author: Kumsey, J.:

text:
    DENNIS KENNEDY and others, Appellants, v. THE NATIONAL UNION BANK OF WATERTOWN, Respondent.

      Chattel mortgage — when one partner may ratify a chattel mortgage gimen by his copartner — a general creditor cannot attach it became not filed — tight of the mortgagor to subject after acquired property to the lien of it.

    April 22, 1878, one Moore, a member of tlie firm of York & Mooro, executed in bis own name and gave to tlie defendant, a chattel mortgage upon personal property of the firm, and upon all the lumber and stock it should thereafter acquire. York ratified the act of Moore in giving- the mortgage. About August first the defendant, claiming under •the mortgage which had never been filed, took possession of the property described in it and of certain other property subsequently acquired by the firm, and sold the same as therein provided on August twelfth. On August ninth, York & Moore executed to the plaintiffs a bill of sale of part of the property covered by tlie mortgage in part payment of a pre-existing debt.
    In an action by the plaintiffs to recover the value of tlie property sold by the defendant, held, that as the plaintiffs were not judgment creditors of the firm they could not attack the validity of the mortgage because it had not been filed.
    That as the property was in the actual possession of the defendant when the bill of sale was executed, and the plaintiffs took it in payment of a pre-existing debt, they were not bona fifie purchasers, and had no greater rights, as against the defendant, than their grantor had.
    That as between the firm and the defendant the court would sustain the mortgage and protect the defendant in the possession of the property, whether it had been acquired by the firm before or after the execution of the mortgage.
    Appeal from a judgment of the County Court of Jefferson county reversing a judgment of a justice of the peace.
    On the 22d of April, 1818, the firm of York & Moore, were indebted to the defendant in over $3,000, and on that day Moore, one of the firm, in his own name, to secure the debt, made to the defendant a chattel mortgage in the usual form upon the personal property of the firm and also upon all the lumber and stock it should thereafter acquire. The mortgage contained among others, the following provisions:
    “ To all to whom these presents shall come:
    “Know ye, that I, Elisha D. Moore, of Watertown, N. Y., am indebted unto The National Union Bank of Watertown, N. Y., in the Rum of three thousand one hundred twenty-six dollars and sixty-one cents, being for money loaned.
    “ Now for securing the payment of the said debt, and the interest thereon from the date thereof, to the said National Union Bank, I do hereby sell, transfer and assign, to the said National Union Bank the property described in the following schedule, viz., as described on the back of the sheet: * * * *
    SCHEDULE.
    * * * *
    “ All our patterns, horse, buggy, wagon and cutter, also all our right, title and interest in a $1000 bond of the 1000 Island Hotel, some 300 lbs. nails, and all the hardware and trimmings. This grant is intended to cover all the machinery and tools belong to us and used in about our business and all lumber and stock owned by me or that may be hereafter owned by me whether enumerated or not and now in my possession, whether in said storehouse, said Hoard Spinner & Co’s yard, in the sash and blind shop, paint room, office, under shed of shop'or our house or any other place or places whatsoever.”
    Although York was not named in the mortgage he swore it was made by Moore for the firm and was delivered to the defendant at the day of its date. It was never filed. After that time the firm purchased the other stock described in the complaint in this action, on credit. About the first day of AÍugust the defendant, claiming under the mortgage, took actual possession of the mortgaged property, including that in the complaint, and on the twelfth of August sold it as provided for in the mortgage to satisfy its debt. On the ninth August, while the property was actually in defendaiit’s possession, York & Moore executed to the plaintiffs a bill of sale of the property in the complaint described, in part payment of a debt previously due them. The plaintiffs sued defendant before a justice for the value of the property, when they had judgment, which was reversed on appeal by the County Court of Jefferson county, and plaintiffs appeal to this court.

      O’Brim da Emerson, for the appellants.

      F. W. Hubba/rd, for the respondent.
   Kumsey, J.:

The plaintiffs, not being judgment creditors of York & Moore, are not in condition to contest the validity of defendant’s mortgage for the reason that it was never filed. (Jones v. Graham, 77 N. Y., 628.) As they obtained such title as they have to the property in question in payment of a precedent debt, they are not lona fide purchasers. (Stevens v. Brennan, 79 N. Y., 254; Van Heusen & Charles v. Radcliff, 17 id., 580.)

The property at the time plaintiffs took their title from York & Moore was in the actual possession of the defendant under a claim of right, and they are therefore chargeable with notice of whatever legal or equitable interest the defendant may have to it, and by their bill of sale can take only such title under it as York & Moore at its date could convey to them, and it becomes a simple question which of the parties in their efforts to secure the payment of debts due in good faith has obtained the superior right to the property. If the defendant can hold the property as against any claim which York & Moore could make to it on the 9th day of August, 1878, it can also hold it against the plaintiff who took title chargeable with its rights at that time. It is apparent from an inspection of the mortgage, in connection with the testimony of York, that the mortgage to the defendant was made with the assent of both the partners for the purpose of securing its debt in the manner, and to the extent indicated in it, and that as against them it is valid for that object. Moore having executed it in person is concluded by it, and Yorks having assented to its execution upon property of which he was part owner as security for the joint debt of the owners cannot now be heard to say that it was not effectual to transfer the legal title to so much of the property described in it as the firm then actually owned. The right to such property is not in question in this action, and is material only for the purpose of ascertaining whether the instalment can be enforced by defendant against York & Moore. So far as it purported to convey to defendant any vested interest in property which York & Moore did not then own, or which had not at the time a tangible existence it was probably ineffectual, but such provision did not affect the lien of the mortgage upon the property then in existence. (Gardner v. McEwen, 19 N. Y., 123; Yates v. Olmsted, 56 id., 632.) The claim is made by plaintiffs that tbe language used in tbe mortgage as to the subsequent lumber and stock applies only to such as should be individually acquired by Moore, who makes the instrument; but this would defeat the whole mortgage, for upon its face it is practically only on property of Moore who makes it, and it is applied to the film property only by the parol evidence that the existing property described in it belongs to the firm, and there is no property save that upon which it could apply. The words our ” and “ my ” seem to be used interchangeably in the clause referred to, and the evidence applies the whole mortgage to the firm property. Dodge v. Potter (18 Barb., 193) warrants this use of parol evidence to apply the mortgage to the property intended.

The mortgage was made for the firm and to secure the firm debt upon the property as it is described in it, and if for any formal defect the instrument fails fully to effect that purpose, the court will sustain it as an equitable mortgage. (Payne v. Wilson, 74 N. Y., 348 ; Chase v. Peck, 21 id., 581.) As no rights of creditors or subsequent purchasers in good faith intervene, there is no reason why this instrument should not be sustained as entirely valid against both York and Moore.

The only remaining question is whether the defendant, under this instrument, acquires any title to or lien upon the subsequently acquired property referred to in it. The mortgage in terms authorizes the defendant to take that as well as the other property and sell it in satisfaction of its debt, and the case of McCaffrey v. Woodin (65 N. Y., 459) holds that language, nearly analogous to that contained in this mortgage, created a power over such subsequently acquired property, which, when executed by the seizure of it under the power, gave to the donee- of the power absolute authority to hold it for the purposes indicated in the instrument granting the power. This position is sustained in that case by a force of reasoning and a weight of authority that covers the whole subject, and fully sustains the right of defendant to hold such property if it reduced it to possession before any other right intervened. As the plaintiffs took their bill of sale after the defendant executed the power, by taking possession of the property, they acquired no rights except such as were subject to the equities of defendant.

The judgment of the County Court should be affirmed, with costs.

Taícott, P. J., and Hardin, J., concurred.

Judgment of the County Court affirmed, with costs.


source: Caselaw Access Project

author: Rumsey, J.:

license: Public Domain

text:
    CHARLES H. GETMAN, Assignee, etc., Respondent, v. THE SECOND NATIONAL BANK OF OSWEGO, Appellant.

      Bank — when ii is changeable with knowledge of facts which a/re known to its president.

    In an action, brought by an assignee in bankruptcy agamst a Dank to recover a payment made to it, as having been made with intent to give a preference, and received by the bank with knowledge of the debtor’s insolvency, the bank is chargeable with knowledge of all facts in regard to the debtor’s intention and solvency which its president has acquired while acting in the capacity of president in its behalf.
    What evidence is sufficient to establish such knowledge on the part of the president, considered.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought by the plaintiff, as the assignee in bankruptcy of one George Ames, to recover a payment made by said Ames to the defendant on Mai’ch 31, 1877, on the ground that it was made in violation of the bankrupt act. (Sec. 5128 of the H. S. Rev. Stat.)

