author: Brady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HENRY W. GENET.

      Obtaining money by false pretences — what facts justify a conviction thereof— leading questions on pross-examination — cross-examination of accused.

    The defendant in error, Genet, was indicted and convicted of obtaining money from the city of New York on false pretences. It appeared that in 1870 Genet, being counsel to the commissioners to erect a district court house in New York, one Davidson applied to him for the contract for the iron work, and was by him referred to one of the commissioners, who said he would see Genet about it. In June, 1871, Davidson saw Genet, receiving from him a memorandum of the work, and made an estimate under his directions. Davidson having refused, to deliver the materials, except upon payment of the price, made out a bill, under Genet’s direction, for the full amount, showing delivery of all the iron work during the months of January, February, March, April, May and June, 1871, as per agreement with commissioners, when in fact none of it had been, delivered. Genet having procured the certificate of the commissioners to the bill, sent it to the comptroller’s office, where it was audited, and a warrant prepared and signed by the comptroller and mayor. The, auditing and signing of the warrant were based upon the bill certified by the commissioners. Thereafter Genet drew the money upon the warrant as the attorney of Davidson.

      Held, that these facts warranted a conviction of the defendant of obtaining money on false pretences.

      On cross-examination leading questions tending to elicit new matter are not allowed as a matter of right.
    As to the proper limits of a cross-examination of the accused offering himself as a witness in his own behalf.
    Certiorari to the Court of Oyer and Terminer to review the conviction of the appellant, of the offence of obtaining money by false pretences.
    This case came before the General Term upon the return of the Court of Oyer and Terminer, issued upon the petition, pursuant to the statute, of Benjamin K. Phelps, the district attorney of the county of New York ; the defendant having been tried and convicted upon an indictment found in the said county, upon which judgment had not been entered ; the Hon. Charles Daniels, one of the justices of the Supreme Court, before whom the trial was had, having certified that he had examined the bill of exceptions, and that, in his opinion, “there is probable cause for the same, and the same presents questions creating so much doubt as to render it expedient to take the judgment of the Supreme Court thereon.”

      JB. K. Phelps, for the people.

      W. A. Beach, for the defendant Genet.
   Brady, J.:

The indictment in this case charges that the defendant, on the 14th of July, 1871, with intent feloniously to cheat and defraud the mayor, aldermen and commonalty of the city of New York, a corporation duly existing under the laws of the State of New York, feloniously, unlawfully and knowingly, falsely did pretend and represent to A. Oakey Hall, then being mayor of the city of New York, and, as such, being then and there an officer of said corporation, authorized to countersign warrants for the payment of moneys out of the treasury of said corporation ; that the said corporation was justly indebted to one J. McB. Davidson in the sum of $4,802 for materials furnished for the ninth district court house by the said Davidson, and that a certain bill, purporting to set forth the items of the said materials, was then and there ex. hibited to the said A. Oakey Hall, and which bill contains the ’ items in substance as follows, that is to say :

And, further, that the said Davidson had supplied, for the use of the said corporation, iron work, window frames, iron timbers and other things, to the amount of $4,710, and that there was due for cartage, on the said materials, the sum of $92 ; and, further, that the said materials, in the said bill mentioned, had been received by the said corporation from said Davidson and applied to the proper uses of said corporation. It also contained the necessary allegation, negativing the representations so made and alleged to be false.

It appeared, on the trial, that Mr. Tweed, Mr. McQuade and Mr. Porter were the commissioners having charge of the construction of the ninth district court house, and that Mr. Davidson being a dealer in iron, applied to Mr. Genet, who was the counsel to the commissioners, for the contract to furnish iron, and was referred by him to Commissioner Tweed ; that he saw Mr. Tweed upon the subject, who told him that he would speak to the defendant about it, who, he thought, could procure the contract for him. This seems to have been in the winter of 1870 and 1871, at Albany. In June following, Davidson and the defendant had a further interview, during which the defendant furnished Davidson with a memorandum, prepared by the architect or superintendent of the work, from which Davidson made an estimate of the materials, and then made out the bill for the same set out in the indictment, under the direction of the defendant. It appeared, also, that Davidson agreed to furnish the materials, but declared that he would not deliver them unless upon payment of the price thereof, to which the defendant replied that he would get the money. It further appears that the defendant, having received the bill thus made out, delivered it to Mr. Corson, who was the secretary of the commissioners, or to Mr. Tweed, informing him of the requirement made by Davidson. The bill, made out as stated, was duly certified by the commissioners and sent to the comptroller’s office, where it was audited, and a warrant ivas prepared for its amount, which was signed by the comptroller and subsequently countersigned by the mayor, to whom it was sent for that purpose. The audit ivas predicated of the bill thus certified by the commissioners, and which, being thus certified and audited, became what is called a voucher, upon which the comptroller and the mayor both acted officially in signing and countersigning the warrant. It appeared, from the testimony of the mayor, that his reliance was substantially upon these various forms of procedure, the primary one of which was the bill made out as shown, under the direction of the defendant. 'That paper formed the basis of the action of the commissioners, of the auditor, of the comptroller and of the mayor. It is true that the mayor is not certain that there was a voucher ; but the inference from his testimony, indeed, the finding upon it, must be that this voucher was attached, in some way, to the warrant when it was countersigned. But whether it was or not, was a question for the jury, which they have decided in favor of the People. It may seem strange, that upon such an array of facts, there can be any doubt that the defendant was the originator of a false representation — a false pretence — if the iron was not delivered at the time the bill was made out and presented to the commissioners, and by them certified in the maimer stated. The bill was false in every particular ; no iron had been .delivered, no cartage had been- paid ; and indeed, except what might be supposed to have been created by an informal interview with Mr. Tweed, there was no contract for iron made between Mr. Davidson and the ■commissioners, or anybody else.

It is quite evident that the commissioners, in certifying such a bill, representing as it did the delivery of material, the non-receipt of which it was their duty to have known, were, guilty of negligence, by which what was a fiction, became, in fact, a reality. It became a reality because, when their certificate was given, it was in condition to be sent forward to be impressed with the othei acts in reference to it, necessary to make it effective. If the defend.ant’s connections with that paper had ceased, however, after its preparation and presentation, it might well be that he could not have been convicted of the offence of which he was accused. But it did not, because the evidence showed that when the warrant based upon it had gone through all the forms required, in the fiscal department, and had received all the authentication necessary to insure its payment, it was received by him from the comptroller, indorsed by him as the attorney of Davidson, to whose order it was drawn, and, upon presentation by him to the bank upon which it was drawn, duly paid to him. It thus appears that the defendant, in effect, prepared the bill containing the false pretence ; presented it to the commissioners (of whom he was the counsel, and who might, even as prudent men, have relied upon his acts), and received the warrant based upon it and collected its amount.

The response of the defendant to the accusation thus made by the People is, substantially, that he, by this method, undertook to procure the money for the purchase from Mr. Davidson, in order to complete the contract, for the reason that Davidson had positively declined to deliver the materials other than upon payment for them, and that he had no intention, at that time, or at any subsequent time, to defraud, or in any way wrong, the city of New York, but obtained the money for Mr. Davidson and sought him to pay it over to him, and so offered when he found him, and that Davidson refusing to receive it, he paid it to Mr. Scallon, who used it in paying for labor done upon the court-house. He has had the benefit of this exposition, but the jury, upon consideration of alh the facts and circumstances of the case, have determined, by their verdict, that this defence was not satisfactorily established, and could not, therefore, relieve him from the consequences of the offence of which he stood charged.

The learned counsel for the defence relies, with much confidence, in the consideration of this appeal, upon the fact that'the defendant made no representation personally to the mayor or to the comptroller or to the auditor. It must be admitted that he made no representation personally to the mayor, inasmuch as no interview between them has been shown. But he cannot escape from the charge that he did indirectly make to the mayor a false representation — a false pretence — by the preparation and use of the bill which, through his direct instrumentality, became a voucher, and upon which thus created by him, the auditor, the comptroller and the mayor acted. Indeed, it may be said that this is a liberal statement of the effect of that paper, so far as the defendant is concerned, because it might, with great propriety, be said that the bill prepared by him, and which he know must form the basis of such proceedings as would take place in the fiscal department of the city, was a direct statement on his part that its contents were true to each person whoso duty rendered it necessary for him to examine and act upon it. It was this proceeding, this pretence, which set the claim in motion and formed, as already suggested, the very foundation of all that was. subsequently done to consummate the wrong design. His actual presence was not necessary to accomplish the offence. (People v. Adams, 3 Denio, 190; Adams v. People, 1 N. Y. Rep., 173.) The statute under which the defendant was indicted declares that every person who, with intent to cheat or defraud another shall designedly, by color of any false token or writing, or by any false pretence, etc., obtain the signature of any person to any written instrument, or obtain from any person any money, personal property or valuable thing, upon conviction, shall be punished, etc, And there seems to be little doubt that the bill in question was under this statute a false writing, there can be none that it was a false pretence ; and, being a false pretence, whether it was designed to cheat and defraud was a question to be determined by the consideration of all the facts and circumstances developed on the trial. It was sufficient, therefore, the intent to cheat and defraud existing, to accomplish the commission of the crime, that the bill influenced the mayor to give his signature to the warrant, because it was the exclusive, as it was the necessary, foundation upon which all the ceremonies to effectuate it rested. Without the bill there would have been no certificate, no audit, no warrant, and, therefore, no act of the mayor. The defendant was dealing with the funds of a corporation to be reached by certain forms designed for the security of its members, and knew the mode by which these forms could be applied. The bill was, in effect, equivalent to a verbal representation therefore. The cases illustrative of the doctrine of false pretence demonstrate the propriety of the verdict rendered. For example, a workman employed by a clothier, whose duty it was to keep an account of the number of shearmen employed and the amount of their wages, and which he was to deliver weekly, in writing, to a clerk who paid him the amount, delivered a false account, charging for more work than was done, and for more men than were employed, and it was held that the money obtained in excess was obtained by false pretence, because without the false pretence he would not have obtained the credit, and the judges agreed that if the false pi’etence created the credit, the case was within the statute. (Rex v. Mitchell, 2 East, P. C., 830.) It was the bill framed under the direction of the defendant in this case, and its presentation by him to the commissioners for their certification which created the credit upon which the money was obtained. (See Reg. v. Leonard, 2 Car. & K., 514.)

