text:
    Patrick V. Byrnes, Respondent, v. Henry N. Lewis, Appellant, Impleaded with Others.

      Action to set aside a general assignment as fraudulent — bill of particulars — what should and what should not be included therein.

    Where, in an action brought to set aside a general assignment, the facts averred by certain portions of an answer constitute no defense to any portion of the plaintiff’s cause of action, and are not issuable facts, nor in themselves material to any issue tendered by the complaint, but are collateral facts merely, and are averred argumentatively or by way of evidence in support of a preceding denial of particular allegations of the complaint, a bill of particulars of such allegations will not be ordered where the particulars desired are such as the defendant would not be permitted to prove in his own behalf, and concerning which he would be required to testify only on his cross-examination in the discretion of the court.
    ■If an averment-of the answer to the com¡3laint, in an action brought to set aside a general assignment, though not constituting a counterclaim, constitutes a complete defense to the charge of falsifying the schedule of indebtedness (which, of itself, would be fatal to the assignment), it is proper that the defendant should give the items which he intends to prove as constituting the alleged indebtedness.
    The allegation of the complaint in such an action, that moneys to a large amount were fraudulently drawn by the daughter of the defendant from his bank with his permission, and in his name, is an allegation of the plaintiff, the burden of proving which rests upon him; and the mere averment of the defendant that moneys were so drawn to a small amount for a legitimate purpose, cannot have the effect of shifting the burden of proof, either as to the amount or purpose of such drafts; the defendant is not called upon to prove either the amount or the use of the money so drawn, nor is he required to furnish his proofs upon that subject to the plaintiff in advance of the trial of the action, by means of a bill of particulars.
    Where the complaint in such an action alleges that the daughter of the defendant drew money from a private bank owned by the defendant on her own checks, against an account made up of credits of fifty dollars each month allowed her by her father without consideration and with a fraudulent intent, and the answer admits such allegations, except the allegation of fraudulent purpose and intent, there is nothing to be proved by the defendant in connection with such matter, and nothing should be required of him, by way of specification, by means of a bill of particulars of what he expected to prove on such subject.
    The complaint in such an action, among other things, alleged that the assignor issued in the name of his daughter two fictitious and fraudulent certificates of deposit, and executed what purported to be an assignment and transfer to her of certain shares of stock, to secure the payment of such certificates; that neither tlie certificates nor tire assignment of stock were ever delivered to her, but were retained by the assignor, and that the whole transaction was a scheme to create a fictitious indebtedness in favor of his daughter, and to withdraw the shares of stock from his assets. By his answer the defendant admitted the issuance of the two certificates of deposit and the execution of the transfer or assignment of the shares of stock, but denied all fraudulent intent in relation thereto, and affirmatively averred that the certificates represented in amount, moneys actually in his hands as agent of his daughter, which had been before invested by him for her and had been paid in and received by him as such agent for re-investment; that, finding no desirable investment at the time, he issued the certificates running to her, and made the assignment of stock as security for their payment.

      Held, that an order requiring the defendant to furnish a bill of particulars showing the dates and amounts of moneys belonging to his daughter received from her by him as her agent for investment, the securities in which the same had been invested, and the amount paid to and collected by him from such investments, from time to time, was manifestly proper;
    That such allegation of the complaint constituted a distinct charge of. fictitious indebtedness, fraudulently devised, and included in the schedule of liabilities filed with the assignment. The affirmative averments of the answer in that regard constituted an affirmative defense to that charge, and the plaintiff was entitled to specifications of the averments so made.
    Appeal by the defendant, Henry N. Lewis, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Allegany on' the 14th day of June, 1894, directing the defendant to serve a verified bill of particulars óf certain matters set forth in the answer, with notice of an intention to bring up for review upon such appeal said order.

      Church c& Church, for the appellant.

      A, L. Purdy, for the respondent.
   Dwight, P. J.:

The action was in the nature of a creditor’s bill, brought to set aside a general assignment made by the defendant Henry N. Lewis August 15, 1893, and various other transfers, conveyances and gifts of property made by him before the assignment, all of which are alleged to have been in fraud of creditors.

The plaintiff is a judgment creditor in the amount of ninety-four dollars and twenty-nine cents on a judgment recovered October 16, 1893, on which execution has beeii returned unsatisfied.

The pleadings in the action are extremely voluminous, and very briéf abstracts of portions of each must serve to illustrate the questions presented by this appeal.