      George W. Pa/rkhurst, for the respondent.

      William F. Cogswell, for the appellant.
   Rumsey, J.:

The referee was the proper person to pass upon the credibility of the witnesses, which became necessary by reason of their conflicting statements, and unless there is something in the papers to indicate he has made a mistake in. doing it the court should not interfere with his conclusions. In the conclusion which he reached as to the credit to be given to the several witnesses, he has evidently taken into consideration those facts in the ease about which there is little or no dispute and which tend to corroborate the witnesses on the part of the plaintiff. Certain results followed the transactions detailed in the progress of the trial, and it was proper the referee should give credit to those witnesses who gave evidence of circumstances leading to those results, rather than to those who testify to facts at variance with them, or if not actually in conflict with them which do not tend naturally to produce them. We can perceive no error in his holdings in this regard. Leonard Ames was the defendant’s president, and one part of his duty was to direct what paper should be discounted by defendant, and it is but natural to infer that he had a general knowledge of the affairs of defendant and an acquaintance (general, at least) with the pecuniary affairs of those doing business with it. George Ames, the alleged bankrupt, was his relative residing at the same place and the evidence discloses the fact that he was familliar with his pecuniary affairs, for as early as November, 1876, when George proposed to make to him a statement of his affairs he declined to hear it, saying to him he knew how he was situated.” In December, 1876, when applied to by Tanner to surrender to him certain collaterals held by the defendant, as security for notes George Ames was to pay, he refused alleging that George was hard up and he had to extend the time of the notes. Tanner swears that about 26th March, 1877, Leonard Ames said he was satisfied George would have to go under and that he would have to take care of defendant before helping to take care of Tanner. A note of George Ames for $1,000 fell due that day, which was held at defendant’s bank, and Leonard said to George and Tanner that he would see Monen or send Monen up to see him, and then Leonard and George went into the bank together. It is tz’ue Leonai’d Ames denies that he znade these decorations, but it is a significant fact that Monen did go up that day or soon after, and the result was that George Ames sold out to Monen a lai’ge quantity of lumbei', much of which had been purchased on credit, and received for it near $8,000, which Monen borrowed of defendant upon Leonard Ames’ indorsement, for which Leonard was secured by a chattel mortgage upon the same lumber purchased by George Ames. This same money went directly to the defendant, and was by the check of George Ames applied to the payment not only of that portion of defendant’s debt against George Ames, which was over due, but the payment of another debt owing to defendant, which did not become due for four days thereafter. It was a singular and suspicious circumstance, in view of the other facts disclosed by the evidence, that George Ames, who was largely in debt to divers persons, many of which debts were overdue and creditors pressing for payment, should by any arrangement between himself, Leonard Ames and Monen be divested of his title to the large quantity of lumber sold to Monen, and the debts due to defendant and Monen be fully paid in the operation, while his other creditors were left unprovided for. Defendant’s teller Chamberlain, who received the money, knew that George Ames’ note for $870, belonging to the defendant at the time of this payment, had laid in the bank overdue for over fourteen days (which was probably an act of bankruptcy on the part of George Ames), for he computed the interest and received the pay for it, and it is a fair inference from the testimony that both he and Leonard Ames knew of the facts which appeared on the trial that other notes of George had been presented at the bank for discount, which was refused, and still others which were payable there had been protested for nonpayment. There were various other facts proved on the trial in addition to those above mentioned, indicating that both Leonard Ames, defendant’s president, and Chamberlain, its teller, were familiar with the pecuniary condition of George Ames, and had not only reasonable cause to believe he was insolvent, but to know he was actually so.

The exceptions to the testimony of the two witnesses Waters and Lovelace were not well taken. The statute of the United States (§ 5128 as amended), provides that if any person being insolvent or in contemplation of insolvency shall within two months of filing the petition in bankruptcy by or against him, with a view to give a preference pay to any creditor, having reasonable cause to believe such person is insolvent, etc., such payment shall be void and the assignee may recover it back, etc. Under this provision it is necessary to prove that the person making the payment was either insolvent or contemplated becoming so, as well as to prove that tbe person receiving the payment had reasonable canse to believe the payer was insolvent, etc., and any evidence which tended to establish either of the first propositions was competent in the case. One of them was a prerequisite to plaintiff’s recovery in the action, and either might very properly be established by evidence of facts with which defendant was not connected, and of which at the time they occurred it had no knowledge. If the proofs thus offered legally tended to establish either of the propositions it was admissible, and imposed upon the referee the burden of determining whether, in connection with the other evidence in the case, there was sufficient for that purpose. It was equally necessary to show that defendant had reasonable cause to believe such insolvency existed, but it does not follow that this must be done by the same evidence which establishes the insolvency of George Ames, for that fact may be proved by an entirely different kind of testimony. Waters and Lovelace were the employes of George Ames, one as his book-keeper, and the other as foreman in his shop, and as they state, familiar with his business operations, and while thus engaged had frequent conversations with him about such of it as occupied their attention. The evidence of each tended to show that George Ames was knowingly and recklessly prosecuting a losing business from which he contemplated insolvency would result, and that he coolly speculated upon the probabilities whether he would be able to continue the business through the month of March, 1877, or not; and from the testimony of Waters he evidently contemplated a dishonest insolvency. The declarations of George Ames made to these men gave character to the kind of business he was transacting, and showed that he contemplated the insolvency which followed as a probable result of his actions. The evidence of these witnesses, which was excepted to as being mere opinions and not statement of facts, was not properly subject to that imputation. They were familiar with all the business; one entered all transactions and orders on the books, and the other had all the orders submitted to him; knew the value of the materials used and the prices obtained for the manufactured articles, and were quite as competent as Ames himself to say whether the business was profitable or not, and they stated as a fact from their knowledge, and not as an opinion, that the business was not profitable. A cross-examination as to their means of knowing the fact to which they swore, would in this, as it does in all other cases, show the weight which should be given to their statements. There seems to be no reason why this evidence was not entirely competent for the purpose of establishing the fact for which it was offered — the insolvency of George Ames — but whether it was so competent or not is not very material, for without this evidence the insolvency of George Ames on the 31st day of March, 1877, is so well established by a flood of other testimony that no doubt can rest upon this branch of the'case.

It is a presumption of law as well as a dictate of common sense, that parties intend to bring about the natural results to which their actions tend, and George Ames did in fact pay to the defendant a large sum of money to discharge its claim against him. A portion of this debt was due and ought then to have been paid. Another and the larger portion was not due at the time, and there was no good reason for then paying it, for he was in fact insolvent, he owed other debts to a large amount which were past due and ought then to have been paid in preference to the defendant’s debt not due, and the direct consequence of this action was to give the defendant a preference over the other creditors of the Ames. Leonard Ames, the president, and Chamberlain, the teller of defendant, knew of the pecuniary condition of George Ames, and Leonard Ames, if not both him and Chamberlain, aided George Ames to convert his lumber into money, which passed directly to the defendant and was by it applied to the payment of its debts due and to grow due; and the direct effect of this action was to give to defendant a preference for the full amount of all its debt over all the other creditors of this insolvent debtor. All these parties intended the defendant should have this preference; the law stamps it as a fraud upon the other creditors of George Ames, and if the defendant at the time it received the preferential payment, had reasonable cause to believe George Ames was insolvent, the payment was void and the plaintiff is entitled to recover.