In the case of Rex v. Barnard (7 Car. & P., 784), the indictment charged that the prisoner falsely pretended that he was an under graduate of the university of Oxford and a member of Magdalen college, by means of which he obtained a pair of boot straps from one Samuel Vincent. It appeared that Vincent was the boot maker, and the prisoner went to his store wearing a commoner’s cap and gown and ordered boots which were not supplied and straps which were. He stated that he belonged to Magdalen college, and this appears to have been the only statement made by him.- It was proved that he did not belong to Magdalen college, and that there were no commoners at that institution. Bolland, B., said: “If nothing had passed in words I should have laid down that the fact of the prisoner’s appearing in the cap and gown would have been pregnant evidence from, which a jury should infer that he pretended he was a member of the university, and, if so, would have been a sufficient false pretence to satisfy the statute.” .

It was a strong circumstance, in this case, affecting the intention of the defendant, in the preparation of the bill, that he stated in it the months noted on the margin, because that added representations in detail to the general representation of the amount due, and was evidence that he was familiar with the ceremonies to be observed in the audit and payment of bills against the city. The representation of an occurrence that has not happened is a false pretence, and it is not necessary that the false pretence be the sole or only inducement to the credit given or the delivery of the goods made. It is enough that it has so material an effect in procuring the credit, or inducing a delivery of the property, that, without its influence upon the mind of the party defrauded, he would not have given the credit or parted from the property. If it had a controlling influence it is sufficient to warrant a conviction. And it is not necessary that the pretence or representation should be such that common prudence or ordinary care could have guarded against it. (People v. Haynes, 11 Wend., 557; People v. Herrich, 13 id., 87; People v. Sully, 5 Park. C. R., 142; 2 Bishop on Criminal Law, §§ 448, 464, and cases cited.) Under the circumstances disclosed, therefore, it seems to have been properly alleged in the indictment that fraudulent representations for a fraudulent purpose were made to the mayor, and the defendant cannot avail himself upon the evidence of any objections to the form of the indictment in that respect. It is our judgment, consequently, that the proof furnished by the prosecution under the indictment demanded, in the administration of justice, a submission of the question of the defendant's guilt or innocence to the jury, and that it was sufficient to have warranted his conviction if the jury believed that what he did was done with a fraudulent intent.

Having arrived at this conclusion it remains to be determined whether any of the other exceptions taken on behalf of the defendant are such that a new trial should be granted. It is deemed only necessary to say, in regard to the exceptions to the rulings 'Of the presiding justice as to some of the jurors who were sworn, that they are answered by the adjudication made in the case of Thomas v. The People (67 N. Y. R., 218). These jurors, although they had formed opinions, stated that they believed they could render an impartial verdict upon the evidence unbiased by such opinion, and this avowal rendered them indifferent under the statute of 1872. The recent case, Greenleaf v. The People (MSS. op.), does not affect the question, or change the rule established by the case (supra). The juror, in the last case, had formed an opinion upon reading the evidence given on-a trial, and this was held to present a different question, on account of the more impressive source of information, to tliat considered in the case of Thomas. The principle is the same, it would seem, but the distinction is made, and the doctrine must be observed. The exceptions to the evidence will be considered in the order in which they were presented on the argument. The first exception relates to a question ns to the intent of Davidson in preparing the bill. The question was as follows:

“ Q. Was this bill prepared and furnished by you to Mr. Genet for the purpose, in your own mind, to enable him to raise the money to pay for the materials which you agreed to furnish, mentioned in the bill ? ”

It was excluded by the court on objection, as follows :

“The Court — I don’t think that is proper. I think the witness must go on and state what was said and done between himself and defendant about the bill, and the purpose for which it was made, and his intent in making it.”

The witness was then asked the following question and gave the answer that succeeds it:

“ Q. Will you please state what, if anything, was said in regard to the preparation of this bill, with reference to obtaining the money to make payment to yon for these materials to be furnished ? ”

“ A. I made out the bill and told him to collect the money, as I had so much trouble with the city and county of New York in collecting my accounts, that the money must come at the time the goods were delivered.”

It will be perceived that the learned justice did not prevent the examination of the witness as to his intent in making the bill, and he was examined to some extent on that subject, as .the succeeding questions and answers show :

“ Q. Do you recollect that in the interview with Mr. Genet you informed him that, in the meantime, while he was taking the bill and collecting the money, you would send orders to your factory in Albany for the preparation of the materials ? ”

“A. I told him these goods could be delivered immediately upon the receipt of this money.”

“ Q. Does it occur to your recollection, now, any remarles of yours made, of the substance which I stated in my former question, that you would send to your factory, in Albany, so that the materials could be prepared to be in readiness when he should obtain the money ? ”

“A. I spoke about the material being in readiness when the money was obtained.”

“Q. You don’t recollect alluding to your factory in Albany ? ”

“A. Oh, no ; that, I suppose, he understood.”

We think the exception thus considered was not well taken, therefore.

The next exception is to a leading question asked the witness, Davidson, who was on cross-examination at the time by the defendant’s counsel. The facts sought to be elicited were new, and leading to the development of the defendant’s defence — new matter, as it is designated — and the objection was taken that leading questions were not a matter of right as to s'uch new matter. The court so held. Leading questions are admitted oil cross- examination, in which much larger powers are given to counsel than on the original examination. But, upon cross-examination, a leading question, in respect to new matter, is objectionable, although the subject is within the discretion of the presiding judge. (Harrison v. Rowan, 3 Wash. C. C. Rep., 580; Ellmaker v. Buckley, 16 Serg. & Rawle, 77.) In the latter case, Gibson, Ch. J., dissented from the doctrine broached in Phillips’ evidence, that the cross-examination continues through all stages of the cause, and secures the right to ask leading questions in regard to new matter. The Supreme Court of the United States has declared that the right does not exist. (The Philadelphia and Trenton R. R. v. Stimpson, 14 Pet., 448.) A party cannot cross-examine the plaintiff’s witnesses as to new matter, in order to introduce his defence untrammeled by the rules of the direct examination. (Castor v. Brovington, 2 Watts & Serg., 505; Floyd v. Bernard, 6 id., 75.) See, also, 1 Greenl. Ev., § 445, in which it is stated that this rule is considered to be well established. The learned authors of Cowen & Hill’s notes, on Phillips’ Evidence (see vol. 2, p. 730, n. 511) defend Mr. Phillips from the criticism of Gibson, Ch. J., and concede that the text of Phillips does not assert the right to ask leading questions on cross-examination to sustain new matter of defence, and the case of Harrison v. Rowan, holding that there is no such privilege, is cited in the note with approbation. In Jackson v. Son (2 Caines, 178), it was held that the cross-examination of a witness in such a manner as to call forth new matter, made him the witness of the party cross-examining as to it, and this doctrine was approved in The People v. Moore (15 Wend., 423). It was said, prior to the last case cited, “there is an essential difference between a direct examination and a cross-examination; and the court ought not, except in peculiar cases, to permit the former to assume the character of the latter : (Per Marcy, J., in the People v. Mather, 4 Wend., 248.) But, in conclusion, it must be said, that the propriety of putting leading questions is a matter of discretion. This is, indeed, ah elementary principle of evidence.”

The witness, it must be observed, was not prevented by the ruling complained of from stating any facts, but the mode of obtaining such facts was designated. There is nothing, therefore, in the exception considered.

The. defendant also complains that a witness named Scallon was allowed, on cross-examination, to make many statements in regard to the transactions relating to the county court house which were prejudicial to his defence, but the testimony was elicited to affect the credibility of the witness, and so declared. It was also designed to demonstrate that the money given him by. the defendant, and which the latter said was the proceeds of the warrant, was in truth applied to the payments due or to become due for materials supplied or work done towards the completion of a house which the defendant was building. This .sifting process was, of course, subject entirely to such limit as the presiding justice thought proper to place upon it. If the cross-examination developed such relations of the witness to the defendant, or to the work which, he was superintending, as to make him unworthy of credit, the People were entitled to the benefit of that result, or if it proved that the money which he received, as stated, had been used towards the erection of the defendant’s house, the People were equally entitled to that result. 'They had the right, not only when this witness was on the stand, but wbeu the defendant himself became a witness on his own behalf, to pursue this line of inquiry, and to such extent as the presiding justice should permit in the exercise of a fair discretion.

The witness Scallon, on his re-direct examination, stated distinctly and emphatically, however, that none of the money received by him, as stated, was used in the erection of the defendant’s house. The defendant himself had the opportunity and. intelligence to state his case and to explain any untoward circumstance which Scallon’s cross-examination revealed. The counsel for the People seem to have extended their .inquiries to great length and over a large field, but the defence was such a& apparently warranted such a procedure. As long as the rule prevails that the limit of cross-examination is a matter of discretion resting with the presiding justice, to be exercised according to the facts and circumstances surrounding the case, the character of the issues, nature of the testimony, the demeanor and manner of the witness, and the various incidents of the trial, a court of l'eview will not condemn the limit observed, unless it clearly appears-that the discretion was abused to the prejudice of the party affected by it. We are not able to declare that these elements mark the cross-examinations mentioned. The case was, peculiar in many respects and was distinguished by striking and extraordinary features.