Thus, the complaint alleges that the defendant ITenry N. Lewis was, before January 1, 1883, engaged in the banking business at Wellsville in company with one Hoyt, receiving deposits to a large amount, and using the money last deposited to pay former deposits; that the firm of Hoyt & Lewis was dissolved January 1, 1883, the defendant Lewis assuming all its obligations, and taking all the moneys on hand which had been deposited by its customers; that at that time, in connection with others, he organized the First National Bank of Wellsville, of which he became a stockholder, director and president, and so continued until Januai'y, 1886, and to which he became largely indebted “ in the name of Hoyt & Lewis, aforesaid, and individually, being a continuation of the said indebtedness of Hoyt & Lewis, bankers, so assumed by said defendant Lewis; ” that in April, 1886, he opened a private bank at the same place, receiving deposits and doing a general banking business, and that from the deposits so received he paid the debts of Hoyt & Lewis and his own debt to the National bank, and paid his earlier depositors from later deposits, and continued the business until the 15th day of August, 1893, when he made the general assignment complained of. The indebtedness to the plaintiff, which was the basis of his judgment of ninety-four dollars and twenty-nine cents, was for deposits with the defendant in his business as a private banker last described.

To these allegations the defendant, answering, admits his partnership with Hoyt in the banking business, the dissolution of that co-partnership, the assumption of its liabilities by himself, and that after settling with Hoyt he took the remaining assets of the firm; he admits the organization of the First National Bank and his connection with it, and that he became indebted to it, but denies that such indebtedness was a continuation of that of Hoyt & Lewis ; he admits that he went into the private banking business in April, 1886, but denies that from the deposits received by him in that business he paid the debts of Hoyt & Lewis, and his debts to the First National Bank, created in continuing the indebtedness of Hoyt & Lewis as alleged. And in this behalf the defendant avers that at the time of the dissolution of the firm of Hoyt & Lewis his assets, including those coming to him from the firm, exceeded his liabilities by many thousands of dollars; that he paid the liabilities of the firm from the sums realized from the assets, and that when those liabilities were fully paid there remained to the defendant a surplus of several thousand dollars derived therefrom.

These averments of the answer are made the subject of one of the provisions of the order appealed from, which requires the defendant to furnish a bill of particulars of the assets and liabilities of the firm of Hoyt & Lewis at the time of its dissolution, containing “ the amount •and value of the assets and of what and in what they consisted, and the amount and character of the liabilities, together with the names of the person and persons to whom the defendant was indebted at the time ■of the dissolution of the firm of Hoyt & Lewis and the amount of the liabilities of said firm of Hoyt & Lewis which were assumed by said defendant Henry N. Lewis, specifically showing the items thereof and the names of the persons in whose favor said indebtedness existed.”

We are clearly of the opinion that this provision of the order exceeded the discretion of the court and was not within the most liberal construction of the rule for bills of particulars. The facts •averred by that portion of the answer referred to in this provision constituted no defense to any portion of the plaintiff’s cause of ■action. They were not issuable facts, nor, in themselves, material to any issue tendered by the complaint. They were collateral facts merely, and were averred argumentatively or by way of evidence in •support of the preceding denial of particular allegations of the complaint. The particulars called for by this pirovision of the order are such as the defendant would not be permitted to prove in his own behalf, and concerning which he would be required to testify only on his cross-examination in the discretion of the court. The case of Dwight, Exr., v. The Germania Life Ins. Co. (84 N. Y. 493), which is much relied upon by the plaintiff and in which the rule for bills of particulars is stated as broadly as in any of the cases cited, differs radically from the present. There the general statements of the answer, of which particulars were required to be given, constituted ■a substantive defense to the action, viz., that of a breach of the warranty contained in an application for life insurance; and most .of the other cases cited are similarly distinguished. The first provision of the order appealed from cannot be sustained.

The second provision of the order has relation to an alleged indebtedness of the defendant Henry N. Lewis to the defendant Juliet A. Lewis, his wife. The allegations of the complaint in this regard are to the effect that, although on the books of the *bank the account of the defendant Juliet was overdrawn to the amount of more than $600, yet that an indebtedness of more than $3,500 is stated in the schedule of liabilities attached to the assignment of the defendant Henry N. as due from him to the defendant Juliet, and that such indebtedness is fictitious and intended to defraud his just creditors. To this allegation the defendant Henry N. answers that, notwithstanding the apparent overdraft of his wife’s account, he was still justly indebted to her in the sum of $3,816.93, which appears in his-schedule of liabilities. The second provision of the order requires-that the bill of particulars shall state the items of this indebtedness. We have no doubt of the propriety of this provision. The averment of the answer in this respect, though not constituting a counterclaim, constitutes a complete defense to the charge of falsifying the-schedule of indebtedness which, of itself, would be fatal to the assignment. It is proper that the defendant should give the items-which he intends to prove as constituting the alleged indebtedness.

