdict in favor of the plaintiff. The duty resting upon municipalities in relation to the removal of accumulations of ice and snow from streets and sidewalks within their limits has been so much and so recently discussed as to render the pursuit of the subject by us unprofitable. Lane v. Town of Hancock, supra; Hubbell v. City of Yonkers, 104 N. Y. 435; 5 St. Rep. 730. It is to be observed, however, that there is an obvious difference between the obligations of rural towns and municipal corporations, like cities and villages, in respect to the care of highways, and the rule is more stringent in respect to the latter than the former. Hyatt v. Village of Rondout, 44 Barb. 386. The fact that the towns are now made municipal corporations will not change this rule, because the reason for it still exists. The facts and circumstances disclosed were insufficient to justify a jury in finding a verdict for the plaintiff, and a nonsuit was therefore properly granted. Lane v. Town of Hancock, supra. The judgment and order denying the motion for a new trial should be affirmed, with costs.


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    The People ex rel. Joseph Wechsler et al., Resp’ts, v. Board of Assessors of the City of Brooklyn, App’lt. The People ex rel. Frederick Marx et al., Respt's, v. Same, App’lt. The People ex rel. Jeremiah P. Robinson et al., Resp’ts, v. Same, App’lt. The People ex rel. William M. Brasher, Resp’t, v. Same, App’lt. The People ex rel. Joseph Wuestl, Resp’t, v. Same, Appl't.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Taxes—Assessment—Review.
    A petition, under chapter 269 of 1880, is not sufficient where it does not allege that the property of the relator is assessed at an overvaluation, or that it is assessed at a higher proportionate rate than property is generally assessed on the same roll.
    Appeal from an order denying a motion to quash the writs of certiorari.

      Albert G. McDonald (Henry Yonge, of counsel), for app’lts; J. Stewart Ross, for resp’ts.
   Dykman, J.

Proceedings were instituted in all the above-entitled actions to review the action of the board of assessors of the city of Brooklyn in the assessment of the property of the relators located in that city. The proceedings in each case were based upon a petition which prayed for a writ of certiorari, and, after the issuance of the writ, the defendant in each case made a motion at special term to quash the same. The motion was denied in each case, and defendants have appealed in each.

The real question upon the motion and upon these appeals has reference to the petition, which is challenged for insufficiency. In the view we take of the question, it will be only necessary for us to examine the statement of the grievance of the relators. In that respect the petitions are substantially the same, and the allegation in respect to inequality is that the action of the board of assessors in making the assessment of the property of the relators is erroneous, unequal, and disproportionate, for the reason that such property is not assessed in the same proportionate valuation as other real property on the same assessment roll. In the case of Wechsler the allegation is that such assessment has been made at a higher proportionate valuation than other real estate on the same assessment roll These proceedings are prosecuted under and in pursuance of chapter 269 of the Laws of 1880. The first section of that act provides for the allowance of certiorari upon a duly-verified petition to review an assessment of property when the , petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, or is unequal, in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll by the same officers, and that the petitioner is or will be injured by such alleged illegal, erroneous, or unequal assessment. The statute, therefore, was designed to furnish a remedy for illegality, inequality, or error. These relators complain of inequality, and base their claim for relief on that ground.

The proceeding is initiated by a petition, which thus stands in the place of a complaint; and while it is necessary only to state resultant facts, as contradistinguished from evidentiary facts, yet such facts must be stated as would justify the granting of the relief sought if the allegations were all admitted. These relators, except Wechsler, all complain that their assessments are unequal and disproportionate, because their property is not assessed in the same proportionate valuation as other real property on the same assessment roll. That, however, is not an allegation that their property is assessed ata higher proportionate valuation than other-property on thesame roll, and such an averment is made essential by the first section of the statute. Wechsler, as we haveseen, charges that his assessment has been made at a higher proportionate valuation than other property on the same roll, and that may be true if one piece of property is lower in proportion than his property. It is noticeable that none of these relators allege that their property is assessed at an overvaluation, or that it is assessed at a higher proportionate rate than property is generally assessed on the same roll; and, unless such is the fact, they have sustained no injury, and are entitled to no relief. People ex rel. Allen v. Badgley, 138 N. Y. 314; 51 St. Rep. 410.

The best exposition of the scope and design of the statute under consideration which has been given by the courts was rendered by Judge Andrews in the case of People ex rel. Warren v. Carter, 107 N. Y. 576; 16 St. Rep. 367, where he said:

“The petitioner must show a state of facts from which a presumption justly arises that the inequality of which he complains will subject him to the payment of more than his just proportion of the aggregate tax, and this presumption is not raised by proof that in a particular instance property is assessed at a proportionately lower valuation than his own.”

Tested by this rule and the decision of the court, in that case and the case of People ex rel. Allen v. Badgley, 138 N. Y. 317 ; 51 St. Rep. 410, we deem all the petitions in these cases defective and insufficient. That conclusion renders the examination of the other questions raised unnecessary, and the orders appealed from should all be reversed, with $10 costs and disbursements in each case.