The case of the People v. Brown (72 N. Y. Rep., 571) has not escaped observation, and the dawn of a new rule seems to be suggested by the forcible remarks of Chief Justice Church on the= subject of the protection which should be given a party while occupying the witness stand “ Especially,” he said, “ ought this-protection to be afforded to persons on trial for criminal offences who often, by a species of moral compulsion, are forced upon the stand as witnesses, and being there are obliged to run the gauntlet, of their whole lives on cross-examination, and every immorality, vice or crime, of which they may have been guilty, or suspected of being guilty, is brought out ostensibly to affect credibility, but-practically used to produce a conviction for the particular offence for which the accused is being tried, upon evidence which otherwise would be deemed insufficient. Such a result is manifestly unjust, and every protection should be afforded to guard against it.” It may be in this case that the plaintiff in error was by the extended examination of his connection with the court house, and collateral subjects, prejudiced before the jury, and that objectionable features in it, if such there were, operated to his injury, and' induced a general impression leading to the conviction which followed of the particular offence of which he stood charged. No conviction accomplished by this means reflects credit upon our administration of justice — indeed, the law itself is not administered in such a result, because the accused should bo declared guilty only on pertinent evidence relating to the offence charged, and not upon any theory springing from ulterior subjects and affecting character. A bad man may be innocent of a charge preferred against him, and, if so, should not, on what is called general principles among men, be pronounced guilty. The law, in its purity, seeks to punish the offender, because he has done the wrong charged against him, and for that reason only. The value of a good character cannot either be ignored or lessened by any rule to be adopted, but some well defined limit to cross-examination should be declared by the court of last resort which will yield the protection, which even a bad man is entitled to when placed upon trial for an offence, and more particularly because the law in its humanity declares him innocent until he is proved to be guilty by the judgment of his peers. We do not feel called upon to invade the present rule, but prefer to leave it to the tribunal mentioned. Applying existing rules, we cannot say that injustice was done, or that the exceptions relating to this subject were well taken.

There are other exceptions of a kindred character to those considered, but we fail to see in them such error as requires a new trial.

It becomes necessary, in conclusion, to consider the exceptions to the charge of the learned justice presiding at the trial, and to those relating to his refusal to charge as he was requested. The theory of the charge, as suggested by the learned district attorney, was, in substance, that if the defendant willfully, and with intent to defraud, set on foot the scheme of having this false bill of Davidson’s made out and presenting it to the mayor, by adopting the usual method which would insure its being so presented, and result in inducing the mayor to sign the warrant, and obtain the warrant so signed, lie could be convicted; otherwise not. And this theory, as we have seen, was justified by the law of the land. The charge, to which it is not deemed necessary to refer in detail, carried out this theory and gave to the defendant in its exposition the benefit and advantage of every element to which he was entitled, and was fair, liberal and complete. If the theory was erroneous, then the conviction should fail, but it was not, as we have seen, and the charge was, as suggested, comprehensive in giving to the defendant all the qualifications and doubts which the evidence created and which the jury were left to dispose of, in considering the facts according to a conscientious discharge of their duty. The last request made by the defendant’s counsel, and granted, is an illustration of the readiness of the court to give the defendant the advantage of any doubt. It is as follows : “I ask your honor also to charge that the bill, or whatever you recognize as the false pretence in the case, must have exerted not only a material influence upon Mr. Hall, inducing him to sign the warrant, but must have been so extensive in its influence that he would not have signed the warrant without it.”

“ The Court — I so designed to charge, and think I have.”

The exceptions to the charge, and to the request to charge, are, therefore, and each is unavailing to the defendant. The'case was, in many respects, exceptional in facts, both on the part of the prosecution and the defence. The chain of events developing and establishing the offence was extraordinary but complete, and the defence peculiar, because 'of the alleged intention of the defendant to pay over the money received by him to Mr. Davidson, the long delay in making the offer to do so, and the exposition of great fraud upon the city ad interim. The offer thus made was subjected to the imputation that it was made in consequence of such exposition, and was not a Voluntary act, and the consideration of this subject was necessarily forced upon the jury in connection with their estimate of such offer.

It may be that this element prejudiced the defendant’s case ; but, under the evidence, its presence was unavoidable, because the People had a right to show, if they could, that the offer was an afterthought, superinduced by anticipated danger. A careful perusal of the whole case shows that the various issues were fully and carefully investigated, and does not create the impression that any wrong ivas done to the defendant on the trial by the rules of law applied.

The judgment must therefore be affirmed.

Ingalls, J., concurred ; Davis, P. J., taking no part.

Judgment affirmed.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    JOSIAH JEX, Respondent, v. EPHRAIM A. JACOB and others, Appellants.

      Supplemental answer — what defence may be interposed in — action on lease must cover all demands for rent then due thereom — recovery of part of the rent bars an action for the residue.

    This action was brought by the plaintiff to recover $6,615 for two quarters rent accruing on August 1, and November 1, 1877, on a lease, under seal, given by him to the defendants. Subsequent to its commencement, the plaintiff' brought another suit, in another court, against the same defendants, to recover the balance of a quarter’s rent, §150, which had fallen due, under the same lease, on February 1,1877, and recovered a judgment therein, which was paid. Thereupon the defendants put in a supplemental answer, setting up, as one of the defences,’the recovery and payment of the judgment in the second action. Upon an appeal from a judgment entered upon an order sustaining a demurrer to this defence.

      Held, That the recovery and payment of the judgment in the second action, though occurring during the pendency of the first, was properly pleaded by a supplemental answer.
    That, when pleaded, it constituted a defence thereto.
    That the judgment sustaining the demurrer should be reversed, without prejudice to an application to vacate the judgment in the second action, and for leave to return to the defendants the money paid upon it, and consolidate both actions, on such terms as might be just.
    Appeal by the defendants from a judgment, entered upon an ■order sustaining a demurrer to the second defence sot up in a supplemental answer served in the action.
    The plaintiff, by lease under seal, dated January 23, 1871, leased to the defendants certain premises on the corner of Forty-second street and Broadway, for the term of ten years, commencing on the 1st day of February, 1871, at the annual rent of $13,230, to be paid in equal quarter-yearly payments. The defendants neglected to pay rent for the quarter ending August 1,. 1877, amounting to the sum of $3,307.50, and for the quarter-ending November 1, 1877, amounting to the sum of $3,307.50; and on the 8th day of November, 1877, plaintiff brought this action against the defendants to recover the amount due for said two quarters’ rent. Subsequently to the commencement of the present action, the plaintiff brought a separate suit against the defendants in the Court of Common Pleas, for the city and county of New York, to recover the sum of $155.82, being for $150, balance of rent due for the quarter ending February 1, 1877, and $5.82, balance of interest on back rent. The defendants interposed no defence to that suit, and judgment was entered against them by default on the 19th day of December, 1877, in the sum of $189.94, being said last-mentioned amount, with interest, and costs of suit, and on or about the 21st day of December, 1877, the defendants satisfied said last-mentioned judgment by paying it.
    After paying said judgment, the defendants served an amended and supplemental answer to the complaint in the present action, and by said supplemental answer, interposed as one of the defences a plea in bar setting up the recovery, and the payment of the judgment in the second suit as a bar to the recovery by plaintiff of any judgment in this action. The plaintiff demurred to this defence for insufficiency in not stating facts sufficient to constitute a defence, and said demurrer coming on to be heard, the same was sustained, and judgment ordered for the plaintiff against the defendants thereon, with costs.

      E. A. Jacob, for the appellants.
    It is an elementary principle of law, that an entire or indivisible claim or demand cannot be split up so as to make it the subject of two or more separate actions. (Miller v. Covert, 1 Wend., 487; Guernsey v. Carver, 8 id., 492; Stevens v. Lockwood, 13 id., 646; Smith v. Jones, 15 Johns., 229; Farringtons. Payne, 15 id., 432; Willards. Sperry, 16 id., 121; Wells on Bes Adjudicata, 204; Bendernagle s.

      Codes, 19 Wend., 206; Avery v. Fitch, 4 Conn., 362; Secor v. Sturgis, 16 N. Y., 548; Coggins v. Bullwin/ele, 1 E. D. Smith, 436; Yates v. Fasset, 5 Denio, 28; Hopf v. Myers, 42 Barb., 270; Logan v. Caffrey, 6 Casey, 196.) Although where several claims, payable at different times, arise out of the same contract, separate actions can be brought as each liability enures, yet, if no actjon is brought until more than one is due, all that are due must be included in one action. (Reformed Church v. Brown, 54 Barb., 191; Mclntpsh v. Lown, 49 Barb., 557; Baird v. United States, 96 U. S. Sup. Ct., 430; Casselbery v. Forquer, 27 111., 170; 4 G-. Greene [IowaJ, 317; O’Beirne v. Llyod, 43 N. Y., 248; 3 W. & S., 143.) It does-not affect the rule in any way, whether the judgment was recovered in the suit first brought or in that subsequently commenced. (Nichols v. Mason, 21 Wend., 339; Waterbury v. Graham, 4 Sandf., 215; Yates v. Preston, 41 N. Y., 113; Marble v. Keyes, 9 Gray, 221; Paine v. Schenectady Ins. Co., 16 Am. Law Beg. [N. S.], 564; North Bank v. Brown, 50 Me., 214; Baxley v.. Linah, 16 Penn., 241.)

