text:
    THE SHERIDAN ELECTRIC-LIGHT COMPANY OF NEW YORK, Appellant, v. THE CHATHAM NATIONAL BANK, Respondent.

      Principal and agent — powers of an executive committee of a board‘of trustees of a corporation to authorize one of its members to indorse negotiable paper belonging to the corporation — such aruthority is not invalid, although coupled with am unlawful direction as to the disposition of the proceeds — power of a corporation, all of the stoch of which is owned by four or' five trustees thereof, to transact business by informal conversations — estoppel.

    A corporation, created under tlie manufacturing laws of the State of New York to organize electric-light companies in other States, the plaintiff in this action authorized two of its agents to organize such a company at Cleveland, in the - State of Ohio, upon condition that the company so organized should purchase treasury stock of the plaintiff to the amount of five per cent of the capital of such company so organized, and should pay to the plaintiff twenty-five per cent of its full paid non-assessable stock; that, should the capital of the company, organized under such authority, be $100,000, then it should purchase of the plaintiff, at its par value, $5,000 of its treasury stock; “and in the same proportion, be the capital stock more or less, provided, however, that no single company shall be obliged to purchase more than $10,000 worth of theaforementioned stock.” The agents so employed having received from the Cleveland company a sum in excess of $10,000, claimed to be entitled to such excess, under an alleged agreement made with the plaintiff, which stated: “ The contract made with you on the eighth of February specifies the amount to be paid this company; any excess, whether in stock of this company, or in cash or stock of branch companies, belongs to you, and should the same be received by us it will be immediately transferred to you.”
    It appeared upon the trial of an action, brought to recover such excess, over $10,000, paid by the Cleveland company, that this claim on behalf of the agents had been presented to three of the trustees of the plaintiff, who constituted an executive committee thereof, and that they empowered one of their number', by a written power of attorney executed by them, to settle and adjust the business with the agents, obtaining for the plaintiff the sum of $10,000; that the trustee, to whom such power of attorney was given, settled the matter with the agents, in accordance with the authority thereof, and indorsed certain checks and drafts, upon the security of which the defendant in this action paid over such excess of the proceeds thereof, above $10,000, to the said agents, to recover whieh sum so paid by the bank this action was brought by the corporation against it.

      Held, that the bank was protected in making such payment by the plain language of the power of attorney, although the trustees subscribing the same might have exceeded, in the disposition of the money received from the bank, the power which they could lawfully exercise on behalf of the company.
    That, if specific authority to indorse such checks and drafts was legally delegated by the instrument, the fact that the executive committee conferred upon its member further authority, upon which the power to make such indorsement was in no manner dependent, would not invalidate the action of the attorney in making such indorsement. . .
    The trustees of the plaintiff were five in number, one of whom never qualified or acted, and another of whom had been present at only one of the earlier meetings of the board. The three trustees who had executed the power of attorney had been appointed an executive committee of the company, with authority to transact the ordinary and usual business of the plaintiff.

      Held, that, in view of the object and purpose of the plaintiff’s organization, the indorsement of commercial paper was within the scope of the authority of the executive committee.
    The slock of the company was substantially owned by the three members of the executive committee, and by a Mr. Sheridan, for the employment of whose inventions it was incorporated.

      Held, that where .the circumstances and condition of the corporation were such, it was not essential that the selection of the executive committee should be by a formal resolution of the board of trustees, entered in their minutes, as where a corporation consists of a small number of persons like a partnership they may transact all their business by conversation without formal votes, and parties who deal with them will not be required to sustain all their acts by showing that they were directed by a formal vote taken at a meeting of the board of trustees.
    That the committee in this action, which had full power to sell and negotiate paper, payable to the order of the company, could delegate such power to one of its members, where its execution involved the exercise of no judgment or discretion on his part and was merely ministerial.
    It appeared that, after this transaction with the agents, the matter was brought to the attention of the board of trustees, and discussed at a meeting thereof, at which the executive committee, constituting a majority of the trustees, were present.

      Held, that, although such disposition of the money in question might have been in violation of the rights of the corporation, and could not have been confirmed or ratified by the action of the persons, through whose conduct it was disposed of, and although such trustees might be accountable and liable to the corporation, for having acted in violation of their duties, yet that it was within the power of the board of trustees to ratify and confirm the indorsement of such paper, even though, by their further action, the trustees might have rendered themselves liable for the misuse or misappropriation of the proceeds thereof.
    That the fact that the company, through such indorsement, received the sum of $10,000 and appropriated it to its own use, knowing generally, as the trustees and executive committee did, that it was obtained in this manner, precluded the company from afterwards disaffirming the transaction through which the money had been received
    Appeal by the plaintiff from a judgment rendered at the New York Circuit on a trial before the court, without a jury, and entered in the office of the clerk of the county of New York on the 7th day of December, 1887, by which judgment the plaintiff’s complaint was dismissed upon the merits, with costs, and from an order denying a motion for a new trial, entered in the same office.
    The action was brought to recover the proceeds of certain negotiable paper discounted by the defendant, which acted in making such discount upon the faith of the following power of attorney:
    “ Know all men by these presents, That the executive committee of the board of trustees of the Sheridan Electric Light Company of New York, acting with full authority by virtue of a resolution of the board of trustees of said company, have made, constituted and appointed, and by these presents do make, constitute and appoint "William A. Shepard, of New York, their true and lawful attorney for them, and, in their name place and stead, to close and consummate all transactions with. Dr. Oscar C. Kendrick and Earl L. Shepard, managers, in the matter of the sale of the right to use and sell and to form companies to use and sell the lights and dynamo machines made under said Sheridan patents in and for the State of Ohio, and to 'receive all moneys and checks paid by said Kendrick or Shepard, and to sign all papers and checks, or indorse the same, necessary to carry out transactions, giving and granting unto the said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as we might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that he, the said attorney or his substitute, shall lawfully do or cause to be done by virtue hereof.”

      Edwarrd D. Mg Ocwthy, for the appellant.

      Sanford H. Steele, for the respondent.
   Daniels, J.:

The claim made by the plaintiff was for the conversion of cheeKs and drafts amounting to the sum of about $57,358.36. The plaintiff is a corporation created under the manufacturing laws of this State. A prominent object of its creation was the organization under its authority of electric light companies in other States and territories. It authorized two persons to organize such a company at Cleveland, in the State of Ohio. They succeeded in organizing the company there, with a capital of $ 1,000,000. By the authority conferred upon these two persons it was provided that each company organized under the authority of the plaintiff must purchase treasury stock of it to the amount of five per cent of the capital of the company organized, before licenses would be granted to use and employ the inventions owned by the plaintiff. And that the company so organized should also pay to the plaintiff twenty-five per cent of its full paid non-assessable stock. It was provided, further, that in case the capital of the company organized under this authority should be $100,000, then it should purchase of the plaintiff, at its par value, $5,000 of its treasury stock, “ and in the same proportion, be the capital more or less, provided, however, that no single company shall be obliged to purchase more than -ten thousand dollars worth of the aforementioned stock.”

In organizing the company at Cleveland the two persons to whom the authority was committed obtained the drafts and checks now in dispute. They were made payable to the plaintiff, and these two individuals claimed the entire excess over $10,000, under an agreement with them declaratory of the effect of the contract empowering them to act in the organization of the company in the city of Cleveland. This final agreement declared, “ that the contract made with you on the 8th of February specifies the amount to be paid this company. Any excess, whether in stock of this company or in cash, or stock of branch companies, belongs to you, and should the same be received by us, it will be immediately transferred to you.” And it was under this stipulation that the agents claimed the entire amount of the checks and drafts which had been obtained in Cleveland on the organization of the company there exceeding the sum of $10,000. This claim was disaffirmed by this action, the plaintiff asserting that the securities obtained in this manner were its own “ property under the provision of the agreement already referred to; that the company organized should purchase five thousand dollars of the treasury stock of the defendant for every one hundred thousand dollars of its capital, subject, however, to the proviso already mentioned, that the company itself should not be obliged to purchase more than ten.thousand dollars of the treasury stock.” "Where the company organized did not avail itself of the privilege secured by this proviso, but actually extended its purchase so far as to include $5,000 for every $100,000 of the capital of the new company, there the plaintiff insisted that the securities obtained in that- manner wei'e its own property. And that was considered to be the effect of the agreement entered into when the drafts and notes were obtained in its name, and for it, from the persons interested in the organization of the new company, in Sheridan v. Sheridan Electric Light Company (38 Hun, 396).

But when these checks and drafts were obtained in this manner, and taken by the two agents to the city of New York to obtain a settlement with the plaintiff, these agents were unwilling to pay to the plaintiff more than the sum of $10,000 mentioned in the proviso. They had, at that place, on the 8th of May, 1882, upwards of $36,000 in amount of these checks and drafts, playable to the order of the plaintiff. And, prior to any disposition of them, these two agents met William A. Shepard, who was a witness on behalf of the defendant in the action, and one of the trustees of the plaintiff. And in the interview which took place between them the two agents made this claim to the witness, insisting that they were entitled to the benefit of all the securities over and above the $10,000, and that they desired to settle with the plaintiff upon that understanding. His testimony is that he laid the subject before the two other trustees, who, with himself, had been constituted an executive committee of the plaintiff. And that he explained to them the position taken by these persons who had been instrumental in the organization of the company at Cleveland. And that they then empowered him, by a written power of attorney, executed by themselves, to settle and adjust the business with these other persons, obtaining for the company in the adjustment only this sum of $10,000. For that object they joined in a power of attorney to the witness authorizing him to sign all papers and checks, or indorse the same, necessary to carry out the transactions which it was the object of the parties to consummate. This trustee, empiowered to act in this manner, met the two persons from Cleveland at the defendant’s banking office, and the power of attorney was produced and exhibited to the president and cashier of the bank, and they, considering it to be sufficient for the purpose, received and discounted the checks and drafts upon the indorsements made by this attorney thereupon. Ten thousand dollars of the proceeds was carried to the credit of the plaintiff, and the residue was secured to and obtained by the two Cleveland agents.