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    Patrick Mahoney, Resp’t, v. Cornelius Dwyer, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Animals—Liability fob.
    A person is liable for injuries inflicted by a dangerous animal, if he puts him in a place in which he knows the public are in the habit of traveling,0 though such place is not a public street.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      M. L. Towns, for app’lt; Sanders Shanks, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial. After a careful reading of the case, we are satisfied the verdict is sustained by sufficient evidence,. It was not essential to show that the lane where the plaintiff was injured was a public street. A party has no right to put a dangerous animal in a place that he knows the public are in°the habit of traveling. The plaintiff testified that the lane was used by the people as a thoroughfare. This, without any evidence to the contrary, was sufficient to warrant its submission to the jury. As to the exception taken to the ruling of the judge in excluding evidence upon the trial, it may be said that those matters fairly fall within the discretion of the judge whether to allow or refuse the answers to the questions, it being apparent that, whether answered or not, they would have had no legitimate influence upon the verdict; besides, the subject to which the evidence related was fully inquired into, and could not have failed to have been understood by the jury. The injury the subject of inquiry was exhibited to the jury, and experts were examined as to its cause, and the effort to make the plaintiff admit he had suffered from a loathsome disease, after he had refused to answer on the ground that the answer would degrade him, was not material enough to the issue to furnish cause to call for a reversal of the judgment. Even if plaintiff'had had such disease, it furnished no defense to the action, but was urged to account for the scar upon his groin, which was held to have been made with a blunt or semi-blunt instrument. There is another answer to the exceptions: - (1) The questions called for evidence of matters that occurred several years remote from the occurrence under investigation ; and (2) the questions were not put so as to refer specifically to the injury complained of. While we think the verdict was quite ample to compensate the plaintiff, we cannot. say it is so excessive as to call for a reversal of the judgment.

Judgment affirmed, with costs.

All concur.


author: Cullen, J.

text:
    Frederick A. Archer, Pl’ff, v. Lewis N. Archer, Def’t. Emanuel G. Bach, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Judicial sale—Assignee.
    An assignee of the purchaser who, by substituting himself for the purchaser, makes himself a party to the original suit, subjects himself to the jurisdiction of the court and may be compelled to complete the purchase.
    2. Vendor and purchaser—Title.
    The existence of a running stream over the land purchased does not create an easement in favor of other owners along the stream, so as to justify • a purchaser in refusing to accept title.
    Appeal from an order, directing an assignee of the purchaser to complete the purchase..

      Edward L. Kalish, for app’lt; Seward Baker, for resp’t.
   Cullen, J.

This is an appeal from an order of the special term directing the appellant, an assignee of the purchaser, at the sale made under the judgment in this action to complete his purchase. The authority of the court over the immediate purchaser is unquestionable. Requa v. Rea, 2 Paige, 341; Cazet v. Hubbell, 36 N. Y. 677. In Proctor v. Farnam, 5 Paige, 614, it was held that, an assignee,'by substituting himself for the purchaser, made himself a party to the original suit, so far as to entitle him to a determination by the court of his rights, as"against those of his assignor. We cannot see why his rights and his obligations should not be equal. By substituting himself for the purchaser, he has subjected himself to the jurisdiction of the court, to the same extent as the purchaser is.

The only objection to the title is the existence of a running stream over the laud purchased, which, it is contended, creates an easement in favor of other owners along the stream. This objection is not valid. The purchaser is bound to take notice of the physical condition of the property. The case is much stronger than that of a highway, the existence of which was held to be no breach of the covenants of title. Whitbeck v. Cook, 15 Johns. 483. Strictly speaking, the natural stream is not an easement, but an incident of the property itself, like the right to enjoy the soil. Washb. Easem. § 20. In Scriver v. Smith, 100 N. Y. 479, Judge Earl writes, of running streams:

“Such rights have-some semblance to easements, and no harm or inconvenience can probably come from classifying them as such for some purposes. But they are not in fact real easements. Every easement is supposed to have its origin in grant, or prescription which presupposes a grant; and it is quite absurd to suppose that the owner of the land at the head of a stream has an easement, by grant or prescription, for its flow over all the land of the riparian owners, for many miles, to its mouth. Would any of the usual covenants in a deed be violated because a natural stream of water flowed through the land, and the upper owners therefore had an easement in such land ? Clearly not."

The opinion in Huyck v. Andrews, 113 N. Y. 85; 21 St. Rep. 924, was written by the same learned judge, and nowise conflicts with the earlier case. The order appealed from should be affirmed,, with $10 costs and disbursements.

All concur.


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    John H. Trenor, App’lt, v. Fannie A. Le Count et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Mortgage—Foreclosure—Defense.
    Where the mortgagee elects that the principal of the mortgage should become due on default in the payment of interest under the usual interest clause, and institutes a foreclosure action, the motives of the plaintiff or his attorney in foreclosing the mortgage are immaterial, in the absence of any fraud or collusion on the part of either, whereby the mortgagor was prevented from paying the interest or misled in that respect.
    2. Same—Agreement to waive default.
    In case of such default, a promise, subsequently made, to receive the interest, if paid in a specified time, is void for want of consideration.

