author: Davis, P. J;

text:
    JOHN SCHELLY, Respondent, v. PETER ZINK and others, Appellants.

      Ordm- of wrest — neglect of pcvrty procuring, to entes' judgment when it is in Ms power so to do — Gode, §288 — discharge hy ordm• unden' — mealing said order — effect of.

    Appeal from an order of the Special Term denying the motion of the appellant for discharge from imprisonment under execution.
    The appellant was arrested on an order of arrest, and not giving bail remained in actual custody under the order. He appeared in the action by attorney upon whom the complaint was served. No answer was served to the complaint, and the appellant claiming that the plaintiff had neglected to enter judgment in the action after it was in his power so to do, moved, under the provisions of section 288 of the Code, for an order discharging him from custody. He obtained an order upon affidavits to show cause why he should not be discharged from custody. The order was returnable on the 12th of July, 18Y5, at ten and a-half a. m. On that day it was adjourned to the sixteenth of July, and on the sixteenth of July it was further adjourned to July nineteenth at ten and a-half a. m. At the adjourned hour, on the nineteenth of July, the appellant’s attorney appeared, and no one appearing to oppose took an order by default for the discharge of the appellant from custody. The attorney for the respondent appeared at eleven a. m., supposing that that was the hour to which the motion stood adjourned, and upon learning that his default had been taken called the attention of the court to the fact of his impression as to the hour of adjournment. The court, thereupon, directed that no order be entered, until the plaintiff’s attorney saw the attorney for the appellant, in order that an hour might be fixed to have the motion argued. Plaintiff’s attorney immediately applied to the attorney of the appellant, who consented that the proceedings stand adjourned to the following day at ten o’clock a. m., and indorsed his consent, subscribing the same on the papers. Before doing this, however, the order by default had been entered and the appellant had been discharged from the custody of the sheriff. On the twentieth the attorneys for the respective parties appeared at the Special Term and the motion was argued, and an order was made on that day vacating and setting aside the order by default, entered on the nineteenth of July, and remanding the appellant to the custody of the sheriff upon the order of arrest and denying the relief asked for by the motion for discharge, on condition the plaintiff enter judgment in three days against the appellant, otherwise the motion was granted. Judgment having been entered as required by this order, upon which an execution against the property had been returned unsatisfied, an execution was issued against the body of the appellant on which he was arrested and held in custody by the sheriff, and this motion is for the discharge of the appellant from imprisonment on the execution so issued. No appeal was taken from the order of July twentieth.
    The court at General Term said: “ The only question is whether the order taken by default on the nineteenth, and upon which the appellant was actually discharged, was such a supersedeas of the arrest and of the order upon which it was made that it could not be restored by the court, as was sought to be done, by vacating the order of default and hearing and disposing of the motion on its merits. Section 288 of the Code, after providing for the application for discharge, concludes with these words, c and after being so discharged such defendant shall not be arrested upon any execution issued in such action.’
    A very ingenious argument was made by the learned counsel for the appellant, based upon this provision of the Code and upon the fact that the appellant had been actually discharged under the order of the nineteenth, to the effect that the order of discharge having been executed the same could not be opened or vacated so as to restore the parties to their former condition, and that the attorney of the appellant had no authority to consent to open the same for such purpose. We are of the opinion, however, that the circumstances, of this ease do not bring it within the authorities or the principle cited and relied upon by him.
    The attorney’s power was not exhausted, even had his retainer been special, for the motion had not been heard upon its merits and it was within his authority to open the default and allow the motion to be heard on its merits. His indorsement of an adjournment of the motion to the twentieth, made on the nineteenth, and immediately after the order had been entered, was equivalent to a stipulation to waive the default and allow the motion to be heard on the merits, and that the order already entered by default depend upon the result of that motion. This is practically what was done; and when the parties appeared on the following day and argued the motion the court had jurisdiction to ratify the order by default and all that had been done under it, or to vacate that order absolutely and dispose of the motion upon its merits. The latter course was taken and we think it was effectual, and if not appealed from final.
    We are, therefore, of opinion that the appellant was properly arrested on the execution, and that the order of the court below denying the motion for his discharge should be affirmed, with ten dollars costs and disbursements.”

      Ira Shafer, for the appellant. A. J. Vcmderpoel, for the respondent.
   Opinion by

Davis, P. J;

Brady, J., concurred. Ingalls, J., not sitting.

Order affirmed, with ten dollars costs, and disbursements.


source: Caselaw Access Project

author: Ingalls, J ;

license: Public Domain

text:
    THERESA HOFFMAN, Appellant, v. WILLIAM C. CONNER, late Sheriff, etc., Respondent.

      Sheriff ■ — neglect to enforce execution in replevin suit.

    Appeal by tbe plaintiff from a judgment entered after a trial at tbe Circuit, at which the complaint was dismissed; also from an order denying a new trial, upon a motion therefor, made upon the minutes of the court.
    Charles Hoffman instituted an action in the Marine Court against the appellant to recover the possession of certain personal property, and at the commencement of such action, by a proceeding under that portion of the Code, entitled “ claim and delivery of personal property,” took possession of such property and retained the same. The appellant prevailed in the action in the Marine Court and a judgment was entered therein awarding to her a return of the property or the value thereof if return could not be made. An execution was issued to the respondent, as sheriff, in accordance with the judgment, which he returned October 28, 1876, with the folio wing-certificate indorsed thereon: “I certify and return to the within execution that I cannot find the personal property within described within my county so as to deliver the possession of, and return same to the defendant by this, as within I am commanded ; and I further certify that I cannot find any personal or real property of the plaintiff within my county, out of which I-could make the amount of the value, damages and costs within mentioned or any part thereof.”
    During the time the sheriff held the execution he was informed where the property was, and an offer was made to point it out to him at the house of one Miller in the city of New York. No reasonable doubt existed as to the identity of the property, which was a quantity of furniture.
    The sheriff did not visit Miller’s house or make any effort whatever to seize the property and deliver it to the plaintiff.
    The court at General Term said: “We are unable to arrive at any other conclusion than that the sheriff wholly neglected his duty in regard to the execution of the process. The pretense that the furniture was in Miller’s possession was wholly insufficient to shield the officer from liability. He should have ascertained by what claim Miller held such possession; whether he had any title superior to the plaintiff; whether any opposition or resistance would be interposed by Miller to the execution of the process.
    "When a party places in the hands of an officer a process he has a right to expect and require a vigilant and faithful execution thereof. It is for such purpose the office is created, and the incumbent accepts the position charged with the responsibilities involved, and should not be allowed to neglect or evade the performance of duty to the prejudice of a party interested.
    The evidence wholly fails to establish a state of facts which justify the sheriff in neglecting or refusing to make delivery of the property in question to the plaintiff. The return shows that nothing could be collected of Hoffman. Consequently by the neglect of the sheriff to deliver the property to the plaintiff she will in all probability ffie subjected to the loss of the same, with all the expenses attending the controversy. There was certainly evidence of the value of the furniture sufficient to submit to the jury. The inquisition taken by the sheriff in the same proceeding was put in evidence wherein the property was appraised, which furnished some evidence of value as against him. Again, the execution contained a statement of the value of the property, and that was in evidence. We cannot doubt but that there was evidence sufficient upon that question to submit to the jury. (Ledym-d v. Jones, I N. Y., S50; Bwezey v. Lott, 21 id., 484; Bowma/n v. Cornell, 39 Barb., 69.)

      Edward P. Wilder, for the appellant. A. J. Yamderpoel, for the respondent.
   Opinion by

Ingalls, J ;

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

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


author: Smith, J.:

text:
    WILLIAM F. EDINGTON and ABRAM SLEEPER, Respondents. v. THE ÆTNA LIFE INSURANCE COMPANY, Appellant.

      Policy of insurance — assignment of — declarations of assignor — not admissible against assignee — Physicians ccmnot disclose facts acquired while attending patients — waiver of this point — right of assignee so to do ■ — Woi'ds — submission of meaning of to jury — Application to company — what constitutes — Diserepa/ncies in answer — when immaterial.

    The defendant issued a policy of insurance upon the life of one D., payable to the assured, his executors,, administrators or assigns. D.' transferred his interest in the policy to plaintiff for the sum of $1,000, reserving the right to redeem, on repaying said sum with interest in one year, andj during his life, but in case of his death before redeeming, the transfer to be absolute. In an ■ action by plaintiff to recover the amount of the policy, after D.’s death, it was claimed by the defendant that the agreement was against public policy, and fraudulent as to the heirs and next of kin of the assured, as it tended to deprive them of the right to redeem. Held, that the agreement was valid, and should be sustained.