      Adolph I. Sanger, for the respondent.
    The plaintiff had a distinct and independent cause of action for each quarter’s rent-under the lease. The contract was severable into parts, and for each breach the plaintiff had a separate cause of action. (Beach v. Crain, 2 N. Y., 86, 96; Badger v. Titcomb, 15 Pick., 409, 413; Cooke v. Whonoood, 2 Saund., 337; Rudder v. Price, 1 H. BL, 550; Bristow v. Fairclough, 1 Man. & G., 143; Sedden v. Tudor, 6 Durn. & E., 607; Rex v. Sheriff, 1 Barn. & Ad., 672.)-The judgment recovered in the second suit was for an independent contract; the issue was not the same. (Phillip v. Berrick, 16 Johns., 139; Staples v. Goodrich, 21 Barb., 317; Brown v. King, 10 Mo., 57.) One action of covenant is no bar to another on the same instrument, claiming for another breach. (Merchants’ Ins. Co. v. Algeo, 7 Cas. [Penn.], 446; Warren v. Cummings, 6 Cush., 104; opinion of Sutherland, J., in Van Alstyne v. Ind. R. R., 34 Barb., 30; Florence v. Jennings, 2 C. B. [N. S.], 454; Morgan v. Rollins, 2 Moak Eng. Bep., 611; Andover Bank v. Adams, 1 Allen, 28; Spar-

      hawk v. Wills, 6 Gray, 163; Lord v. Belknap, 1 Cush., 279.) The plea in bar could only have been raised, if at all, as a defence "to the second suit, which was subsequently brought to recover the $155. (Mills v. Garrison, 3 Keyes, 40; O’Beime v. Lloyd, 1 Sweeny, 19; 8. O., on appeal, 43 N. Y., 248, 251.)
   Daniels, J.:

This action has been brought to recover $6,615, with interest thereon, for rent accruing on a lease executed by the parties, whereby certain promises were demised to the defendants by the plaintiff. At the time when this suit was commenced, other rent had become due to the plaintiff on the same covenant, for the preceding occupancy by the defendants of the same premises for the recovery of which an action was subsequently brought. Judgment by default was recovered in that action, which was afterwards satisfied by payment, and leave was thereupon obtained to set forth that recovery and payment as a defence to this action. That was done by a supplemental answer, to which the plaintiff demurred, for the reason that it did not contain facts sufficient to constitute a defence. This was a proper subject for a supplemental answer, even though the judgment relied upon as a defence was recovered while this action was pending. (Code of Civil Procedure, § 544.) And the fact that the judgment was rendered in an action, commenced after the present suit was instituted, rendered the judgment none the less effectual by way of defence. (Casebeer v. Mowry, 55 Penn., 419; Duffy v. Lytle, 5 Watts, 120.) Neither was it waived, or the right to set it up as a defence affected, by the omission to interpose the first action by way of abatement. (Nicholl v. Mason, 21 Wend., 339.) And nothing was said in the decision of the case of Mills v. Garrison (3 Keyes, 40), which would warrant any different conclusion. All that was there held was that a party, by means of his agreement, might deprive himself of the right to roly upon a judgment for part of an entire demand as a defence to another suit brought for the recovery of the residue. It has no application to a controversy in which no such agreement has in any form been made.

The point, therefore, is distinctly presented whether the recovery in the second action for the small balance of preceding rent, amounting to less than the sum of $200, followed, by its actual payment and satisfaction creates a legal defence to. the large amount now claimed. Both demands were due when this action was commenced, and they accrued for distinct failures-to perform the same covenant. They might properly have been united in the same action. But if the decision made in the case of McIntosh v. Lown (49 Barb., 550) should be followed, the plaintiff was at liberty to prosecute a different action for the recovery of each of these separate amounts. That decision, though made on the effect of distinct and different covenants, seems to have been strikingly in conflict with the preceding cases on this, subject, and as the Tule declared by them has since been repeatedly followed, notwithstanding that departure from it, no sound foundation now remains for considering it reliable. The rule of law upon this subject, on a very complete examination of the authorities, was declared to be the other way in the decision of the case of Bendernagle v. Cocks (19 Wend., 207). By that determination all demands due on the same contract, at the time when the action is commenced, are required to be included in it, or to be held and considered barred, on the recovery of judgment for a part. In other words, they are all held to create but one cause of action. This authority in its facts was very much like the present case, and as it has not been overruled and not' seriously questioned, except in the instance already mentioned, it ought to be decisive of the point now presented for decision. But it is not necessary that it should be left to stand simply on the force of that determination. For the same point has been often held by different tribunals in the same way since that decision was made. That was prominently the nature of the decision made in Secor v. Sturgis (16 N. Y., 548). In the course of the decision then made, it was said that “the case of a contract containing several stipulations to be performed at different times is no exception, although an action may be maintained upon each stipulation as it is broken, before the time for the performance of the others the ground of action is the stipulation which is in the nature of a. several contract.” (Id., 538.) In the Reformed Prot. Church v. Brown (54 Barb., 191), it was held that “ when several claims payable at different times arise out of the same contract or transaction, separate actions can be brought as each liability enures. Still, however, if no action is brought until more than one is due, all that are due must be included in one action ; and if an action is brought when more than one is due, a recovery in the one first brought will be an effectual bar to a second action brought to recover the other claims that- were due when the first was brought.” (Id., 199.) And it has been already shown that the same result is .held to be produced, even though the judgment first recovered is in the action secondly brought. The principle must be the same, whichever action may first terminate in a judgment, for that will work a recovery of a part of what, in reality, is but .an entire and single cause of action. The same rule was announced in the case of Yates v. Fassett (5 Denio, 21-28), where it was held that distinct suits cannot be brought for several breaches of different covenants contained in the same instrument, but all those which have accrued at the time of commencing the suit must be embraced in the same action. O’Beirne v. Lloyd (43 N. Y., 248) is to the same effect. It was held there that demands which have arisen under the same contract “constitute an entire and indivisible cause of action within the principle of the authorities which are collected and reviewed in the case of Secor v. Sturgis (id., 250-251).” And nothing different was suggested in deciding Stowell v. Chamberlain (60 N. Y., 272). But it was, on the contrary, broadly said that if by law a judgment could have been given for the plaintiff in a former suit, for precisely the same cause of action as that for which the present suit was brought, it has within the rule passed into judgment, and is res adjudicata. But in order to bar the second action the circumstances must be such that the plaintiff might ha.ve recovered in the first for the same cause alleged in the second.” (Id., 276.) The rule already stated was in terms sanctioned in Baird v. The U. S. (96 U. S., 430, 432), and Casselberry v. Forquer (27 Ill., 170). And nothing whatever conflicting with it was held, or even suggested, in the Case of Spelman (74 N. Y., 448).

Various authorities have been relied upon and cited by the plaintiff’s counsel for the purpose of supporting the demurrer, but they wholly fail to do so, with the exception of McIntosh v. Lowns (supra); and Badger v. Titcomb (15 Pick., 409). The first of these cases was clearly opposed to those which preceded it, as it has beenn to the cases following it, and for that reason it cannot be adopted as a correct exposition of the law on this subject; while the other was held to be unsound by the decision which was made in Bendernagle v. Cocks (19 Wend., 207-209). In Van Alstyne v. Indiana, Pittsburgh and Cleveland R. R. Co. (34 Barb., 28); and Bristowe v. Fairclough (1 Man. & Gr., 143), the subject matter of the second suit had not accrued when the first was commenced. While in Seddon v. Tutop (6 Durn. & East, 607); King v. Sheriff (1 Barn. & Adol., 673); Phillips v. Berick (16 Johns., 136); and Staples v. Goodrich (21 Barb., 317), the causes of action were distinct and separate, arising from what were substantially different and independent contracts or transactions. And that of Beach v. Crain (2 Comst., 86) was for a subsequent breach of a continuing agreement. The case of Florence v. Jenings (2 Com. Bench [N. S.], 454), in no way aids the plaintiff, for the first suit was on a bill of exchange, and the second on a distinct agreement made for the payment of interest. And the other authorities cited by the plaintiff’s counsel are all included within the qualifications of the general rule, which has been already mentioned. The demurrer interposed to the second defence presented by the supplemental answer cannot be sustained. But the order must be reversed and judgment given for the defendant, with costs and the costs of this appeal, but with liberty to the plaintiff to withdraw the demurrer, and Avithout prejudice to an application on motion to vacate the judgment recovered, and for leave to return to the defendants, the money received by Avay of satisfying it, on such terms as the court, to which it may be made, shall deem proper in case it shall be alloAved to prevail, and for the consolidation of the actions.

Davis, P. J., concurred.

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

Ordered reversed, judgment ordered as directed in opinion-


text:
    MARY M. DRAKE, Plaintiff, v. SALLY A. LAWRENCE Defendant.

      Devise — when remainders are vested.

    A testatrix devised the income of certain real estate asfollows: " Unto my daughter Mary Matilda Keese, widow, during-her natural life, * * * and after her death I give the remainder of such third to her children and lawful heirs.” At the death of the testatrix her daughter had three children, all of whom died before her, unmarried and intestate. By her-will Mary M. Keese devised her interest in the property to the plaintiff.

      Held, that on the death of testatrix the children of the daughter took vested remainders in the property, which, on their death intestate and unmarried, passed to the mother, and that her will vested the same in the plaintiff.
    Controversy submitted upon admitted facts under section 1279 of the Code of Civil Procedure.
    Sarah Drake died in 1843, seized and possessed of the premises described in the submission, and devised the income of one-third of her estate “ unto my daughter Mary Matilda Keese, widow, during her natural life, and in case of her remarriage the same is to be paid to her upon her own receipt, without the control or interference of her husband, and after her death I give the remainder of such third to her children and lawful heirs.” The plaintiff claimed the property under the will of the said Mary Keese, all of whose children died before her, intestate and unmarried.
    This is a case agreed upon between the parties requiring a construction to be given to the will of Sarah Drake.

      M. H. Topping, for the plaintiff.

      O. N. B lack, for the defendant.
   Daniels, J.:

The plaintiff claims title in this case to the undivided sixth part of certain property, known as Nos. 92 and 94 Catharine street, in the city of New York.

The property in dispute was originally owned by Sarah Drake, who made a will by which, upon her decease, she devised the income of one-third of her estate to her daughter Mary Matilda Keese during her natural life. The will then declared that after her death, “ I give the remainder of such third to her children and lawful heirs.”

At the time of the decease of the testatrix, and when the life estate took effect, the life tenant had three children living, Horace, Hobart and Lawrence, who afterwards died during the lifetime of their mother, unmarried and intestate. Prior to her own decease she made a will, by which she devised all her interest in the property in question to Mary Drake, the plaintiff in this case. The plaintiff and the defendant were the surviving sisters of Mary Matilda Keese, the life tenant, and her heirs at law, who would inherit her interest in the property had it not been for the will made by her providing for its disposition. Her right to dispose of the property by her will depends upon the effect to be given to the devise made in favor of her children by the original owner and testatrix Sarah Drake.