The defendant being an artificial body, created by a power which could not endow it with reason, can neither act or know anything except through its officers and agents. While the defendant is chargeable with the full effect of an act done by its officer’s acting within the limits of the power conferred upon them, and of any knowledge acquired by them while thus acting, its rights are abundantly protected by not holding it responsible for any knowledge its officers may have which was not thus acquired. If the defendant’s president, or one of its directors, while engaged in his private business or otherwise, incidentally learns a fact when there is nothing concerning the affairs of the defendant apparently connected with such fact, such knowledge is not to be imputed to defendant. (Fulton Bank v. N. Y. and Sharon Canal Co., 4 Paige, 127 ; National Bank v. Norton, 1 Hill, 572-579; Bank of the United States v. Davis, 2 id., 451-463; The President, etc., v. Cornen, 37 N. Y., 320 ; The Atlantic State Bank v. Savary, in Ct. App., 11 Weekly Digest, 58.) Each of these cases, and the one in 1 Hill, 572, more fully than the others, recognize the rule that if such officer learn such fact while he is engaged in the business and for the interests of the principal such knowledge concludes the principal. Leonard Ames knew of the insolvency of George Ames, and he knew it in connection with his action as president of, and while acting for defendant when he refused to surrender to Tanner the collaterals which the bank held, when he subsequently recognized his duty to take care of the bank as paramount to caring for the interests of Tanner, and when he aided in the device by which George Ames’ property was converted into money and applied to the payment of the defendant’s debts. Chamberlain also probably knew the same fact when he accepted George Ames’ check for the amount of defendant’s debt, but whether he did or not is unimportant, for the legitimate knowledge of its president of the fact is sufficient to charge defendant and render void the payment to the teller. The position of defendant’s counsel, that one of its executive, officers may have proper notice of a fact which should control its action and by concealing it allow its other officers to act adverse to the interests of the party for whose benefit the notice enures and that such adverse action is legal, is not sound. A notice served upon the officer of a bank, that a piece of commercial paper was invalid for any cause, would be effectual to prevent such bank from becoming thereafter the bona fide holder of such paper through a purchase by any of its officers. It was the duty of the officer receiving such notice to advise all other employes of such fact, and the bank would be none the less concluded by it if he failed to do so. (Ingalls v. Morgan, 10 N. Y., 178; Weisser v. Denison, id., 68.) And this rule applies to corporations as well as to individuals. (Fulton Bank v. N. Y. and Sharon Canal Co., 4 Paige, 127; N. Y. and N. H. R. R. Co. v. Schuyler, 34 N. Y., 30.) Any such rule as contended for by defendant’s counsel would open the door to all sorts of fraud and be disastrous to business interests.

The defendant insists it had the legal right to set off the amount of its overdue note of $870 against any amount of money George Ames had on deposit with it, and that as to that amount the judgment is improper. The difficulty with this position is that the findings of fact made by the referee involve the proposition that the whole transaction by which the money, thus deposited, was raised by the sale of the lumber to Monen, and its application to the payment of the whole of the defendant’s debt by the voluntary act of the parties, was a fraudulent device to evade the effect of the bankrupt law, and it cannot now be severed so as to leave a portion of it honest, and another portion dishonest. The entire matter was but one transaction and the imputed fraud attaches to every part of it.

The judgment must be affirmed with costs.

Talcott, P. J., and Hardin, J., concurred.

Judgment affirmed with costs.


text:
       CATHARINE J. PRICE and REUBEN PRICE, Respondents, v. NATHANIEL L. PALMER, Individually and as Executor, etc., of MARGARET L. PALMER, Deceased, Appellant, Impleaded, etc.

      Action for specific performance — when the cowri will deckm'e a judgment recovered far damages a lien on the land that was to home teen conveyed.

    Where, in an action brought by vendees to enforce the specific performance of a contract for the exchange of real estate, the court, on account of the refusal of the vendor’s wife to join in the conveyance of one of the pieces, refuses to decree a specific performance but retains the action for the purpose of determining and awarding to the plaintiffs the damages occasioned by the breach of the contract, it may, in case the vendor becomes insolvent and makes a general assignment during the pendency oí the action, direct that the judgment he declared a lien on the premises which were to have been conveyed, and direct that the same he sold for the payment of the amount thereof.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.
    This action was brought for the specific performance of a contract for the exchange of lands. The defendant Palmer’s wife having refused to unite in a conveyance the court refused a specific performance, but retained the action for the purpose of giving to the plaintiffs a compensation for their damages. The amount of damages was settled on the report of a referee, and the plaintiffs asked that such damages be decreed a lien on the premises the defendant had agreed to convey to them. The Special Term so held, the following opinion being delivered by Rumsey, J.

       Decided October, 1880.

   Rumsey, J.:

The contract between Palmer and the plaintiffs was valid between the parties, and by the former decree in the action specific performance was refused only for the reason that the wife of Palmer refused to unite in the conveyance of the lands which her husband was to convey to the plaintiffs. (Sternberger v. McGovern, 56 N. Y., 12.) As the plaintiffs had sustained considerable damages by reason of Palmer’s refusal to perform his contract, the court, under a familial' rule, retained the case that they might be compensated for the consequences of such refusal in damages. That question was sent to a referee, who has made his report by which he finds the plaintiffs have sustained damages by such refusal to the amount of $ — .

The plaintiffs, on the motion to confirm such report, furnish evidence which is undisputed, that Palmer has become insolvent, and has made a general assignment for the benefit of his creditors, and now ask that such damages, with the costs of the action, be declared a specific lien upon the real estate which Palmer, by the contract, was to convey to them, alleging that their decree for damages will prove a useless victory unless it be so ordered.

By the written contract between the plaintiffs and Palmer, the former acquired a specific lien upon all the interests of the latter in the lands to be conveyed to them, so much so that in the discretionary exercise of the equity power of the court it would decree the specific performance of the contract as between those two.

The wife of Palmer, however, held an inchoate right of dower which the provisions of the contract were ineffectual to reach, and only because the vendor was unable to convey a perfect title the court refuses to decree specific performance of the contract. This refusal does not affect the validity of the contract or the rights of the plaintiff under it. The defendant still remains a trustee, holding the legal title to the property for the benefit of the plaintiff, and her equitable lien upon it still continues. (2 Story’s Eq. 'Juris., § 1212.)

This court retains jurisdiction of the case for the purposes of furnishing to the plaintiffs such remedy, other than a specific performance, as under the contract, and in view of all the circumstances is proper and shall be effectual.

If the plaintiffs have a specific lien, acquired by the contract with Palmer, upon the property which by it was to be conveyed to them, it can be enforced only in equity, and it would be manifestly unjust to refuse to do so, and turn them over for relief to their remedy as general creditors against an insolvent debtor. It cannot be doubted that the plaintiffs acquired by their contract a specific lien, for it is such lien that makes the vendor a trustee of the property for their use, and authorizes the court to decree specific performance of such contract in proper cases.' It is the dictate of equity that such lien should' be enforced in such manner as to ensure them an effectual remedy for the injury they have suffered, and this principle I think is sustained by authority.

The pecuniary ability of the vendor to respond at law for damages has always been considered by the courts when a case has been before them for specific performance. (Fannin v. McMullen, 2 Abb. Pr. [N. S.], 224, and case there cited; Story Eq. Juris., § 760; Pomeroy on Contract, § 478; Gusteen v. Gusteen, 47 Mo., 37-47.) Specific liens have often been enforced in equity by a sale of the property on which the lien rested, and the payment of the value of the lien from the avails.

In the case of King’s Heirs v. Thompson (9 Peters U. S., 204), it was so decreed where the party owning the property against which the lien existed had died insolvent, and the person holding the purely equitable lien was preferred to creditors.

In Gibert v. Peteler (38 N. Y., 165), the vendee in performance of his contract of purchase, made large improvements on the premises to which the vendor was unable to convey a good title, and it was held he had an equitable lien on the premises for the value of such permanent improvements.

In Matter of Eliza Arm Ellison, an, infant (5 John. Ch., 261), the ancestor of the infant had contracted to sell lands and give a deed with full covenants. On payment of consideration in full a conveyance was ordered on the part of the infant without any personal covenants, but for greater safety to the purchaser the Chancellor ordered the money invested subject to the order of the court, that an indemnity might be provided for the purchaser if the title failed.

A court of equity will enforce an equitable lien either upon a legal or an equitable estate in lands (Willard’s Eq. Juris., 439), and the usual way of enforcing a lien in equity is by a sale of the property to which it is attached. (Story Eq. Juris., § 1217.)

In Neate v. Marlborough (3 Mylne & Craig, 417), the Lord Chancellor says that if the plaintiff has an equitable lien he would have the right to come here to have the estate sold.

I conclude, therefore, both upon principle and authority, that the plaintiffs are entitled to a decree that their recovery for damages and costs is a specific lien upon the interest which Palmer held in the lands he agreed to convey to them at the date of the contract. As Mrs. Palmer has never done any act by which her contingent right of dower in the premises can be divested, such right will not be affected by the decree. There is nothing in the situation of either of the parties to this action which renders it inequitable, so far as they are concerned, to enforce the lien in this manner. The Hunter street house and lot was in possession of Van Olinda, who seems to have taken a lease from plaintiffs on December 1st, 1876, for the premises, and the plaintiffs themselves went into actual possession of a portion of the house in March following, and have since continued to occupy.

The conveyance of that property to Schoenberg by Palmer in February, 1877, it is alleged in the verified complaint was for the purpose of defrauding the plaintiffs of their rights, under the contract, and as Schoenberg does not appear to defend the action, that allegation in the complaint may be assumed true. Mrs. Palmer now claims to be the owner of all the property mentioned in the contract, except the Hunter street lot, under a conveyance from her husband to her father, the defendant Denise, who immediately conveyed to her. It is a fair inference, from the evidence, that Denise knew of the contract with plaintiff's, and he fails to deny it, or offer any evidence of the hona fide conveyance to him. Mrs. Palmer was fully advised of the contract, and her refusal to unite in the deed to the plaintiffs, was the substantial reason why a specific performance was not ordered. She also avers in her answer that the conveyance by Palmer to her father, the defendant Denise, and from Denise to her, was made solely to carry out a family arrangement, and in effect that no new considerations passed between the parties.