The third provision of the order refers to. the same alleged fictitious indebtedness of the defendant Henry N. to his wife, and its-requirements will be satisfied when the second provision is fully complied with.

The defendant named in the complaint next after the wife of the-assignor is his daughter M. Fannie Lewis, concerning whom it is. alleged that her father, with intent to defraud his creditors, permitted her to draw in his name from his said bank, at different times, divers sums of money, amounting in the aggregate, as the plaintiff is informed and believes, to many thousands of dollars, thus withdrawing the same from the reach of his creditors, etc. also that, during a period of about eighteen months before the date of the assignment, the same daughter, kl. Fannie, drew money from the bank on her own checks against an account made up of credits-of fifty dollars each month allowed her by her father without consideration and with the like fraudulent intent. Answering these allegations the defendant Henry N. admits that his .daughter Fannie was permitted to and did draw from the bank certain sums of money in his name, but denies that they amounted to a large sum, and denies the fraudulent intent; and in that regard he avers that the sums so drawn were intended to be and were used in the purchase of supplies for his family and aggregate but a small sum. He also admits the credit to the same daughter of fifty dollars a month during the time mentioned in the complaint, and that the same, except a small balance, was drawn out during the same time by his daughter on her own checks, and he denies the fraudulent intent charged in respect to this transaction; and he further avers that the allowance of fifty dollars a month was upon her undertaking to take upon herself the care of the household, purchasing all supplies for the table out of the allowance mentioned, and that if she should be able to make any saving out of said monthly allowance it should be hers in compensation for her services as housekeeper, etc., and that the moneys so drawn by His said daughter were actually used for the purposes mentioned. The fourth and fifth provisions of the order appealed from require that the bill of particulars shall show, specifically, the items, amounts and dates of the moneys drawn by the daughter in the name of her father, and the items, amounts and dates of the sums used by her in paying for purchases for the use and support of his family; also showing the amounts and dates of moneys drawn by the daughter against her allowance of fifty dollars per month, and the dates, items and amounts of moneys paid out by her for the table and living expenses of the family during the eighteen months above mentioned.

In respect to those provisions of the order it is sufficient to say, first, that the charge that moneys to a large amount were fraudulently drawn, and permitted to be drawn, by the daughter in her father’s name, is an allegation of the plaintiff which it is for him to prove, and that the mere averment of the defendant that moneys were so drawn to a small amount for a legitimate purpose cannot have the effect to shift the burden of proof either as to the amount or the purpose of such drafts. Since, then, the defendant cannot be called upon to prove either the amount or the use of the moneys so drawn, still less can he be required to furnish his proofs on that subject to the plaintiff in advance of the trial of' the action; second, the answer admits all the particulars alleged concerning the drafts by the daughter’s own checks against her allowance of fifty dollars a month, except the allegation of their fraudulent purpose and intent; there remains, therefore, nothing to be proved by the defendant in that connection, and of course nothing can be required by way of specification of what he expects to prove on that subject.

There is a fourth defendant of the name and family of the alleged fraudulent assignor, viz., a second daughter, Miss Nellie Lewis. It is alleged concerning her that, under the date of the 20th of July, 1893, the defendant, her father, issued in her name two fictitious and fraudulent certificates of deposit of the amounts respectively of $3,000 and $50, and executed what purported to be an assignment and transfer to her of thirty shares of the stock of a certain railroad company to secure the .payment of such certificates; that neither the certificates nor the assignment of stock were ever delivered to her, but were retained by the father and that the whole transaction was a scheme to create h, fictitious indebtedness in favor of his daughter, and to withdraw the railroad shares from his assets. By his answer the defendant admits the issuance of the two certificates of deposit and the execution of the transfer or assignment of the shares of stock, but denie's all fraudulent intent in relation thereto, and affirmatively avers that the certificates represent in amount moneys actually in his hands as agent of his daughter, which had been before invested by him for her and had been paid in and received by him as such agent for reinvestment; that finding no desirable investment at the time, he issued the certificates running to her and made the assignment of stock as security for their payment and informed her by letter — she living in the State of' Connecticut — what he had done with her funds, and that she answered by letter ratifying the transaction and accepting the transfer and assignment.

In respect to these averments of the answer the sixth provision of the order requires the defendant Henry N. to show by his bill of particulars dates and amounts of moneys of the defendant Nellie received from her by him as her agent for investment; the securities in which the same had been invested and the amounts paid to and collected by him from such investments from time to time. We think this requirement was manifestly proper on the same principle and for the same reasons that the requirement of the second provision of .the order was upheld. The allegation of the complaint is a distinct charge of a fictitious indebtedness, fraudulently devised, and included in the schedule of liabilities filed with the assignment. The affirmative averments of the answer in that regard constituted an affirmative defense to that charge, and the plaintiff is entitled to specifications of the averments so made.