The theory upon which the action was prosecuted and tried was that this power of attorney did not authorize the bank to receive and act as it did in accepting and discounting the paper, but that what it did was without authority, rendering the bank liable for the conversion of these checks and drafts. And whether that is its legal position is the point, the disposition of which must determine this appeal. The power of attorney did, in plain language, authorize "William A. Shepard, the trustee to whom it was given, to indorse this paper; and if that power was legally delegated, the bank is to be protected in acting upon it, although in other respects, having no connection with the indorsements to be made, the power of attorney may have exceeded the authority which the persons subscribing it could exercise on the part of the company, and may have also been untruthful in its recitals. If this specific authority was legally delegated by the instrument, then the fact that it contained further authority, upon which the power to indorse was in no manner dependent, would not, so far as the indorsements made under it were concerned, invalidate the action of the agent. It was not an illegal instrument, made in violation of a statutory restraint or prohibition, but its validity and binding effect upon the plaintiff depended entirely upon the power of the two members of the executive committee executing it to delegate to the other the authority contained in it. And if they exceeded their power in providing for a further substitution of authority, that fact would not deprive the agent of the authority to indorse the paper, if these persons were in such a relation to the company as authorized them to confer that power, or if the use of it was afterwards ratified or confirmed by the company itself.

The trustees of the company were five in number. One, however, never qualified or acted, and another is stated to have been present at only an early meeting of the board. It was stated, in the course of the evidence, that he had not been present at any meeting" after the first, and had not been notified or required to be present' when the meetings were held. But upon this subject the testimony of the secretary, who was not a stockholder, was that “the meetings of the board of trustees were always called by a written notice, or in pursuance of an adjournment; ” and as he apparently had no other duties to perform than those strictly appertaining to his office of secretary, it is probable that his statement as to this fact was more reliable than that of the trustee who was examined as a witness upon the trial. Each of these witnesses, however, do agree that, soon after the plaintiff was incorporated, a motion or resolution was carried, by which three of the members of the board of trustees were elected or appointed as an executive committee of the company. This committee is shown to have consisted of Henry Ellis, the president and treasurer of the company, William A. Shepard, the witness, and Samuel P. Smith, another of the trustees. And they continued to act as such and to manage the business of the company throughout the period of these disputed transactions. Their selection as an executive committee had the sanction of the statute, although it was provided by section 3 of chapter 40 of the Laws of 1848, that the stock, property and concerns of the company should be managed by not less than three nor more than thirteen trustees, for by section 26 of the same act the corporation possessed the general powers and privileges mentioned in title 3, chapter 18 of the first part of the Revised Statutes; and by subdivision 5 of section 1 of that title it was empowered “ to appoint such subordinate officers and agent's as the business of the corporation shall require.” And the appointment of the executive committee was an appropriate exercise of this authority. (Olcott v. Tioga R. R. Co., 27 N. Y., 546.) And when it was appointed, even though its authority may have been too broadly stated by the witness Shepard, it still did have the power, as its appointment was described by the secretary himself, to transact the ordinary or usual business of the plaintiff. And the indorsement of commercial paper of this description was within that part of its business, for a leading object of its organization was the acceptance and receiving of funds from subordinate companies incorporated under its authority. And the usual mode of transmitting and receiving such funds would be by the use and indorsement of commercial paper. (Hoyt v. Thompson's Exr., 19 N. Y., 207.) The plaintiff was so far a trading corporation, a part of whose business would necessarily be transactions of this description, and they would naturally and legitimately fall within the scope of the duties of an executive committee. Not only, therefore, did this committee possess the authority of indorsing and transferring the paper in controversy, but the treasurer himself, who was also president of the corporation, had that power by virtue of his office as treasurer. (Narraganset Bank v. Atlantic Silk Co., 3 Metc., 282.)

The stock of the company was substantially owned by the three members of the committee, and by Mr. Sheridan, for the employment of whose inventions it was incorporated. And where that is the nature of the corporation it is not essential that the selection of the committee should be by formal resolution of the board of trustees entered in their minutes. For it has been held that “ where a corporation consists of a small number of persons, like a partnership, they may transact all their business by conversation without formal votes. And it will be a violation of the plainest principles of justice to hold those who deal with them to prove all their acts by regular votes.” (Melledge v. Boston Iron Co., 5 Cush., 158.) It does not, accordingly,' detract from the authority of the committee that no formal resolution has been found in the minutes of the proceedings of the board defining and declaring the limits of its authority. This committee, having itself the power to indorse and negotiate paper payable to the order of the company, could delegate the same power by its united action to the witness Shepard through the instrumentality of the power of attorney, for that involved no exercise of judgment or discretion on his part. The business to be transacted is stated, and so the fact has been found, to have been communicated by this trustee to the other two members of the committee, and they had agreed upon what should be done. That was to accede to the claims of the Cleveland agents, allowing them to retain for their own benefit the entire proceeds of the checks and drafts over the sum of $10,000 they were willing to pay to the plaintiff. That position received the assent and approbation of the committee. And after that there was no more to be done than to indorse the name of the company upon the paper and receive the sum of $10,000 in its behalf. These acts included no exercise of judgment or discretion on the part of the agent selected to do the business. And for that reason it was competent for the other two members of the committee to empower him to make these indorsements and to receive this sum of $10,000 for the plaintiff. (Com. Bk. of Lake Erie, v. Norton, 1 Hill, 504; Emerson v. Providence Hat Mfg. Co., 12 Mass., 237; Renwick v. Bancroft, 56 Iowa, 527.)

What was to be done was the performance of no more than ministerial acts. And the power to perform those acts could, in this manner, be confided by the committee to one of their number. The case of People’s Bank v. St. Anthony’s R. C. Church (39 Hun, 498), has been referred to as an authority inconsistent with this disposition of the power of the committee. But it has no application, to their action for the reason that its members acted' together, as a committee, in determining and deciding what should be done, and providing the manner in which their determination should be carried into effect. Here there was unity of action, while in that case the trustees acted individually and separately. In receiving the paper, with the indorsement made in this manner, the bank acted upon the faith and effect of the power of attorney. And it had the right so to act, inasmuch as the power contained this lawful delegation of authority from the other members of the committee to the person who conducted the business with the bank. lie had been legally empowered to indorse and transfer the paper to the bank, and it could not be made liable for a conversion of the paper when that was received by virtue of this authority. And that this authority was vested in the committee is further authenticated by the proof that the business which had previously been done for the company was performed by the committee. The agreement made with the two Cleveland agents was made by its members and the drafts and checks were obtained in the exercise of that authority. And no more than the consummation of the same business resulted from the action of the committee through which these drafts and checks were indorsed and disposed of. After that was done the evidence of this witness is that the business was brought to the attention of a meeting of the board of trustees. This meeting is stated to have taken place on the 25th of May, 1882. And it is then said that what had taken place was fully discussed by the board; that the transaction was talked over, and all the facts in the possession of the witness were laid before the trustees, and no dissent whatever appears to have been expressed. It is probable that no more than these three members were at the time present, but they were a majority of the board of trustees, and, according to the testimony of the secretary, notice of the meeting must have been given, and, as a majority, their action was binding upon the corporation. (2 R. S. [6th ed.], 391, § 6.)

It has been insisted that the disposition made of this paper being in violation of the rights of the corporation could not be confirmed or ratified by the action of the persons through whose conduct it was disposed of. And that will be the case as to the accountability or liability of trustees acting in violation of their duties to the corporation. But the defendant cannot be made liable by reason of such action on the part of the trustees, when it is made to appear, as it was upon the trial, that it received this paper in good faith and under the exercise of lawful authority for its indorsement. The misconduct of the trustees consisted in permitting an appropriation of the proceeds of the paper to the use of the Olevland agents, and not in the indorsement or transfer made of the paper to the defendant. And it was within their power to ratify and confirm that indorsement, even though by their further action they may have rendered themselves liable for the misuse or misappropriation of the proceeds of the paper itself. With that the defendant had nothing to do. For its protection, all that was necessary was that the power should exist, as it has been held to exist, for the indorsement of the paper and its transfer to the bank. The misuse of the proceeds after that is an act for which the bank was not accountable, but rests wholly between these individuals and the plaintiff. And the conduct of the bank cannot be impeached by the further circumstance that out of the proceeds received by the Olevland agents they loaned and advanced as a cover for a gift to the trustee, acting under the power of attorney, the sum of $2,500.

A further act of ratification arises out of the fact that the company, through the -indorsements received this sum of $10,000, and it was afterwards appropriated to its use and benefit; and it could not receive and dispose of this fund, knowing generally, as the trustees and the executive committee did, that it was obtained in this manner, and afterwards disaffirmed the transactions through which the money was secured. This principle was applied in Castle v. Bullard (23 How. [U. S.], 173), to affirm a disposition of property by receiving the profits of a fraudulent sale in the shape of commissions. And it was further sanctioned in Peoples Bank v. National Bank (101 U. S., 181), where it was said that, all the parties engaged in the transaction, and the privies, were agents of the defendant. If there were any defect of authority on their part, the retention and enjoyment of the proceeds of the transaction by their principal constituted an acquiescence as effectual as would have been the most formal authorization in advance, or the most formal ratification afterwards.” (Id., 183.) Both the power of attorney executed and the approval of what was done by the trustees themselves, and the acceptance and retention of this sum of money fully exonerated the defendant from liability for the paper indorsed and transferred, on the 8th of May, 1882.