J. M. Dunning, for the appellant.

Angus McDonald, for the respondents.

Assuming that this transaction was honestly intended for the purpose expressed in the answer, it gives them no equity in the property superior to that of the plaintiffs.

The plaintiffs ash an extra allowance in this case and I third?: they are entitled to it, for the litigation has been long continued, strenuously contested and complicated with many difficult questions. They may have an order for an allowance of $175 extra.

A decree may be entered declaring the plaintiffs’ recovery in this action, which is to be against Nathaniel L. Palmer alone, a lien on the premises which were by the contract to be conveyed to them and that if the same be not paid in thirty days after the service of a copy of the judgment entered in the action on the defendants, Palmer and his wife and Schoenberg, that said premises, or so much of the same as may be necessary, be sold by James K. Burlingame, who will be referee for that purpose, and the plaintiffs be paid from the avails.

Present — Talcott, P. J., and Hardin, J.; Rtjmsey, J., not sitting.

Judgment affirmed, with costs, on opinion of Rtjmsey, J., at Special Term.


text:
    ROBERT DUNLOP, Respondent, v. EGBERT I. AVERY, Appellant, Impleaded with others.

      Mortgagor — covenant of, to insure for the benefit of the mortgagee — rights of tha latter thereunder — when the rights of a subsequent incumbrancer a/>'e subject thereto.

    December 1, 1870, one C. W. Avery executed to tbe plaintiff a bond and mortgage for $2,000, and covenanted thereby to keep the buildings insured for that sum and the policy assigned to the plaintiff. A policy for that amount was procured, assigned to the plaintiff and kept in force until November, 1874, when it was allowed to expire and a new policy for $3,000 was procured by Avery, which was not assigned to the plaintiff. March 6, 1875, Avery executed another bond and a mortgage covering the same premises for $1,400 to his brother, the defendant Egbert I. Avery, and thereby covenanted to keep the premises insured for $3,000, and the policy assigned to the defendant, and the $3,000 policy was made payable to him. The $3,000 policy expired and a $2,000 one issued in renewal thereof was thereafter made payable in case of loss to Egbert I. Avery, and was held by him at the time of the destruction of the premises by fire in October, 1877.

      Meld,, that by virtue of the covenant contained in his mortgage the plaintiff acquired an equitable lien upon the money due upon the policy, to the extent of his interest in the property; and that this was so although the policy had not been issued or made payable to him but had been taken out by the mortgagor in his own name and contained no reference to the mortgagee.
    That the record of the mortgage to the plaintiff was notice to the defendant of the covenant of the mortgagor to keep the premises insured for the plaintiff’s benefit.
    That the plaintiff was entitled to receive so much of the insurance money as might be necessary to satisfy any deficiency that might arise upon the sale of the premises under a decree of foreclosure.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    Tbe action was brought to foreclose a mortgage and compel tbe defendant Egbert I. Avery to allow tbe plaintiff to collect and receive tbe amount due upon a policy of insurance issued upon tbe mortgaged premises.
    About December 1, 1870, Chapman W. Avery, tbe defendant’s brother, executed a bond and mortgage to tbe plaintiff on a certain store and lot in Jamesville, for $2,000, payable in three years, interest payable semi-annually. Chapman covenanted to keep tbe buildings insured for tbe sum of $2,000 and tbe policy assigned to Dunlop. Tbe said insurance was effected by tbe mortgagor and kept assigned to the plaintiff until November 16,1874, when it was allowed to expire. Chapman W. Avery then procured a new policy for $3,000 in his own name, without having it assigned to the plaintiff.
    About March 6, 1875, Chapman being indebted to his brother in the sum of $400 for money loaned to him, borrowed of him $1,000 more, and gave to him his bond and mortgage for $1,400 upon the same premises, and covenanted to keep the premises insured for the benefit, of said Egbert, and had indorsed upon said $3,000 policy: “ Loss, if any, payable to Egbert I. Avery, as his interest may appear.” On the expiration of this policy Chapman procured a new policy to be issued on his buildings for $2,000 to him, with an indorsement thereon, “ Loss, if cmy, payable to Egbert I. Avery, as his interest may appear,” and delivered the same to Egbert, who kept it in his possession, procuring the same to be renewed from time to time as the same became due, Chapman paying all the premiums.
    The plaintiff had no knowledge until after the fire that his insurance was not kept good, nor did Egbert have any knowledge that Chapman had covenanted to keep the premises insured for plaintiff’s benefit. The buildings were destroyed by fire October 13, 1877. Defendant claims that he is entitled to he paid his $1,400 and interest out of the $2,000 insurance money and the remainder only should go to Dunlop.

      Do/rHl Pratt, for the appellant.

      Bwrdiek da Bwrdiek, for the respondent.
   Rumsey, J.:

It is well settled in this State that a mortgagee can have no claim upon a policy of insurance made to his mortgagor, unless he can base his claim upon some agreement. If, however, the mortgagor has in the mortgage agreed to effect an insurance upon the mortgaged property for the benefit and protection of the mortgagee, the latter has an equitable lien upon the money due on the policy in case of loss, to the extent of his interest in the property. And this is so whether the policy is issued to or made payable to him in case of loss, or it be taken in the name of the mortgagor and no refer-en.ce is made in it to the mortgagee, for equity would in such case presume the policy was obtained in pursuance of his agreement in the mortgage for the benefit of his creditor, and would so treat it. (Cromwell v. The Brooklyn Fire Ins. Co., 44 N. Y., 42, and cases there cited.) The mortgage made by Chapman W. Avery to the plaintiff, dated first December, 1870, contains an express covenant to keep the property insured for the plaintiff’s benefit, and gave to him an equitable lien on any insurance Avery should make on such property. This mortgage was duly recorded on the day of its date in Onondaga county.' If the case In re Sands (3 Bissell [Dist. Ct. U. S.], 175) is sound law, this covenant to insure, in view of the rules of equity, acted upon the insurance as soon as it was effected, run with the land and, being recorded, gave notice to all subsequent incumbrances that the policy was treated as equitably assigned to the plaintiff. The direct effect of this ruling is that equity made the assignment to the plaintiff of every policy obtained by the mortgagor the moment he procured it, and the record gave to subsequent incumbrances notice of such equitable assignment.

There are some principles of law in the way which make it very doubtful whether such a covenant to insure runs with the land, but it is not necessary for the purpose of upholding the judgment in this case that such should be held to be the law. The mortgage to the plaintiff in terms gave to the plaintiff a direct lien on the premises, and if it was insured by the mortgagor, and through the instrumentality of fire was converted into money, the effect of the covenant to insure was to extend the lien of the plaintiff over such money, which was only the mortgaged property in another shape. Equity deals with real estate as if it was money, and money as if it was real estate, as the exigencies of the case or the rights of the parties require. The defendant Egbert Avery took his mortgage for $1,400 on the 6th of March, 1875, from Chapman Avery, with the covenant on his part to keep the property insured for the sum of $3,000, the loss, if any, payable to Egbert Avery as his interest should appear. "Why this covenant provides for an insurance of $3,000 to further secure a debt of $1,400, is difficult to conceive, unless the parties had in their minds the previous covenant to insure $2,000 for the benefit of the plaintiff. Be this as it may, Egbert Avery took his moi’tgage with the imputed knowledge which the prior record of the plaintiff’s mortgage imposed upon him. The facts of which such record gave him notice were, that the premises were mortgaged to the plaintiff to secure the payment to him of the sum of $2,000, and that Chapman Avery, the mortgagor, had covenanted to keep the premises insured for $2,000, and that the loss, if any, should be paid to the plaintiff, or so much thereof as was necessary to satisfy the unpaid balance upon his mortgage. (2 Leading Cases in Equity, 168, 169.) This notice is well stated by Judge Jewjett in Truscott v. King in (2 Selden, 161), as follows: But in order to secure good faith and prevent error and imposition in dealing, it is necessary 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.” All the policies of insurance, issued upon the mortgaged property subsequent to the date of plaintiff’s mortgage, were obtained by Chapman Avery, were issued to him in his own name and he paid all the premiums which were paid upon them. An inspection of plaintiff’s mortgage by the defendant Egbert Avery, would have advised him that plaintiff had not only a lien upon the property in specie, but also upon any policy of insurance the mortgagor should effect on the property, thus giving him a lien on it in the shape of money if it should assume that form. If, with this knowledge of plaintiff’s equities in the insurance, the defendant Egbert undertook to obtain any lien upon it, or the money paid under it on a policy obtained by Chapman Avery on the mortgaged property, he did so with notice of plaintiff’s right to those moneys and subject to those rights. If Egbert Avery desired further security by way of insurance for his debt on the mortgaged property, free from the effect of plaintiff’s prior equities, he could have obtained it by procuring an insurance in his own name, upon his interest as mortgagee, for his own benefit.