The seventh and eighth provisions of the order relate to averments of the answer, which eifibrace no issuable facts but such as are merely collateral and which are not properly the subject of an order of this character.

The result of this examination is to sustain the order only as to its second and sixth provisions and to reverse it as to all its other provisions.

The order should be modified accordingly, and as so modified affirmed, without costs of this appeal to either party.

Lewis, Haight and Bradley, JJ., concurred.

Order modified by striking out all except the second and sixth provisions thereof, and as so modified affirmed, without costs of this appeal to either party.


source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    Margaretta F. Johnson, as Executrix, etc., of Thomas Connaroe, Deceased, Respondent, v. William B. Sirret and Augustus F. Scheu, Appellants, Impleaded with Jacob Morganstern.

      Commissions on the sale of land — meaning in a contract of the word “parcels.”

    An action was brought to recover commissions on the sale of land under a contract in writing, in the following words :
    “For a valuable consideration to us in hand paid, the receipt whereof is hereby acknowledged, we, the undersigned, hereby agree to pay Thomas Oonnaroe the sum of thirty dollars (§30) per acre on the sale of the tract of land this day conveyed by Mary A. Johnson and Margaretta F. Johnson to us, containing about one hundred and twenty-five (125) acres, whenever a sale of said land shall be effected, or the same shall be taken by legal proceedings or the exercise of the right of eminent domain. If the same shall be sold or taken in parcels, a proportionate part shall be paid to said Oonnaroe at the time each parcel is taken or sold as aforesaid.”
    The purchase of such land had been negotiated by the plaintiff’s testator for the defendants, and the commissions of thirty dollars per acre on all of such lands thereafter to be sold or parted with by the purchasers was fixed as his compeusation. for negotiating the purchase. By direction of the purchasers the land was conveyed to three persons, one undivided quarter to each, and the remaining undivided quarter to one of such persons in trust for one of the purchasers. This last undivided quarter was conveyed by direction of the cestui que trust to a third party, and on this sale a commission was claimed by the plaintiff's testator.

      Held, that the word “parcels,” as used in such contract, must be held to mean portions, whether several or undivided, and would not be confined to portions of the land held in severalty.
    Appeal by the defendants, "William B. Sirret and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 18th day of July, 1891, upon the decision of the court rendered after a trial at the Erie Circuit before the court without a jury.

      Tracxj G. Beeher, for the appellants.

      Glarh H. Timermcm for the respondent.
   Dwight, P. J.:

The action was to recover commissions on the sale of land under a contract in writing of the three defendants with the plaintiff’s testator, of which the following is a copy :

“ For a valuable consideration to us in hand paid, the receipt whereof is hereby acknowledged, we, the undersigned, hereby agree to pay Thomas Connaroe the sum of thirty dollars ($30) per acre on the sale of the tract of land this day conveyed by klary A. Johnson and Margaretta F. Johnson to us, containing about one hundred and twenty-five (125) acres, whenever a sale of said land shall be effected, or the same shall be taken by legal proceedings or the exercise of the right of eminent domain. If the same shall be sold or taken in parcels, a proportionate part shall be paid to said Connaroe at the time each parcel is taken or sold as aforesaid.

“ Dated September 9, 1887.”

The purchase of the land had been negotiated by Connaroe for the defendants, Sirret and Morganstern, from the grantors named in' the above contract, and the commission of thirty dollars per acre on all of such lands thereafter to be sold or parted with by the purchasers was fixed as his compensation for negotiating the purchase.

By direction of the purchasers, Sirret and Morganstern, the conveyance by the vendors was made to the defendants, Sirret and Scheu, and one Martha Millet, in the undivided shares of one-fourth to Sirret, one-half to Scheu and one-fourth to Mrs. Millet, and upon the agreement between Scheu and Morganstern that the former should hold one undivided fourth in trust for the latter, making all such payments as should be required on such share, and accounting to Morganstern for all sums received on the sale or transfer of the same, over and above what Scheu had paid thereon. Subsequently Morganstern negotiated a sale of his undivided one-fourth of the property, held in trust for him by Scheu, to one Williams, and Scheu made the conveyance accordingly. Williams paid Scheu all he had advanced on the share so conveyed, and became, to all intents and purposes, the purchaser and absolute owner of the share of the property theretofore held by Scheu in trust for Morganstern.

All these facts appear by undisputed evidence. The assumption in argument of counsel, that Williams merely took the place of Scheu as trustee for Morganstern, is negatived by the evidence of all the parties to the transaction.