If the will is to be so construed as to vest in them the remainder of the estate upon the decease of the testatrix, Sarah Drake, then it would seem to follow that the plaintiff in the case is entitled to the relief demanded by her. The rule of construction under the statutes of the State, for the purpose of determining whether a remainder under a devise shall become vested or not, has been made dependent upon the fact whether the person or persons, to whom it may be devised, would have the right to enter at once into its possession and enjoyment upon the decease of the life tenant. This is the effect as well as the terms of the provision made upon the subject by the statute, for it is declared that a. future estate shall become vested when there is a person in being who would have an immediate right to the possession of the land upon the ceasing of the intermediate, or precedent estate. (3 R. S. [5th ed.], 11, § 13.) And this was clearly a devise of that description. The children mentioned in it were in existence when the will took effect. They were known and ascertained individuals, and if their mother had died while they were living, and after the will of her mother went into effect, those children would at once have entered into the enjoyment of the remainder in this property.

It has been claimed that by the addition of the terms “ and lawful heirs, ” that it was intended, on the part of the testatrix, by the use made of them to provide for a further contingency arising out of the decease of the children during the lifetime of their mother. But this construction is not warranted by the terms made use of. They were not added for the purpose of meeting an apprehended contingency of this description, but simply as another designation of the persons who were to take the remainder in the property. The testatrix, through them, referred to the same persons who had been previously mentioned ; who were the children of her daughter, and those children she designated as her daughter’s lawful heirs. If she designed to provide for the disposition which should be made of the remainder, in case the children died during the lifetime of their mother, other and more intelligible terms would have been used for the expression of that design. The will was intelligently drawn, and if the testatrix had contemplated a further direction, as to the disposition of the remainder of her estate, upon their decease she would have used some terms from which it could more clearly have been inferred, that she did intend to provide for the contingency of those children dying within the lifetime of their mother. No such terms were made use of by her in her will. But she gave the remainder absolutely to the children of Mary M. Keese, who were also designed to be designated by her as the lawful heirs of their mother. Those children, under the terms of the statute, as they have been construed by the case of Moore v. Littell (41 N. Y., 66), took a vested estate in the remainder existing after the decease of their mother, the life tenant. And this construction should be given to this clause of the will has been further sanctioned by the cases of Vanderheyden v. Crandall (2 Denio, 9, 22-25), and Tucher v. Bishop (16 N. Y., 402).

At the time of their decease they were the. owners of this remainder, and the interest was one which was capable of passing by descent to their heirs. (Wendell v. Crandall, 1 Comst., 491.) As the remainder was given to these children in terms, it was not a devise which was limited to the heirs, or the heirs of the body, of the person to whom the life estate was given. For that reason it was not within the provision of the statute declaring the disposition which in that case should be made of it upon the decease of the life tenant. (3 R. S. [5th ed.], 12, § 28.) But it was a fixed and vested estate in the children of the person to whom the life estate was given. (Livingston v. Greene, 52 N. Y., 118.) And after their decease, unmarried and intestate, the estate under the terms of'the statute descended to their mother as their heir-at-law. (3 R. S. [5th ed.], 41, § 6.)

The point seems to be directly controlled by the case of Livingston v. Greene (supra), whore a similar disposition of property was made to the children of the life tenant, one of whom died after the will, took effect and within the lifetime of the life tenant, and it was held that the remainder became a vested estate capable; of being inherited on the decease of the remainderman, and that a devise of it, by a will afterwards executed for that purpose by him,, was a valid disposition of his interest in the property. It was the-same, substantially, as that presented to this court for its determination in this case, and the disposition which should be made of it seems to be governed by this authority.

The result is, that Mary M. Keese, upon the death of her children, became the absolute owner of the remainder in this estate, and lawfully entitled to devise it as she did by will to the plaintiff in this case.

Judgment must accordingly be awarded upon the case presented in favor of the plaintiff for the recovery of the undivided sixth part of the property in dispute, together with the costs of the proceeding.

Beady, P. J., and Ingalls, J., concurred.

Judgment ordered for plaintiff, with costs.


author: Per Curiam:

text:
    EDMUND PHINNEY and others, Appellants, v. EDMUND BROSCHELL and others, Respondents.

      'Order fat' publication ofsmn/mons — must be made by a judge out of conmi,— caption of an order not controlling as to its character — when an orderr entitled at iSpepial Tmn may be shown to have been made out of cowrt,.

    On May 5, 1879, property of the defendants was levied on under an attachment, granted herein. On June 5th an order for service of the summons by publication was made, which was entitled “ at a Special Term of the Supreme Court of the State of New York, held at chambers,” and was signed “Enter — A. It. L., J. 8. O.” In fact, the order was made out of court, at the chambers of the. justice signing it.

      Held, that the caption of the order and the direction to enter it were not conclusive as to its character, but that the court would look at the facts as proved by the papers to exist, and that as they showed that the order was, in fact, made by a judge out of court,'and not by the court, it was valid, and a service of the summons by publication in pursuance thereof was effectual.

      Heishon v. Knickerbocker Life Ins. Co. (MSS. Ct. of App.), distinguished.
    Appeal from an order made at Special Term, vacating art attachment.
    On May, 9, 1879, a warrant of attachment was duly granted against the property of the defendants, and a levy made. As personal service of the summons on the defendants within this State could not be effected, an order for service by publication was obtained from Mr.' Justice Lawrence on June fifth. That order was entitled “ at a Special Term of the Supreme Court of the State of Now York, held at chambers, at the new county court house, in the city of New York, on the 5th day of June, 1879. Present — Hon. Abraham R. Lawrence, Justice, and was signed “Enter — A. R. L., J. 8. O." The order was, in fact, made and signed out of court, at the judge’s private chambers-It is not disputed that publication was made in the designated papers, and all the other requirements^ of the order fulfilled. The motion to vacate was made and granted solely on the ground that the order for service of the summons by publication was made by the court and not by a judge, as required by the Code of Civil Procedure; that under the decision of the Court of Appeals, in. Heishon v. Knickerbocker Life Ins. Co., such an order must be considered as unauthorized.

      J. F. Mosher, for the appellants.
    A court order under the present practice corresponds to a rule under the former practice in the courts of law, and to an order in courts of equity. (1 Burrill’s Prac., 324; 1 Barb. Ch. Prac., 582.) The necessity of the actual entry óf a court order still continues under the present practice. (General Rule 7, sub. 3; .People v. Central City Bank, 53 Barb., 412, 416; Whitaker v. Besfosse, 7 Bosw., 678; Star F. I. Co. v. Godet, 2 J. & Sp., 359, 366; 1 Yan Sant. Eq. Prac., 453.) When necessary to sustain the validity of the proceedings, the court will presume, and doubtless conclusively, that the order has been duly entered as directed. (People v. Central City Bank, supra; Whitaker v. Besfosse, supra; 1 Yan Sant. Eq. Prac., supra.) But it does not follow that the court will make such a presumption to invalidate the proceedings. (Lownds v. Bemsen, 7 Wend., 41; Biggs v. Blue, 5 McLean, 149; Story v. Salomon, 71 N. Y., 420, 422; Bigelow v. Benedict, 70 id., 202, 205; Burbank v. Fay, 65 id., 57, 66; Hatcher v. Bochelau, 18 id., 86, '91; Whitaker v. Besfosse, supra.) The title “ at Special Term” ■does not give the order the character of a court order Before entry. (In re Knickerbocker Bank, 19 Barb., 602; Bresser v. Van Pelt, 15 How. Pr., 19, 25, 26; People ex rel. Caldwell v. Kelly, 35 Barb., 444.) But if the court should be of opinion that the order of publication is drawn to be entered .as a Special Term order, and that the judge had power to make it as an order of the court, then the order should be amended by striking out all of the caption preceding the words “at chambers,” and the direction “enter” before the judge’s signature at the foot. ( Viadero v. Viadero, 7 Hun, 313; Poppenhusen v. Seeley, 3 Keyes, 150, 154; Clark v. Bales, 20 Barb., 42, 67; Marvin v. Marvin, 11 Abb. [N. S.], 97; Bouglas v. Bouglas, 5 Hun, 140; Bisbrow v. Folger, 5 Abb., 53; Hogan v. Hoyt, 37 N. Y., 300; Produce Bank v. Morton, 67 N. Y., 199; Ingram v. Bobbins, 33 id., 409, 415; Cook v. Whipple, 55 id., 150, 166; Jones v. U. S. Slate Co., 16 How. Prac., 129.)

      Coudert Brothers, for the respondents.
    The Court of Appeals has recently held an order made by the court to be void, when the provisions of the Code contemplated an order by a judge.
      (Heishon y. Knickerbocker Life Ins. Co., 458, Alb. L. J., 7th June, 1879; see, also, Blown v. Burdick, 1 Hill, 130; Stanton v. Ellis, 2 Kern., 575; People y. Board of Police, 6 Abb., Pr., 162;, Wortman v. Wortman, 17 id., 66.'
   Per Curiam:

It appears, by the papers in this case, that the order was, in. fact, made by a judge out of court and in his private chambers, and the recitals of the order show that it was intended to be the-order of the judge. The fact that a caption precedes the order is not at all conclusive as to its character. (In re Knickerbocker Bank, 19 Barb., 602.)

It is true the judge who made the order directed it to be entered, but the fact of giving that direction does not either affect the order' or change its character; it does not appear that the order was entered as an order of the court, and we are not to presume that, it was for the purpose of discharging it, even if that presumption, would be made if necessary to uphold it.

We think our duty is to look at the facts as they are really shown by the papers to have been, and they disclose that this oi’der was not made by a court, but by ajudge out of court. We think this case is distinguishable from Heishon v. Knickerbocker-Life Ins. Co., and that the attachment should not have been, vacated.