      Appeal from an order, directing the discontinuance of the action.

      George G. Banks (Henry C. Henderson, of counsel), for app’lt; Cornelius E. Keene, for resp’ts.
   Cullen, J.

This action is to foreclose a mortgage which contained the usual thirty days’ interest clause. Default having been made in the payment of the interest for more than thirty days, the plaintiff elected that the principal should become due, and instituted this foreclosure. The defendants, on affidavits charging the plaintiff’s attorney with unfriendly'feeling towards the defendants, and a desire on his part to harass them, applied for an order staying the action. On that application the court made an order directing the action to be discontinued, upon defendants paying to the plaintiff the interest in default and the, costs of the action to the time of the order. From that order the plaintiff appeals. We think the order was erroneous. There was no charge of fraud or collusion, upon the part of the plaintiff or his attorney, by which the defendants were prevented from paying the interest or misled in that respect. In the absence of conduct,of that character, the motives of the plaintiff or his attorney in foreclosing the mortgage are immaterial. The plaintiff is simply enforcing his legal right. The defendant asserts in her affidavit that after the default the plaintiff promised to receive the interest from her if paid by a specified time. This promise the plaintiff denies. The agreement would seem invalid, as without consideration, but, whether valid or not, its force and effect could only be determined by a proper plea in that respect, and the trial of the issue raised by the plea. Bennett v. Stevenson, 53 N. Y. 508. The order appealed from should be reversed, and motion denied, with $10 costs and disbursements.


author: Cullen, J. Dykman, J.

text:
    Julia M. De Forest, Resp’t, v. Theodore G. Peck et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Mortgage—Subrogation.
    An order, allowing a junior mortgagee, in an action to foreclose the prior mortgage on land as to which an action for partition was pending, to pay off the mortgage and subrogate himself to the lien thereof, on condition that he await the judgment in the partition action, does not prejudice a judgment creditor, who desires to be subrogated in order to force a present sale.
    Appeal from an order, subrogating a junior mortgagee to the lien of the plaintiff’s mortgage.

      Alonzo Wheeler (William W. Green, of counsel), for app’lts; Irving Brown, for resp’t.
   Cullen, J.

This is an appeal by Theodore Gr. Peck and others, defendants, from an order made by the special term directing the plaintiff to assign to J. Harsen Halsted, also a defendant, the bond and mortgage the subject of the judgment of foreclosure made in this action. The appellants have no standing to object to the order, so far e\s it directed an assignment of the bond and mortgage and the judgment thereon. The plaintiff does not appeal. As she could have assigned the mortgage and judgment without the order of the court, and without the consent and against the wishes of the appellants, the appellants cannot assert her rights on this appeal. The appellants can have but one cause of complaint, and that is that the court did not order them to be subrogated to the rights of the plaintiff instead of the defendant Halsted. The question as to which of the parties should obtain the subrogation depended, not only on the situation of the parties, but also on their respective intents Or purposes in acquiring the judgment. The appellants are part owners of the mortgaged premises, and judgment creditors of another part owner, John Peek. Halsted is the holder of a mortgage on John Peck’s interest subsequent to the lien of the appellants’ judgment, and is the husband of another part owner. The mortgaged premises are a part of a large tract of land owned by the defendants as tenants in common, for the partition of which an action is now pending. Halsted asked for the subrogation, that he might prevent a sale under foreclosure, and it was awarded him on condition that he should not sell, but await the judgment in the partition suit. The appellants sought subrogation, that they might force a present sale. The claim is made on their part that they are prepared to bid on the property, and that by a sale under foreclosure they can collect their judgment out of the share of John Peck in the surplus moneys more readily and advantageously than by sale on execution. We are at a loss to discover any equity in this claim. Judgments of foreclosure are granted to enforce payment of the mortgages foreclosed. They are solely for the benefit of the plaintiff, not for that of the defendant. The statute prescribes the rights and _ remedies of judgment creditors, and such creditors have no claim to other or more desirable remedies than the statute and the law give. The right of tenants in common is to have their shares set off, or the land sold in a partition suit; that of judgment creditors is to an execution sale. Neither have any right or equity to have a prior general mortgage foreclosed because it may be "deemed more conovenient to deal with the surplus moneys arising on the sale than with the land itself. The order appealed from should be affirmed, with $10 costs and disbursements.

Pratt, J., concurs.

Dykman, J.

(concurring).—This action was commenced to foreclose a mortgage, and the defendant J. Harsen Halsted was made :a party, as the holder of a mortgage subsequent to the one in suit, covering the interest of one of the common owners of the premises. After the entry of judgment in the action, the defendant Halsted made a motion at special term for leave to pay off the mortgage in suit, and to compel an assignment thereof to him. The motion was granted, and two of the other defendants in the action have appealed from the order. The appeal by the defendants is quite indicative of ulterior designs, because it is quite difficult to see how the appealing defendants can be injuriously affected by the order. Aside from that view, however, the order is plainly just and beneficial, and based upon right, reason, and sound principle. The doctrine of subrogation has its best illustration and most frequent application where a person sustaining the relation of a surety, or who is secondarily liable for the payment of a debt, advances money for its payment. But the doctrine is also applicable where a person is compelled to pay a debt or discharge an obligation to protect his own rights.