On these facts the judge at the Circuit held and found that Connaroe, the plaintiff’s testator, was entitled to his commissions on the sale so made, viz., at the rate of thirty dollars an acre on one-fourth of the entire purchase made by him. We have no doubt of the correctness of this finding. We know of no reason why it should not be so. It is a narrow construction of the contract which would confine the meaning of the word parcels ” to portions of the land held in severalty. The word “ parcels,” as here employed, must be held to intend portions, whether several or undivided; otherwise the plain intent of the agreement with Connaroe was liable to be entirely defeated. Sirret and Scheu and Mrs. Millet might each severally and successively convey his and her undivided share to Mr. Williams, as Morganstern by his trustee has done, and there is the entire title to the whole tract of land alienated and conveyed, and nobody responsible to Connaroe for the commissions earned by him in the original purchase, and stipulated to be paid to him on a sale of the land or any portion of it.

The judgment is riglit and must be affirmed.

Lewis and Bradley, JJ., concurred; Haight, J., absent.

Judgment appealed from affirmed.


author: Haight, J.:

text:
    Ella Terwilliger, Respondent, v. Industrial Benefit Association, Appellant.

      Declarations of a decedent — when admissible in evidence— action on a Ufeinsurr a/nce policy — declarations of a person as to his age, competent, however remote.

    The declarations of a testator or intestate binding him, or impairing his estate, may be given in evidence against his personal representatives in all cases where they would have been competent against himself if he had been living and a party to the action.
    Where the declarations of a decedent as to his age are competent evidence and are received on behalf of the plaintiff, upon the trial of an action brought to recover the amount of two certificates of membership in a life insurance association, his declarations are also competent in favor of the defendant in such action (although it may be shown that the interest of the plaintiff had become vested in the certificates of insurance during the life of the deceased), provided the declarations were made prior to the time when the plaintiff’s interest in such certificates vested; the rights of the insurer cannot be changed by the subsequent vesting in the beneficiary of the title to the certificates of insurance.
    The declaration of a person as to his age cannot be too remote in time from the transaction to be admissible in evidence, as he can never change the date of his birth.
    Appeal by the defendant, the Industrial Benefit Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the lltli day of May, 1894, upon the verdict of a jury rendered after a trial at the Cayuga Circuit, with notice of an intention to bring up for review upon such appeal an order made at the Cayuga Circuit on the 10th day of May, 1894, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      Walter 8. MacGregor, for the appellant.

      Frank 8. Coburn, for the respondent.
   Haight, J.:

This action was brought to recover the amount due upon two certificates of membership issued by the defendant to Michael Daly in his lifetime, in which the plaintiff was named as the beneficiary.

The answer, among other things, alleged that the application for said certificates made by Daly contained false answers with reference to his bodily condition and health and as to his age. The only question which we here feel called upon to consider is that pei’taining to his age. In his first application for membership, made in March, 1891, he stated the date of his birth to have been January 12,.1826, and his age at his next birthday as sixty-five. In his second application, made on the 6th day of January, 1892, he gave the date of his birth as February 8, 1821, and his age at his next birthday as sixty-five. He died December 5, 1892.

Upon the trial Thomas J. Bell was sworn as a witness for the defendant, and testified that he knew Daly, who applied to him to make out an application for his admission to the Soldiers’ Home in Bath. A paper was shown to witness which he identified as the one made out by him on the 18th day of May, 1881; that witness put the questions to Daly which were set down in the paper ; that he answered them, and that the witness set down the answers correctly as lie gave them; that after the paper had been completed Daly signed the same by making his mark, and swore to the truth of the paper before witness. The paper was then offered in evidence. It was objected to by the plaintiff as too remote and as immaterial and incompetent. The counsel for the defendant then offered to show that on the 18th day of May, 1881, Daly made application for admission to the Soldiers’ Home under oath, in which he stated his age at that time to be sixty-seven years. The evidence was excluded and an exception was taken by the defendant. We think this evidence was competent. The declarations of a testator or intestate binding him, or impairing his estate, may be given in evidence against his personal representatives in all cases where they would have been competent against himself if he had been living and a party to the action. (Hurlburt v. Hurlburt, 128 N. Y. 420 ; Steinhausen v. Pref. Mut. Ac. Assn., 59 Hun, 336.)