The order should be reversed, with ten dollars costs and disbursements.

Present — Davis, P. J., Brady and Ingalls, JJ.

Order reversed, with ten dollars costs and disbursements.


author: Van Vokst, J.:

text:
    EMMA J. MASON, Appellant, v. LYDIA C. LIBBEY, Respondent.

      Husband and wife — recognition by the husband of Ms mfds equitable claim to profits in a business conducted by them jointly — deed direct from a husband to wife, when sustained — parol trusti evidence required to sustain it— Resulting trust in faroi' of husband — does not arise when the money is in equity the wife’s and the deed is taken to her.

    A business, for which the capital was orignally furnished to the husband by his wife, in 1833, was carried on by them, though it was attended to almost exclusively by the wife, and the gains in it were largely owing to her diligent efforts. With the profits of the business land in New Jersey was purchased in 1851, and the title thereto taken in the husband’s name. In 1853 the husband executed a deed of the land directly to his wife. Under this deed, by the laws of New Jersey, the wife could hold hut could not convey the land. Thereafter the husband and wife sold, joined in a deed of such land, the proceeds of such sale being paid over to and retained by the wife, the defendant in this action.
    This action was brought by the daughter of the aforesaid parties against the wife (her mother), to enforce an alleged parol agreement between the husband' and wife, by which it was claimed that the wife, in consideration of her husband’s joining in the deed, agreed to hold the proceeds of sale in trust for the daughter.

      Held, that the husband might acknowledge the equitable claim of his wife in the profits of the business and transfer to her property acquired through the use of such profits.
    That the conveyance from the husband to the wife, though void at law, was not necessarily so in equity.
    That the alleged trust might he established by parol proof, but that evidence to establish it would he received with great caution.
    To establish a resulting trust by parol evidence it must appear that the purchase was made with the proper funds of the alleged cestui que trust and the title not taken in his name.
    Where the money paid was the earnings of the wife of the alleged cestui que trust, and equitably hers, and the deed was taken to her, held, that no trust arose in favor of the husband.
    Appeal from a judgment, entered at Special Term in the first department, dismissing the plaintiff’s complaint.
    The action was brought for the purpose of establishing the alleged rights and interest of the plaintiff in certain real estate on Tenth and Eleventh streets, in the city of New York, and to require the defendant to convey to the plaintiff certain property: on East Broadway, New York city, and on Powers street, in-Brooklyn, and for an accounting, by the defendant. The plaintiff is the married daughter of the defendant. The defendant married the plaintiff’s father in the year 1831; the plaintiff was the only issue of the marriage ; *her father, the defendant’s husband, died in 1873.
    It was claimed by the plaintiff that the defendant received the proceeds of sale of certain land in New Jersey, upon the condition, and under an agreement with her husband, the plaintiff’s father, that she would invest the proceeds, and hold the same in trust for the plaintiff.'
    The following opinion was delivered at Special Term :
   Van Vokst, J.:

The plaintiff, who is the daughter of the defendant, has offered no evidence to sustain the claims in her complaint, with reference to the Tenth and Eleventh street houses, the title to which is in the defendant. And on the trial and argument plaintiff’s counsel limited her demand for relief to the Williamsburg and East Broadway property. It is conceded by the defendant that this latter property was acquired through the proceeds arising from the sale of the farm at Scotch Plains, New Jersey, the title to which stood in the name of the defendant, when sold, as it had for a period of over twelve years. These proceeds, the plaintiff claims, were funds received and held by her mother in a fiduciary capacity in trust to invest for her. That the defendant had promised her husband, the plaintiff’s father, as a condition to his signing the deed upon the conveyance of the New Jersey farm, that she would invest these proceeds for his and her daughter. If the claim of the plaintiff be well founded, that the proceeds of the New Jersey farm were received by her mother in trust, to invest for the plaintiff, this court would follow the fund, and charge with a trust in the plaintiff’s favor the property purchased therewith, although the title was taken in the mother’s name. In this view it is first to be determined whether the fiduciary relation claimed did in fact exist, and whether these proceeds received by the mother belonged in law or equity to the daughter, or wore held in pursuance of a trust in her favor. The New Jersey farm was purchased in the year 1851, and the title was taken in the-name of the plaintiff’s father, the defendant’s husband. But, the defendant on the trial testified that, although the deed went to her husband, the consideration was paid by herself.

It appears that the husband and wife, shortly after their marriage, and in the year 1833, commenced a small business in a store in Grand street, in New York city. The wife had property to the value of a few hundred dollars belonging to her before her marriage. The proceeds of this property, she testifies, and there is no evidence to the contrary, was received by her husband and went into the business after marriage. The store was conducted almost exclusively by the wife. She gave it her personal care and attention for a period of nearly eighteen years, during which time the plaintiff was born, who is an only child. The husband generally bought the goods, but the wife attended at the store and sold them, and managed the details of the business. For a considerable portion of the time the husband had other affairs which engaged much of his individual attention. It must be believed, under the evidence, that the accumulations of money arising from the business were greatly owing to the diligent efforts and attention of the wife. A portion of these moneys were deposited by her, from time to time, through a series of years, in savings banks in the city of New York, in her own -name, and were drawn out by her as her exigencies required. Property, real estate, was purchased and finally deeded to her in her own name, without real or apparent opposition from her husband. It may be reasonably concluded that he acquiesced in the justice and equity of a claim on her part to the moneys so deposited and invested in real property. The case would indicate that, and there is nothing which shows the contrary. It is doubtless true that the earnings of the wife at this time, the fruits of her labors, belonged to her husband. But, in the absence of claims or objections, on the part of the creditors, he could surrender a portion of these earnings to his wife. He might acknowledge her equitable claims to them, and could consent to the acquisition of property through them in her own name and to her own use. (Kelly v. Campbell, 2 Abb. Ct. Ap. Decisions, 494.)

A husband may permit his wife to labor' for her own account. He may give her the proceeds she has earned, or allow her to .appropriate them to her own use. (Peterson and Wife v. Mul ford, N. J. Court of Errors and Appeals, 7 Vroom, 486 ; Skilman v. Skilman, 2 Beas., 406; Donovan v. Sheridan, 37 Superior Court R., 256, 262.) It is claimed by the defendant, and she has so testified, that these moneys, acquired by her own efforts, her savings and earnings, together with rents of her own property,, paid for the New Jersey farm. There is no contradiction of her evidence that she paid for the New Jerscy farm, unless it be found in the language of the deed by which it was conveyed to her husband, which in the usual form acknowledged payment of the consideration. But it is not improper to explain by oral testimony the deed in this respect, and show that the consideration was, in fact, paid with the wife’s money. In 1853 the husband deeded the farm directly to his wife. This conveyance, though void at law, was not necessarily so in equity. (Hunt v. Johnson, 44 N. Y., 27; Peck v. Brown, 2 Robt., 119; Townshend v. Townshend, 1 Abb. [N. C.], 81; Simmons v. McElwain, 26 Barb., 419; Shepard v. Shepard, 7 Johns. Chy., 57; Story’s Equity Jurisprudence, vol. 2, § 1374.) Courts of equity will uphold grants from husband to wife, when they would bo void at law. The above cases uphold that doctrine. Equity would not, however, uphold grants of all his estate to his wife by which he would be denuded. (Beard v. Beard, 3 Atk. R., 72.) The circumstances of the husband would be considered where creditors are concerned. (Coates v. Gerlach, 8 Wright [44 Penn. S. R.], 45.) The husband did not denude himself by this conveyance to his wife. Ho had other property and means — real estate and stocks. The conveyance by the husband to his wife may well be regarded, in the absence of all evidence to the contrary, and in view of the foregoing facts, as a recognition on the part of the husband of the equitable claims of his wife to the land, or as a transaction in the nature of an advancement. (2 Story’s Equity Juris., § 1204; Welton v. Divine, 20 Barb. R., 9, and cases cited.) It is an indication of a clear intention on the husband’s part to invest her with the title to this property. There were no impending claims of creditors. The act was voluntary ; there is nothing to show the opposite, but that he intended in good faith to invest her with the title. Nor is there any good reason why a court of equity should not give effect to the husband’s act and intention at the time. In May, 1866, the husband, who was then, and had been for several years living in the State of Virginia, in a state of voluntary separation from his wife, joined with her in a conveyance of the farm to John Taylor Johnston. The consideration realized on this sale, $10,000 and upwards, was wholly received by the wife, who conducted all the negotiations for, and consummated the sale, her husband being in Virginia, where he executed the deed. The proceeds, received by the wife she invested in her own name in the property, the subject of this action, precisely as the farm stood before-it was sold to Johnston.

The trust claimed by the daughter grows out of the signing of the deed by her father. She has testified that her father, when applied to by his wife for the purpose, objected to signing the deed, unless-upon the condition that the defendant would invest the proceeds forher daughter. There is reason for the conclusion that the husband, did at first decline to sign the deed. The daughter, who appeared to be in communication with him, so reported to her mother. On. the 7th day of December, 1865, the defendant wrote to he7.- husband, in Virginia, a letter, in which she says: “I have received a proposal concerning the sale of my farm, said to have-co;me from you, the sum of which is that you will join in the sale, if I will give to Emma the sum of $1,700, and, also, that I will arrange matters so that Emma can have the full amount at-my death; also, that I will put the proceeds in the hands of a. trustee. I will be willing to bind myself to leave the whole-amount to Emma at my death; as for the other proposals I could not accede to them. The farm is now sold for more money than it may sell for again, and if you don’t join in the sale, it may be the means of breaking it up. If you have Emma’s good at heart, you will not refuse to join in the sale. * * * I wish you would write me by return of mail, and tell me decidedly if you will sign your name to' the deed for the farm, and. prevent my having to resort to other measures to obtain a deed, which will cost money that might be for Emma’s use.” One cannot fail to observe the firm ground upon which the defendant-' places herself, in the light of the reported refusal of her husband, to sign the deed. She asks for his signature, evidently, as a. right, and which, if withheld, could be enforced. There is no-hesitation or weakness which a conscious infirmity of title in equity, as between herself and husband, would suggest. She «peaks of the property as “my farm;" she unqualifiedly refuses the reported proposal, that she should give a proportion of the proceeds to her daughter, in cash, or that the balance should be placed in the hands of trustees. She imposes her own conditions. This letter is only consistent with an earnest conviction, on the part of the defendant, that she owned the farm and had a right to dispose of it. No letter is produced showing the husband’s reply to his wife’s demand for his signature. The daughter, however, testifies that he still refused. She also testifies that her mother afterwards wrote a letter to her father, making some promise to invest the proceeds for her. No such letter is produced. Its general contents were, however, allowed to be proved orally by the daughter, who said she had read it, but that it was .lost or destroyed.