The defendant Halsted falls under the latter rule, and his motion was properly granted. Twombly v. Cassidy, 82 N. Y. 155, and cases there cited. The order should be affirmed, with $10 costs and disbursements.


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    Jirah I. Foote, App’lt and Resp’t, v. Lucy R. Bruggerhoff et al., App’lts and Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Will—Land in lieu of proceeds.
    Where a will directs the estate to be divided into shares and gives one share to each of testator’s children, but provides that the executors may, in their discretion, hold any share for the life of the legatee, the rule that, when beneficiaries are entitled to the proceeds of land, they may take the land itself in lieu of the proceeds, does not apply.
    Appeal from a judgment, directing plaintiff to convey certain land to defendants and dismissing a counterclaim.

      M. B. & A. M. Maclay, for pl’tffs; John E. Mann, for def’ts.
   Cullen, J.

There has been, and still is, another litigation between these parties in this court pending in the city and county of Hew York. An appeal from an interlocutory judgment in that case was taken to the general term of the first department. In the report of the decision on that appeal, 66 Hun, 406; 50 St. Rep. 311, there is so full a statement of the controversy between the parties, and the facts out of which the controversy sprung, as to require us to state now only the particular points involved in this action. After the decision of the general term in the Hew York action, the plaintiffs threatened to sell a piece of the testator’s real estate in Yonkers, known as the “homestead.’’ The defendants forbade the sale, claiming that they had the right to elect to receive the property in land. The plaintiffs then brought this action, asking for a judgment declaring their rights, and construing the will in this respect. The defendants answered, counterclaiming—First, a conveyance of the land from the trustees; and, second, the removal of the plaintiffs as trustees, on account of their alleged misconduct. The special term rendered judgment directing the plaintiffs to convey the homestead to the defendants, and dismissed the second counterclaim,. on the ground of the pendency of the action in the county of Hew York. From that judgment both parties have appealed.

We think that the learned trial court erred in directing a conveyance of the homestead to the defendants. The general principle that, when beneficiaries are immediately entitled to the proceeds of real estate, they can elect to take the real estate itself in lieu of the proceeds, is unquestionable. Hetzel v. Barber, 61 N. Y. 1; Garvey v. McDevitt, 72 id. 563 ; Prentice v. Janssen, 79 id. 478. But in the former action the court decided that, under the codicil, each share of the estate was held in trust during, the life of the beneficiary, terminable at any time at the election of the trustees. By that decision we are concluded. Under the decision, none of the defendants except Bruggerhoff, as administrator, took any legal estate in his share,-except a remainder after his own decease, unless the trustees should sooner terminate the trust. It follows that none of the defendants, with the exception named, would, in case of a sale of the homestead, have any right to the proceeds of the sale, and that hence the rule cited has no application. The effect of the judgment of the special term is to abrogate as to this real estate the trust which the general term of the first department adjudged to exist.

The decision of the trial' court that the removal of the plaintiffs as trustees must be sought in a prior action pending in New York seems justified by authority. Groshon v. Lyon, 16 Barb. 461, affirming 2 Edm. Sel. Oas. 321. But we are of opinion that, on the conceded facts, the trial court should have dismissed the complaint. The rule invoked by the plaintiffs as a bar to defendants’ counterclaim for their removal as trustees is equally applicable to their own claim. Every argument that can be adduced to maintain the proposition that the defendants must seek relief in the first proceeding wherein it is competent to grant it applies with increased force to parties who are the plaintiffs in and movers of both actions. The very ground upon which it was held by the general term of the first department that the action then before it would be entertained by the court, instead of remitting the matter to the surrogate, was that the action sought construction of the legal effect of the codicil. The plaintiffs were bound in that suit to obtain a complete determination of the questions sought to be here adjudicated. It cannot be that trustees can bring repeated suits for instructions in their duties and determination of their legal rights, unless good reason therefor be shown. Nor could the trustees have suffered through any error into which they might have fallen on the questions. If they had sold, and the purchasers had taken title, they would merely have had to account for the proceeds. There could have been no liability to the beneficiaries except for misconduct. The suit was therefore unnecessary.

The judgment appealed from should be reversed, and the complaint dismissed, with costs of trial against the plaintiffs, but without costs of the appeal, which was necessary to avoid the erroneous judgment against them.

All concur.


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    In the Matter of the Application for the Probate of the Will of Myra Clark Gaines, Deceased. Julietta Perkins et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1; Appeal—Harmless error.
    A refusal to admit to probate, in this state, a will devising land in another state, probate of which has been refused in the latter state, does not prejudice a devisee.
    2. Same—Surrogate’s court.
    Erroneous rulings of the surrogate in the admission and exclusion of evidence does not require the supreme court, on appeal, to reverse his decree. The latter court may examine and determine the case anew.