It is contended on behalf of the respondent that this rule has no application for the reason that her interest in the certificates had become vested and that it could not be impeached by the declarations of the deceased. The evidence upon this subject is very meager. The plaintiff, in her testimony, tells of having a conversation with an agent of the defendant in the presence of her father in reference to the second application for membership; that the agent had advised her father to take out another policy and that her father spoke to her and said, “ If I would pay the premium on the second as I did on the first he would allow me to have another policy, ancl I agreed to it.” She further testified that she paid all the premiums on each of the certificates and had possession of both from the time they were delivered to her. There may be some question as to whether this evidence is sufficient to establish a vested interest in her, but assuming that it is, we are still inclined to the opinion that the evidence rejected was competent.

The plaintiff herself in sustaining the correctness of the statements of her father in the application for membei’ship resorted to his declarations as to his age. She stated that he was born in Ireland, and that there was no record of his birth that she had been able to find; that she had corresponded with the parish priest where he had lived and was unable to find any register of the date of his birth ; that she knew of his age by repute and that he was born on the 12th of January, 1826. She then called her brother, William Daly, and he testified that his father was born in 1826 as hear as he could recollect from what his father had told him.

If the declarations of the deceased were competent as evidence for the jfiaintiff we fail to see why they were not also competent for the defendant. The paper in which it is claimed the deceased had given his age, we think, may be regarded as an official document. It appears to have been under oath and was an application for his admission to a public institution. As we have seen, there was no record of his birth known to his family.

Greenleaf in his work on Evidence (Vol. 1, § 104) says, in refer-' ■ence to birth, death and marriage that “ The term pedigree, however, embraces not only descent and relationship, but also the facts of birth, marriage and death and the time when these events happened. These facts, therefore, may be proved in the manner above mentioned in all eases where they occur incidentally and in relation to pedigree. Thus, an entry by a deceased parent, or other relative, made in a Bible, family missal, or any other book or in any document or paper stating the fact and date of the birth, marriage or death of a child, or othek relative, is regarded as a declaration of such parent or relative in the matter of pedigree. So also the correspondence of deceased members of the family, recitals in family deeds, such as marriage settlements, descriptions in wills and other solemn acts, are original evidence in all cases where the oral declarations of the parties are admissible.” (See, also, §§ 103, 105.)

In Hurst v. Jones (1 Wall. Jr. 373) it was held that the contents of affidavits made ex parte several years before, to prove pedigree, aré admissible. (See, also, Swift v. The Mass. Mut. Life Ins. Co., 63 N. Y. 186-193.)

The plaintiff’s interest did not vest until the delivery of the certificates to her and the payment by her of the premiums due thereon. She had no interest at the time the applications were signed by her father, or at the time the certificates were issued by the association, and its rights could not be changed by the subsequent vesting of her interest.

As to the declarations thereafter made by her father the rule may be different. (Rawls v. The Am. Mut. Life Ins. Co., 21 N. Y. 282-290; Fitch v. Am. Pop. Life Ins. Co., 59 id. 557-573 ; Smith v. N. B. Society, 123 id. 85-88 Grossman v. Supreme Lodge of Knights & Ladies of Honor, 6 N. Y. Supp. 821.)

Where the prior statements have reference to health they should ■ not be remote in time from the transaction. A person afflicted with disease may recover and his prior statements in reference thereto pass from his mind, but, we think, declarations in reference to age are different. A person can never change the date of his birth.

The judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., and Lewis, J., concurred; Bradley, J., not voting.

Judgment and order appealed from reversed and new trial granted, with costs to abide the event.


author: Lewis, J.:

text:
    In the Matter of the Assignment of William Sutcliffe to Hadley Jones for the Benefit of Creditors. Samuel K. Nester, Appellant; Hadley Jones, as Assignee, etc., of William Sutcliffe, Respondent.

      Assignee for creditors — entitled to subrogation to the valid claims he has paid— eha/rges and credits upon Ms accounting — decree not modified on appeal so as to embrace a small cha/i'ge for interest.

    If an assignee for the benefit of creditors pays valid claims against the assigned estate, he is entitled to be subrogated to the rights of the creditors whose claims are so paid, and to haye such claims considered in ascertaining the pro rata share to which an unpaid creditor of the assignor is entitled.
    Where the neglect of the assignee for the benefit of creditors to dispose of the assigned property in the usual manner is satisfactorily explained (he having done what he did by the advice and with the consent of the parties interested in the assigned estate, and having disposed of the property in a manner which was manifestly for the best interest of the unsecured and unpreferred creditors), the assignee upon his accounting, in a proceeding instituted upon the petition of an unsecured and unpreferred creditor, is properly chargeable with the full market value of the assigned property, and credited with the amount of- the incumbrances thereon, the amount he has paid to the holders of incumbrances, the amount of any preferred claim paid by him, and the amount of his costs, expenses and commissions.
    A decree will not be modified upon appeal became of its failure to allow interest, when the amount of such interest is not more than one or two dollars.
    Appeal by Samuel K. Nester, a judgment creditor, from a judgment of the County Court of Cayuga county, entered in the office of the clerk of the county of. Cayuga on the 9th day of July, 1894, upon the decision of the court.