      Semble, that in an action by the assignee of a policy of insurance, issued upon the life of his assignor, to recover the amount thereof, declarations made by the assignor are not admissible in evidence against the plaintiff, whether made before or after the issuing of the policy.
    In no event can declarations made after the issuing of the policy be admitted.
    Upon the trial, Dr. E., who had testified that he had treated D. and prescribed for him in the spring and summer of 1862, was asked, " What did'you do by way of treatment to him ?” “Was he cured when he left your hands ? ” “ Was he better or worse after you ceased treating him ? ” Held, that the court properly refused to allow the questions to be answered, as they were forbidden by the statute (2 R. S., 406, § 73) prohibiting a physician from disclosing information acquired by him in attending a patient professionally.
    He was then asked whether, in May, 1867, in his opinion, “D. was in good health, and of sound body, and one who usually enjoyed good health ?” Held, that the question was objectionable, as the opinion of the witness must necessarily be based, in part at least, on the information acquired by him in his professional attendance on D.
    A physician was called who testified that he had examined D. for insurance in the Phoenix Life Insurance Company about the time of the second application in this case, and passed him as insurable. Upon cross-examination, he was asked if he would have recommended D. for insurance if the latter had informed witness that he had been treated by any of the five physicians who had attended him for a disease which he was unwilling to disclose, or that he had been under treatment for five years. Held, that the opinion of the witness as to what he would have done had those statements been made to him was of no importance, and was properly rejected.
    The prohibition imposed by the statute upon a physician, preventing him from disclosing information acquired by him in attending upon a patient professionally, is for the benefit of the patient, and may be waived by him or by his assignee, nor is this privilege of the assignee affected by the death of his assignor.
    To the question in the application, “ Is the party subject to dyspepsia, dysentery or diarrhoea ?” D. answered “No.” Upon the trial the court charged the jury : “You will say what is the fair meaning of the words 'subject to.’ Does it mean a single occurrence of a disease — a single attack — or does it mean that one has been habitually attacked, or that he is under the possession of the disease ? * * * Looking at this question, it is for you to say whether he was subject to dyspepsia, dysentery or diarrhoea. ” Held, that, as submitted, there was no error in allowing the jury to determine the meaning of the words “ subject to.”
    To the question in the application, “ Has any application been made to this or any other company for assurance on the life of the party; if so, with what result?” I). answered, “Yes, and always successful.” It appeared that, in 1862 or 1863, he handed to the agent of a foreign insurance company an application for insurance; that the agent said he did not think the company would take him; that, upon D.’s request, he handed the application to the examiner for the company, who was then D.’s physician; that the agent subsequently told D. that the examiner said he could not pass him, and that the examination was a farce and an unnecessary expense to put the company to; and there tho matter dropped. The court left it for the jury to say whether Or not D.’s answer was a truthful one. Held, that it did not appear that an application was made to the company; that the application was not even made to the agent to be forwarded to the company; that the application was never completed.
    One question was: “ Has the party had, during the last seven years, any severe sickness or disease ; if so, state the particulars and the names of the attending physicians, or who was consulted and prescribed ? ” The answer in the first application was: “ Has had nervous difficulty and diarrhoea ; O. H. Carpenter, Geneva, N. T.in the second it was “No.” The court left it to the jury to determine whether or not the nervous difficulty or diarrhoea was, in fact, a severe sickness or disease. Held, that this was proper; that if the nervousness and diarrhoea were not, in fact, severe diseases; the discrepancy between the two answers was not material.
    The question who is an attending physician under 2 Kevi'sed Statutes (406, § 78), discussed.
    Appeal from an order denying a motion for a new trial made upon the minutes of the judge, after verdict rendered in favor of the plaintiffs at the Ontario Circuit.
    This action was brought to recover the amount of two policies of insurance for $7,000, issued by the defendant on the life of William F. Diefendorf, of Geneva, New York, title to which was claimed by the plaintiffs by virtue of an assignment bearing date October, 18, 1870. The policies were payable to the said assured, his executors, administrators or assigns, within ninety days after due notice and proof of the death of the said W. F. Diefendorf, or if the said W. F. Diefendorf should survive twenty-five years, then the amount insured was to be paid to him; and, in either case, all indebtedness of the party to the company should be deducted from the sum insured.
    The answer of the defendant alleged that when the policies were obtained by Diefendorf, the assured,, he made certain false representations and warranties, and concealed certain material facts in reference to his then,.and previous health and physical condition, and in reference to other material matters, about which he was asked in certain questions then propounded to him.
    The assignment under which the plaintiffs claimed expressed a consideration of $1,000, and provided that Diefendorf, the assured, might redeem the policies at any time during one year; and also provided that, in case Diefendorf should die within the year, the assignment should become absolute. The first policy bore date June 18, 1867, and insured Diefendorfis life in the sum of $2,000. The second policy was dated May 29, 1868, and the application on which it was issued was dated May 13, 1868.
    In the course of the charge, the court said: “ It is claimed, also, that in answer to question No. 13, in that application, he answered untruly. That question is: ‘Is the party subject to dyspepsia, dysentery or diarrhoea?’ To this question he answered ‘No.’ That will lead you to inquire what is meant by the term ‘ subject to.’ Upon this subject, let me say that the words used in these questions are to be understood as men generally would understand them in common use. The usual meaning of the terms is to be given to them. You are to understand them as usually employed and understood. You will say, what is the fair meaning of the words ‘ subject to ? ’ Does it mean a single occurrence of a disease — a single attack • — • or does it mean that one has been habitually attacked, that he is under the possession of the disease? You say a man is subject to a cough, does it mean that he has had it once or twice, or does it mean that it has taken possession of him substantially ? Looking at this question, it is for you to say whether he was subject to dyspepsia, dysentery or diarrhoea. If you shall find that he was not subject to either of these diseases, then that question was answered truly, and the defense to it is not established; but if you find that he was subject to one or more of the diseases therein named at the time he made the answer, the defense is established upon that ground.”

      E. G. la/phmi, for the appellant.

      G. E. Danforih, for the respondents.
   Smith, J.:

The counsel for the appellant contends that the assignment of the policies is void. By the terms of the assignment, Diefendorf transferred to the plaintiffs his interest in the policies in consideration of the sum of $1,000, he reserving the right to redeeem the same on repaying the said sum with interest, in one year and during his life, but in case of his death before redeeming, the transfer to be absolute. It is claimed that the provision rendering the assignment absolute in case the assured should die without redeeming, is against public policy, and is also fraudulent as against the heirs of the assured, and is designed to deprive them of the right to redeem. It is difficult to discover any reason for holding that the assignment is not valid and operative according to its terms. The policies, by their terms, were assignable at the pleasure of the insured; they imposed no limitation upon the power of assignment; they vested no right or preference in the legal representatives or heirs of the assured; and in the terms and purpose of the assignment itself there is nothing unlawful. We think that the assignment was good in law, and the assignor having died within the year without redeeming, that the title to the policies, and the right to recover the moneys due upon them vested absolutely in the plaintiffs.

Numerous questions are presented by exceptions taken by the defendant’s counsel to rulings of the trial court upon the admissibility of certain items of testimony. They will be briefly considered, so far as is necessary.

1. The case states that the defendant’s counsel offered in evidence the deposition of George Proudfit, taken in Michigan, under a commission ; that the counsel for the plaintiffs objected to a part of the deposition, described in the case as that part of the answer to the fifth interrogatory which purported to relate to the declarations or statements of Diefendorf, and that it was excluded. The case does not set forth the portion of the deposition which was excluded, but its substance is perhaps to be inferred from an offer made by the defendant’s counsel immediately after its exclusion, “ to prove from the testimony of Proudfit, in connection with the fact that Diefendorf was in feeble health and debilitated, and confined to his bed upon one or two occasions during the years 1866, 1867 and 1868, declarations made by him to the witness, explaining his sickness ór physical condition.” To a question put by the court when the offer was made, the counsel replied that he simply meant to offer to read the whole of the answer to the interrogatory, and the offer was excluded. Assuming that the excluded part of the answer was to the effect stated in the offer above transcribed from the case, we think it was properly shut out as mere hearsay. The declarations of Diefendorf were not admissible against the plaintiffs, who, although deriving their title from him, were not identified with him in interest,- they being purchasers for value. (Paige v. Cagwin, 7 Hill, 361.) It is immaterial that the policies were not negotiable. (Id.; Booth v. Swezey, 4 Seld., 276.) And the fact that the party making the declarations is since deceased, makes no difference: (Stark v. Boswell, 6 Hill, 405; Tousley v. Barry, 16 N.Y., 497.) In general, to make the declarations of a person not a party to.the suit, competent evidence, there must be an identity of interest between such person and the party against whom the declarations are offered. But there is no such identity of interest between parties occupying the relation of vendor and purchaser. Were this suit brought by the next of kin or the legal representatives of Diefendorf, the case would be different. It is urged, however, by the appellant’s counsel that in the circumstances stated in the offer, the declarations being explanatory of the speaker’s bodily ailments, were admissible as res gestee. Upon this point we are referred to tire case of Swift v. Massachusetts Mutual Life Insurance Company (63 N. Y., 186). That case is clearly distinguishable from the present. There, the plaintiff had taken the policy sued on to herself, on the life of her husband, for her own benefit. The decision in that case seems to proceed upon the ground that the legal relation between the policyholder and the insured, was such that the declarations of the latter, within certain limitations, were admissible to show his knowledge of his state of health. The limitations laid down by the court were that only those declarations were admissible which were made prior to the examination of the insured by the agent of the insurer, at a time not too remote from such examination, and in connection with facts or acts exhibiting his state of health. The learned judge who wrote the opinion was careful to state, in accordance with numerous prior decisions, that declarations of the insured made after the . contract of insurance had been effected, are not admissible in evidence, for the reason that after the contract of insurance has been effected the subject of insurance has no such relation to the holder of the policy as gives him power to destroy or affect it by unsworn statements. And this suggests another point of difference between Swift’s case and the one in hand. There the declarations which were held admissible were made before the contract of insurance was effected ; here, for aught that appears in the offer, the declarations were made after both policies in suit were issued. The last policy was dated May 13, 1868, and the declarations would have been within the offer, if made in the subsequent part of the year. The offer was properly excluded. The same considerations apply to the offer to read the answer of the same witness to the sixth interrogatory.