      3. Judgment—Foreign—Effect.
    A foreign judgment, though it cannot be impeached in this state, does not establish conclusively between the parties the facts and grounds on which it proceeds.
    4. Will—Probate—Proof.
    The facts and circumstances, in this case, were held to require the rejection of the alleged holographic will as spurious.
    Appeal from a decree of the surrogate, denying probate of a will.

      John A. Grow ( W. W. Goodrich, of counsel), for app’lts ; W. T. Gilbert, for resp’ts William H. Wilder and William W. Whitney; William H. Ford, special guardian for Zulime Whitney; William T. Houston, for William W. Christmas and Rhoda B. Kennedy ; John G. Clark, special guardian for James M. Christmas.
   Cullen, J.

This is an appeal from a decree of the surrogate of Kings county rejecting an alleged will of the deceased bearing date January 8, 1885, and admitting to probate a will of the deceased bearing date January 5, 1885. The appeal is taken by Julietta Perkins and Marie P. Evans. The appellants are not next of kin or heirs at law of the testator, but their sole rights accrue as legatees and devisees under the rejected will. Therefore, if the will of January 8, 1885, was properly rejected, the appellants have no standing to complain of the probate of the prior will of January 5, 1885, and the only question presented is the validity ’of the alleged later will.

The will sought to be probated by the appellants is holographic, and is as follows :

“Mew Orleans, January 8th, 1885. -■
“I, Myra Clark Gaines, being of sound mind, bequeath to my excellent friend Miss Julietta Perkins, as a token of my esteem and love, that part of my estate known as the 1 Fuentes Property,’ and to my friend Mrs. Marie P. Evans one-third of the remainder of my entire estate; the balance to be divided equally between my grandchildren.. I appoint Mrs. Marie P. Evans my testamentary executrix, and attainer óf my entire estate, without bonds. -
“Myra Clark Gaines.”

This will was offered for probate in the district court of the state of Louisiana in 1885, by Marie P. Evans. The will of January 5 was also offered for probate before the same tribunal, about the same time. As far as we can judge from the record, the parties to the litigation that ensued there were Mrs. Evans, Christmas and Wilder, the executors o£ the will of January 5, and Christmas, who intervened as the natural tutor of his children, who are the grandchildren of the testator, Mrs. Gfaines. Another set of grandchildren, the Whitneys, who, with the Christmas children, were the sole heirs at law and next of -kin of the testator, seem in no way to have been made parties to or intervened in these-proceedings. The cases being tiled together, the district court adjudged the will of January 5 defective in form, and rejected it, without prejudice to an application for its probate in the courts of the domicile of the testator, and further adjudged that the holographic will of January 8 be rejected as false, fraudulent, and forged. The appellant Evans appealed from the" decree, so far as it rejected the will offered by her, to the supreme court of the state of Louisiana, where the judgment below was affirmed.

It is conceded by all parties that the domicile and residence of Mrs. Graines was in the county of Kings, in this state. The respondent’s first claim is that the judgment of the court of Louisiana is conclusive in these proceedings against the appellants. As to Miss Perkins, she was not a party to the probate proceedings in Louisiana, and therefore urges that the decree in this proceeding cannot bind her. We think this is immaterial. The only interest of Miss Perkins under the rejected will is as devisee-of lands in Louisiana. The rejected will, not having been executed according to the laws of this state, could, under the provisions of § 2611, Code Civ. Pro6., be proved here only as a will of personal property, and the rejection of the will can in no wise affect her ■rights. She has in fact no standing on this appeal, but the question remains whether the decree of the Louisiana court is conclusive against Mrs. Evans.

That decree undoubtedly established the fact that the rejected instrument was not the will of the testator, so far as administration in Louisiana is concerned. But we doubt whether it had any greater efficacy in this. Apart from any statute, all administrations of estates in different countries are independent, so far as thee matter of strict right of jurisdiction is concerned. It is only as a matter of comity that administration in one jurisdiction respects those in other jurisdictions. Williams, Ex’rs, 263 : Story, Confl. -Laws, §§ 513-518. We think it therefore doubtful, at least, whether, Louisiana not being the domicile of the deceased, the court of Louisiana had any furthei' jurisdiction than to make a decree binding assets within that state. We are not required by the federal constitution to give effect to anything but the judgment. While the judgment itself cannot be impeached, it does not follow that it establishes conclusively between the parties the facts and grounds on which it proceeds, as would be the case ordinarily with domestic j udgments. The weight of authority in this state is against such a claim, though in the federal courts and those of many other states the rule is different. Durant v. Aben droth, 97 N. Y. 132 (opinion, 141); Vandenhuvel v. Insurance Co., 2 Johns. Cas. 451.