The judgment should be affirmed, with costs.

Talcott, P. J., and Hardin, J., concurred.

Judgment affirmed, with costs.


author: Talcott, P. J.;

text:
    DUANE H. NASH and SCOTIA C. NASH, Respondents, v. FREDERICK G. WEAVER, as Sheriff of Oneida County, Appellant.

      Conditional sale — what transaction is Imld to constitute one — what instrument need not he recorded as a chattel mortgage.

    Appeal from a judgment in favor of the plaintiff, entered upon a trial at Circuit.
    This is an action against the sheriff of Oneida county for seizing and selling by virtue of an execution in favor of Lorenzo S. Fitch, against James L. Fillrins, five certain mowing machines in the possession of the said Fibrins, the execution debtor.
    The plaintiffs claimed title to the said mowing machines and brought their action against the sheriff for seizing and sebing the same and converting the same to his own use. The defendant justified under the execution against Fibrins.
    The question presented in the case is whether the title to the mowing machines is in Fibrins, or whether he held the possession of the same by virtue only of a conditional sale from the plaintiffs.
    The action was tried at the Oneida Circuit and resulted in a verdict taken for the plaintiffs, estabbshing the value of the mowing machines by the direction of the court-, who reserved the case fox further consideration as to the other questions involved.
    The plaintiffs were engaged in business at the city of New York as dealers in agricultural implements. Filkins was, on the 10th day of March, 1876, appointed by them a local agent for the sale of reaping and mowing machines and hay rakes, in certain towns in Oneida county, under a printed agreement in which he guaranteed the sale of all machines ordered by him and became responsible for the payment of each machine ordered by him, and contained an article as follows: “ And in the case of failure on the part of agents, from any cause, to sell all of the machines ordered by them, they arce to purchase sand machines on the day of final settlement (September 1, 1876), and give their note for the same, with interest at the rate of per cent per annum, to be secured by satisfactory indorser, or by a lien on said machines, as the said Nash & Brother may elect.”
    Filkins and the plaintiffs had a settlement under the agreement on the 9th day of September, 1876, at which time Filkins gave his note to the plaintiffs for the. amount of the mowing machines and rakes he had ordered up to that time, being a note for $502.50, payable on the 1st day of September, 1877, to the order of the plaintiffs at the Waterville National Bank, but without any indorser.
    It seems that the plaintiffs were accustomed to take from their agents on such settlements receipts for the machines which had been delivered, specifying that the delivery was only conditional and that the title was not to pass to the agents until the payment of the notes given on such settlement; and one of the plaintiffs, who was a witness but seemed to have no precise recollection of the circumstances which attended tke giving of the note by Filkins for $502.50, stated that if the note was given for the machines had by Filkins, there was such a receipt taken with it, and that “ a receipt was signed with the notes; ” but the witness further stated that he could not say of his own knowledge whether a receipt was given with the note of $502.50. At the time that note was given the original agreement for the agency was canceled. Filkins, on being asked by the counsel for the plaintiffs whether he gave a receipt with the note for $502.50 said, “I don’t remember.” And being asked what he gave in connection with that note said, “I don’t remember about that.” Apparently there was no one present at the trial who was present at the giving of the note except Filkins.
    On the 14th of November, 1877, there having been paid by Filkins on his said note only the sum of fifty-two dollars and fifty cents, he took up the note by giving new notes for the balance due thereon, and also executed and delivered to the plaintiffs a receipt as follows:
    “Waterville, N. Y., November 14th, 1877.
    “ Received from Nash & Bro., five William Anson Wood Mowers and four Coates Hay Rakes, delivered to me this day, under a bargain for the sale thereof, and for which I have given my notes, payable on or before the 1st day of October, November and December, 1878, for four hundred and twenty-five dollars; and it is hereby expressly understood that the said Nash & Bro. neither part with nor do I acquire any title to said machines until said notes are fully paid; and in case of default of payment of said notes at maturity, said Nash & Bro., or their agents, are hereby authorized to remove said machines from my farm or elsewhere.
    “Post-Office Address — Waterville, N. Y.
    “JAMES L. FIBRINS.”
    This instrument was executed and delivered to the plaintiffs simultaneously with the delivery of the notes therein specified and the taking up of the note for $502.50.
    The machines levied upon by the defendant and sold, were the five machines, “ Wood Mowers,” specified in the contract of November 11, 1877. The judgment on which the execution issued was recovered on the 8th day of January, 1877, and the execution was delivered to the sheriff on the 1st day of October, 1878. The sheriff having been notified of the claim of the plaintiffs to the property, took a bond of indemnity from the plaintiff in the execution.
    The trial judge found that the title to the property was in the plaintiffs when the same was taken by the defendant; that the same was wrongfully taken and converted by the defendant, and ordered judgment for the plaintiffs for the amount found by the jury as the value of the machines taken and sold, with interest from October 8, 1878, and the court being requested by the counsel for the defendant, on the settlement of the case, to find that the title to the machines in question vested in Filkins on the 9th day of September, 1876, when he gave his note for $502.50, either as matter of fact or conclusion of law, declined so to find. And being requested to find that the instrument dated November 14,1877, was a chattel mortgage which should have been filed in the town clerk’s office in order to preserve the plaintiffs’ lien, declined so to find.
    The court at General Term said: “ From these findings andrefusals, we infer that the trial judge intended to find that there was no time when the plaintiffs had relinquished their title to Filkins, but that they continued to hold the title as provided by the contract under which Filkins took the agency on March 10, 1876, as modified by that of November. 11-, 1877.
    It is true that on a sale of goods, where the property is delivered to the vendee, the legal presumption is that the title passes to him. So, too, where a sale is upon condition of the payment of the price and the vendor receives the vendee’s note for the price and delivers the property without other explanation, the presumption is that the title passes. But this presumption is a matter of evidence. If the vendor at the time expressly reserves to himself the title and makes what is called a conditional sale the presumption is removed. (Herring v. IloppoeJc, 15 N. V., 109 ; Smith v. Lynes, 5 id., 11; Cole v. Mann, 62 id., 1; Ballm'd v. Bwrgett, 10 id., 311.) Whether the delivery was absolute or conditional is a question of fact and depends upon all the evidence; and the question in effect, decided by the trial judge, was that the delivery of the machines to Filkins was not absolute upon his execution and delivery of the note of $502.50. (Fleemm v. MeKean, 25 Barb., 171.) In this case the contract, by which the agency of Filkins was created, provided that Filkins should purchase all unsold machines at the settlement in September, 1876, and for the purchase-price Filkins was to give his note secured by a satisfactory indorser, or that the purchase-price was to be secured by a lien upon the machines. The ordinary mode of securing the purchase-price by a lien on the machines was by making the sale a conditional one, and retaining the title in the vendor until the payment of the purchase-price.
    There was nothing in the circumstances of this case which render it probable that the vendors intended to part with the title absolutely upon the reception of Filkins’ note without an indorser or other security, and the presumption is that when the note was received a receipt was taken from Filkins similar to that taken on the 17th of November, 1877, when the note was renewed for the second year, as was testified to by Daniel H. Nash, which receipt was canceled and destroyed when the receipt of November seventeenth was taken. This is the theory upon which, as we understand, the findings and refusals to find by the trial judge, rested, and we think there was evidence to sustain his conclusions. The sheriff is not in the attitude of a liona fide purchaser. (Comer v. Cimningham, 77 N. Y., 391.) v
    If the preceding views are correct they dispose of the only question of any importance presented in the case.

      Z. X. Knowles, for the appellant.

      Chas. H. Sea/rle, for the respondents.
   Opinion by

Talcott, P. J.;

Hardin and Rumsey, JJ., concurred.

Judgment affirmed, with costs.


author: Smith, J.;

text:
    JOHN STILL, Respondent, v. EDWIN A. HOLBROOK, Appellant, Impleaded with others.