2. The several objections taken to questions put by the defendant’s counsel to the witness, Dr. Eastman, who had been the attending physician of Diefendorf, were properly sustained. The statute which prohibits a physician from disclosing information acquired by him in attending a patient professionally (2 B. S., 406, § 73), prevents not only a direct disclosure by him, as a witness, of the prohibited information, but also the giving of any answer which tends in any degree, however remote or indirect, to throw light upon the subject of the prohibition. Upon that subject he is not to furnish any information, however slight. Dr. Eastman testified that he treated Diefendorf and prescribed for him in the spring and summer of 1862. The questions — “ What did you do by tfay of treatment to him ? ” “ Was he cured when he left your hands ? ” Was he better or worse after you ceased treating him ? ” — were obviously within the prohibition of the statute. If answered, they opened the door to an inquiry as to the maladies for which he was treated, and as to his condition while he was in the witness’ hands. He was asked whether, in May, 1867, in his opinion, “ Diefendorf was in good health and of sound body, and one who usually enjoyed good health.” That question was objectionable, for the reason-that whatever opinion the witness had on the subject was necessarily based, in part at least, on the information acquired by him in his professional attendance on Diefendorf. The objection was not obviated by the succeeding question, which called for the witness’ opinion on the same subject, excluding, in terms, any knowledge or information that he obtained while treating Diefendorf. (See Edington v. M. Life Ins. Co., 67 N. Y., 185.) It was impossible for the witness to exclude such information from his mind in forming an opinion, and if it were possible, the opinion would have been based upon partial information, and would have been of no value as evidence. It by no means follows from these views, as appellant’s counsel suggests, that a physican who has once attended a patient is forever prohibited from giving a medical opinion as to the subsequent condition of the patient, derived wholly from observation. Such a result would hardly be claimed in a case where the malady for which the patient was treated by the witness was cured, and had no effect upon or connection with his subsequent condition at the time respecting which the opinion was called for. But, in this ease, the theory of the defense at the trial is understood to have been that whatever malady Diefendorf was treated for by the witness in 1862 continued to afflict him in May, 1867, and to the time of his death. In that view of the case, it is difficult to see how the witness could have expressed an opinion respecting the health of Diefendorf in 1867 without being influenced, more or less, by what he learned of his condition during his attendance on him in 1862. The questions put to Dr. Eastman as to the cause of chronic diarrhoea and rheumatism, and the effect of those diseases, were also properly excluded. They were immaterial, unless they were pertinent to the issue as to whether Diefendorf had either of the diseases referred to, in which case, as we have seen, the testimony was within the prohibition of the statute.

3. A point is made that the court erred in excluding the testimony of the witness Spalsbury, a connection of Diefendorf by marriage, ‘and well acquainted with him, a physician, but not the attending physician of Diefendorf, as to his knowledge and opinion of the physical condition of Diefendorf prior to the insurance, and within the limit of seven years named in the applications. The only question of that nature to which an objection was sustained, so far as I have discovered in reading the entire testimony of the witness, was one in which the witness was asked whether, in his opinion, Diefendorf was a healthy man in 1862, when witness first knew him. I gather from the case that the question was objected to on the ground that the time was too remote. It was five and six years before the respective a|3plications. Obviously, if the witness had no knowledge of the state of Diefendorf s health subsequently to that time, his opinion was of little value ; and, in view of all the testimony produced by the defendant as to the health of the assured in later years, it can hardly be said that the defendant was prejudiced by the ruling, even if it was erroneous. Eor instance, the same witness, Spalsbury, subsequently testified, on defendant’s examination, that after 1862 Diefendorf lost in health from year to year; that his health was not as good in 1865 as in 1862, that in 1862 his voice was low, and it was always low when he knew him. The suggestion that the applications cover a period of seven years, probably has reference to the question, “ Has the party had, during the last seven years, any severe sickness or disease í ” The question to Spalsbury was not whether the assured had a severe sickness in 1862, but whether, in the opinion of the witness, he was then a healthy man? We are of the opinion that if the ruling was erroneous, substantial justice does not require that a new trial should be granted on account of it, and the error should be disregarded. (Code of Civil Procedure, § 1003.)

4. The defendant’s counsel called as a witness Dr. Pieot, who certified in the proofs of death submitted by the plaintiffs to the insurance company, that the assured died of nervous apoplexy; and asked him to state what causes may produce nervous apoplexy. The testimony was excluded. By the witness, Dr. Swart, the defendant’s counsel offered to prove that death by nervous apoplexy is the result of some disease or diseases of long standing, and not of a sudden cause. An o'bjection to the offer was sustained. We think these rulings were correct. So far as can be learned from the question and offer, the testimony was immaterial. It was not proposed to show that the death of Diefendorf or the disorder which was certified to have produced it, was the result. of any disease covered by the representations of the assured, and within the issues made by the answer.

5. The same remark is applicable to the question put to the witness Tennant, calling on him to state whether he knew any thing of Diefendorf’s limbs swelling in 1810, or at any time? It does not appear to have been material to the issue.

6. The witness, Goodall, testified on direct examination by the plaintiffs, that he examined Diefendorf for insurance in the Phoenix Life Insurance Company about the time of the second application in this ease, and passed him as properly insurable. On cross-examination he was asked whether he would have recommended Diefendorf for insurance if the latter had informed witness that he had been treated by any of the five physicians who had attended him for a disease which he was unwilling to disclose, or that he had been under treatment for five years ? Two other similar questions were put to the same witness, and one to the witness, Dr. Clark. An objection to each question was sustained. We think the testimony was incompetent. It was of no importance to know what the action of the witness would have been in the hypothetical case stated, or what, in their opinion, would have been a good or bad risk for an insurance company to take under tbe supposed state of facts. Similar testimony was beld to be incompetent in Rawls v. American Mutual Life Insurance Company (27 N. Y., 282, per Wright, J., p. 293), and cases cited by him.

Y. It is claimed that the court erred in allowing the plaintiffs’ witness, Dr. Simmons, a physician, to testify to the opinion he formed upon an examination of Diefendorf, at his request. The claim is based upon the idea that the information the witness acquired was privileged by the statute already referred to. We are of the opinion that the transaction between the witness and Diefendorf was not within the statute. The witness was the county clerk, and on one occasion when Mr. Diefendorf, who was an attorney, was in the clerk’s office, he requested- the witness to look at an eruption upon his skin, and the witness did so, on that occasion only, and gratuitously. Tie examined his face and back, and at the trial expressed an opinion as to the character and cause of the eruption. Undoubtedly, as he testified, he made use of his knowledge and learning- as a physician in forming his opinion, and it was in the confidence that he possessed medical skill that Diefendorf requested his examination; but it can hardly be said that he attended Diefendorf as a patient, in a professional character, certainly not that the information acquired by him was to enable him to prescribe for him as a physician. It does'not appear that any prescription was made or asked for. Ordinarily, perhaps, it is to be presumed, in the absence of proof to the contrary, that when a physician attends a person as a patient, in a professional character, he does so for the purpose of prescribing for him, but here we think the presumption does not arise, for the reason that the relation of physician and patient contemplated by the statute did not exist. Aside from this, the seal of confidence impressed by the statute is for the benefit of the patient, and may be removed by him, or with his consent. (Johnson v. Johnson, 14 Wend., 637, per Savage, Ch. J., 641.) And, as was said by Millbe, J’., sjieaking for the Court of Apjoeals, in the case of Edington v. Mutual Life Insurance Company (67 N. Y., 185), no valid reason is shown why an assignee does not stand in the same position, in this respect, as the original party, and the decease of the latter cannot affect the right of the former to assert this privilege.

8. The witness, Carpenter, testified, on direct-examination by tbe defendant, that, as-a physician, be treated Diefendorf at different times from 1866. to 1868. He also gave tbe dates of bis charges from bis boobs, and stated that some of them were for advice merely. On bis cross-examination, be was asked whether many of bis charges were for advice simply. Tbe question was objected to as immaterial, and tbe objection was overruled. It is now insisted that tbe question called for testimony that was not only immaterial, but was privileged by tbe statute. That it was not immaterial is obvious for it was within tbe range of a strict cross-examination. Tbe objection that it was privileged was not taken at tbe trial and cannot be beard on appeal; but if it bad been taken it would have been of no avail as tbe question did not call on tbe witness to disclose any information acquired by him as an attending physician.

Several exceptions to tbe charge, and to certain refusals to charge as requested, remain to be considered.

1. It is insisted by tbe appellant’s counsel that tbe court erred in submitting to tbe jury to say what was tbe meaning of tbe words “subject to” in that part of tbe applications in which Diefendorf answered “ no ” to tbe question whether be was subject to dyspepsia, dysentery or diarrhoea. Tbe ground taken is that tbe question was one of interpretation of tbe contract, and was for tbe court and not for tbe jury. It is by no means certain that it was erroneous to submit to tbe jury to say what tbe parties intended by tbe words “subject to.” In Swift v. Massachusetts Mutual Life Insurance Company (2 N. Y. S. C. [T. & C.], 302) it was held that it was for tbe jury to determine what construction should be put upon tbe word “ unknown ” disease inserted in an application for insurance, whether as referring to tbe knowledge of tbe party or of everybody. In Penniman v. Hudson (14 Barb., 579), where there was no conflict of evidence, it was said to be for tbe jury to say whether a party bad used “ due and legal diligence ” within tbe meaning of bis contract.

But it appears from tbe whole charge that tbe jury were instructed, in effect, that if Diefendorf bad been attacked by either of tbe diseases named, not once or twice only but habitually, if tbe disease bad taken possession of him substantially, then be was subject to it. That instruction was, in substance, a construction of the words and it was as favorable to tbe defendants as they bad a right to ask.