It is conceded that substantially the whole assets of the estate »are in Louisiana, and it may be well doubted whether the courts of that state would suffer the administration or disposition of assets within their jurisdiction in accordance with the provisions of a will which they have decreed to be a forgery ; but that fact would not preclude the appellants proving the will here. Without deciding the question of the estoppel of the former judgment, we prefer to rést our decision on the merits. Upon examining the record before us, we find a number of rulings of the surrogate in the admission and exclusion of evidence that we deem erroneous, but this does not require us to reverse his decree. By § 2545 of the Code it is provided that such a decree shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. By § 2586, where an appeal is taken upon the facts, the appellate court has the same power to decide questions of fact which the surrogate has; and it may, in its discretion, receive further testimony or documentary evidence. In pursuance of this power the appellants have taken further testimony, which has been submitted to this court on the appeal. It is settled by authority that an appeal to this court on the facts is substantially a rehearing in equity, and that we may examine and determine the case anew. Burger v. Burger, 111 N. Y. 523; 20 St. Rep. 105; Gardiner v. Gardiner, 34 N. Y. 164. If this be the nature of the hearing, we do not see why we should be concluded by the rulings of the surrogate, and why we may not rule on the evidence presented to us. Under this view of our power, we have rejected the testimony of Mrs. Whitney and Mrs. Davis as to personal transactions with the deceased, holding it to be incompetent, under the rule laid down in Re Smith, 95 N. Y. 526. The indictment of Mrs. Evans and the report of the conventional committee as to her claim were incompetent' evidence against her. This, also, should be stricken out. There is also some slight testimony by some of the witnesses attending the sick bed of the deceased that she could not possibly have written the will. This, also, was incompetent. We have also accepted and considered the evidence produced by the appellants on the appeal to this court, and our decision is based on the record as modified by those rulings.

An examination of the evidence in the cause convinces us that the decree of the surrogate was right, and that the holographic will offered was spurious, and not written by the deceased. We do not rest this conclusion on our own comparison of handwriting, or the testimony of the experts on that subject, but on facts which are clearly established, and our belief as to probabilities of human conduct and actions. We think it clearly appears by the letters of the deceased that, at the end of the year 1882, Mrs. Gaines, who before that time had been extremely friendly with Mrs. Evans, entertained towards her entirely different feelings. •She had not only lost her affection for her, but had formed a derogatory opinion of her character. That, entertaining these views she should have left to the appellant, who was in no wise of kin to her, nor had any claims on her bounty, one-third of her estate, to the depriving her grandchildren,- her daughter-in-law and son-in-law, so much, is most unnatural. The story of how the appellant obtained the will in New Orleans is also improbable to the last ■degree. Even if Mrs. Evans’ story were not contradicted by Mrs. Bradley,, still to believe it would tax the credulity of the court to the greatest limit. Mrs. Bradley directly contradicts Mrs. Evans as to the delivery of the will. We agree with the surrogate that the manner in which the so-called “Bradley restitution” was obtained tends to show that the witness Bradley was not aware of the paper she was signing; but the greatest force which could be given it under any circumstances would be to treat it as discrediting the witness Bradley, and not to operate as affirmative proof •of the facts stated in the paper. o

The theory of the execution of the will is unnatural and improbable. That theory, as now advanced, is that in August, 1884, the deceased wrote the will, with the exception of the date, which was afterwards filled in, on the 8th of January, at New ■Orleans. It was necessary, so far as probate in this state is concerned, to show that the instrument was not wholly completed in Washington, as in such a case the will would not come within the terms of the statute, and be subject to probate here. Whether an holographic will, executed by a nonresident without the state, could be proved in Louisiana, we do not know. If such a will would be valid, there is no reason why its execution should not have been entire at the time. If this will was written, except the date, in Washington, the testator must have left the date blank, from her knowledge or belief that, to make such an instrument valid, the completion of its execution must take place in Louisiana. That this testator had an accurate knowledge on the subject of the law of such wills may be conceded, for she had been in litigation over property coming through such a will for more than half a century. But, if that were her intent, it would seem natural that she should have completed the execution shortly after arriving at New Orleans, instead of which, though knowing her dangerous condition, she refrained from writing the date of the will till the very day before her death, when it would supersede any prior testament. She would seem to have calculated the period of her demise with the utmost nicety. The evidence shows to our minds that the deceased was not physically able to write the date of the will at the time alleged. Three days before she had signed a will by her mark, on account of such inability. She had made also a previous will on the 4th. The authenticity of her signature to the will of the 4th seems conceded. Neither of these prior instruments makes any provision for the appellant. It is argued that these prior wills were obtained by the influence of those surrounding her. “We are asked to believe that this deceased was acting a double part, willing to apparently concede to the influence of those surrounding her, and conscious of her own power to defeat their objects by completing the execution of the holographic will, which she had concealed with her. To believe that a woman seventy-eight years old, in the most enfeebled condition, on her deathbed, played such a role, we cannot. And, •finally, that all these improbabilities should occur in a single case, yet that case be true, borders almost on the impossible. Decree appealed from to be affirmed, with costs.

All concur.


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    German-American Real Estate Company, App’lt, v. Adolph Starke, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    ‘Covenant—Mereeb.
    A covenant, in a contract to convey land, to put the vendee in possession, is not merged in the covenants in the deed subsequently given, unless such was the intention of the parties to the deed.
    Appeal from a judgment in favor of defendant.