But I do not regard the contents of this letter, so proven, as establishing the trust claimed. The mother testifies that she wrote no letter to her husband other than the one of December 7; but another was produced by the daughter, written to her father by her mother, dated February 18, of the following year. It is, however, entirely silent on the subject of any trust. , Subsequently the mother went to Virginia for the purpose of obtaining the signature of her husband to the deed, taking her daughter with her. The plaintiff, who testifies she was present when the deed was signed, says : “ My father objected to signing the deed; my mother said she was willing to do what he required of her, namely, to invest the money for me ; what more do you want ? ” “My father turned to me and told me he hoped I would never regret what I had done ; I was urging him to sign it; said I, father, I will abide by the consequences ; he signed the deed, and threw the pen angrily from him, saying, I hope you are satisfied, .and will never reproach me with the result, whatever it may be.” The defendant denies the occurrence testified to by the plaintiff, and testifies that the deed was signed without any condition imposed by the father of plaintiff, or any promise whatever on her part with regard to the proceeds. Some time after the consummation of the sale of the farm, and the investment, by the defendant, of the proceeds in the Williamsburg and East Broadway property, the husband returned to New York from Virginia, and lived in the Williamsburg house occupied by his wife. They did not, however, live together as husband and wife. He remained there some three or four years, and then went to his daughter’s hpuse, where he died in the year 1873. The title to the Williams-burg and East Broadway property was taken in the years 1867 and 1868.

No steps were taken by the husband in his lifetime to interfere with his wife’s enjoyment of the property, or with her right and title to the absolute ownership thereof, nor by the daughter, until the commencement of this action, in the year 1874. This failure to take appropriate action to impress this property with a trust, during this period of five years and upwards, the defendant in the meantime being in the enjoyment and actual use of one of the houses, and exclusively of the rents and profits of the other, under a claim of title adverse to all others, is unfavorable to the plaintiff’s case. In cases of alleged breaches of trust, of the character claimed in this action, parties claiming to be injured should move without delay. Nor was any action breught in the lifetime of the father, whose evidence for the plaintiff, in the light of her claim, would have been of advantage to her. The failure promptly to act is against the justice of the plaintiff’s case. But apart from that, I conclude that the fiduciary relation claimed by the plaintiff, under the evidence, never, in fact, existed. That the defendant did not receive the proceeds of the Now Jersey farm in trust to invest the same for the plaintiff; but, on the other hand, that these moneys equitably belonged to her. It is true that, according to the laws of New Jersey, the wife could not give a good conveyance of the farm. She might hold, but could not convey. (Naylor v. Field, 5 Dutcher, 287.) . But this does not establish that the husband, as between himself and his wife, had any just claims to the proceeds of this farm, which had so long remained in her name, and in possession of which he left her when he departed for Virginia. Signing the deed would not give him these proceeds or the right to control them, if he was not otherwise entitled.

He might refuse to sign. But, by simply signing, he could .not determine the direction which should be given to the proceeds, or impress a trust upon them. That could only be done by the person entitled to the proceeds, and such the defendant must be adjudged to have been. No writing is produced, signed by the defendant, in which she obliges herself or undertakes to invest the proceeds of the New Jersey farm for the plaintiff. No writing signed by the father, even, indicating any such direction to the moneys, is produced. If he hesitated to sign the deed, and angrily threw the pen aside and intimated that his daughter would regret the act, why was not a writing demanded from the defendant before the deed was signed. It is evident that no engagement, satisfactory to the father, had been yielded by the defendant, if this occurrence is truly described by the plaintiff. .If it was, however, that her word was distrusted, then an agreement or promise in writing would suggest itself. It does not ¡appear that any was asked — none was certainly yielded. It requires evidence of a satisfactory character to engraft a trust upon property held by an absolute title, as to which there is no writing, parol evidence is to be received with caution. (Boyd v. McLean and Wife, 1 Johns. Chy., 583.) Parties are not to be divested of estates standing in their name, except upon the most satisfactory evidence. The burden of proving that these moneys belonged to her father, and through him to herself, rested upon the plaintiff in order to create a resulting trust. This she has failed satisfactorily to do. The resulting trust, not within the statute of frauds, and which may be shown without writing, is when the purchase is made with the proper funds of the cestui que trust, and the deed is not taken in his name. (Bottsford v. Burr, 2 Johns. Chy., 405, 414, 415); or as was said in Getman v. Getman (1 Barb. Chy., 499-514) by the Chancellor: “ But to constitute a resulting trust, to be established by parol evidence, it is necessary that the consideration money for the purchase should belong to the cestui que trust, or should be advanced by some other person as a loan or gift to him.” (Lathrop v. Hoyt, 7 Barb., 59; Nixon's Appeal, 63 Penn. St. Rep., 281; White v. Carpenter, 2 Paige, 238; Steere v. Steere, 5 Johns. Chy., 1.) This conclusion disposes' of the plaintiff’s case. The only satisfactory evidence looking at all to a prospective provision in favor of the daughter, recognized by the mother, is contained in her letter of December 7th, an extract from which is given above, in which defendant says : “I will bind myself to leave the whole amount of my money to Emma at my death.” The plaintiff, for the fruition of her expectations, with regard to the proceeds of the New Jersey farm, must await the event of her mother’s death, which, by occasion of her toils, trials and advanced years, will probably occur on a day not distant. The plaintiff’s complaint must be dismissed, but, for obvious reasons, without costs.

Jacob F. Miller, for the appellant.

•O. B. Ripley and 8. P. If ash, for the respondent.

Present — Davis, P. J., Beady and Ingalls, JJ.

•Judgment and order affirmed on opinion of the court below.


text:
    HENRY A. STUDWELL and others, Plaintiffs, v. THE CHARTER OAK INSURANCE COMPANY, Defendant.

      Preferred causes — what are, within subdivision 8 of section 791 of the Code of Civil Procedure — A preference given by Pule 36 is waived by a failure to file a proper note of issue.

    An action to recover upon a policy of insurance, brought after the death of the person insured and the expiration of the time given by the terms of the policy to the company -within which to pay it, is an action against a corporation, founded upon an “ evidence of debt, for the absolute payment of money,” within subdivision 8 of section 791 of the Code of Civil Procedure, and is entitled to a preference upon the calendar.
    A plaintiff, by failing to file a note of issue in the form prescribed by General Rule No. 36, waives his right to have the case treated as preferred, on the ground that the property of the defendant is held under an attachment.
    Appeal from an order, made at Special Term, denying a ' motion to place the above entitled cause on the preferred calendar.
    The action was brought to recover upon a policy of insurance, issued by the defendant, insuring the life of Lucretia A. Stud-well, for the benefit of the plaintiffs, her children. On the 13th day of July, 1878, the said Lucretia A. Studwell died, and the policy became due and payable. At the commencement of this action an attachment was issued, and property of the defendant levied upon, which property is still held under said attachment. On the 4th of August, 1879, plaintiffs moved this court, at chambers, for an order placing this cause on the preferred calendar, upon the grounds :
    1. That the action is against a corporation on an evidence of debt, for the absolute payment of money.
    2. That an attachment had been issued herein, and that property of the defendant was held thereunder.
    The court, at the close of the argument, denied the motion, and from the order thereupon entered this appeal is taken.

      Lewis & Beecher, for the appellants.

      C. B. Alexander, for the respondent.
   Per Curiam:

Under Rule 36 of the General Rules of Practice, the plaintiffs might have placed this action on the preferred calendar, on filing a note of issue in the form prescribed by the rule. Not having done so, they waive their right to have the case treated as preferred, oh the ground that the property of the defendant was held under attachment. The defendant, by the rule, is entitled to make a motion, on short notice, to have the same px’efexTed, but that right is not given to the plaintiff

We think, however, the cause of action is a preferred one under subdivision 8 of section 791 of the Code of Civil Procedure. It is an action against a corporation, founded upon an evidence of debt for the absolute payment of money, notwithstanding the contract in its inception was not absolute but conditional.

A policy of life insurance, which has matured and become due by the happening of the contingency provided for, and the expiration of the period for the payment of money, is, we think, an evidence of the debt for the absolute payment of money, within the meaning of the Code.

The order is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, without costs.

Present — Davis, P. J.; Brady and Ingalls, JJ.

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


author: Daniels, J.;

text:
    GEORGE H. CHEEVER, Administrator, etc., of WILLIAM W. CHEEVER, Deceased, Appellant, v. GAZAWAY DE R. LAMAR, Executor, etc., of GAZAWAY B. LAMAR, Respondent.

      Partnership books of account — prima facie evidence as between the partners — Interest on money advanced by one partner to the partnership — from what time allowed.