The residue of the paper was in like manner indorsed, received by the bank and discounted on the 5th of June, 1882. That amounted to upwards of $18,000. As to that, the evidence tended to show the understanding of the committee to be that the proceeds were claimed by and to go wholly to the Cleveland agents. And when that paper was taken to the city of New York it was in like manner indorsed, transferred to the bank and discounted, as that which was received and disposed of on the eighth of ’ the preceding month. No further or more special action was taken concerning the disposition made of the second installment of paper on the fifth of June ; as to that no direct ratification took place, but there was acquiescence on the part of these trustees and this committee in what was done for the transfer and indorsement of this paper to the bank; and that remained unquestioned until the meeting of the board on the 10th of July, 1882, when Mr. Sheridan,, who owned the greater part of the stock of the company, insisted upon it, that proceedings should be taken to recover the money in this manner retained by the Cleveland agents. Even then it was not claimed by him, or any other person present, that the bank was liable, but that the persons to whom the money had been paid, and who had retained it, should be made accountable for it to the company. But even without any further ratification than arose out of the acquiescence of the board in what had been done on the fifth of June, the bank was exonerated from liability, for it acted under a lawful authority binding upon the corporation in receiving and discounting the paper. That was sufficient for'its protection as to this part of the transaction. Upon neither branch of the case was a liability made out against the bank. It had the right to act, as far as it did act, upon the apparent as well as real authority delegated to the witness Shepard.

It is unimportant to consider the rulings rejecting evidence offered on behalf of the plaintiff, or whether other findings of fact assailed by the appellant were or were not supported by the evidence, for, as the defendant was protected in receiving the paper upon the indorsement of the trustee to whom the power of attorney was made, the case would in no manner be changed if the other evidence had been received, or if the findings complained of were not founded upon a legal measure of proof, and the judgment in the case should be affirmed, with costs.

Yan Brunt, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Daniels, J.: Brady, J.:

license: Public Domain

text:
    RUTH A. WALLACE, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Assessment in Sew Yor7c eity — reduction of— interest and costs on a sale, not recoverable by an owner who has redeemed from the sale pending the pi'oceedings for reduction.

    The owner of property in the city of New York, upon which an assessment had been imposed, applied to the Supreme Court to have such assessment vacated and set aside, and while the proceedings for that purpose were pending she redeemed, from the sale under such assessment, certain of the lots covered thereby, paying upon such redemption, for interest and expenses accrued thereon, the sum of $378.50, together with the money paid to the city by the purchaser on the sale. Subsequently, in the proceedings brought for that purpose, the assessment was reduced.
    In an action, brought by the owner to recover from the city the amount by which such assessment was reduced by the court, together with the aforesaid sum of $378.50:

      Held, that the latter sum having been paid for the use of the purchaser at the sale, he was entitled to that money under the purchase made by him, and the city had no right, title or interest in it, and the plaintiff was not entitled to recover it in this action.
    That the city was liable to refund to the owner only such amount as was paid over to it by the purchaser at the sale, and was in excess of the amount to which the assessment had been reduced.
    Appeal by tbe defendant from a judgment rendered at tbe New York Circuit, in favor of tbe plaintiff, wbicb was entered in tbe office of tbe clerk of the county of New York, on tbe 27th day of February, '1888, whereby it was adjudged' that the' plaintiff do recover of tbe defendant the sum of $1,859.15.
    Tbe action was brought to recover from tbe city an amount paid on the redemption of premises from a sale under an ' assessment, which was reduced by tbe Supreme Court in proceedings taken in it for that purpose by tbe owner.

      Woolsey Carmant, for tbe appellant.

      Cecil Campbell Uiggms, for tbe respondent.
   Daniels, J.:

In January, 1868, an assessment was imposed upon four mts of land owned by tbe plaintiff, for tbe expenses of constructing a sewer in- Fifty-second street between Sixth and Seventh avenues. The assessment on these lots amounted to the sum of $926.77. The plaintiff applied to the Supreme Court to set aside the assessment, and while her proceedings for that object were pending, and on the 30th of October, 1878, and the 20th of July, 1881, she paid the assessments, together with the interest and expenses which had accrued thereon. For that purpose she paid the sum of $2,175.14. On the 25th of May, 1887, a decision was obtained in her favor reducing the assessment to the aggregate amount of $474.40, and she brought this action to recover the excess in this manner paid by her. The amount paid to redeem lots 43 and 44 in block 12, which were two of the lots affected by the assessment, was $907.35. And for the assessments and expenses on lots 41 and 42, the other of the four lots assessed, she paid the sum of $1,267.79. After this reduction in the assessments, and on or about the 30th of June, 1887, she brought this suit to recover from the city the sum of $1,700.74, with interest from May 23, 1887, which was the residue of the moneys paid by her after deducting from the gross amount the sum to which the assessment had been reduced. On the 15th of November, Í875, lots 41 and 42 were sold for the non-payment of the assessments upon them, together with the interest, and five dollars charges, amounting to the sum of $889.29. This sum of money was received by the city from the purchaser in payment of the assessments and expenses attending them on these two lots., And for the recovery of that amount, together with the amount paid upon the other lots, and interest, and expenses upon the two lots sold, this action was brought. There was no dispute as to the right of the plaintiff to maintain this action for the recovery of the sum of $1,322.24, being the balance of the amount received by the city apon the sale of lots 41 and 42, and for the assessments, interest and expenses of lots 43 and 44 after deducting the $474.40, the amount to which the assessments have been reduced. But between the time of the sale of lots 41 and 42 and the payment of $1,267.79 to redeem these lots from that sale, interest and expenses had accrued upon them amounting to the sum of $378.50; and, for the purpose of completing the redemption of the two lots, this sum, together with the money advanced by the purchaser on the sale, was paid over to him by the authorities of the city. No part of the interest or expenses on tlie two lots which were sold was retained by or used for the city, but it was paid over to the purchaser for the interest, and five dollars expenses of advertising, which had accrued to him after his purchase, under the provisions of the statute applicable to this subject. What the city had received, over and above the amount of the assessment as reduced, it did not dispute the right of the plaintiff to recover, its sole contention being that it was not hable to refund to the plaintiff this sum of $378.50, which it had paid over to the purchaser for the interest allowed him by statute, and the five dollars expenses of advertising. The court, however, at the trial, held the defendant liable to pay over not only the balance which it had received over and above the amount to which the assessments had been reduced, but, in addition to that, the interest and expenses which had accrued and belonged to the purchaser under the sale; and to that the defendant excepted. This sum of $378.50, in this maimer received and paid over to the purchaser, was required to be paid by the plaintiff to redeem the two lots from the sale, by section 4 of chapter 381 of the Laws of 1871. By this section of the statute, what she paid in this manner to the clerk of arrears was paid for the use of the purchaser at the sale. The city had no right, title or interest in it, but he was entitled to that money under the purchase made by him. As the sale took place while the assessment and the proceedings to enforce it were all in full force, that sale, so far as he had become interested in the property, was a legal disposition of it (Bank of U. S. v. Bank of Washington, 6 Peters, 8), and this sum of money in dispute belonged to him and had been passed over to him before the time these assessments were reduced. No part of it remained in the city treasury, or under the control or subject to the direction of either of its officers. Por these reasons, under the decision made in Dewey v. Supervisors of Niagara (62 N. Y., 294), the plaintiff was not entitled to a verdict for this difference. The leading facts in that ease were quite similar to those relating to this disputed difference. There the money was raised through the action of the supervisors and paid over to commissioners, to be used by them in defraying the expense of a local improvement, and the moneys were so paid by the treasurer of the county. The proceedings of the commissioners were afterwards reversed, and the action, was brought against the county to recover the moneys in this manner raised and paid out. But it was held that the money could not be recovered; the court stating, by way of conclusion in its opinion, that “the county can only be made liable in this form of action for moneys that have come to its treasury for its use, or of which it has had or might have had the benefit.” (Id., 298.) And the case of Clark v. Pinney (6 Cow., 297) proceeded upon the same principle, and that'is, that an action to recover money received by the defendant, for the use of the plaintiff, can extend no farther than the amount of money actually received and held or used by the defendant.

The cases of Peyser v. The Mayor (70 N. Y., 498); Purssell v. The Mayor (85 id., 330) and Schultze v. The Mayor (103 id., 307) in no way sanction the right of the plaintiff to recover this disputed difference. For in neither of these cases had the property or any part of it been sold for the non-payment of the assessments, but the moneys which were paid over to the defendant passed into its treasury and use, and for that reason remained liable to the plaintiff’s action. The difference between the facts of those cases and the facts in the plaintiff’s action is radical and controlling. The defendant was not liable to refund to her this sum of $378.50, which was received under the statute for the use and benefit of the purchaser at the sale which was made of the two lots, and it was paid over to him prior to the time when the assessments were reduced. If it had remained in the possession and under the control of the city at the time the action was brought, a different result would follow. But as it had parted with this money in good faith and under legal authority, and had received it to be disposed of in the manner in which it was paid out, the defendant was not liable to refund it to the plaintiff.

The judgment should be reversed and a new trial ordered, with costs to abide the event, unless the plaintiff within twenty days after notice of this decision shall stipulate to reduce the recovery to $1,322.24, together with interest on that amount from the 25th of May, 1887. If that stipulation shall be given, then the judgment should be so reduced, and affirmed without costs of the appeal to either party, and with liberty to the defendant to apply for the allowance of costs in its favor on the ground that the judgment, as so reduced, may be no more favorable to tbe plaintiff than tbe offer served ou tbe part of tbe defendant.

Yan Brunt, P. J., concurred.

Brady, J.:

I tbink tbe recovery in tbis case was right, and I dissent.