2. Another part of the charge urged as erroneous is that which submitted to the jury the question whether Diefendorf answered truly the question whether he had applied to other companies for insurance and with what result. It is insisted that there was no dispute about the facts, and there was no question for the jury. The answer to the question was “ yes, and always successful.” The witness Windsor, called by the defendant, testified that in 1862 or 1863 he was an agent of the Mutual Benefit Insurance Company of Newark, New Jersey, that Diefendorf presented to him a written application for insurance; that the agent told him he did not think the company would take him, that Diefendorf insisted, and at his request the agent handed the application to the medical examiner of the company, who was Diefendorf s physician in 1862; that the agent subsequently informed Diefendorf that the examiner said he could not pass him, and the examination was a farce and an unnecessary expense to put the company to, and that he was uninsurable, and there the matter dropped. It is insisted that this testimony, which was uncontradicted, showed clearly that Diefendorf’s answer was untruthful. The question in the application was this: “ Has any application been made to this or any other company for assurance on the life of the party, if so, with what result ? ” The judge submitted it to the jury to say whether, within the fair meaning of the question, there could be said to have been an application to the New Jersey company for insurance, the application never having been presented to the company, or filled out by the exam iner for presentation, or used in any manner, except as above stated. Of that disposition of the matter the defendant certainly ought not to complain. It is probably correct to say there was no question for the jury, but it is so because there was no proof that an application had been made to the New Jersey company. The application could only be made to the home office. The local agent could receive it for transmission to the office of the company by whom it was to be passed upon, but the delivery of it to him for that purpose would not have been an application to the company for insurance, and ■ it was not delivered to him for any purpose. It was never, in fact, completed, and the idea of furthering it was abandoned. If Diefendorf had sworn to the answer in the application to the defendant, on which this discussion arises, could perjury have been assigned upon it, under tbe circumstances testified to by Windsor ? It seems not, clearly, and if so, the judge might have held properly, as matter of law, that the transaction in question constituted no defense, but his failure to do so did not harm the defendant.

3. The court submitted to the jury the question whether the answers of Diefendorf in both applications were true. Each of the applications contained this question (numbered 12): “ Has the party had inflammatory rheumatism ? ” The answer in the first application was : “ Once, years ago (bad); ” in the second, “ No.” Each application contained also this question (numbered 16): “ Has the party had, during the last seven years, any severe sickness or disease ; ■ if so, state the particulars and the name of the attending physician, or who was consulted and prescribed ? ” The answer in the first application was: “ Has had nervous difficulty and diarrhoea ; O. H. Carpenter, Geneva, N. T.; ” in the second, No.”

In regard to the answer to the twelfth question in the second application, the court instructed the jury to find whether it .was satisfactorily proved that the applicant had had inflammatory rheumatism. To the submission of that question no exception was taken, and it is plain there was no ground for an exception. The statement in the first application, that he had once had inflammatory rheumatism, was not conclusive against the plaintiff’s right to recover on the second policy. It was but an item of evidence to be weighed by the jury, and if, upon the whole case, they were satisfied that Diefendorf had never had the disease mentioned, the statement did not affect the validity of the latter policy.

Respecting the answers to the sixteenth interrogatory, the jury were instructed to find whether the nervous difficulty or diarrhoea stated in the first application in fact amounted to a severe illness, the question put to the applicant being whether he had had any severe sickness or disease. The jury must be presumed to have found that the attacks of illness above mentioned were not severe, and if their verdict is warranted by the evidence, the apparent discrepancy between the two statements is of no importance.

4. The defendant’s counsel claimed, that the second application gave an untruthful answer to the question, “name the residence of the family physician of the party, or of one whom he had usually employed or consulted.” The answer was, “ C. IT. Carpenter, N. Y.” The defendant’s counsel contended that Dr. Picot, of Geneva, was shown to have been the attending physician at the time. The court charged that it was for the jury to say whether the applicant was bound under that question to name all the physicians who might have treated him, or whether the question called for his family physician or one who was usually employed by him.The court further charged that if it only called for the latter, and Dr. Carpenter was the one, the answer was truthful; but if the question called for all the physicians who had treated him, the answer was not truthful.

It is now objected that this part of the charge submitted to the jury to determine the meaning of the sixteenth question in the application was erroneous. The exception taken at the trial did not specify that objection. The exception was general to the whole of this part- of the charge. The part of the charge so excepted to embraced several propositions, some of which were unexceptionable, and consequently an objection to one of them only is not now available. •

Of the exceptions taken to the refusals to charge as requested it is sufficient to say that all the requests seem to be fully covered by the charge, except the sixth and seventh, and they, in our judgment, were properly refused. The sixth called for an instruction to the effect that the omission of the plaintiffs to prove by the attending physician the nature of the diseases for which he treated Diefendorf raised a presumption against them in that respect. The statute which made confidential the disclosures to the physician is an answer to that request. By the seventh request the court was asked to charge the jury that the plaintiffs, as to their cause of action on the second policy, were bound by the answers of Dr. Carpenter, the medical examiner, that Diefendorf had had neuralgia. In the medical certificate of May, 1861, the question is put to the examiner, “ Whether any signs of apoplexy, epilepsy, insanity, or any other nervous affection, or of predisposition to them ? ” The answer was “No; has had neuralgia.” In May, 1868, when the second application was made, the same question was put to the same medical examiner and he answered, “ None.” The question called for an opinion and nothing more. The opinion given in each case was the same. The fact that the party had had neuralgia was stated in the answer in the first case and not in the second. But whatever effect the statement had on the rights of the assured or of the plaintiffs it was, at most, but an item of evidence to be weighed by the jury and was not conclusive.

It is urged that the verdict is against the weight of evidence, and that the judge who presided at the trial erred in denying the motion to set it aside on that ground. "While the testimony shows, without dispute, that Diefendorf was for many years in a state of health by no means sound, yet it was for the jury to say, upon all the evidence, whether any of the facts existed which were alleged in the answer as matter of defense. We see no ground for disturbing their verdict.

The order denying a new trial should be affirmed.

Mullin, B. J., and Talcott, J"., concurred.

Order denying new trial affirmed.


text:
    LEVI W. HALL, Respondent, v. JOSEPHINE F. CROUSE, Administratrix, and WILLIAM COWIE, Administrator, etc., of HENRY CROUSE, Impleaded, etc., Appellants.

      Mortgage to secure future advances — object of, may be proved by pa/i'ol — Advances made after attaching of subsequent lien — Security for futwe costs — may be taken try attorney.

    A mortgage may be executed or a judgment confessed as security for future advances, to be made in pursuance of a cotemporaneous agreement, and such mortgage or judgment will be valid and effectual as against subsequent incumbrancers having notice thereof. All advances made after the attaching of a subsequent lien, by mortgage or judgment are subject to the priority of the latter lien. The object for which the mortgage is given and the amount of the advances made may be shown by parol.
    Parol evidence is also admissible to show that the mortgage was given to secure ' advances to be made by a party not named in the mortgage.
    The English rule prohibiting attorneys from taking, in advance, a security for the payment of the future costs of the litigation is not in force, in this State.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      HALL v. CROUSE. Fourth Department, April Term, 1878.
    The action was brought to foreclose a mortgage. The referee before whom the action was tried found that, on the 16th day of May, 1876, the defendant, James Clary, executed and delivei’ed to the plaintiff his bond, under seal, conditioned for the payment to the plaintiff of the sum of $1,000 and interest in three months from the date thereof, and at the same time executed, acknowledged and delivered to the plaintiff, as collateral to said bond, a mortgage on premises described in the complaint, which mortgage was recorded in the clerk’s office of Onondaga county on the 16th day of May, 1876. That the consideration upon which said bond and mortgage was executed was as follows: Isbun N. Ames, previous to the giving, and at or about the date of said bond and mortgage, had rendered legal services for James Clary. Levi W. Hall, the plaintiff, was consulted by Clary about his matters, he being under indictment for receiving stolen goods, and having other litigation. Mr. Hall, before he would engage in his behalf, required Clary to secure him for services which he might render. It was then agreed between Ames, Hall and Clary that Clary should execute the bond and mortgage described in the complaint as security for services rendered, or which might thereafter be rendered by Ames for Clary, and for services which might thereafter be rendered him by Hall. Under this arrangement Hall rendered services of the value of $335, and Ames rendered service of the value of $410, including the services before then rendered by him for Clary, making in all the sum of $745. The defendant, Henry Crouse, recovered judgment against the defendant, James Clary, on the 25th day of July, 1876, for damages and costs, $414.31. It apppeared that one item of Ames’ charges against Clary accrued subsequently to the recovery of the Crouse judgment. As matter of law, on the foregoing facts, the referee found that there was due and unpaid on said bond and mortgage the sum of $745, and that the plaintiff was entitled to a decree of foreclosure and sale for that amount, which he directed, with costs.

      Edwin A. Kingsley, for the appellants.

      Levi W. Kali, respondent, in person.
   Smith, J.:

This action was brought to foreclose a real estate mortgage executed by James Clary to the respondent as collateral security for the payment of a bond given at the same time. Henry Crouse, the appellant’s intestate, was a subsequent judgment-creditor of Clary, and he defended, alleging- that the mortgage was fraudulent and void, as against the creditors of the mortgagor. The bond was conditioned for the payment of the sum of $1,000 in three months from its date, with interest, and the like sum was the consideration expressed in the mortgage. Crouse having died subsequently to the commen cement of the suit, the appellants were substituted in his place as defendants.

At the trial the plaintiff offered parol evidence tending to show that the bond and mortgage were executed to secure the plaintiff and Mr. Ames for any legal services which had been or might be rendered by them or either of them for Clary. An objection to the offer was overruled and the evidence was received.