      Agreement by parties to join in boring oil wells — when one subscriber is liable for the services of one employed by less than a majority of the subscribers — what acts amount to a ratification of such employment— Statute of limitations — the right of one pa/rtnm' to recovm' a claim against the firm, is barred by the ten and not by the six years’ statute.

    Appeal from a judgment in favor of the plaintiff entered on the report of a referee.
    It appeal’s by the findings of the referee, that in May, 1865, the plaintiff’s assignor Richard P. Wilkins, together with the appellant Edwin A. Holbrook, and several others, engaged in an enterprise for developing petroleum oil on lands in Pennsylvania, and for that purpose subscribed an agreement, of which the following is a copy: “Buffalo, May 18, 1865. We, the subscribers, severally agree to contribute and pay in such sums on call, as shall be from time to time assessed, to the amount of $500, to be used for boring, tubing and developing one, two or three oil wells at such locations in the oil district in Pennsylvania as shall be decided upon by a majority of said subscribers, who are to adopt such plans as deemed advisable for carrying out the object above stated.” It was alleged in the complaint that Wilkins was employed to superintend the work contemplated by tbe agreement, for which he was to be paid a reasonable compensation, and that a large sum remained due him therefor, the claim for which he had assigned to the plaintiff. It was also alleged that none of the subscribers had paid on account of any one share above the sum of $330, and that there was a considerable amount of personal property belonging to the subscribers jointly, and that there was in the hands of the defendant Holbrook a sum of money amounting to $1,000 and upwards, the proceeds of the sale of property belonging to said subscribers. The plaintiff demanded judgment that an account be taken as between the defendants; that the liabilities of each as to the others be ascertained and established; that the liabilities of the subscribers to creditors be ascertained; that a receiver be appointed to take charge of the joint property of the subscribers, collect the debts belonging to them and convert the joint property into money and apply the proceeds in payment of the plaintiff’s claim, and that the plaintiff have judgment for the amount of his claim, with costs. The referee found in favor of the plaintiff, and ordered judgment substantially for the relief claimed in the complaint.
    The court at General Term said: “The point is now taken by the appellant that the proof shows that Wilkins was hired by less than a majority of the subscribers, without the knowledge, assent or ratification of Holbrook, and that as by the terms of the agreement a majority must act in order to bind the whole, the hiring of Wilkins created no obligation on the part of the appellant. The proof is that Wilkins was employed by an executive committee appointed at a meeting of subscribers, but the whole number present was less than a majority. It does not appear that Holbrook was present at that meeting, but it does appear that he paid in all the sum of $330 upon his share towards the expenses ®f the enterprise. The testimony of Butler, the treasurer, seems to indicate that the calls for money were made from time to time as Wilkins’ work progressed, and Butler testifies that Holbrook knew that Wilkins was at work. As there is no evidence that the subscribers incurred any other expense than that which was connected with the operations of Wilkins, the presumption fairly arises that Holbrook was made acquainted with the nature of Wilkins’ employment and assented to it, and that pi*esumption is strengtened by the circumstance that although Holbrook was called as a witness after proof of his payments had been given, he did not deny that he was aware of the fact of Wilkins’ employment when the payments were made, and that the money was called in to meet the expenses resulting from his operations. The circumstances above detailed were sufficient evidence to justify a finding of Holbrook’s ratification.
    “ The objection that no calls or assessments have been made as required by the subscription paper, is no answer to the claim made upon the subscribers to contribute so as to produce equality among themselves and adjust the affairs of the partnership after its dissolution. “ And in such an action the personal representatives of a deceased partner are necessary parties, and the objection to their being joined, which is urged by the appellant, is without foundation.
    “ So far as the statute of limitations is concerned, the six years’ limitation does not apply to the case, as there is no concurrent remedy at law. Wilkins, the plaintiff’s assignor, being one of the associates and co-partners, his claim could not be enforced in an action at law. The only remedy was in equity to adjust and settle the affairs of the partnership, and as ten years had not elapsed when the suit was commenced, the cause of action was not barred by the statute. “ These several points were considered by the referee, and in so much of his opinion as relates to them, we concur.

      “ The additional point is taken on the appeal that the sum for which the referee ordered judgment against the several defendants is in excess of the amount necessary to satisfy the plaintiff’s claim. The answer is that the excess is only so much as is needed to produce equality of contribution on the part of all the associates with the one who has contributed the highest sum. If after all the debts and liabilities of the partnership are paid, there remains a surplus, it will be competent for either of the parties to the suit to apply to the court for an equitable distribution thereof. The only other objections taken have no merits and require no comment.”
    The judgment should be affirmed, with costs.

      Spencer G'Unton, for the appellant.

      Stephen Lockwood, for the respondent.
   Opinion by

Smith, J.;

Talcott, P. J., and Hardin, J., concurred.

Judgment affirmed, with costs.


author: Taloott, P. J.;

text:
    JOHN T. BON, Respondent, v. EDWARD R. SANFORD and LEONARD G. SANFORD, Appellants.

      Action for <m accounting — order of reference reserving certain questions for the cowrt — am, application to confirm the report and, for leave to enter a jugdment thereon, must, notwithstanding a stipulation that judgment may he entered on the report, he made to the court.

    Appeal from a judgment entered upon the report of a referee, in an action for an accounting and a dissolution of the copartnership heretofore existing between the parties, and a distribution of the assets of the copartnership. The copartnership was in the manufacture and sale of picture frames, mouldings, etc., at Syracuse, and was continued until the appointment of a receiver in this action on the 30th day of October in the year 1874. The case was sent to a referee to take and state the account between the parties, and to ascertain and report what was due from either of said parties to the other, and by the order of reference it was “ further ordered that the question of costs and all other questions be reserved until the coming in of the referee’s report.” During the pendancy of the receivership the receiver went on and sold and disposed of the assets and effects of the firm, and has now remaining in his hands of the proceeds of the assets of the said firm, for distribution, the sum of $19,005.46, besides the sum of $4,782.80 retained by him to await the determination of certain suits upon outstanding notes of the firm.
    The referee reported the account between the copartners, distributing the remaining asset in a certain manner, and directed a judgment: 1st. Dissolving the copartnership. 2d. Stating the account between the members of the firm in pursuance of the said findings. 3d. Directing the receiver to pay out to the several members of the copartnership, out of the funds in his hands, the sums found on such accounting to be due to them respectively as their share thereof. 4th. Directing a judgment that the costs of the action be paid by the defendants. And upon the said report a judgment seems to have been entered without any further application to the court for a confirmation of the report, or to bring the questions reserved in any manner to the notice of the court.
    The judgment appears to have been entered under a stipulation between the attorneys of the respective parties as follows: After certain recitals of the previous proceedings in the case, the stipulation proceeds. “ It is hereby stipulated and agreed that judgment may be entered in said action upon the filing of this stipulation; provided, however, that in case the appellate court shall, upon the appeal from the decision upon the question of the receiver’s accounting, finally determine that certain items allowed on said accounting should have been rejected or reduced in amount; that the amount of such rejected or reduced items shall be distributed among the respective parties to this action, in the manner and upon the theory that shall be established by the appellate courts upon the final determination of the appeal from the judgment to be entered on the final report of the referee.”
    The appeal is from so much of the judgment as purports to distribute the assets among the parties, specifying what sums are due to each, and secondly from that part of the judgment which adjudges that the plaintiff is entitled to receive of the defendants the sum of $920.86 for his costs and disbursements in the action.
    The court, at General Term, said: “We think this proceeding is entirely irregular, and not in accordance with the practice. We do not understand by what authority the referee adjudged the costs of the action to the plaintiff, however proper it may have been in his judgment to have imposed the costs on the defendant, especially since the question of costs and all other questions except the taking and stating the accounts between the parties were, by the order of reference, expressly reserved, to be determined by the court, until the coming im of the referee!s r&port.”

    We think the practice required the party which desired the confirmation of the referee’s report to make an application to the Special Term for that purpose, upon which occasion the question of the propriety of the referee’s conclusions as to the disposition of the remaining property and the question as to whether the co-partnership should be dissolved, and the question of the costs of the action, and other questions, if any, and none of which were by the order of reference referred to the referee, could be presented to and disposed of by the court.
    We are, therefore, of the opinion that the judgment must be set aside as irregular;, and the ease must be referred back to the Special Term to make or order such judgment in the premises as the law requires.

      Wm. O. Huger do Louis Ma/rshall, for the appellants.

      Hiscoek, Gifford db Doheny, for the respondents.
   Opinion by

Taloott, P. J.;

Smith and Hardin, J. J., concurred.