Judgment affirmed, without costs of appeal to either party, on plaintiff stipulating to reduce tbe recovery to $1,322.24, together with interest on that amount from May 25, 1887, within twenty days after notice of tbis décision, with liberty to the defendant to apply for tbe allowance of costs in its favor on tbe ground that tbe judgment, as so reduced, may be no more favorable to tbe plaintiff than tbe offer served on tbe part of tbe defendant.


author: Van Brunt, P. J.:

text:
      In the Matter of the Probate of the Last Will and Testament of CATHARINE DARRAGH, Deceased.

      Physician — competency of, to testify as to the testa/menta/ry capacity of a decedent— what information obtained by him may not be used.

    Upon the hearing before a surrogate, upon an application to admit to probate the will of Catharine Darragh, deceased, objections were raised upon the ground of a want of testamentary capacity upon the part of the testatrix. It appeared that the physician, who had at one time attended the deceased in a professional capacity, had thereafter for a considerable period visited her as a friend and not in a professional capacity, and the evidence showed that the impressions which he gained upon these friendly visits necessarily related back to, and were influenced by, the knowledge which he had acquired during the time that he was attending her professionally.

      Held,, that it was not necessary to establish that the knowledge which he had acquired in respect to his patient, while he was attending her professionally, was necessary to enable him to prescribe for her; that it was only necessary, in order to preclude him from testifying, to show that he had obtained the information during the course of his professional visits.
    The intention of the prohibition was to protect all communications made by a patient to her physician, which the patient supposed, or had reason to believe, were protected by the provisiQns of the law.

      A physician, who had been employed by and rendered services to the deceased prior to her death, which occurred in November, 1886, paid two visits to her in January, 1886, which, it was claimed, were not professional visits.
    He was then asked, and allowed to answer, against the objections of the contestant, this question: “Now, as the result of what you saw and heard on these two occasions, in January, and subsequently in the year 1886, would you say that Mrs. Darragh was in a condition to understand the nature of a will or the disposition of property, or had the ability to make a contract intelligently? ”

      Held, as the question was not restricted to the interviews which took place in January, but embraced all the time subsequent thereto up to the time of her death, and as, during this subsequent time, the physician was undoubtedly attending the testatrix in a professional capacity, that it was error to receive this testimony.
    Appeal from a decree made by the Surrogate’s Court of the county of New York, admitting the last will and testament of Catharine Darragh, deceased, to probate, which was entered in the office of the clerk of the said Surrogate’s Court on the 14th day of May, 1888.

      Alexander Thcdn, for the appellant.

      James P. Campbell, for the executors, respondents.

      W. Pf. B. Alcott, guardian ad litem. ■ - ■

      Decided March Term, 1889.

   Van Brunt, P. J.:

Among the objections raised to the admission of the will in question to probate was the want of testamentary capacity upon the part of the testatrix.

It appears from the evidence in this case that she had been attended by various physicians for a considerable period of time prior to her decease, and that attempts were made upon both sides to avail themselves of the evidence of these physicians. The learned surrogate applying the rule, which now seems to be well settled, in reference to the disclosure of information acquired by physicians in respect to their patients while attending them in a professional capacity, excluded from consideration the evidence of a physician which was offered upon the part of the contestant. The ruling of the learned surrogate was, beyond question, correct in this regard. It appeared that the physician in question had attended the deceased in a professional. capacity, and that, although for a considerable period, he had visited her as a friend, and not in a professional capacity, the evidence showed that the impressions which he gained upon these friendly visits necessarily related back to and were influenced by the knowledge which he had acquired during the time that he was attending her professionally.

It is urged, upon the part of the appellant, that it was not shown that the knowledge which he had acquired in respect to his patient by the physician, while he was attending her, was necessary to enable him to prescribe for her. But it seems to us, in view of the rule laid down by the Court of Appeals in construing the statute prohibiting the disclosure by physicians of the information they have received in respect to the condition of their patients, that it was not necessary that this should be established, and all that it was necessary to establish in order to preclude the physician from tes- ' tifying was that he had obtained the information during the course of his professional employment. And this is the only reasonable construction to be placed upon the statute, because, otherwise, it is placing it within the physician’s power to violate the statute at will. The information which the physician receives by his eyes, by his ears and by his touch, is in the course of his professional employment, and it may or may not be necessary for the purpose of prescribing; and this necessity may only be disclosed by the very fact of the imparting of the information, and, therefore, although information of this character may be communicated, supposedly, under the safeguards thrown around such communications by the law, yet it may turn out that such disclosure was not necessary to enable the physician to act in a professional capacity; but this could only be ascertained after the disclosure had been made. It is so difficult to draw the line that it is certainly best to err upon the side of safety, and shut the door against all disclosures of information acquired by a physician in attending a patient in a professional capacity, without requiring absolute proof that such information was necessary to enable him to act in that capacity.

The intention evidently was to protect all communications made by a patient to his physician which the patient supposed, or had reason to believe, were protected by the provisions of the law. This seems to be the construction of this section adopted by the highest court, and that it is the one which accords best with the evident policy of the law is manifested by the restriction which it has thrown around the disclosures to attorneys and priests. Therefore, in the case at bar, this physician being unable to separate the knowledge which he had acquired as a physician, or while attending her in a professional capacity, from the knowledge which he acquired when paying her a friendly visit, it is clear that his testimony was properly rejected.

The same rule excludes the testimony offered by the physician who was examined upon the part of the respondent. It appeared from the evidence that he was employed as the physician of the deceased. It is not distinctly shown when such employment commenced, but it is apparent from the evidence that such employment commenced and such services were rendered prior to the death of the deceased. This witness it appears had paid two visits to the deceased in January, 1886, which it is claimed were not professional. He was asked this question: “ Now, as the result of what you saw and heard on these two occasions in January, and subsequently in the year 1886, would you say that Mrs. Darragh was in a condition to understand the nature of a will or the disposition of property or had the ability to make a contract intelligently ? This was objected to on the ground that the witness had been shown to be the attending physician of the deceased; the objection was overruled, the contestant excepted, and the witness answered that he could not say that she was incapacitated from making a will or disposing of her property. It should have been said, perhaps, that the testatrix died in November, 1886.

The question asked did not restrict itself to the interviews which took place in January, but embraced all the time subsequently up to her death, and during this subsequent time the physician was undoubtedly attending the testatrix in a professional capacity. It is claimed, upon the part of the respondent, that the question only related to the interviews in January, but the language of the question is: “ On these two occasions in January, and subsequently in the year 1886,” thus clearly relating to times subsequent to January and within the prohibition of the law. It was error to receive this testimony, and it was error to consider this testimony. Upon reading the opinion of the learned surrogate it would appear that his attention had not been properly called to the peculiar nature of this testimony so that it might be rejected by him, all the evidence having been taken by a referee. This seems to have been a fatal error. We cannot determine as to whether the learned surrogate considered this evidence or not. It was important; it bore directly upon the issues between these parties and was of precisely the same nature as that which had been excluded when offered on the part of the contestants ; and it is for this reason that we think that the attention of the surrogate could not have been called to this exception, otherwise he would have made the same ruling in respect thereto that he had made in respect to the evidence of the previous physician.

Other exceptions appear in the case to the apparent exclusion of testimony which, if it had been in reality excluded, would have been error. The witness Darragh was asked as to conversations which took place between the deceased and a Mrs. Duffin. ' These questions, upon the face of the record, appear to have been excluded, but, upon an examination of the evidence, they would seem to have been fully answered, and the contestants, because of this particular exclusion, have not received any harm.

It is true that, under the provisions of the Code, a decree admitting a will to probate should not be reversed for an error in admitting or rejecting evidence, unless it appears that the contestant was necessarily prejudiced thereby. But we think that, in the admission of the evidence of Dr. Conant, the contestants were necessarily prejudiced, as the evidence of a physician attending the deceased would have very great influence with the court in determining any question as to her testamentary capacity and her ability to resist the influence of those surrounding her.

We think, therefore, that the decree of the surrogate must be reversed and the case remitted back to the surrogate for a new trial.

Brady and Daniels, JJ., concurred.

Decree of surrogate reversed and the case remitted back to the surrogate for a new trial.


text:
    JACOB WEEKS CORNWELL, Appellant, v. WILLIAM A. PARKE, ISAAC A. SINGER and JOHN DAYTON, Respondents.

      Sla/nder of title — notice given, at a sale in pm'tition, of leasehold rights created by a receiver, in the premises sold th&reat — duty of the claimant to announce such rights.

    In an action, brought to recover damages for an alleged slander of title, it appeared that, pending an action brought for a partition of certain real estate in the city of New York, a receiver of the property was appointed and empowered, by order of the court, to lease the property for the term of three years, pursuant to which authority the receiver executed leases of certain portions of the property to the several defendants; that a judgment of sale |was obtained about a year after the execution of such leases, whereupon, on notice to the parties in interest and to the present defendants, a motion was made and granted vacating the permission granted to the receiver to execute leases, and providing that the leases theretofore given should be abridged so that they should be invalid at.the expirar tion of one year from the date of their execution, upon condition that the lessee should be protected in the damages caused by such abridgment thereof.
    The property was advertised for sale, and on the day fixed the defendants appeared at the place of sale and stated that the premises were occupied by them, under leases thereof given by authority of the court, and gave notice that, as they were advised and verily believed, so long as they complied with the terms of the said leases given to them, they were entitled to the possession of the premises until the expiration of the term specified in the leases, and that nothing in such order abridging such terms would in any way operate to limit'them.
    It was claimed that the reading of this notice seriously affected the sale and deterred parties from bidding thereat.

      Reid, that, as it did not appear that any statement contained in such notice was, in any respect, false or untrue, that the action could not be maintained, and that the complaint was properly dismissed.

      Semble, that if these defendants, being present at the sale, had allowed this property to be sold upon the assertion that they had no title or interest therein and had remained silent, they could not thereafter have asserted the existence of any rights therein.
    Appeal by the plaintiff -from a judgment, rendered at the New Yorlc Circuit, dismissing tbe complaint herein, which was entered in the office of the clerk of the county of New York on November 20, 1888.