It is contended by the appellants’ counsel that notwithstanding parol evidence is, in general, admissible to show the actual consideration, although it be different from that expressed in the deed, the rule is limited to cases where the inquiry is material to an action between the parties to the deed. It is not necessary to decide that point in the present case, for the reason that if any error was committed'at the trial in receiving the evidence, it was merely as to the order of proof. The plaintiff offered the evidence before he rested. It was not then material or necessary to his case, and if nothing had occurred subsequently to make it material, the reception of it probably would have been erroneous. The plaintiff having proved his bond and mortgage, was entitled prima facie to the relief demanded in his complaint without further proof. The burden of impeaching the consideration expressed in the mortgage and of showing fraud was on the defendant. For that purpose the defendant had a right to give parol proof of a different consideration from that expressed, and in fact he gave evidence to that effect. To that evidence it was competent for the plaintiff to reply, on the issue of fraud, and to give his version of the true consideration. All the evidence given by the plaintiff upon the subject, against the defendants’ objection, was material and admissible for that purpose, and if it had been offered after the defendant had opened the door to that inquiry, it would have been entirely unobjectionable. It is obvious that the defendant was not prejudiced by’the reception of the evidence before he took the case, as he was thereby advised of the strength of the plaintiff’s proof on that issue before he entered on his own.

It is next suggested for the appellants, that as nothing appears in the mortgage to show that it was intended as a security for future services, it is void against creditors so far as it was intended to cover such services. The position cannot be maintained. The law is well settled in this State, that a mortgage may be executed or judgment confessed as security for future advances, in whole or in part, made pursuant to a cotemporaneous agreement, and will be an effectual security for such advances against subsequent incumbrances having notice of the judgment or mortgage. (Truscott v. King, 6 N. Y., 147.) It is necessary, however, that the agreement, as contained in the record of the lien, whether by mortgage or judgment, should give all the requisite information as to the extent and certainty of the contract, so that a junior creditor may, by inspection of the record, and by common prudence and ordinary diligence, ascertain the extent of the incumbrance. (Id., Op. of Jewett, J., p. 161, and cases cited by him.) Parol evidence is competent to show the object of the mortgage or judgment, and the amount of advances upon it. (Id.) But neither a mortgage or judgment can be rendered available to secure the party taking them, for future advances or responsibilities, by any subsequent parol agreement, in preference to the lien of a junior incumbrance. (Id., pp. 161, 162; Walker v. Snediker, 1 Hoff. Ch. R.., 145; Ex parte Hooper, 19 Ves., 477; 4 Kent’s Com., 116.) Where, however, a mortgage is given to secure future advances, the omission to state in it the object, subjects it to suspicion, and the holder will be put to strict proof of the payment of the consideration. (Craig v. Tappin, 2 Sandf. Ch. R., 78.) In the present case the mortgage and the parol agreement as to future services, made at the same time, are within the limitations above stated, and the mortgage is a valid security for the amount of such services found by the referee. The transaction appears to have been entirety fair on the part of the attorneys towards their clients, and there seems to be nothing inequitable in enforcing it for the value of the services rendered, subject to the rights of intervening creditors.

It was also competent to show by parol, that by an agreement at the time between the parties to the mortgage and Ames, a part of the consideration was the services of Ames; in other words, that as to such part the plaintiff received the mortgage in trust for Ames. The evidence did not tend to contradict the mortgage (Artcher v. McDuffie, 5 Barb., 153), and the mortgage was a valid security for the services of Ames as well as those of the mortgagee, to the extent of the lien expressed in it.

There are some English cases holding that the courts will not permit an attorney to take a security in advance for the payment of the future costs of litigation (Uppington v. Bullus, 2 Drury & War. Ch., 188; Jones v. Tupp, Jacobs’ Ch. R., 322; Williams v. Negot, id., 598; Pitcher v. Rigby, Price’s Eq. R., 18); but in this State the courts have not gone to that extent. The only New York case cited by the appellants’ counsel upon this point is Merritt v. Lambert (10 Paige, 352), which was affirmed by the Court for the Correction of Errors, sub. nom., Wallis v. Loubat (2 Den., 601). That case was governed by the rule which prevailed before the Code that an attorney or solicitor could not be permitted to contract with his client previous to the termination of the suit for a part of the demand, or subject-matter of the litigation, as a compensation for his services. That was a suit for the specific performance of a contract for the exchange of lands. A receiver of the rents and profits of the premises in controversy had been apjpointed, and pending the suit the defendant sold his interest in one of his lots to a stranger, and such purchaser employed the defendant’s solicitor to conduct the defense for him and agreed to give such solicitor all the rents and profits of the premises pending the litigation, in addition to the taxable costs of the defendant, who still retained a part of the premises in controversy, as an extra compensation for his services. It was held that such rents and profits constituted a part of the subject-matter of the litigation and that the agreement to give the same to the solicitor for his professional services was void, and that the solicitor was only entitled to his taxable costs as between solicitor and client. But under the provisions of the Code (§ SOS), which is still in force, an attorney may stipulate with his client for a part of the recovery as a compensation, for his'services. (Benedict v. Stuart, 23 Barb., 420.) But in the present case the agreement was not for a share of the subject-matter of the litigation, nor had it a direct tendency to prolong litigation like the agreement in Merritt v. Lambert (supra). It was merely an agreement by a client to secure his attorney and counsel for past and future services. We are not aware of any rule of law in this State which is violated by the agreement, or of any case in this State holding that such an agreement is void. Undoubtedly the mortgage in this case is subject to the scrutiny with which all transactions between attorney and client, and other parties in confidential relations to each other, are always regarded by the courts. That the client, Clary, executed the mortgage voluntarily, understanding its import, and that he has received the value of the amount reported due upon it, is obvious from the evidence and the findings of the referee. To that extent, we think it is a valid security.

Upon the questions of fact as to what was the true consideration of the mortgage, whether Clary was insolvent at the time of its execution, and whether the parties to it knew at the time that if enforced it would defeat the defendant Crouse in the collection' of his demand, the testimony is conflicting. and the findings of the referee are conclusive. The exceptions to his findings, and to his refusal to find as requested, on those questions are not well taken.

It is insisted that the hypothetical question put to the witness, Mr. Lyman, was improper, for the reason that it was inaccurate in respect to two of the facts stated as a basis for his opinion of the value of certain services rendered. No exception was taken pointing specifically to those inaccuracies. The only exception on that head was general, that the question assumed facts not proven. It assumed many other facts, which it is to be presumed were proven, since only the two above referred to are now alleged to be unproved.' If the objections now urged had been pointed out at the trial, they might have been obviated. They are not now available to the appellant.

One other point remains. It is a settled rule that although a mortgage to secure further advances or services is valid, even when it does not express'the object, yet advances made or services rendered after the attaching of a subsequent lien by mortgage or judgment are subject to the priority of the latter lien. An opinion to that effect was expressed by Chancellor Kent, in Brinkerhoff v. Marvin (5 Johns. Ch., 320, 327). The point was expressly decided in Lansing v. Woodworth (1 Sand. Ch., 43) and Goodhue v. Berrien (2 id., 630; see, also, Yelverton v. Shelden, id., 481). - The referee allowed the claim of Ames at the sum of $410, which, as appears from Ames’ testimony,, includes an item of thirty dollars for services in defending Clary in supplementary proceedings instituted on Crouse’s judgment. That item should be excluded from the amount for which the plaintiff’s mortgage is given priority over the judgment.

If the plaintiff consents to that reduction, the judgment so modified should be affirmed, without costs of the appeal to either party; otherwise the judgment should be reversed and a new trial ordered before another referee, costs to abide event.

Mullin, P. J., and Talcott, J., concurred.

Ordered accordingly.


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    SARAH D. HAWKINS, Respondent, v. WALLACE W. MOSHER, Surviving Administrator of THOMAS HARTER, Deceased, Appellant.

      Covenants of indemnity and covenants to perform specific acts — distinction between — Measu/re of damages upon loss of leasehold interest — evidence as to.

    Plaintiff and defendant’s intestate entered into an agreement whereby the latter agreed, in consideration of a sum of money paid to him by plaintiff, to procure the discontinuance of two foreclosure actions then pending, and to purchase certain mortgages and hold them until the expiration of a lease, owned by plaintiff, of the mortgaged premises, so that she might enjoy the use of the same during the term of the lease. The intestate having failed to purchase, two of the mortgages were foreclosed, and just as the premises were to be sold the plaintiff sold out her lease for $625. The lease had then two years and three months to run, and all the rent, except for one year, had been paid in advance at the rate of $500 a year.
    In an action to recover damages for a breach of the agreement, held, that the plaintiff was not bound to wait for an actual eviction, but that the agreement was broken as soon as the intestate failed to perform the specific acts required by the agreement, viz., to purchase and hold the mortgages.

      That she was entitled to recover as damages the actual value of the premises for the unexpired term of the lease after deducting therefrom the rent to be paid.

      Held, further, that in determining the value of the use of the premises the referee was not confined to the receipts from and the expenditures upon them.
    The distinction between a covenant of indemnity and a covenant to do a specific act, discussed.
    Appeal by defendant from a judgment entered on tbe report of a referee on a claim presented by plaintiff against tbe estate of tbe defendant’s intestate, and also from an order made at tbe Special Term confirming said report.