Judgment reversed and the proceedings remitted to the Special Term to enter such judgment therein as law and equity requires, the costs of this appeal to abide the award of costs in the Special Term.


text:
    In the Matter of EDWARD F. FRENCH, to be Discharged from Imprisonment.
   Order appealed from affirmed with ten dollars costs and disbursements, on the opinion of the Hon. L. N. Bangs, County Judge, delivered in this case.


author: Rumsey, J.

text:
    JAMES G. ROSS, Respondent, v. THE NATIONAL UNION BANK OF WATERTOWN, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide event.

Opinion by

Rumsey, J.


author: Talcott, P. J.

text:
    JOHN D. ALGER, Respondent, v. RACHAEL BALDWIN, Executrix, etc., Appellant. LUMAN H. BALDWIN, Respondent, v. RACHAEL BALDWIN, Executrix, etc., Appellant.
   Judgment affirmed on the report and opinion of the referee.

Mem. by

Talcott, P. J.


author: Hardin, J.

text:
    ALONZO BRADNER, Appellant, v. DANIEL H. FITZHUGH and WALTER AYRAULT, Surviving Executors of ALLEN AYRAULT, Deceased, Respondents.
   Judgment reversed and new trial ordered before another referee, costs to abide the event. Reversed on a question of fact.

Opinion by

Hardin, J.


text:
    TIMOTHY PAGE and LYDIA PAGE, Respondents, v. JAMES G. CAMERON and ESTELLA M. CAMERON, Appellants, Impleaded, etc.
   Judgment reversed in part, and a new trial ordered as to James G. Cameron and Estella M. Cameron, without costs of this appeal to either party; and judgment affirmed as to that part which requires Walker, the executor, to pay over the dividends on the notes as stated in the judgment.

Opinion by

Hardin, J.


text:
    SAMUEL B. RAYMOND, as Assignee, etc., Respondent, v. HENRY E. RICHMOND, Sheriff, etc., and other, Appellants.
   Judgment and order affirmed.

Opinion by

Hardin, J.


author: Smith, J.,

text:
    JACOB S. IRWIN, Appellant, v. ISAIAH FORCE and others, Respondents, Impleaded with J. D. NORTHUP
   Judgment affirmed.

Smith, J.,

taking no part.


text:
    PAUL KLINE, Respondent, v. ABRAHAM S. BAIRSTO, as Executor, etc., of SALLY GREEN, Deceased, Appellant.
   Judgment reversed and a new trial ordered before another referee, costs to abide event, unless the plaintiff consents that the judgment be modified by requiring tbe plaintiff to pay into court, within ten days, for tbe use of tbe defendant, tbe sum tendered, with interest thereon from tbe date of tbe tender, and also by striking out tbe award of costs to tbe plaintiff, in which case tbe judgment, as so modified, is affirmed without costs to either party.


text:
    JULIA B. FELLOWS, as Executrix, etc., of EPHRAIM W. FELLOWS, Deceased, Respondent, v. FRANCES LONGYOR, Appellant, Impleaded with others.
   Judgment affirmed on tbe opinion delivered by Barker, J., at Special Term, with costs of tbe appeal to tbe respondent.


author: Smith, J.

text:
    SHERMAN J. ROSE, as Assignee, etc., Respondent, v. JOHN J. MELDRAM, as Sheriff, etc., Appellant.
   Judgment reversed and new trial ordered, costs to abide event.

Opinion by

Smith, J.


text:
    ENOS A. TOLES, Appellant, v. EDGAR A. GARDNER, HENRY W. GARDNER and GEORGE GARDNER, Respondents.
   Judgment affirmed.

Opinion by

Smith, J.


text:
    DANIEL V. THOMAS, Surviving Executor, etc., of WARDWELL GREEN, Deceased, Respondent, v. LORENZO F. FREEMAN and LOREN G. PECK, Appellants.
   Judgment affirmed, with costs, on opinion of Daniels, J., delivered at Special Term.


text:
    GEORGE C. CARTER, Appellant, v. EMILY P. BECKWITH, as Administratrix, etc., Respondent.
   Judgment reversed and new trial ordered, costs to abide event.


text:
    In the Matter of JANE PARISH v. PRATT, BROWN & GARFIELD, Attorneys, etc.
   On reading and filing the petition herein, and on motion of Isaac I. MacOabe, for the petitioner, no one appearing to oppose, ordered that Messrs. Pratt, Brown & Garfield, within ten days after service hereof, file with the clerk of Onondaga county, a consent to the substitution of Isaac I. MacOabe as attorney for the plaintiff in the suit against Maxwell Parish, or in default thereof that it be referred to Israel T. Spencer, Esq., of Syracuse, to take proof of the matters of fact alleged in the plaintiff’s petition, and that he report the testimony to the court, with his opinion thereon, with all convenient speed.__


text:
    JOHN H. ALLBRIGHT, Administrator, etc., Respondent, v. JAMES H. RIKER, Trustee, etc., Appellant.
   Motion for leave to appeal to Court of Appeals denied.


text:
    MARTIN TIMAN, Administrator, etc., Respondent, v. THOMAS E. KINNEY, Appellant.
   Motion for reargument denied, and motion for leave to go to the Coiu't of Appeals granted on the ground that the case involves a question of law which ought to be reviewed by that court.


text:
    OLIVER D. GRAY, Appellant, v. THE AMAZON FIRE INSURANCE COMPANY, Respondent. Three cases.

   Appeal dismissed in each case with ten dollars costs in one case only


text:
    VAN BUREN WHEAT and another, Respondent, v. HARVEY RICE and others, Appellants.
   Motion to advance cause on calendar denied, and injunction vacated so far as it prevents the bringing of actions on the notes.


text:
    BUFFALO AND JAMESTOWN RAILROAD COMPANY, Respondent, v. ERIE L. HALL, Appellant.
   Motion for leave to go to tlie Court of Appeals granted, on the ground that the case involves questions of law which ought to be reviewed in that court.


text:
    CHARLES CLEVELAND, Respondent, v. THE NEW JERSEY STEAMBOAT COMPANY, Appellant.
   Judgment and order affirmed.


text:
    ALFRED M. DUNHAM, Respondent, v. JOHN COON and others, EDWARD C. WILCOX, Appellant.
   Order appealed from affirmed with ten dollars costs and disbursements to be paid by appellants.


text:
    MARY L. FISHER and others, Appellants, v. CHARLES W. HERSEY and others, Respondents.
   Order of Special Term in partition action reversed with ten dollars costs and disbursements, and motion granted with ten dollars costs.


author: Hardin, J.,

text:
    ALEXANDER BROWN, Appellant, v. WATSON C. WALKER, Respondent.
   Order appealed from reversed with ten dollars costs and disbursements. Held, that there was no valid consideration for the alleged agreement to extend the time, and as a stipulation in the pending suit it was void because not in writing.

Hardin, J.,

not voting.


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    GROVE F. STRONG, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
   Judgment and conviction reversed, and proceedings remitted to the Court of Sessions of Onondaga county. Held, that the case does not show that any offense was committed by the plaintiff in error.


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    ALFRED HAYDEN, Respondent, v. GEORGE F. STRONG, Administrator, etc., Appellant.
   Judgment reversed and new trial ordered in the County Court of Onondaga county, costs to abide event. Held, that the charge of the judge, in effect, that the words without recourse ” must be written in such a manner that they could be read by a man “ of ordinary ability and • understanding ” in order to exonerate the indorser, was erroneous.


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    JOSEPH CROCKER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
   Conviction and judgment affirmed and proceedings remitted to the Court of Sessions of Monroe county.


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    ROCHESTER SAVINGS BANK v. EBENEZER GORDON, Appellant, GEORGE W. MILLER and another, Respondents, and others.
   ' Order appealed from affirmed, with ten dollars costs and disbursements.


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    JAMES KNAPP, Respondent, v. ESTHER PHELPS, Appellant.
   Judgment affirmed with costs. Held, (1) that the defendant’s agreement to pay the debt secured by mortgage on her land was not within the statute of frauds, it being founded upon an original consideration, to wit, the agreement of the plaintiff to extend the time of payment at her request; and (2) that as the agreement was for the benefit of the defendant’s separate estate it was valid notwithstanding her coverture.


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    SOPHIA SCHMID, as Administratrix, etc., Respondent, v. HUGH J. JEWETT, as Receiver, etc., Appellant.
   Judgment and order affirmed.


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    LENA A. STORY and others, Appellants, v. ORANGE W. DAYTON, Administrator, etc., Respondent.
   Motion for a reargument granted.


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    MARGARET ROSE, Appellant, v. JOHN ADAMS, Respondent.
   Motion for reargument denied, with ten dollars costs.