      Flamen B. Oandler, for the appellant.

      F. M. 8h&pard, for the respondents.
   Van Brunt, P. J.:

This is an action to recover damages for slander of title. The facts seem to be as follows: In April, 1882, Samuel Weeks and Samuel Weeks, Jr., claiming to be owners of an interest in certain real estate in the city of New York, brought an action for a partition and sale of the property. In February, 1883, during the pendency of the action, a receiver of the property was appointed by an order, whereby the receiver was empowered to lease the property for a term not extending beyond the 1st of Flay, 1886. After this order had been made and the receiver had executed leases which would, by their terms, expire in 1886, the litigation not being terminated, he applied ewpa/rte for permission to rent the property. An order was signed in October, 1885, permitting the receiver to rent the property for the term of three years, beginning Flay 1, 1886, and ending Flay 1, 1889. The defendants herein received leases of certain of the property under this order which were to expire on the 1st day of Flay, 1889. In the following spring, on the 19th of March, 1886, a judgment of sale was obtained in the partition action. The execution of the judgment, however, was delayed until the spring of 1887 by various appeals, when the sale of the premises was finally advertised to take place on the 13th of April, 1887. In Flarch, 1887, the plaintiff in this action, who was a defendant in the partition proceeding, on notice to the parties and notice to the defendants herein, made a motion to have the order of October 19, 1885, granting the receiver permission to lease, vacated, and the leases given under it abridged. This motion was heard, the court deciding to abridge the leases so that they should be invalid beyond the 1st of Flay, 1887, upon condition that the lessees should be protected from the damage caused by the abridgment of their leases, and, on the 15th of April, shortly before the commencement of the sale, an order was signed modifying the order of October 19, 1885, as above stated.

At the sale notices were read, on behalf of the three defendants, as follows:

“Notice is hereby given that the undersigned now occupies and is in possession of and resides in the house * * * under a lease made by him to John E. Ward, a receiver appointed by the Supreme Court of the State of New York; * * * that the said lease bears date the 24th of February, 1886, and is for a term of three years, commencing on the 1st day of May, 1886; * * * that the original of the said lease is in the possession of the undersigned, and a duplicate thereof in the possession of the said receiver, John E. Ward; that the said receiver was appointed by this court by order made in the said action, bearing date 6th February, 1883, and that the said receiver made the said lease pursuant to instructions given by the said court by order bearing date 19th October, 1885. And I further give notice that, as I am advised and verily believe, I am, so long as I comply with the terms of the said lease to me, entitled to the possession of the said house and premises until the expiration of the term specified in the lease, namely, the 1st day of May, 1889.
“ The parties giving the foregoing notice, beg, further, to state that an order was made to-day by Mr. Justice Patterson, purporting to limit the terms of the leases to May, 1887, and to provide a fund out of which the damages of the lessees might be met. The parties giving the foregoing notice are advised by their counsel, and they believe, and to the utmost that is lawful they will act upon their belief, that nothing in such order can in any way .operate' to limit the terms of their leases, or deprive them of any rights thereunder.
“ STIOKNEY & SHEPARD.”

It is claimed that the reading of these notices seriously affected the sale, and evidence was offered tending to show that parties had been deterred from bidding upon the property because of the notice given, and this action was brought to recover the damages sustained by the plaintiff as one of the part owners of the property by reason of this action of the defendants. It is not claimed that any statement contained in these notices was, in any respect, false or untrue. Hpon this state of the evidence the court dismissed the complaint, and the question as to this ruling is the one now before the court. We have examined, with considerable care, the numerous authorities cited by the counsel for the appellant to sustain his exception to the ruling dismissing the complaint, and we have not been able to find but that in every one of them there was some false statement or something upon which a finding of malice might be founded. In the case at bar there is no pretense that any false statement was made or that any attempt was indulged in to create a false impression. On the contrary, as far as the evidence shows, the defendants were doing nothing more than to protect what they believed to be their rights. They were in an exceedingly peculiar position. They had contracted with the court for a lease of these premises for three years, and the Court of Appeals has held that the court had the power to authorize the receiver to make these leases. The defendants, having these leases and being in possession of the premises thereunder, were, by the order of April 13, 1887, deprived of two years of the .term which had been granted them by the order of the court. The right to the remainder of this term they desired to protect. If they had stood by and allowed these premises to be sold upon the assumption that the order of the court had terminated these leases, it may be questionable whether they could have there- . after been heard to say that they did not acquiesce in the order, because it is a maxim of the law that where a man stands by and sees another assert title to a piece of property and holds his peace that he will not be allowed to assert a title in himself as against an innocent and bona fide purchaser.

But it may be said that the defendants were in possession of the property, and consequently that gave notice to the world of their claims. But their possession was entirely consistent with the termination of these leases, in May, 1887, and did not imply any claim on their part beyond that which had been conceded by the order of April, 1887. Their possession, therefore, was no notice of the claim that, notwithstanding the order of April, 1887, they intended to insist upon their rights. They had no reason to anticipate the result of the appeal from that order to the Court of Appeals, viz., ■that it would be held that the leases were validly made, but that because the contract was with the court it might be invalidated by the court; whereas, if the contract had been between two individuals, there would not have been any power which could have impaired its obligation or its terms.

We fail to see any basis whatever for the allegation of malice, or any facts from which it was possible for a jury to have inferred malice. As has already been stated in all the authorities cited, there is not a single one in which the existence of malice does not seem to be derived from some falsity connected with the assertion. We think that a complete answer to the whole question is derived from the fact that if these parties, being present, had allowed this property to be sold upon the assertion that they had no title or interest therein, and had remained silent, no matter what rights they might have had, they never thereafter could have asserted them. It cannot be, when such was the condition of affairs, that they were bound to hold their peace and be forever precluded from further testing the adjudication which has been made against them, or run the risk of being called upon to pay damages in case they guessed wrong in respect to a question of law about which they were much nearer right than the parties who made the motion for the modification of the order of 3 885. There was no error, therefore, in the dismissal of the complaint and the refusal to submit any question to the jury.

The allowance granted, however, seems to have been excessive. The learned counsel for the respondent presents many considerations which he states were before fhe court, and which did not form part of the record. The difficulty is, that this court is compelled to adjudicate upon the question brought up by appeal 'upon the record, and not upon what has occurred outside of the record. There does not appear in the record any sufficient reason for so large an allowance as was granted. We think, therefore, that the allowance should be reduced to $500, and that the order granting the allowance should be modified in this respect.

The judgment appealed from should, therefore, be reduced to $608.34, and as so reduced, affirmed without costs.

Brady and Bartlett, JJ., concurred.

Judgment reduced to $608.34, and as so reduced affirmed, without costs.


author: Daniels, J.:

text:
    HORACE H. CHITTENDEN, as Assignee of A. S. HATCH & CO., Appellants, v. CHARLES O. MORRIS and Others, Respondents.

      Deposit made by way of securing the execution of an agreement for the sale of bonds, to be withdrawn only by the vendor and vendee jointly —■ by whom and how it may be withd/rawn.

    Where money has been deposited under an agreement by which the depositor, assuming himself to be obligated to deliver certain bonds, and promising to perform the contract for the sale thereof, and asking for additional time for that purpose, has obtained such time in consideration of the deposit being made (by the terms of which deposit the money was to be repaid to the depositor and the party entitled to the delivery of such bonds jointly), the depositor becoming insolvent, his assignor is not in a position to maintain an action for the recovery of such deposit upon the ground that the original contract for the sale and delivery of the bonds was in violation of the statute of frauds and was not binding upon such depositor.
    A deposit made under such circumstances cannot be afterwards recovered by the party making it, when that party alone has wholly failed to comply with the terms of the agreement under which the deposit was made.
    Such deposit does not rest upon the illegal contract made for the delivery of the bonds, but upon the agreement made at the time of such deposit for the benefit of the parties claiming the right to the delivery of such bonds.
    The court has no power to direct the depositary to pay over the deposit to the assignee of the depositor, while the other party in interest refuses to consent to the delivery thereof to him.
    Such deposit can only be withdrawn by the joint assent and joint acts of both parties, or upon the fulfillment by the depositor of the promise made on his part for the delivery of the bonds.
    Appeal by tbe plaintiff from a judgment, rendered at tbe New York Special Term, dismissing tbe complaint npon tbe merits, wbicb judgment was entered in tbe office of tbe clerk of tbe county of New York on tbe lOtb day of July, 1888.
    The action was brought demanding judgment that tbe individual defendants be required to join with tbe plaintiff in an order upon the defendant, tbe Farmers’ Loan and Trust Company, for tbe payment to tbe plaintiff by said Farmers’ Loan and Trust Company of tbe sum of $5,000, deposited by plaintiff’s assignors with said Farmers’ Loan and Trust Company, and that tbe Farmers’ Loan and Trust Company be decreed to pay to tbe plaintiff tbe sum of $5,000, with accrued interest.

      James M. Townsend, Jr., for the appellants.

      George B. Wellmgton, for the respondents.
   Daniels, J.:

The fact was proved upon the trial that Gustavus Maas, on the 24th of December, 1886, by a memorandum which he executed, sold to White, Morris & Go. $20,000 Troy and Boston seconds, at seventy-five cents. On the same day, and by a similar instrument, he sold to the same parties $30,000 of the same securities. The memorandum subscribed by him was the same in each instance, with the exception of the amount. That for the $30,000 is in the following words and figures:

Sold White, Morris & Go., $30,000 Troy & Boston 2nd, 15 reg. Dee. 24, 1886. G. MAAS.