      G. W. Smith, for tbe appellant.

      J. A. Steele, for tbe respondeat.
   Smith, J.:

By tbe terms of tbe parol contract between tbe plaintiff and tbe defendant’s intestate, as found by tbe referee, tbe latter party agreed, in consideration of tbe sum of $821.22 to bim paid, to prevent a foreclosure sale of tbe premises of wbicb tbe plaintiff was tbe lessee, and to procure tbe foreclosure proceeding, then pending, on two of tbe four mortgages wbicb covered tbe premises to be discontinued, and to purchase all of said four mortgages and bold tbem until tbe expiration of tbe plaintiff’s lease, so that tbe plaintiff could occupy tbe premises and bave tbe benefit of tbe same during tbe full unexpired term of tbe lease. Tbe plaintiff paid tbe consideration and tbe agreement was partly executed by tbe intestate. But be neglected to purchase all of said four mortgages and bold tbem. Foreclosure proceedings were commenced on two of tbem, and prosecuted to a notice of sale; during the plaintiff’s term a sale being about to take place, she sold her lease for $625, there being about two years and three months of tbe term unexpired, for all but one year of wbicb she bad paid rent in advance at the rate of $500 a year. Tbe referee found that tbe use of the premises was worth $500 a year more than tbe amount of rent agreed to be paid. Tbe plaintiff claimed, in her statement of claim, $800 on account of tbe excess of tbe value of tbe lease over tbe rent, which sum, with interest on it from tbe date of tbe expiration of her term, and some minor claims, wbicb were not disputed, tbe referee allowed to tbe plaintiff.

It is contended by tbe appellant’s counsel • that tbe substance of Harter’s agreement was merely that the plaintiff should have quiet enjoyment, and that until ousted, there was no breach. The agreement was more than that. It was to do certain specific acts, to wit, to purchase the outstanding mortgages, and hold them until the expiration of the plaintiff’s term. On the failure of the intestate to do either of those things, his agreement was broken. The difference between mere covenants of quiet enjoyment and covenants to do some specific acts, the object of which is to secure the possession of the covenantee, is recognized by numerous decisions. In the former class there is no breach till actual eviction. (Waldron v. McCarty, 3 Johns., 472; Kortz v. Carpenter, 5 id., 121; Sedgwick v. Hollenback, 7 id., 376; Kemball v. Van Slyke , 8 id., 487; Kerr v. Shaw, 13 id., 236.) In the latter class failure to do the specific thing stipulated for, gives a right of action, even though the possession be not disturbed. (Juliand v. Burgott, 11 Johns., 477; Thomas v. Allen, 1 Hill, 145; Gilbert v. Wiman, 1 N. Y., 550; Rector, etc., of Trinity Church v. Higgins, 48 id, 532.) The present case has been before this court on a former appeal, and on that occasion it was held, in effect, that the agreement of Harter was broken by his failure to purchase all four of the mortgages, so that the plaintiff had a perfect cause of action, and a judgment of nonsuit which had been theretofore ordered was set aside and a new trial ordered. (MS. op. of Gilbert, J.) This brings us to the question, what is the proper measure of recovery ? Nominal damages, or the value of the unexpired portion of the term ? I think the latter. The term of the lease was subject to the outstanding mortgages, and their amount largely exceeds its value. A foreclosure and sale under them would have deprived the lessee of her entire interest. To secure to her that interest was the purpose of the arrangement. The object* was not to indemnify her in case of an eviction, but to prevent the possibility of an eviction, and to make her term worth to her what it would have been worth if the mortgages had not been in existence. The extent of the probable loss of value by reason of the existence of the incumbrances is the measure of damages, even though the lessee paid nothing on account of the incumbrances, and was not disturbed in her possession. These views are sustained by authority. In Port v. Jackson (11 Johns., 239), tbe plaintiff, wbo was tbe assignee of a lease for a term of years, bad assigned tbe same to tbe defendant, and tbe latter bad covenanted to perform all tbe covenants, etc., to be performed by the plaintiff, among which was a covenant, to pay tbe rent as it should accrue upon tbe lease. Tbe action was covenant to recover tbe amount of rent alleged to be due to B., tbe plaintiff’s assignee, for about twenty-four years. Defendant pleaded that before any rent became due, be assigned tbe term to GL, wbo entered and was accepted by B. as bis tenant. Held, on demurrer, that tbe plea was bad; that tbe defendant’s covenant was express to pay tbe rent, etc., for which tbe plaintiff remained liable on bis covenant to B. by privity of contract, notwithstanding tbe assignment by tbe defendant to Q-. and tbe acceptance of him by B. as bis tenant; that tbe defendant’s covenant was broken by tbe non-payment of tbe rent, and tbe plaintiff was entitled to recover tbe whole rent in arrear, for which be was bable on bis covenant with B., though be bad paid nothing, and bad not been damnified. In Gilbert v. Wiman (supra), it was said by Pratt, J., in tbe Supreme Court, after stating tbe rule as to strict contracts of indemnity against damages: “ But in personal contracts, where tbe instrument deviates tbe least from a simple contract to indemnify against damages, even when indemnity is tbe sole object of tbe contract, and when in consequence of tbe primary habihty of other persons, actual loss may be sustained, tbe decisions of our courts, although by no means uniform, have gradually incbned towards fixing tbe rule to be one of actual compensation for probable loss, so that in contracts of that character it may now be considered as a general rule both in this country and in England.” Although tbe decision of tbe Supreme Court in that case was not concurred in by tbe Court of Appeals, tbe rule above stated was not questioned, tbe latter court bolding that tbe obbgation sued on was one of indemnity merely. In tbe case of The Rector, etc., v. Higgins, above cited, it was held by tbe Commission of Appeals that a covenant in a lease, whereby tbe lessee agrees to bear, pay and discharge all taxes and assessments which sbab be imposed upon tbe demised premises during tbe term, is broken when tbe lessee neglects to pay a tax or assessment duly imposed. It is not simply a contract of indemnity, but by it tbe tax or assessment, as between tbe parties, becomes tbe debt of tbe lessee; tbe lessor, therefore, can maintain an action thereon without first paying tbe tax or assessment, and, as damages, be is. entitled to recover tbe amount of such tax or assessment. And tbe general doctrine was asserted tbat parties have tbe right to make a contract contravening tbe rule that actual compensation will only be given for actual loss, and where tbe intent so to do is expressed in apt and suitable language, courts of justice will support it. In tbat case, LeoNAbd, C., cited many other cases (p. 537) which support tbe rule of damages above suggested, to wit, compensation for tbe probable loss against which tbe parties by their agreement intended to provide. Another point deserves consideration. It seems tbat in an action by a lessee against tbe lessor, on a covenant for quiet enjoyment, to recover damages foían eviction, be can recover nothing for a rise in value of tbe use of tbe demised premises. (Kinney v. Watts, 14 Wend., 38; Kelly v. Dutch Church of Schenectady, 2 Hill, 105.) Tbe cases so bolding proceed upon tbe ground tbat tbe lessee stands upon tbe same footing as a purchaser who, in an action for a breach of a covenant for quiet enjoyment, is held to tbe price agreed upon by tbe parties as tbe true value of tbe land. By analogy, tbe rents reserved in a lease, where no other consideration is paid, are regarded as a just equivalent for tbe use of tbe demised premises; but tbat rule has not been very satisfactory to tbe courts of this country. (Mack v. Patchen, 42 N. Y., 167.) Its soundness has been questioned (Sedg. on Dam. [lsted.], 170), and we think it is not to be extended beyond this class of cases, to wit, actions between lessee and lessor, to which it has been applied. In our opinion, tbe correct measure of damages in this case is tbe value of tbe unexpired portion of tbe plaintiff’s term, less the rent reserved. (Mack v. Patchin, supra.) Tbe appellant’s counsel insists tbat tbe referee erred in admitting evidence of tbe worth of tbe use of tbe premises, be contending that tbe true mode of ascertaining tbe damages was to show tbe receipts and expenses. Tbe evidence was properly received.

Tbe judgment and order should be affirmed.

MulliN, P. J., and Talcott, J., concurred.

Judgment and order affirmed.


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    WILLIAM H. SAUNDERS, Respondent, v. DWIGHT S. CHAMBERLAIN, Appellant.

      Contract — measure of damages — Answer—general denial i/n — what ea/nnot be proved undei'— Power of County Court to amend pleading..
    Upon the representation of the defendant that he was the owner of a bond and mortgage given by the plaintiff, and which was then overdue, the latter agreed to and did pay to the former $180 upon his agreeing to carry the bond and mortgage for a year. Defendant did not own the mortgage, but by paying the owner of it $100 induced him to carry it for a year. Upon the foreclosure of the mortgage this $100 was allowed as a payment upon it.
    In this action, brought by the plaintiff to recover damages occasioned by the fraudulent representation of the defendant, held, that plaintiff was entitled to recover the twenty dollars, not applied upon the mortgage, with interest.
    The answer contained a general denial, and also denied that plaintiff was the proper or real party in interest, and alleged that he had no legal or equitable right to prosecute the action. Held, that under such answer the defendant could not prove an assignment of all the estate of the plaintiff to an assignee in bankruptcy, nor the schedule of his property.