      Dwight B. Baekenstose, for the appellant.

      E. O. Aiken, for the respondent.
   Lewis, J.:

On the Sth day of January, 1892, William Sutcliffe, a resident of the city of Auburn, made a general assignment of all his property to Hadley Jones in trust for the benefit of his creditors. The assignee made and filed an inventory of the estate, from which it appears that the only property that went to the assignee under the assignment was two parcels of land, described in the inventory as parcels No. 1 and No. 2. No. 1 was a lot with a brewery on it; No. 2 was a vacant lot, both situate in the city of Auburn. All the personal property in the brewery was, at the time of the assignment, in the hands of the sheriff, and was subsequently sold by him at execution sale. The book accounts and evidences of debt that had accrued in the brewery business had been, prior to the assignment, transferred to the assignor’s wife in part payment of a debt he owed her.

The assigned property was largely incumbered at the time of the assignment by mortgages, judgments and mechanics’ liens. Its actual value, inclusive of incumbrances, was $81,500. There were outstanding, besides the debts secured by mortgages, judgments and liens, claims against the assignor amounting to some $30,000, including the claim of the appellant Nester of $6,344.08.

The assignor, at the time of making the assignment, was engaged in operating the brewery, and it was important to all interested that the business should be continued. The personal property with which the brewery had been operated was, as stated, in the hands of the sheriff and was soon sold. The assignor’s wife, Mrs. Sutcliffe, became the owner of this personal property and the business was continued. The assignee made diligent efforts to sell the property, and, being unable to find a purchaser, he. attempted to borrow money by mortgaging the property. He was not. able to raise any money in that manner. The holders of incumbrances were pressing for payment of their claims; foreclosure of one of the mortgages had been commenced, and the assignee consulted with the creditors, including the appellant, as to the best course to be pursued with the property. It was determined that it was for the interests of all concerned that the brewery should be put into a stock company. The creditors, including the appellant, so advised and the assignee proceeded to form a stock company for the purpose of operating the brewery. Bonds of the corporation were issued, and with them the assignee arranged with the creditors, the most of them taking bonds in payment of their claims. Bonds were tendered to the appellant in payment of his claim. Mr. Nester declined to receive them and commenced this proceeding before the special county judge of Cayuga county to compel the assignee to render an account of bis proceedings. The assignee filed an account and the proceedings came on for bearing before the special county judge of Cayuga county, and after bearing the evidence the court found and decided that tbe assignee should be charged with the value of the assigned property, which was found to be the sum of $81,500. The assignee was credited with the amount of the incumbrances upon the property and the amount that he had paid to the1 holders of the incumbrances, the amount of a preferred claim held by a Mr. Wildner for wages, the costs of an appeal allowed the creditor Nester in a former proceeding, his expenses, disbursements and commissions as assignee, which sums deducted from the value of the estate left a balance to be distributed among the unsecured and unpreferred creditors of $14,742..60.

The court further found that the pro rata share which the appellant was entitled to be paid to apply upon his claim was the sum of $3,084.55, with interest from the 13th day of July, 1892, and the assignee was adjudged liable to pay said sum, and, in addition thereto, the sum of $119.03 costs allowed upon a former appeal to the General Term, together with $150 costs of the proceeding.

We are satisfied from an examination of the case that the findings and conclusions of the trial court are fully sustained by the evidence. The neglect of the assignee to dispose of the property in the usual manner was satisfactorily explained. What he did, as stated, was by the advice and with the consent of the parties interested in the estate, and the manner in which the property was disposed of was manifestly for the best interests of the unsecured and unpreferred creditors. Such being the case, charging the assignee with the full market value of the assigned property and crediting him, as stated, was a proper disposition of the matter. (Adair v. Brimmer, 74 N. Y. 539.) The assignee having arranged and paid the claims against the estate in the manner stated, he was entitled to be subrogated to the rights of the creditors therein, and he was entitled to have them reckoned in ascertaining the^w rata share to which the appellant Nester was entitled. (24 Am. & Eng. Ency. of Law, 290.) The demands of the creditors against the estate contained in the schedules filed by the assignee were shown upon the trial to have been valid claims.

There was sufficient evidence, we think, to justify the trial court in allowing Mrs. Sutcliffe’s claim of $1,623.11, which was presented during the trial of the proceeding.