By these memoranda, as they were explained by the evidence, Maas agreed to sell and deliver to White, Morris & Go., who were defendants in the action, these bonds for the designated price of seventy-five per cent, and that was sufficient to comply with the statute requiring the agreement, or a memorandum of it, to be in writing and subscribed by the party to be charged. The evidence proving the contracts of sale and the execution of these memoranda was objected to by the plaintiff, but the objection was overruled and the proof was received by the court, to which the plaintiff excepted. And it is quite clear that neither of these exceptions was well taken, or the evidence which was given had a direct tendency to establish the fact of a legal contract for the sale of the bonds, and to explain the abbreviations contained in the memoranda. It was not proved by mere declarations or conversations occurring between other parties, in the absence of the plaintiff’s assignors; but it was evidence given to prove the nature and character óf the transaction itself, which took place between the parties, and the manner in which it was brought about and completed.

The bonds were not delivered to the purchasers in performance of the terms of these memoranda, and on the 29th of December, 1886, one of the members of the firm of A. S. Hatch & Co., who are the plaintiff’s assignors, at the instance or upon the information of Mr. Tobey, who was a member of the firm of Tobey & Kirk, applied to the purchasers of the bonds named in these memoranda for further time for their delivery. According to his own and further evidence in the case, his firm h$d contracted to sell these identical bonds, but not by any instrument in writing, or for any part payment made upon the purchase-price; but the persons to whom the firm of Hatch & Co., in this manner, agreed to sell the bonds, had, either directly or indirectly, empowered Maas to enter into the contracts of sales he made with the firm of White, Morris & Co., and the firm of Hatch & Co. had received the information that when the bonds were to be delivered this firm' of White, Morris & Co. was the party who should receive them. The understanding of the member of their firm, with which the witness Hatch is stated to have held his conversation, the proof of which was clearly admissible, was that the firm of White, Morris & Co. had purchased the bonds of the firm of Hatch & Co., which, of course, could only have been done by the fact existing that Maas, J who made the memoranda for the sales of the bonds, was authorized and empowered to act for the firm of Hatch & Co. in agreeing as he did for their sale. But whether such a relation, in fact, existed between himself and Hatch & Co. was not proven in the case, otherwise than it might be inferred from the conversations stated to have taken place.

In this conversation between the witness. Hatch and Mr. Blackwell, of the firm of White, Morris & Co., Mr. Hatch stated that Blackwell said: “ The firm had bought the bonds of us; that is what it amounted to, they bought the bonds of somebody else, and so on; and, then, he finally came around to the statement that they bought them of us. I presume that it was before I told him that I would deliver the bonds that he claimed he bought them of us; I went around there to make arrangements with respect to the delivery of the bonds, of $50,000 Troy and Boston bonds. I understood that Tobey & Kirk had sold the bonds to somebody, who had sold them, or a similar amount, to White, Morris & Co.” He further added that he had been informed previously by Mr. Tobey that these very bonds had been sold to White, Morris & Co; that is, that in a roundabout way they had got to White, Morris & Co. The firm of Hatch & Co. was not in a condition at the time of the conversation to deliver these bonds to the pm-chasers under these memoranda of agreement, and an application was made by this member of the firm of Hatch & Co. to them for further time to deliver the bonds; and that is stated to have been given to that firm, on the agreement then made to make a deposit of ten per cent of the amount of the purchase-price with the Farmer’s Loan and Trust Company, another defendant in this action. The delay which Hatch & Co. applied for is stated to have been a period of two or three weeks, at the expiration of which they were to deliver the bonds. And one of the firm of Hatch & Co., and also of White, Morris & Co., was a member of the Stock Exchange, one of whose rules provided and declared:

Section T. In any contract, either party may call at any time during the continuance of the same for a mutual deposit of ten per cent. And whenever the market-price of the securities shall change way below five per cent, either party may call upon the other for a deposit sufficient to restore the impaired margin, and this may be repeated as often as the margin may be so reduced.

The firm of White, Morris & Co. had complied with this rule or section by making the deposit, on their part, of the sum of $5,000 with the Farmers’ Loan and Trust Company, pursuant to it To obtain the extension which Mr. Hatch applied for from the firm of White, Morris & Co., the firm of Hatch & Co. were required to make a like deposit of ten per cent on the price with the Farmers’ Loan and Trust Company. They did make that deposit on the day when this extension was agreed to be given, and received from the Farmers’ Loan and Trust Company its certificate in the following language:

“ This is to certify that A. S. Hatch & Co., has deposited with this company five thousand dollars, payable in current funds, on one day’s notice, to them and White, Morris & Co. jointly, upon the surrender of this certificate (which is assignable upon the books of the company), with interest at the rate of two per cent per annum, provided the deposit is not disturbed until after the expiration of three days.
“$5,000. (Sgd.) “WM. H. LEHPP,
Secretary.
(Sgd.) “T. F. BARNETT,
“ Oashier.”

The firm of Hatch & Co. after that failed to deliver these bonds, became insolvent, .and made a general assignment to the plaintiff in this action, and he brought the suit to recover this sum of $5,000, in this manner placed on deposit with the Farmers’ Loan and Trust Company. The right to maintain the action has been placed upon the ground that the contract of Hatch & Co., not being in writing, and no part of the purchase-price having been paid, was void, and for that reason he, as assignee, was entitled to the return of this sum of money. And while the position might be well taken that the contract of Hatch & Go. to deliver the bonds was not binding upon them under the statute of frauds, still the money was deposited with the Farmers’ Loan and Trust Company under an agreement made between these two different firms, for a consideration of which the firm of Hatch & Co. had the benefit. They assumed to be obligated to deliver these bonds to the persons who had purchased them from G-ustavus Maas, and promised that they, in his place, would perform the contracts of sale of which memoranda had been made in writing. But because of the delay or inability of the party from whom the bonds were to be received by Hatch & Co., they were not in a condition to deliver them and required additional time for that purpose, and it was in consequence of the extension of that time and for that consideration that they made this deposit with the Farmers’ Loan and Trust Company; and by the contract which the company then entered into, the money was placed upon deposit only to be repaid to the two firms of Hatch & Co. and White. Morris & Co., jointly.

This was an entirely legal contract between the Farmers’ Loan and Trust Company and the firm depositing the money now in controversy. It was placed in the hands of the depositary under this certificate, by which the obligation was created of paying over the money on one day’s notice to the firms of White, Morris & Co. and A. S. Hatch & Co., jointly. There was no arrangement or agreement by which tire money should be paid, or should be demanded by Hatch & Co., or their assignee, in case they failed to fulfill what they had promised to do by delivering the bonds to the purchasers in the memoranda of agreement made by Maas. The deposit appears to have been made by way of security, that Hatch & Co. should deliver the bonds at the expiration of the time which was extended to them for this purpose at their request. And each party made the same deposit with the trust company, that the moneys deposited should be held by way of security for tije benefit of the party entitled to the fulfillment of the contracts of sale, and, in no other manner, in default of their performance. After the parties placed their funds in this position, and, by means of this agreement, which entirely declared and regulated their mutual rights, the court has no power to change the contract and to require either to do what he has not agreed should be done, or to act contrary to the agreement itself and join with the other for withdrawing the deposit, when the firm in whose interest the withdrawal has been claimed has wholly failed to fulfill the terms made by it for the future delivery of the bonds. • It is not sufficient to maintain the plaintiffs action, that his assignors did not become bound by their promise to deliver the bonds, or for the performance of the agreement made by Maas. The cases, accordingly, of Ackley v. Parmenter (98 N. Y., 425), and White v. Rintoul (108 id., 222), are not decisive or controlling over this action. For in those eases no more than the fact of the promise or agreement itself, which had taken place between the parties, was before the court for examination or decision. Neither is the case of Dung v. Parker (52 N. Y., 494), applicable to the action. For that has proceeded no further than to hold that an agreement within the statute of frauds, not in writing, and upon which no part of the purchase-price has been paid, and entirely unperformed, is void between the parties. Neither do the cases of Noakes v. Morey (30 Ind., 103), or Howe v. Hayward (108 Mass., 54), decide anything controlling over this controversy. For in neither has it been held, nor was anything said from which that could be inferred to be the opinion of the court, that a deposit made in this manner could be recovered afterwards by the party making it, when that party alone had wholly failed to comply with the terms on which tbe deposit was made. In the case of Howe v. Hayward (supra), which has considered the subject more directly than either of the others, a verbal agreement had been made for the sale of the stock of a livery stable for the price of $2,500, and a deposit of $200 had been made to secure the performance of the agreement. The action there was not brought to recover the deposit, but it was for damages for a failure to perform the agreement. And wbat the court held was, that the simple deposit of the sum of $200 was not a payment on the contract of sale and did not take it out of the statute of frauds, and for that reason the contract, not being in writing, afforded no foundation for an action for damages. This case is entirely different from that or any other action which has been found to have been favorably disposed of by the courts. It is not dependent upon the verbal promise made by Hatch & Go. to deliver the bonds, but upon an additional agreement made for the benefit of that firm, and by that agreement it was given time for the future delivery of the bonds, which were expected to pass through its hands, on condition that this deposit of $5,000 should be made with the trust company, and made upon the terms exhibited by the certificate issued when the deposit was made. It was a valid agreement on the part of the company, and met the understanding and expectations of both parties leading to the deposit, and that was that the money for the security of White, Morris & Co. should be placed in the possession of the Farmers’ Loan and Trust Company, only to be repaid to Hatch & Co., when that should be assented to by the joint action of Hatch & Go. and the firm of White, Morris & Go. This was a separate and distinct agreement made between these two different firms, and carried out by a legal obligation executed and delivered declaratory of the liability of the trust company at the time when the money was received. The parties in this manner made their own agreement, and there seems to be no legal principle upon which the court can change it and hold their rights to be different from those which they have declared. In a word, the court has no authority to direct that the trust company shall pay over this money to the assignee of Hatch & Go., upon their sole and separate demand, when White, Morris & Co. object to that being done, and refuse, as they do, to authorize this payment. The misfortune of the plaintiff, if it is to be so considered, is that the contract which was entered into between these parties for the consideration created by this extension of time, is against the claim made by him as the foundation of his action. It was not the result of any mistake, or of any fraud perpetrated on his assignors, but it was their deliberate agreement, understandingly entered into, that this money should be placed in the possession of the trust company and should not be withdrawn from the possession of that company, except by the joint assent or joint action of both Hatch & Co. and White, Morris & Co. That event has not taken place, neither has any state of facts arisen, as they are not in default, by which White, Morris & Co. can be obligated under the agreement which was made to give this assent or confer this authority. The right of Hatch & Oo. to a return of the money depended upon a fulfillment of their promise for the delivery of these bonds. They placed the money subject to that obligation, and the additional circumstance that before the trust company should pay it over it should also have the assent or authority to that act of White, Morris & Go. The event has not arisen under which the right can be asserted to withdraw this money, as the right to it has been clearly defined and expressed by the agreement which was made, and which the jilaintiff’s assignors failed to perform. There appears to be no ground upon which the court can hold, in violation of the obligations which were created, that this money should be paid over to the plaintiff, or that the firm of White, Morris & Go. shall concede their consent or authority when they have, at no time and under no circumstances which have transpired, agreed to allow this money to be paid over to Hatch & Co. or their assignee.