      Quaere, whether upon an appeal from a judgment of the Justices’ Court the County Court has power to allow an amendment to the answer.
    Appeal from an order of tbe Wayne County Court denying a motion for a new trial, made on tbe minutes of tbe judge, in an action brought to that court by appeal from a Justice’s Court!
    In lS^ tbe plaintiff bad title to lands in Galen, on wbicb be bad executed a mortgage of about $4,500 to one W. H. Lyon. Lyon bad assigned tbe mortgage to Aaron Griswold.
    In 1872, and after assignment to Griswold,'and while Griswold owned tbe mortgage, defendant called upon plaintiff and. stated to plaintiff that be owned tbe mortgage; that it bad been assigned to him by Griswold; that there were payments due on tbe mortgage and be wanted it settled. The plaintiff, relying upon such statements, made an agreement with defendant by wbicb defendant agreed to carry said mortgage, and defer payment one year, in consideration of plaintiff’s paying defendant $120, in addition to tbe legal interest. In pursuance of such agreement, plaintiff paid to defendant, and defendant received for tbe purpose aforesaid, tbe sum of $120. At tbe time tbe defendant did not own tbe mortgage? and it bad not been assigned to bim. After defendant bad made tbe agreement witb plaintiff to carry said mortgage for a year, and before tbe $120' bad been paid by plaintiff, defendant went to Mr. Griswold, tbe owner of tbe mortgage, and asked bim if be would carry tbe mortgage a year for $100; Griswold consented to tbis; afterward, and some time in tbe year 1873, Mr. Griswold assigned and sold said mortgage to one Henry Grabam, wbo thereafter commenced a foreclosure of said mortgage, in wbicb said Saunders interposed a defense, among other things, claiming that tbe $100 received by Mr. Griswold as aforesaid should be applied on said mortgage, and tbe same was allowed and applied on tbe mortgage in said action; some time in January, 1877, plaintiff brought an action in a Justice’s Court against defendant to recover tbe said $120, or so much thereof as be was entitled to; and in said action recovered, before said justice, twenty dollars and interest and costs, amounting in tbe whole to thirty dollars and twenty cents, from which judgment tbe defendant appealed to tbe "Wayne County Court, where said cause was tried before Hon. G. W. Cowles and a jury, when tbe plaintiff again bad a verdict of twenty-six dollars and thirty-five cents.
    Tbe answer of tbe defendant contained a general denial, and also denied that plaintiff was tbe proper or real party in interest, and that be bad any legal or equitable right to prosecute tbe action against tbe defendant. Under tbis answer defendant offered to introduce in evidence an assignment by plaintiff of bis estate to an assignee in bankruptcy, wbicb offer was refused.

      D. 8. C ha/mberlam, appellant, in person.

      J. Vandenbv/rg, for tbe respondent.
   Smith, J.:

Tbe evidence, although conflicting, authorized tbe jury to find that tbe plaintiff was induced to pay tbe defendant $120 to carry tbe bond and mortgage for a year by tbe representation of tbe defendant that be owned tbe bond and mortgage, and that such representation was untrue. Tbe intendment from their verdict is that they so found. Upon tbis state of facts, tbe only question on tbe merits is whether tbe plaintiff was misled to bis injury. That be was damnified seems clear. Had tbe defendant been tbe owner of tbe bond and mortgage, tbe plaintiff could have insisted, in equity, that tbe $120 should be regarded as a payment upon them, tbe agreement for forbearance being usurious. (Crane v. Hubbell, 7 Paige, 413; Judd v. Seaver, 8 id., 548.) Tbe $100 which tbe defendant paid to Griswold for tbe same purpose was so applied, it baying been treated as a payment for tbe plaintiff’s benefit; but as to tbe remaining twenty dollars, no such application was or could be made, it not baying been paid to tbe true owner of tbe bond and mortgage. To tbe amount of tbe twenty dollars tbe plaintiff was damnified, and has a right of action; and tbe verdict being for that amount of damages only, with interest, is not excessive as claimed by tbe appellant.

Tbe defendant’s offer to prove tbe assignment and schedule in bankruptcy was properly excluded, for tbe reason that tbe answer did not set up that tbe plaintiff bad transferred tbe claim in suit. Such transfer, to have been available as a defense, should have been pleaded as new matter. Proof of it was not admissible under a general denial; nor was it admissible under tbe second count in tbe answer, which averred a mere legal conclusion, to wit, that tbe plaintiff was not tbe proper party in interest in tbe action, and bad no right to prosecute tbe same. Tbe issuable facts should have been alleged. (Russell v. Clapp, 7 Barb., 482; Seeley v. Engell, 17 id., 530, reversed, but not on this point, 13 N. Y., 542; Fosdick v. Groff, 22 How., 158.)

Tbe refusal of tbe court below to allow an amendment of tbe answer (even if tbe court bad power to allow an amendment on appeal from a Justice’s Court, a point which it is not necessary to decide) was matter of discretion, and cannot be reviewed on appeal.

Tbe point that tbe action cannot be maintained because it' was not brought within a year after tbe money was paid is not well taken. Tbe action is not to recover money paid upon a usurious agreement, but to recover damages sustained by means of tbe alleged misrepresentation.

Tbe order should be affirmed.

MulliN, P. J., and Talcott, J., concurred.

Order affirmed.


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    SAMUEL B. UPHAM and others, Assignees of GEORGE F. PADDOCK AND MERRITT ANDREWS, Bankrupts, Appellants, v. OSCAR PADDOCK and others, Respondents.

      Collector’a hond — sureties upon — rights of.

      A. bank collected, the rents of certain real estate in Watertown as tlie agent of the owners, George F. Paddock, Oscar Paddock and Edwin L. Paddock, from December 8, 1874, to October 39,1875. On tbe former date Blood, Sawyer and George F. Paddock signed as sureties tbe bond of one Rogers, as collector of tbe town of Watertown, which bond was duly filed. Rogers failed to pay over the sum of $11,848.68 of the taxes collected by him, but deposited it with a firm of bankers, of which George F. Paddock was a member, which firm converted the money to its own use and then became bankrupt. On October 39, 1875, Paddock’s interest in the real estate was-sold under a judgment recovered in an action brought by the supervisors upon the bond, the proceeds thereof being insufficient to pay the amount of the judgment for which the other sureties were liable. This judgment directed that the real property of Paddock should be first sold thereunder, before resorting to the property of his co-obligors
    In an action by the assignees in bankruptcy of the firm to recover from the bank the bankrupts’ interest in the rents collected by it, the other sureties claimed that as between them and Paddock, the latter was primarily liable for the moneys converted by his firm, and that they could avail themselves, in equity, of the lien of the bond on his real estate; and that he being insolvent, and his real estate being inadequate security, they could reach the rents by means of a receiver, in the same manner that amortgagee could under like circumstances. Held, that this claim could not be sustained and that the assignee was entitled to the money.

      Semite, that the lien created by the filing of a collector’s bond is analogous to that of a judgment creditor, and not to that of a mortgagee; and the owner of the property has a right to redeem and a right to the possession, and to receive the rents and profits after a sale thereunder, the same as after a sale under an ordinary judgment.
    Appeal from a judgment in favor of tbe defendants, entered on tbe decision of a judge at tbe Jefferson Special Term.

      D. O’Brien, for tbe appellants.

      Sta/rbuek da Sa/wyer, for tbe respondents, Richardson, Blood and Sawyer.

      F. W. HvMa/rd, for tbe respondents, Paddock and tbe First National Bank of Watertown.
   Smith, J.:

Tbe plaintiffs sue as assignees in bankruptcy of George F. Paddock, an adjudged bankrupt, to recover tbe share of tbe bankrupt in tbe rents of certain real estate owned by bim and tbe defendants, Oscar Paddock and Edwin L. Paddock, as tenants in common. Tbe rents accrued from 8tb December, 1874, to 29tb October, 1875, and were collected by tbe defendant, tbe First National Bank of Water-town, as tbe agent of tbe owners of tbe real estate, and are now beld by tbe bank. Tbe bankrupt’s share of tbe rents beld by tbe bank amounts to tbe sum of $2,937.30. Tbe bank makes no claim to tbe money in its own right, but alleges in its answer that tbe defendants, Blood and Sawyer, bave demanded tbe same of tbe bank, and tbat tbe bank is ready and willing to pay tbe same as tbe court shall order. Upon this state of facts it is obvious tbat tbe plaintiffs, as assignees, bave tbe legal title to tbe money, and tbe right to recover tbe same from the bank as a part of tbe assets of tbe bankrupt, unless some of tbe other defendants bave a superior right to it.

The only defendants who set up an adverse claim to tbe money are Blood and Sawyer. Their claim is based upon tbe following state of facts: On 8th December, 1874, Blood, Sawyer and George F. Paddock (tbe bankrupt), as sureties, with Jeremy W. Rogers as principal, who was tbe collector of tbe town of Watertown, executed tbe bond of said Rogers, as collector-, to tbe supervisor of tbe town, and tbe same was duly filed and became a lien upon tbe real estate of tbe obligors. Rogers failed to pay over tbe sum of $11,348.68 of tbe taxes collected by bim, but deposited it with George F. Paddock & Co., bankers, a firm consisting of tbe said George F. Paddock and Merritt Andrews, which firm converted tbe money and after-wards became bankrupt. Tbe supervisor sued tbe bond and recovered a judgment against all tbe obligors, which directed tbat tbe real estate of Paddock should be first sold to satisfy tbe judgment before resorting to tbe property of tbe other sureties. On 29th October, 1875, tbe real estate of Paddock was sold, being tbe property from which tbe rents in controversy arose and tbe avails were insufficient to pay tbe judgment by tbe sum of $3,909.16, for which tbe other securities are liable. Tbe ground upon which the claim of Blood and Sawyer was upheld at Special Term, and on which we are asked to affirm the judgment, is that as between them and Paddock, the latter was primarily liable for the tax moneys converted by his firm, and they can avail themselves, in equity, of the lien of the bond on his real estate for their security; and that he being insolvent, and his real estate being inadequate security, they can reach the rents, by means of a receiver, the same as a mortgagee in like circumstances. By the decree the bank, defendant, was appointed a receiver for that purpose.

We are not prepared to affirm all of these conclusions. Grant that the real estate of the. bankrupt is primarily liable, as between him and the other sureties (Blood and Sawyer), the latter are not in the position of mortgagees. The only lien they have upon the land of the bankrupt is that created by the collector’s bond in favor of the supervisor, to whose rights they are perhaps entitled to be subrogated on paying the debt. We do not understand from the findings that they have actually paid. They are liable to pay. But waiving that point, the nature of the lien is to be considered. It is not a lien by mortgage, it is created by statute, and is more nearly analogous to a lien by judgment. The county clerk with whom the bond is filed is required to make an entry of it, in a book to be provided for the purpose in the same manner in which judgments are entered of record. (1 B. S., 346, § 20.)