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    WILLIAM A. LEWIS, Respondent, v. CHARLES BARTON, Appellant, Impleaded, etc.
   Appeal dismissed, it being from an order overruling a demurrer.


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    ABRAHAM HOWE, Appellant, v. JACOB SHAFER and others, Respondents.
   Judgment and order reversed apd new trial ordered ip the County Court of Onondaga county, with costs to abide event. Held, that the opening and the offer embraced facts constituting a good cause of action.


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    JOSEPH WICKS and another, Appellants, v. LEWIS GAYLORD, Respondent.
   Judgment affirmed. Held (1) There was no agreement for storage. (2) If the deputy sheriff acted officially the action was barred by the short statute of limitations. (3.) If he did not so act, there is no evidence of his authority to bind the defendant.


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    AUGUSTUS PRENATE v. THE UNION IRON COMPANY of Buffalo.
   Yerdict set aside and new trial ordered, costs to abide event. Held, that the court erred in refusing to charge that if the plaintiff knew, when using the machine, that because of the defect in the roller-stand, it was dangerous, and if the injury resulted from such defect, the plaintiff could not recover.

It was also error to refuse to charge that the promise of the superintendent to repair the roller, if made as claimed, did not relieve the plaintiff from the charge of contributory negligence in the use of the roller, if the plaintiff knew that the promise had not been kept and that the machine remained unsafe


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    MARGARET FARNHAM, Appellant, v. JAMES SCOTT, Respondent.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Held, that as between the plaintiff and her brother, Owen Henderson, the execution of the assignment of the mortgage, after she became of age, was not a ratification of the deed which she executed to him in her minority, and that as there is no evidence that the defendant paid value for the land, or that he acted upon, was influenced by, or knew of the fact of such assignment when he took his deed, he is in no better position than his grantor, the said Owen Henderson, and the plaintiff’s said deed and her alleged ratification thereof constitute no bar to her title.


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    ELLEN HENDERSON, Respondent, v. JAMES SCOTT, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide event, unless the plaintiff, within sixty days after service of this order, pay to the clerk of Oswego, for the use of the defendant, the sum 'of one-seventh of eighty dollars, with interest from the 22d of July, 1858, in which case the judgment is affirmed without costs of this appeal to either party.


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    ELBERT C. SHALLIS, Appellant, v. ALBERT F. CHAPIN and others, Respondents.
   Judgment affirmed.


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    MARY CROWE, Administratrix., etc., Respondent, v. THE ONTARIO SOUTHERN RAILROAD COMPANY, Appellant.
   Judgment affirmed.


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    SYLVESTER TRIMMER, Respondent, v. ZACHARIAH TRIMMER, Appellant.
   Judgment affirmed.


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    JAMES W. COMBS and another, Respondents, v. MARY I. COMBS, Appellant.
   Judgment affirmed. Held, that as the points that the action was prematurely brought, and that it does not appear by the return that the justice waited one hour for the defendant to appear, were not specified in the notice of appeal, they are unavailing and the other objections taken are untenable.


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    APPOLLONIA C. SORG, as Administratrix., etc., Appellant, v. CHRISTINA KELSCH, as Treasurer, etc., Respondent.
   Judgment of County Court reversed and that of the justice affirmed. Held, that the action was properly brought under chapter 258 of Laws of 18J9, as amended by subsequent statutes; also, that the justice having decided upon conflicting evidence that the dues of the plaintiffs intestate were paid, his determination is conclusive.


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    THE DAVIS SEWING MACHINE COMPANY of Watertown, N. Y., Appellant, v. JENNIE M. TOZER, Respondent, Impleaded, etc.
   Order appealed from reversed, without costs of the appeal to either party, and motion granted allowing, the proposed amendment as to the reformation of the notes, on condition that the plaintiff, within twenty days, pay the defendant her costs and disbursements incurred in her defense since the service of the original complaint, and if such condition be not complied with, then the order is affirmed with ten dollars costs and disbursements to the respondent. Held, that the court had power to grant the motion, notwithstandstanding the statute of limitations had run upon the cause of action sought to be introduced at the time when the motion was made. (Hatch v. The Central Nat. Bank, 78 N. Y., 487, and cases there cited by Danforth, J.)


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    DOUGLASS BOARDMAN and another, Executors, etc., Appellants, v. EDWARD EVANS and another, Respondents.
   Motion for reargument and for leave to go to the Court of Appeals, denied with ten dollars costs.


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    ORVILLE ROBERTS, Appellant, v. SARAH L. CONKLIN, as Executrix, etc., Respondent.
   • Order appealed from affirmed with ten dollars costs and disbursements.


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    SOPHIE DARLING, Respondent, v. ROBERT R. COLE and others, Respondents, and EMMA J. DARLING, Appellant.
   Order appealed from reversed with ten dollars costs and disbursements to the respondents* Held, that a defendant is not entitled to an injunction order against a co-defendant. (Code, §§ 602, 603,604.)


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    CHARLES ALLISON, Appellant, v. WALTER C. ROBINSON and another, Respondents.
   Order repealed from reversed with ten dollars costs and disbursements, and motion denied with ten dollars costs to abide event.


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    JOHN GREENWAY, Respondent, v. JOHN I. MELDRAM, as Sheriff, etc., Appellant.
   Judgment affirmed.


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    WILLIAM C. BAINE, Respondent, v. CITY OF ROCHESTER, Appellant.
   Order appealed from affirmed with ten dollars costs and disbursements.


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    LEONARD BOYER, Respondent, v. HIRAM BOYER, Appellant.
   Judgment affirmed with, costs.

Hardin, J.,

not voting.


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    In the Matter of CHARLES H. SEDGWICK, an Imprisoned Debtor.
   Order appealed from affirmed without costs. Held, it appearing that the debtor rented the farm of Redick for a term of years, at a yearly rent of $1,000, and it being the presumption in the absence of proof to the contrary, that the right to the rents reserved by the lease passed to the wife of the debtor by the conveyance of the farm from Redick to her, the debtor apparently owed her on account of rent an amount exceeding the value of the property turned over by him to Redick on the settlement, and there is no evidence of a gift to his wife or of a disposition of any part of his property with a view to the future benefit of himself or his family.


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    THERON ZIMMERMAN, Appellant, v. ELIJAH S. COON, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements.

Miller v. Hooper (19 Hun, 394) followed.

Section 297. of the Code of Procedure exempts the personal earnings of a debtor for the preceding sixty days, necessary for the use of a family supported by his labor from being reached by legal proceedings against him. It did not appear that the debtor had any legal claim to the earnings of his assistants or to the house on his wife’s lot, which it was unjust for him to refuse to apply to the payment of his debts. His claim for the value of his files used by him in the business, like the files themselves, is exempt. (Tillotson v. Wolcott, 48 N. Y., 188.)


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MARY WILL, Respondent, v. JANE E. BANGS and others, Appellants.
   Judgment of Special Term reversed and decision of the County Judge affirmed, with costs of the appeal.

Hardin, J.,

not sitting.


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    CHARLES LEONARD, Overseer, etc., Appellant, v. CONRAD LOOS and others, Respondents.
   Judgment and order affirmed. Held, that the evidence as to the small size and the obscurity of the letters in the word “ hotel,” was material only so far as it tended to show an intent on the part of the defendants to evade the statute, and as there was no request to submit the.question of such intent to the jury, the exceptions taken to' the charge and the refusal to charge, respecting the size of the letters on the sign, are not available to the appellant


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    ELIZABETH S. SALTER, as Administratrix, etc., Appellant, v. UTICA AND BLACK RIVER RAILROAD COMPANY, Respondent.
   Order of Special Term affirmed as to the item for interest and reversed as to the item for printing, without costs of this appeal to either party.


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    JENNIE W. HALL, Respondent, v. EATON J. RICHARDSON, Appellant.
   Motion for reargnment denied, with ten dollars costs.


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    WILLIAM J. KING, Jr., Respondent, v. THOMAS J. LEIGHTON, Appellant.
   Motion-for reargument and to modify judgment denied with ten dollars costs.


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    JOSEPH N. CRANE and another, as Executors, etc., v. B. FRANK DECKER and others.
   Motion to modify decision denied.


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    CHENEY BRACY, Respondent, v. WILLIAM D. GILE, Appellant.
   Judgment of County Court reversed and that of the justice affirmed. Held, that the jury were warranted in finding upon tbe evidence that the plaintiff was not tbe owner of the property. (Gildersleeve v. Landon, 73 N. Y., 609, and cases there cited.)


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    ADA M. DODGE, Appellant, v. WILLIAM K. MANN and another, Respondents.
   Order setting aside verdict and judgment and granting a new trial, reversed with costs.