    Appeal from a judgment in favor of the defendant for the sum of $223,781.72, entered on the report of a referee.
    The judgment was recovered upon dealings betwen the plaintiff’s intestate and the defendant’s testator, and between them and one Charles A. L. Lamar, in the purchase and sale of guano, and also in the purchase and sale of cotton. Upon the cotton transactions a balance existed in favor of the plaintiff, but, upon the preceding transcations in guano, a large indebtedness was found 'by the referee against the intestate. The contest in the case "between the parties, on the point of liability, was substantially "limited to the balance adjudged in favor of the defendant upon the guano transactions. As to them, it was held, by the referee, ■-that the intestate and testator were partners, and that Charles A. "L. Lamar was also a member of the firm. The loss upon these transactions was, therefore, divided into three parts, one of which was charged against the plaintiff’s intestate in this case. It appeared that a partnership had actually been formed between these parties, and that a letter was written by the president of “The American Guano Company ” to the testator and the intestate, offering to them the agency for the sale of American guano for the period of ten years, in the six States of North Carolina, South Carolina, Georgia, Florida, Alabama- and Tennessee. This guano, according to the proposition contained in the letter, was to be sold to these parties by the company, and by them made the subject of business transactions between themselves; and they, in writing, accepted the proposed agency and terms of sale.
    After this was done, these parties appear to have associated with themselves Charles A. S. Lamar, aud they soon afterward entered upon the transaction of this business. The guano was-shipped to these persons at Savamiah, in the State of Georgia, .and was there received for sale and distribution through these States. The business continued until the war of the rebellion broke out, when it was suspended, the guano stored in sheds, which were afterward broken down, exposing it to the weather, which, in the end, rendered most of it worthless, and in that manner the large loss, made the subject of controversy in this case, was incurred.
    The court, at General Term, said : “ It was objected upon the trial, and the same objection has also boon taken in support of the appeal, that the books received by the referee were not evi•dence against the estate of the intestate, Cheever, for the reasons that the accounts in them were kept by the testator himself, so far as they professed to record the guano transactions, in the city -of New York, while the business was chiefly carried on in the city of Savannah, and that these books were simply the private and personal books of the testator. It did appear that, prior to April, 1861, they had been kept by the testator, Lamar, in the ■city of New York, and he then carried them to Savannah, where they remained until the decease of the intestate, which took place •on the 14th of July, 1863. They were kept after that time by the book-keeper, Mr. Lawson, in an office, in the building of the Bank of Commerce, in Savannah, of which the testator was the president. But it appeared that the intestate, while in Savannah, devoted a considerable portion of his time to the business in thi's■office ; that the books, after they were taken there, were kept in the same room,' and frequently laid open upon the desk; that Cheever was consulted as to entries about to be made in them by the book-keeper, in order to supply the material, or date, out of which they were afterwards made. It also appeared that some of the entries were made the subject of conversation with the intestate, for the purpose of securing explanations and information as to their proper form, and these were the only books which these parties had in which the transactions of either the guano or cotton business were entered, except that of Charles A. L. Lamar, in which he kept an account only of sales made.
    “It does not appear that the intestate ever personally examined, either class of entiles — those relating to the transactions in guano,, or those concerning the purchase of cotton; but it does appear that the books, at all times, were subject to his control, and that-he was at liberty, if he chose to do so, to examine all the entries made in them and forming any part of these accounts. No-restraints whatever appear to have been imposed upon him in. this respect, and if he failed to examine them in point of fact, it was because he probably confided in the accuracy of the entries which had been made by his partner, Mr. Lamar, and after that by this book-keeper. This part of the business seems to have been, wholly intrusted by him to these individuals, and no question was made on his part but that they had each performed their duties with the strictest accuracy; and as no other books existed in which any of the entries, unless it were those containing sales of guano made by Charles A. S. Lamar, were in use, in the course of the business of this partnership, these books had all the attributes of, and were in fact partnership books, although they also-contained the testator’s private accounts.
    “ The fact that the intestate did not chose to examine them, if such were in truth the case, arose simply out of the circumstance that he elected not to do so, because he probably assumed them to be correct. His conduct was such as constituted an acquiescence in the manner hi which the books had been and were being, kept. His assent to the transaction of the business, in this way,, can well be presumed from what occurred, and for that reason, as well as the others assigned, the books were properly received in evidence. The rule is well settled, as a legal proposition, that partnership books are admissible in evidence for the purpose of showing the state of the partnership affairs.
    “To that extent they axe prima fade evidence, in any contro-versy arising between the partners, and also between their personal representatives, concerning the state of the partnership transactions. Upon this subject it has been held, that although the books of an individual are not evidence in his favor against others, yet, from the very nature of the case, 1 the books of a partnership must be evidence between the partners themselves. 'Their situation is one of confidence ; they agree to unite, and, as to others, become one person, and the books of the firm are to speak their language, to record their joint transactions, and there is an understanding that these books are to be appealed to, to tell their true situation; to admit them as evidence, then, is only ■effectuating their agreement, and using their own criterion to test .and ascertain the truth. Such books, therefore, kept subject to the inspection of each, must be admitted as correct until the contrary is shown.7 (Simms v. Kirtley, 1 Monroe [Ky.]. 79, 80.) In Lodge v. Prichard (3 DeG., M. & G., 906), the Lord Chancellor expressed this legal principle in the following words : ‘ Prima facie the books of the partnership are evidence among all the partners, for them all, and against them all, owing to the agency which pervaded all the partnership transactions. If one partner .succeeded in establishing a case of fraud, that would form the ground for an exception from the general rule. Nor is there anything in the rule to exclude an allegation of a mistaken or erroneous omission or insertion; the only question is, whether the books are prima facie evidence between the partners and them estates. In my opinion they are.7 (Id., 906, 909-910.)
    “ The same principle is stated to be the law in Alien v. Coit (6 Hill, 318, 321-322). It was there stated, as to an entry in the books of the defendant’s, that 1 they must all be taken to have had constructive knowledge of it, and it appears they probably had knowledge in fact; they were affected by the entry, whether made by themselves or their agent, * * * they must moreover be presumed to have understood its true import.7 The same thing was repeated by the Chancellor in Heartt v. Corning (3 Paige, 566, 572), where it was held that it was the duty of the party to look into the accounts within a reasonable time, and to point out ■the errors, if any existed therein, or he must be considered as having acquiesced in the correctness of the accounts as stated in the books of the firm, to which both parties had access, during the-existence of the partnership. In stating the accounts of partners as between themselves, the entries on the partnership books, to-which both partners have had access, at the time when those entries were made, or immediately afterwards, are to be taken asprima facie evidence as to the correctness of those entries, subject, however, to the right of either party to show a mistake or error-in the charge or credit.
    “In the TJ. 8. Banle v. Binney (5 Mason, 176, 178), it was held by Judge Story, that the ordinary presumption, in cases of' partnerships is, that all the partners had access to the partnership-books and might know the contents thereof. In Fairchild v. Fairchild (64 N. Y., 471, 480), the general rule was stated to be,, that where members of a firm have access to the books, and an opportunity to know how their accounts are kept, the presumption is that they do know, and-there is no conflict in the statement-made of this principle in these authorities, and- the others cited in. support of this appeal. (See, also, Lindley on Partnerships, 637: Taylor v. Herring, 10 Bosw., 452.)
    “The books derive their character as evidence from the circumstance that they are kept for the purpose of recording the transactions of the business, with the knowledge and assent of all the partners, and with both liberty and opportunity, at least, to each of them to inspect and rectify them, if any improper entries may be made in them. Such was the character of these books, and the intestate was at liberty to inspect them if he had been disposed to do so, as fully and completely as he might have desired. ' This-privilege and this opportunity extended to all the entries, as well those made after the. books were taken to Savannah, in April, 1861, as those made by Lamar while they were in the city of' New York, and the fact that they were kept there by Lamar, from which point the shipments and delivery of the guano were directed, and no other book, except simply that showing certain sales and kept by Charles A. L. Lamar, was used in the course of the final business, are circumstances from which it may be inferred that the books were so kept at New York, with the assent- and approval of the intestate. They were the partnership books, and proper evidence in the case, even though they contained Lamar’s personal accounts also, and the objections taken to them as such were rightly overruled by the referee. These books confirmed the evidence of the witness Lawson, and that afforded by the letter of the guano company, indicating the existence of an actual partnership between those persons, and they also show the cost and amount of the guano received, which was afterwards lost, as was proved without contradiction as to the fact. The accounts were kept in form between these persons as partners in the guano business, showing each to have had an interest in it to the extent of one-third, and as it was proved that the funds for purchasing the guano were advanced by the testator solely, they substantially established the amount the intestate was chargeable with for the losses incurred in this part of the business, and these' losses were consequently properly applied in extinguishment of the balance appearing in favor of the intestate upon the cotton transactions, and made the basis of the judgment against the plaintiff! * * *
    “It has been further objected that interest should not have been allowed by the referee on the amount due to the testator for moneys advanced by him in this business, and the cases of JacJcsm v. Johnson (11 Hun, 509; Terrell v. Janes (39 Cal., 655), and Tult v. Ladd (50 Ga., 350), are relied upon as sustaining this objection. But that they do not entirely do so is clear from the circumstance that they relate to claims for interest on the amount invested in the business by one of the partners while it was being carried on. The present case is entirely different in this respect, as to so much of the interest as was allowed from the 14th of July, 1863, for at that time the intestate died and the partnership was dissolved, and the testator then became entitled to be reimbursed for the advances he had made, and in addition to that, the guano business had been effectually terminated by the loss of almost all its entire stock in trade. There was then a simple debt .existing in favor of the testator against his co-partners for the reimbursement of two-thirds of'his advances; one-third of this amount was due from the intestate’s estate, and for the reason assigned, there seems to have been no impropriety in allowing interest upon that third. (Johnsons. Hartshome, 52 N. Y., 173,177-178.) As to the interest which was allowed before the 14th of July, 1863, these authorities appear to be directly applicable, for up to that time no adjustment of the guano account was made, and no positive termination had taken place of the business carried on by means of that commodity. The sales before that, it is true, were very small, but still sufficient to afford the business a nominal existence, at least. This preceding interest, for these reasons, and under these authorities, should not have been allowed in the computation made by the referee.”

      Scott & Orowell, for the appellant.

      Edw. Ef. Dickerson, for the respondent.
   Opinion by

Daniels, J.;

Beady, P. J., and Ingalls, J., concurred.

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