      Edward Grosse, for app’lt; Henry A. Monfort, for resp’t.
   Pratt, J.

In my view, the plaintiff was entitled to recover some damages on the testimony. Starke covenanted with Schuetz not only to sell and convey the premises by warranty deed containing full covenants, on May 26, 1892, but then, except as .against his own privilege of occupancy until July 1, 1892, to give “full possession.” I interpret this as a covenant to put Schuetz in possession as against all the world except himself. This covenant was not necessarily merged in the covenants contained in the deed subsequently delivered. If it was waived or surrendered, it was because of the intention of the parties to the deed. See Disbrow v. Harris, 122 N. Y. 362. But there was no such intention. The "testimony will not justify any such inference. The only suggestion favoring such a motive on the part of Schuetz lies in the fact that Suvdam, being in possession of part of the premises, would be liable for rent as a tenant, or for use and occupation, which rent or use and occupation would inure to Schuetz as grantor under the deed. But that is met and refuted by the attitude of both ■Starke and Schuetz and his assigns ; • for Starke always claimed that Suydam had no right to occupy at all, and the plain fact is that Schuetz and his assigns bought the land only to cut it up into lots, and sell them, with full possession, as a short speculation. Plaintiff was therefore entitled to something for breach of this preliminary covenant. But this point was not definitely presented to the court on the trial. lie was entitled to recover something, but he asked for no such instruction, and the verdict was against him on other issues submitted to the jury. He was in the position of Wilson, Wilson v. Lester, 64 Barb. 431, and, for aught that I can see, must abide by the same terms. Then came the deed, with its covenants for quiet enjoyment and title. I do not see that tliere was any misdirection upon the questions arising under the covenants of the deed. The whole case, therefore, as it seems to me, discloses a' right of recovery for breach of the preliminary covenant to deliver possession as against all the world," including Suydam. But since plaintiff did not ask for any such instruction, he really did not present that point to the court, unless by his motion for a new trial. I think that motion did involve that point, whether he fairly presented it or not. On the whole, I think he was entitled to a new trial, to the end that he might recover something for breach of the preliminary covenant to deliver possession at the time of the delivery of the deed, but on the same terms as in Wilson v. Lester, supra. Perhaps his damages in -that regard would be limited to the reasonable cost of ejecting Suydam, if he was ejectable, and to the reasonable value of the use and occupation of the premises while he remained in possession. He might, also recover further damages on the covenants of the deed, if the jury had found that he held as a tenant under Starke. I do not see that there was any such disclosure of the purpose of the purchase in the first instance as to have brought the speculative profit of the contract or expenses of advertisement for sale, etc., into' contemplation of the parties as damages for breach of this preliminary covenant to deliver possession. Then came the damages dependent upon questions of fact as to the nature of Suydam’s holding. If he was a tenant under Starke, the rules laid down by the learned trial judge would seem to apply. Their application was for the jury. If he was 'not a tenant under Starke, but a mere squatter, the damages for breach of preliminary covenant would be the limit of recovery. But that was for the jury, under proper instructions. Hpon the whole, it seems that the first point of the case, plaintiff’s right of recovery for breach of the preliminary covenant for possession, was not squarely presented to the trial court. Hence the plaintiff’s motion for a new trial ought to have been granted, but only on judgment of costs, as in Wilson v. Lester. He is therefore entitled to a new trial, with costs of this appeal, provided he shall stipulate to pay and shall pay the costs of the trial, including disbursements. Otherwise the judgment should be affirmed, with costs.

Judgment and order denying motion for new trial reversed, and new trial granted, with costs of appeal to the appellant upon his stipulating within twenty days to pay costs of trial and disbursements. In default of such stipulation, judgment is affirmed, with costs.

Dykman, J., concurs. Brown, P. J., concurs in reversal, but votes for a new trial.


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    Wilhelmina Deckelmann et al., Resp’ts, v. John H. Braunsdorf, as Trustee, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Trustees—Repairs.
    The expense oí repairing property, devised in trust for life with remainder over, which comes into the hands of the trustee in an untenantable condition, will be charged against the principal of the trust estate.
    Appeal from an order, granting an application requiring the trustee to repair a building, belonging to the trust estate. •

      Putney & Bishop (Henry B. Twombley, of counsel), for app’lt; I. Newton Williams, for resp’ts.
   Cullen, J.

The appellant is trustee under the will of his father, Julius Braunsdorf. The trust is substantially to hold a share of the testator’s estate during the life of his daughter, income to be paid to her during life, and, upon her decease, the share to go to her children or descendants. On the death of the testator’s widow, the appellant received, as part of the corpus of the trust, a dwelling house and a sum of money on deposit in the savings bank. At the time the dwelling house was allotted to the trustee, it was so far out of repair as to be untenantable. The life tenant demanded that the dwelling should be kept tenantable at the expense of the principal of the trust. On the failure of the trustee to accede to her demand, she applied to the court for an order directing him to make such repairs. From an order granting that application, this appeal is taken.