The same result also follows from the principle that the party who has, in part, performed a contract void under the statute, which the other party is ready and willing to perform, cannot, on the sole ground of his or their own default, recover for what has been paid or done in the way of part performance. The principle applicable to the case seems to be that the party able, willing and ready to perform cannot be compelled' to refund to the party who bases his action entirely on his own inability or refusal further to perform on his part. If the party receiving the part performance refuses to perform the residue of the agreement, then the law will infer a promise on his part to return what he may have received. But neither that promise nor any equivalent obligation will be inferred in favor of the party whose demand rests wholly on his own default in the way of completing what has, in fact, been partly done by him. The soundness of this rule was recognized in Baldwin v. Palmer (10 N. Y., 232), and it was followed in King v. Brown (2 Hill, 485), where it was said by Nelson, Oh. J., that the contract being void and incapable of enforcement in a court of law, the party paying the money or rendering the service in pursuance thereof, may treat it as a nullity and recover the money or value of the services rendered under the common counts. This is the universal rule in cases where the contract is void for any cause not illegal, if the defendant be in default.” (Id., 487.) And also in Lockwood v. Barnes (3 Hill, 128), where it was said: “ The party who refuses to go on with the contract after having derived a benefit by a part performance must pay for what he has received.” (Id. 130.) This rule was also observed in Sovereign v. Ortmann (47 Mich., 184); Bennett v. Phelps (12 Minn., 326); Clancey v. Craine (2 Dev. Eq., 363); and in Abbott v. Draper (4 Denio 51, 53), which is a direct authority against the plaintiff. It has likewise been applied to a similar class of cases arising under statutes declaring that no action shall be maintained on an unwritten contract in Congdon v. Perry (13 Gray, 3) ; Coughlin v. Knowles (7 Metc., 57), and other authorities therein referred to.

Note. —The rest of the cases of this term which are to be reported, with the list of decisions in those cases decided and not reported, will be found in the next volume of Hun (53). — [Rep.

On each of these grounds the judgment seems to be right, and it should be affirmed, with costs.

Yan Brunt, P. J., and Brady J., concurred.

Judgments affirmed with costs.


text:
    William H. Hollister, Respondent, v. The Central National Bank of Troy, Appellant.
   Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    Alonzo P. Adams, Appellant, v. The Empire Laundry Machinery Company, Respondent.
   Judgment affirmed, with costs. Opinion by Ingalls, J.


text:
    Henry H. Du Bois, Respondent, v. William M. Decker, Appellant.
   Judgment and order affirmed, with costs. Opinion by Ingalls, J.


text:
    John W. Van Valkenburgh, Respondent, v. The Thomasville, Tallahassee and Gulf Railroad Company, Appellant.
   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by Landon, j.


text:
    Helen Ball, Respondent, v. Adirondack Railroad Company, Appellant.
   — Judgment and order affirmed, with costs. Opinion by Ingalls. J.


text:
    Mary R. Stoddard, Respondent, v. The Village of Saratoga Springs, Appellant.
   - Judgment affirmed, with costs. Opinion by Learned, P. J.


text:
    The People of the State of New York, Respondent, v. Liscomb R. Page, Appellant.
   Judgment and conviction reversed, prisoner discharged. Opinion by Landon, J.


text:
    Thomas S. Vaughn, Appellant, v. Mary M. Strong, Administratrix, etc., Respondent, Nannie L. Vaughn, Appellant, v. Same, Respondent.
   Judgment reversed, new trial granted, referee discharged, and costs to abide event in each case. Opinion by Ingalls, J.


text:
    The People of the State of New York, Respondent, v. Clinton T. Backus and others, Appellants.
   Judgment affirmed, with costs,


text:
    Francis A. Jewett, Respondent, v. Simeon Brownell, Appellant.
   Judgment reversed and judgment ordered for defendant on demurrer, with costs below and in this court, with leave to plaintiff, on payment of such costs, to amend in twenty days after notice, etc. Opinion by Ingalls, J.; Landon, J., dissenting.


text:
    The Whitehall Lumber Company (Limited), Respondent, v. Walter J. Edmans, Appellant.
   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by Learned, P. J.


text:
    George W. Ellis, Respondent, v. Theodore Houston and others, Receivers, Appellants.
   Verdict set aside, new trial granted on the exceptions. Opinion by Learned, P. J.


text:
    Cynthia M. Jones, Respondent, v. The City of Troy, Appellant.
   Judgment and order affirmed, with costs. Opinion by Landon, J.


text:
    Isabella K. Lombard, Respondent, v. The Central National Bank of Troy, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by Learned, P. J.


text:
    John Ruyter, Respondent, v. Mary Birch Reid, Appellant.
   Judgment affirmed, with costs against appellant personally. Opinion by Ingalls, J.; Learned, P. J., not acting.


text:
    Edward D. Ransom and others, Respondents, v. Willard E. Masten, Appellant.
   Judgment affirmed, with costs. Opinion by Landon, J.; Learned, P. J., not acting.


text:
    Robert B. Roosevelt, Appellant, v. James A. Roosevelt and others, Executors, etc., Respondents.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    Hiram B. Aylsworth, Respondent, v. James Gallagher, Appellant.
   Judgment affirmed, without costs. Opinion by Van Brunt, P. J.


text:
    John O’Brien, an Infant, etc., Appellant, v. Louis Greenbaum, Respondent.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    The People of the State of New York ex rel. John G. Burke v. Stephen B. French and others, Police Commissioners, etc.
   Judgment affirmed, without costs. Opinion by Van Brunt, P. J.


text:
    Walter L. McCorkle, as Receiver, etc., Appellant, v. Morris S Herrman, Respondent.
   Judgment affirmed, with costs. Opinion by Van. Brunt, P. J.


text:
    James J. McComb, Respondent, v. The Cordova Apartment Association and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    In the Matter of Catharine Darragh, Deceased
   Decree of surrogate reversed and the case remitted back to the surrogate for a new trial. Opinion by Van Brunt, P. J.


text:
    Gustav Kuhn, by his Guardian, Appellant, v. Annie J. Kuhn, Respondent.
   Order affirmed, with costs. Opinion by Brady, J.


text:
    Horace B. Claflin and others, Respondents, v. James C. Du Bois, Appellant.
   Judgment reversed and new trial ordered, with costs to the appellant to abide event. Opinion by Brady, J.


text:
    Thomas J. Pope and others, Respondents, v. The Terre Haute Car and Manufacturing Company, Appellant
   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Pauline Heckemann, etc., Appellant, v. David B. Young, Respondent, Impleaded, etc.
   Exceptions sustained and new trial ordered, costs to plaintiff to abide event. Opinion by Brady, J.


text:
    Ulrice Lesser, Appellant, v. Sarah A. Williams, Respondent
   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    Catherine E. Swart, Respondent, v. The Mayor, etc., of the City of New York, Appellant.
   Judgment affirmed, with costs. Opinion by Brady, J.


text:
    Edmund Terry, Appellant, v. D. A. W. Theodore Westing, Respondent.
   Judgment affirmed,, with costs. Opinion by Brady, J.


text:
    William H. M. Sistare and others, Respondents, v. Frederic P. Olcott, Receiver, etc., Appellant.
   Judgment reversed and new trial ordered, on payment by defendant of costs and disbursements of both appeals and of trial} and, also, ten dollars costs of opposing motion, with costs of this appeal to appellant. If such payment be not made order affirmed, with ten dollars costs and disbursements and motion denied. Opinion by Daniels, J.


text:
    Madeline T. Burchill v. James Culgin.
   Motion for reargument denied. Opinion by Daniels, J.


text:
    Anne Harnickell, as Administratrix, etc., Respondent, v. The Parrot Silver and Copper Mining Company, Appellant.
   Judgment affirmed, with costs. Opinion by Van Brunt, P. J.


text:
    Conrad Bantle, Appellant, v. Barbara Krebs, Repondent
   Motion for reargument denied. Opinion by Daniels, J.


text:
    The People of the State of New York ex rel. William L. Waterman, Appellant, v. David H. Knapp and others, School Trustees, etc., Respondents.
   Order affirmed, without costs. Opinion by Daniels, J.


text:
    William Berke, Respondent, v. The Twenty-third Street Railway Company, Appellant.
   Order and judgment affirmed. Opinion by Daniels, J.


text:
    James Murphy, Respondent, v. Edward Marscheider, Appellant.
   Judgment affirmed, with costs. Opinion by Daniels, J.