The statute provides no special mode of enforcing the lien. The onlymode, therefore, is by a suit on the bond to recover the amount due from the collector, and judgment being obtained, the real estate which is subject to the lien may be sold by the sheriff upon execution. That being the case, the owner of the land has the same right to redeem as other judgment-debtors whose lands are sold on execution, and in the meantime, and until title is perfected in the purchaser, by the sheriff’s deed, the owner of the equity of redemption is entitled to the possession of the property, and to receive the rents and profits as his own. The equitable considerations which induce courts of equity, in their discretion, to permit a mortgagee to collect the rents and profits, through a receiver, pendente Ute, where the land is inadequate security and the mortgagor is insolvent, have no application to the lien of a judgment-creditor, nor, as it seems to us, to a lien created by the filing of a collector’s bond.

But if the reverse of this proposition were true, the defense must fail for another reason. Even a mortgagee has no specific lien on the rents and profits, in the absence of a special clause to that effect in the mortgage, until a court of equity has determined that it is necessary for his security, and has appointed a receiver to intercept the rents and profits and divert them from the mortgagor. That had not been done in this case when .the assignees commenced the present action. No receiver was appointed until the judgment was rendered which is now under review. Assuming, for the present purpose, that the respondents, Blood and Sawyer, are to be regarded, in equity, as mortgagees, the lien which they acquired by the appointment of a receiver, undoubtedly attached to the rents and profits then past due and owing from the tenants, if there were any such, but the respondents could not call on the assignees to refund rents and profits which the tenants had paid over to them or their agent before the receiver was appointed. (Howell v. Ripley, 10 Paige, 43; Astor v. Turner, 11 id., 436.) Prior to the commencement of this action the rents in controversy had been paid by the tenants to the bank, and were received and held by the latter as the agent of the owners of the real estate, of which the bankrupt was one. The title of the bankrupt to the real estate, and to such of the rents collected as had accrued at the time of the commencement of the bankruptcy proceedings, and to such as were thereafter to accrue, passed to his assignees. As between the bankrapt or his assignees on the one hand, and his co-tenants on the other, there was no dispute as to the amount of his share of the rents. The receipt by the bank of the share of the rents belonging to the estate of the bankrupt was, in law, the receipt of them by the assignees.

The bank held the money for its principals, by whom it was authorized to receive it, and not, as seems to be supposed by the respondents’ counsel, as a trustee for the benefit of outsiders who might ultimately lay claim to the fund, but who had no valid claim to it, in law or equity, when the bank refused to pay it to the plaintiffs, and when the plaintiffs commenced suit to recover it. Not only, therefore, had the plaintiffs the legal title to the rents in question, but they had collected them from the tenants before the respondents procured the appointment of a receiver. This suit was necessary, simply because their agent, the bank, refused to pay over the money which it had collected for them. The bank was the only necessary defendant. Indeed, there is nothing in the complaint showing that at the time of the commencement of the action the plaintiffs had any controversy with the defendants, Richardson, Blood and Sawyer, and it alleged no ground whatever for making them parties. And the co-tenants of the bankrupt, Edwin and Oscar Paddock, who were made defendants, did not answer the complaint. It would seem, too, from the stipulation which is made a part of the case, that Richardson, Blood and Sawyer were not made defendants originally, but were permitted by the plaintiffs to come in after the suit was commenced, and set up their claims by answer. That is of no consequence, however, except as showing that the only object of the suit, originally, was to compel the bank to pay the plaintiffs the money which it had received from them as their agents.

These views lead to the conclusion that the judgment should be reversed; and, as the facts are undisputed, judgment should be ordered for the plaintiffs for the relief specifically demanded in the complaint, with costs and disbursements of the action and appeal, against the respondents, Blood, Sawyer, and the bank.

MulliN, P. J., and Taloott, J., concurred.

Ordered accordingly.


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    WOOSTER SHERMAN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Obtaining money by false pn-etenses— admissions 'of plaintiff in error — what cannot be proved by.

    Upon the’trial of the plaintiff in error for obtaining money by false pretenses the prosecution, in order to prove the existence of a mortgage upon the prisoner’s house, produced a certificate of the clerk of Jefferson county tending to show the existence of a mortgage on defendant’s house and lot in Watertown, which was rejected because it did not contain a copy of the whole mortgage. The district attorney was then sworn and testified, under objection, that in a certain conversation the defendant said to him that he owned a house and lot in Water-town worth $40,000, which was incumbered by a mortgage of $20,000 given to trustees to secure bonds negotiated by them.

      Held,, that as the prosecution, had not accounted for the non-production of the mortgage itself, the record, or a copy thereof, the admission by the prisoner, was not admissible to prove the existence or terms of the mortgage.

      Semble, that the admissions of a party are competent evidence, only when parol evidence of the facts sought to be shown by such admissions would be competent.

      Semble,, that admissions are never admissible to establish the legal effect of documents.
    Writ of ERROR to tbe Court of Sessions of Cajuga to review a conviction of tbe plaintiff in error of obtaining property by false pretenses.
    Tbe charge was that Wooster Sherman, on tbe 1st day of November, 1876, obtained of one John Molley 300 promissory notes issued by tbe United States of America, and 300 promissory notes issued by divers national banks of tbe value of $300, upon the false and fraudulent representations and pretenses (1) that be brought $50,000 ready money to Port Byron, and (2) that be was tbe owner of a bouse and lot in Watertown, free from incumbrance, and worth $10,000.
    Tbe negations in tbe indictment were that tbe said Sherman bad no ready money at Port Byron, and that tbe said bouse and lot was incumbered by mortgage to its full value.

      F. W. SuHba/rd, for plaintiff in error.

      8. F. Fayne, district attorney, for defendant in error.
   Smith, J.:

Tbe counsel for tbe plaintiff in error insists that tbe court below erred in refusing to instruct tbe jury to acquit as requested. Tbe evidence on tbe part of tbe prosecution tended to show that Sherman, who was a banker at Port Byron, by false pretenses induced the complainant to deposit currency in bis bank; that tbe money so deposited was drawn out by tbe complainant and paid back to him some weeks afterward; and that subsequently be deposited a draft for collection, tbe larger part of which was unpaid when tbe bank closed. On that state of facts, it was insisted by tbe counsel for tbe defendant that no offense was committed in respect to procuring tbe deposit of tbe currency. We think tbe motion made on tbat ground was properly overruled. Tbe fact tbat tbe money deposited was paid back went to tbe question of intent; and if tbe jury were satisfied by tbe evidence tbat tbe deposit was induced by tbe false representations charged in tbe indictment, with intent to deceive and defraud, tbe offense was made out. Tbe payment may bave been made in tbe expectation tbat it would further tbe original fraudulent design, by leading on tbe complainant to make other deposits, partly on tbe faith of the original representations.

We think, however, tbat tbe court erred in receiving evidence of the admissions of tbe defendant tbat bis bouse and lot in 'Water-town were incumbered by mortgage. Tbe existence of tbe incumbrance was a material fact for tbe prosecution to prove, and tbe best evidence was tbe mortgage itself, tbe record, or a certified copy of tbe record. 'Without. accounting for tbe absence of ■ these, secondary evidence was not admissible. Yerbal admissions of tbe defendant were no higher evidence than parol testimony of tbe contents of tbe mortgage. It seems to be tbe rule in this State tbat tbe admissions of a party are competent evidence, only when parol evidence of tbe fact sought to be shown by such admissions would be competent. In Welland Canal Company v. Hathaway (18 Wend., 180), it was held tbat evidence resting in records cannot be supplied by proof of admission of the party sought to be affected by such evidence, of tbe existence of tbe facts appearing by such records. To tbe same effect are Jenner v. Joliffe (6 Johns., 9) and Hasbrouch v. Weaver (10 id., 246). Tbe prosecuting attorney acknowledged tbe force of this rule and endeavored to comply with it by offering in evidence a certificate of tbe clerk of Jefferson county, tending to show tbe existence.of a mortgage on defendant’s bouse and lot in Watertown, but tbe certificate, not containing a copy of tbe whole of tbe mortgage, it was excluded. The district attorney then offered himself as a witness, and testified, under objection, that, in a certain conversation, tbe defendant said to him that be owned a bouse and lot in Watertown worth $40,000, which was incumbered by a mortgage of $20,000, given to trustees to secure bonds negotiated by the trustees. This, we think, was clearly inadmissible. Not only was it an attempt to prove á record by parol, but it did not profess' to be evidence of tbe whole of tbe record, and so was subject to tbe very objection upon which the clerk’s certificate had been excluded. Moreover, the admission shows that the mortgage was special in its character, and the question whether it constituted an incumbrance on the property involved an inquiry as to its legal effect, for which purpose parol evidence of admissions is never admissible.

We are also of the opinion that the testimony of the witness Sears, that the defendant said to him, in June, 1876, that he brought to Port Byron $50,000 in currency for banking purposes, was improperly received. It was admitted, undoubtedly, upon the ground that it was competent for the prosecution to prove other like acts of fraud, at or about the same time, as evidence of the intent with which the alleged representations to the complainant were made. The rule is not questioned, but the testimony of Sears tended to establish no act. It did not appear that he was induced by the defendant’s statements to do any thing, or that they were made for the purpose of inducing him to do any thing, or that any action whatever on his part was contemplated when the statements were made. In short, there is nothing in the testimony from which it can be inferred that the statements to Sears were made with a fraudulent intent, and consequently they do not throw light upon the quo cmimo.

Por these reasons the conviction should be reversed, and a new trial ordered in the Court of Sessions of Cayuga, to which court the proceedings will be remitted.

Muxlin, P. J., and Talcott, J., concurred.

Ordered accordingly.