The material facts are not in dispute, but the appellant contends that repairs and improvements cannot be made at the expense of the remaindermen, but must be borne by the life tenant. That such is the general rule is unquestionable, and it may be coneeded that there is authority for the claim that the rule is invariable. Perry, Trusts, 552. But there is now a tendency to limit the application of the rule stated. In the recently decided case of stevens v. Melcher, 80 Hun, 514; 62 St. Rep. 599, it was held that certain permanent repairs on the trust realty should be charged to the corpus of the trust, not to the equitable life tenant In that case Judge Parker reviews at length the authorities on the question. In both the reasoning and conclusion of Judge Parker we concur.

The principle that the life tenant should bear the repairs, taxes, and interest on incumbrances is, as a general rule, entirely just and equitable, All that the life tenant is entitled to is the income. The real income is only the net return of the property above its annual charges. If the property is not kept in repair, the income is apparently increased, but only at the expense of the capital or corpus. So, also, unless there is authority given the trustee by the will to invest in land, the corpus of the estate should not be expended to erect new jeuildings qr make substantial alterations in the improvements on the lands. That is changing the character of the trust estate. But there is an entire difference between suuh a case and an expenditure to make, not a new thing, but the thing received available, and preserve it from destruction and decay. Here the life tenant has not permitted the property to become out of repair, but the trustee has received it in an untenantable condition. If the property had come to the trustee burdened with taxes or assessments, he would have been compelled to discharge them; and a mortgage of the trust estate to raise funds for the purpose would have been valid, even before the amendment of the Revised Statutes in this respect. U. S. Trust Co. v. Roche, 116 N. Y. 120; 26 St. Rep. 394. The gen.eral rule has also in its exception in the case of an assessment for a public improvement. It is not to be borne wholly by the life tenant, but to be apportioned between the life tenant and the remaindermen. In the will in this case there is no direction as to how the part of the trust estate that is in money shall be invested. In applying part of it to the preservation of the realty, we therefore contravene no direction of the testator’s. We think, therefore, that there was a proper case made for the direction given by the court.

The appellant now raises the objection that the infant remaindermen were not properly before the court, and that the order-made does not conclude them and protect himself. This objection is valid, but it does not seem to have been taken at the special term. If the appellant now desires the protection of an order concluding the infants, he may move to vacate the order appealed from, and make the infants parties to this proceeeding.

Order appealed from should be affirmed, without costs, and with leave to appellant to move to vacate such order, and bring in the infants as parties.

All concur.


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    Louis Liebmann, et al., Pl’ffs, Liebmann Bros. Company Def’t. Lazarus, Rosenfeld & Lehmann, App’lts, v. John S. McMaster et al., as Receivers, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Receivers—Fond—Identification.
    A consignor of property, where he has the right to recover the proceeds-thereof from the receiver of the consignee, must affirmatively trace such proceeds into the hands of the receiver.
    Appeal from an order, denying an application -to compel the receivers of a bankrupt corporation to pay petitioners their claim in full against the corporation.

      Horwitz & Hershfeld, for app’lts; Johnson & Lamb (Jesse Johnson, of counsel), for resp’ts.
   Cullen, J.

This is an appeal from an order of the special term denying an application qf the appellants that the receivers of the defendant corporation be directed to pay the petitioners the amount due them from defendant on account of the proceeds of goods consigned to it by the petitioners. On the record presented to us it would not be profitable to follow the elaborate argument of the counsel for the petitioners as to their rights as consignors, or to discuss the legal principles affecting such right. The appellants moved on a petition which states, in the most general terms, that they are informed and believe that the receivers are in possession of moneys the proceeds of the sale of petitioners’ goods, and that the defendant mixed such moneys with its own, and that to the extent of petitioners’ claim the assets in the hands of the receiver have been increased by such moneys. The affidavits in reply put in issue these allegations, and show that the money turned over to the receivers was but a small sum, which was largely depleted by payment to another consignor. The goods of the petitioners seem in some instances to have been sold on credit, and the credits or claims therefor pledged by the defendant for loans obtained by it. What was the amount of such claims does not appear. The petitioners submitted in rebuttal an affidavit of the treasurer of the defendant that the stock of merchandise turned over to the receivers was in part purchased by the moneys received by the defendant from sales under its agreement with the petitioners, but what part is not stated. This affidavit would be justified if there had been such a purchase of goods to the amount of a dollar. On the papers and proofs before the special term, which are most, meager and uncertain,—more noticeable for what they fail to show than for what they do show,— it is impossible for the court to determine or ascertain the facts of the case, except the amount of the debt of the petitioners, and the agreement under which the goods were consigned. The application was submitted to the court for determination on these papers. dSTo request for a reference or further proof seems to have been made. In this state of the proofs, we think that the application was properly denied. Conceding, for the argument, the contention of the petitioners of the right to follow the proceeds of their property to its fullest extent, it was on them affirmatively to trace such proceeds into the-hands of the receivers.. The proofs do not show this, but leave the subject in confusion and uncertainty. The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.