text:
    Manuel Silberstein, by his Guardian, etc., Respondent, v. The Houston Street, West Street, etc, Railroad Company, Appellant.
   Judgment and order reversed and new trial ordered upon payment by defendant of costs of the trial, and ten dollars costs of opposing the motion, with costs of the appeal to the appellant to abide the event, unless the plaintiff, within twenty days after notice of this decision, shall stipulate to reduce the verdict to the sum of $10,000; and if that stipulation shall be given, then the judgment, as so modified, should be affirmed, without costs of the appeal to either party. Opinion by Daniels, J.; dissenting opinion by Van Brunt, P. J.


text:
    Edward Uhl, Respondent, v. Thomas Loughran, Appellant.
   Judgment affirmed, with costs. Opinion by Daniels, J.


text:
    Henry R. Pierson, as Receiver, etc., Respondent, v. Andrew W. Morgan and others, Appellants.
   Order affirmed, with costs. Opinion by Bartlett, J.


text:
    Henry Welsh, Appellant, v. John Taylor, Respondent.
   Reargument ordered on the question of abandonment.


text:
    Max Abenheim, Respondent, v. Edward Samuels, Appellant.
   Motion denied, with ten dollars costs. Opinion Per Guriam.


text:
    Edward A. Robertson and others, Appellants, v. Lewis A. Sayre, Respondent.
   Motion denied.


text:
    Fritz Grossman, Respondent, v. The Supreme Lodge, Knights and Ladies of Honor, Appellants.
   Appeal dismissed, with costs. Opinion by Bartlett, J.


text:
    Arthur Furber, Appellant, v. Alexander L. McCarthy, Respondent.
   Motion denied upon appellant paying ten dollars costs of motion and stipulating to argue at next term of the court.


text:
    Robert J. Dean and others, Respondents, v. Marshall S. Driggs, Appellant.
   Motion denied upon defendants stipulating to argue appeal at tíext term of court and paying ten dollars costs of this motion.


text:
    Adele Bernheimer and others, Respondents, v. Thomas Kilpatrick, Appellant.
   Motion denied on payment by appellant of ten dollars costs and stipulating to argue appeal at next term of the court.


text:
    In the Matter of the Revocation of the Probate of the Will of Ann Voorhis, Deceased.
   Motion denied.


text:
    Leopold Lindan, Appellant, v. Royal Insurance Company, Respondent.
   Motion denied.


text:
    Edward D. Farrell, Appellant, v. The Mayor, etc., of the City of New York, Respondent.
   Order affirmed, with costs. Opinion by Bartlett, J.


text:
    Leopold Labalt, Respondent, v. Joseph Schuloff and others, Appellants.
   Order reversed and attachment vacated, with costs. Opinion by Bartlett, J.


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    Henry S. Waugh, Respondent, v. Charles O. Bailey and others, Defendants, Noah B. Shute, Purchaser, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P J.


text:
    Richard H. Bull, Appellant, v. Maier Rotchschild, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


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    The People of the State of New York ex rel. Frederick Perry v. Lucius J. N. Stark and others, Commissioners, etc.
   Writ dismissed, with costs. Opinion by Van Brunt, P. J.


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    The Hoboken Beef Company (Limited), Respondent, v. Carl Loeffel, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.


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    Mary Fleming Smith and others, Respondents, v. The Co-operative Life and Accident Association and others, Appellants.
   Order reversed, with costs and disbursements and attachment vacated.. Opinion by Bartlett, J.


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    In the Matter of the Application of the United States Mercantile Reporting and Collecting Association, etc. Appeal by the United States Mercantile Reporting Company.
   Order reversed, without costs. Opinion by Bartlett, J.


text:
    John Betjemann, Respondent, v. Emerson Brooks and others, Executors, etc., Appellants.
   Order affirmed, with costs and disbursements. Opinion by Bartlett, J.


text:
    Frederick Hoeninghaus and others, Appellants, v. Francisque Chaleyer and others, Respondents.
   Order reversed, with costs and. disbursements. Opinion by Bartlett, J.


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    Charles B. Baeder (Trading as Baeder, Adamson & Co.), Appellant, v. William A. Baeder and others, Respondents.
   Order affirmed, with disbursements. Opinion by Macomber, J.


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    William C. Smith, Appellant, v. Walter S. Johnston, Receiver, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Macomber, J.


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    In the Matter of the Estate of Jacob Straut, Deceased.
   Order affirmed, with costs. Opinion by Macomber, J.


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    William Hadden, Plaintiff, v. Richard S. Waring, Defendant.
   New trial granted, with costs to the defendant to abide the event. Opinion by Macomber, J.


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    Henry Feuchtwanger and others, Respondents, v. Leo C. Dessar, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Macomber, J.


text:
    Joseph P. McTeague, Appellant, v. Mary McTeague and others, Respondents.
   Judgment affirmed, with costs. Opinion by Macomber, J.


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    Simeon J. Drake, Respondent, v. R. Suydam Grant and others, Executors etc., Appellants.
   Judgment affirmed, with costs. Opinion by Macomber, J.


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    Huldah H. Clapp v. Robert C. Clapp and others. In the Matter of the Receivership of Thomas B. Rand.
   Motion granted.


text:
    Charles Hubbard and others, Appellants, v. Joseph T. Farrington, Respondent.
   Judgment affirmed, with costs. Opinion by Macomber, J.


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    Philip W. Scribner, Assignee, etc., Respondent, v. Maurice Levy, Appellant.
   Judgment affirmed. Opinion by Dwight, J.; Ohilas, J. not sitting.


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    Lydia Patterson, Appellant, v. Alfred E. Burnett, Respondent, Impleaded, etc.
   Interlocutory judgment affirmed; order appealed from reversed; final judgment modified by deducting therefrom the additional allowances of costs, and, as modified, affirmed, without costs of this appeal to either party. Opinion by Dwight, J.


text:
    Orvis M. More, Executor, Appellant, v. Andrew More, Respondent.
   Judgment reversed, new trial granted, with costs to abide event. Opinion by Dwight, J.


text:
    Emma A. Devinney, Respondent, v. Hannah M. Corry and others, Appellants.
   Judgment reversed and new trial granted, with costs of this appeal to abide the final award of costs. Opinion by Dwight, J.


text:
    Robert R. Hugg and others, Respondents, v. Lydia A. Shank, Appellant.
   Judgment affirmed, with costs. Opinion by Dwight. J.


text:
    Volney White, Repondent, v. Lafayette Knowles, Appellant.
   Judgment and order affirmed, with costs. Opinion by Barker, P. J.


text:
    Mary E. Clarke, Appellant, v. Elmer A. Johnson, Respondent.
   Judgment affirmed


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    Gertrude Schum, Respondent, v. The City of Rochester, Appellant.
   Judgment affirmed, with costs.


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    William C. Wagner, Respondent, v. Frederick Moschell and others, Appellants.
   Judgment affirmed, with costs.


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    The Mutual Life Insurance Company, Respondent, v. Geórge E. Sherry, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.


text:
    John Hayes, Respondent, v. George Brown, Appellant.
   Judgment and order affirmed.


text:
    Marine Bank of Buffalo, Respondent, v. The Butler Colliery Company, Appellant.
   Judgment modified by deducting therefrom the sum of $150.10, with interest from the date of the report, and, as so modified, affirmed. Opinion by Dwight, J.


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    Isaac Bier and others, Respondents, v. Chauncey S. Kibbe and others, Appellants.
   Judgment and order reversed and new trial granted, costs to abide event. Opinion by Barker, P. J.


text:
    William F. Wait and others, Appellants, v. John E. Borne and others, Respondents.
   Order reversed and judgment directed for the plaintiffs on the verdict. Opinion by Adams, J.


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    In the Matter of the Petition of the New York, Lackawanna and Western Railroad Company, Respondent, to appraise lands of Abram M. Cheesbrough and others, Appellants.
   Orders affirmed, with ten dollars costs in one case and disbursements in all.


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    Henry Campbell 2d, Respondent, v. William Campbell and others, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements Opinion by Adams, J.; Barker, P. J., not sitting.


text:
    The Dundee National Bank, Appellant, v. Anthony T. Wood and others, Respondents.
   Order affirmed on the opinion of Ramsey, J., at Special Term.


text:
    Huldah Torrey, Appellant, v. William Corner, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


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    Nicholas C. Newerf and others, Appellants, v. Thomas A. Jebb and others, Respondents.
   Judgment and order reversed and new trial granted, with costs to the appellants to abide event. Opinion by- Macomber, J.


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    Henry Galliger, Respondent, v. The Grand Trunk Railway of Canada, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements. Judgment affirmed. Opinion by Macomber, J.; Barker, P. J.* dissenting.


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    Joseph Barrett and others, Appellants, v. John B. Webber, Survivor etc., Respondent. John B. Webber, Survivor, etc., Respondent, v. Joseph Barrett and others, Appellants.
   Judgment in each case affirmed, with costs. Opinion by Macomber, J.


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    In the Matter of the Estate of Eleazer T. Slater, Deceased.
   Order appealed from reversed on the authority of Catlin v. Trinity College (Ct. of App., MS. opinion of Andrews, j.* March 26, 1889); proceedings remitted to the Surrogate’s Court of Orleans county with directions to proceed therein.


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    William Moore, Overseer, etc., Respondent, v. David Trimmer, Appellant.
   Orders affirmed* with ten dollars costs in each case and disbursements in one. Opinion by Macomber, J.


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    In the Matter of the Petition of Francis W. Williams, Receiver, Appellant (Edwin C. English, an Attorney, Respondent).
   Order affirmed, without costs to either party. Opinion by Macomber, J


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    In the Matter of the Widening of Hand Street (City of Rochester, Appellant, George S. Riley, Respondent).
   Order affirmed on opinion of Angle, J., at Special Term, with ten dollars costs and disbursements.