Our attention is called by the appellant’s counsel to the omission of the trial court to allow the appellant interest upon the item of $119.03 costs. If the court fell into an error in that regard the amount inyolvecl is so small as not to justify a modification of the decree for that reason, for if allowed it would not increase the amount awarded to the appellant by more than from one to two dollars.

We do not find any cause for disturbing the decree appealed from; it should be affirmed, with costs.

Dwight, P. J., Haight and Bbadley, JJ., concurred.

Decree of the County Court of Cayuga county appealed from affirmed, with costs.


author: Beadley, J.:

text:
    In the Matter of the Probate of the Last Will and Testament of Almira Pike, Deceased. Sophia T. Birdsall, Appellant; Anna E. Forbush and Another, Respondents.

      Capacity to malee a will — burden of proving undue influence where the testatrix is feeble by reason of old age — questions of fad considered de novo on am, appeal from a sumgate’s decree refusing probate.

    The fact that a testatrix has the feebleness of old age, both mentally, and physically, does not necessarily render her incapable of making a will if she is rational and has sufficient capacity to comprehend the condition of her property, her relations to the objects of her bounty and the scope and bearing of the provisions of her will.
    While the feeble condition of a testatrix renders her more susceptible to artifice, fraud or undue influence, nevertheless, the burden of showing undue influence, in proceedings brought for the probate of an instrument as the last will and testament of a decedent, rests upon the contestants. .
    A testatrix has the right to dispose of her property by will to a person recently a stranger, if she is competent to make a will, and the fact of her isolation from her relatives detracts somewhat from the apparent significance of an omission to make them objects of her bounty.
    Where, upon an appeal from a decree of a Surrogate’s Court refusing to admit to probate an instrument as the last will and testament of a decedent, the record states that it contains all the evidence given upon the hearing, the questions of fact involved are before the General Term for review, and are to be considered by it de novo, in pursuance of the provisions of section 2586 of the Code of Civil Procedure.
    Appeal by the proponent, Sophia T. Birdsall, the executrix named in the alleged last will and testament of Almira Pike, deceased, from a decree of the Surrogate’s Court of the county of Monroe, entered in the office of the Monroe County Surrogate’s Court on the 28th day of’ September, 1893, denying probate to the alleged last will and testament of Almira Pike, deceased, on the ground that the testatrix was incompetent to make a valid will, being of unsound mind, and that she was unduly influenced in making the same by the proponent.

      Walter S. Hubbell, for the appellant.

      William E. Werner, for the respondents.
   Beadley, J.:

By the terms of her propounded will bearing date December 26, 1892, Almira Pike, having directed the payment of her debts and funeral expenses, and the payment to the'city of Rochester of a suitable sum 'to keep her burial ¡Face in repair, gave all the rest, ■residue and remainder of her property and estate, real and personal, to-Sophia T. Birdsall, upon the condition that she remained with aid-'attended upon the decedent during the life of the latter, and nominated her to be the executrix of'the will. In the proceeding instituted by the petition of Mrs. Birdsall for its probate, Charles H. Newton and Anna E. Forbush appeared as contestants. The probate of the instrument as the will of the decedent was denied upon the ground that she was not competent to make a will, and that she was unduly influenced by Sophia T. Birdsall to make it.

The will in manner and form was duly executed, and had prima faeie support as a valid will by the evidence of the subscribing witnesses. The questions arising upon the evidence introduced at the hearing were those of fact, having relation to the capacity of the decedent, and to the causes by which the making of the instrument by her was induced. She was a childless widow, eighty-two years of age, and had resided for many years in the city of Rochester. For some years prior to and until in November, 1892, she had been attended by a Miss Scott, who then, having become insane, was taken to an asylum. Thereupon the proponent, through a person acquainted with her, was recommended and introduced to the decedent. This was about the middle of November, 1892. The will was made the twenty-sixth of December following, and Mrs. Pike died January 28, 1893.

It may be observed that while the contestants were her heirs and next of kin, she never had seen or known them. They resided in the State of Massachusetts, in which State she in her early life had lived, and so far as appears she had no communication with any relatives there or elsewhere. She lived substantially alone, having intimate and friendly relations with at least some of her neighbors. This isolation of herself from her relatives detracts somewhat from the apparent significance of the omission to make them objects of her bounty. But evidence on the part of the contestants was given tending to prove that at the time the will was made she was in such feeble condition mentally as to render her incompetent to make testamentary disposition of her property. This evidence was in the testimony of witnesses to the effect that within the year or more ^preceding her death there had been an apparent change in her mental condition; that she failed to recognize some of her friends and acquaintances when they called upon her; that she manifested less interest in her own affairs; that she would carry on no conversation, and at times acted queerly, as they expressed it, and failed on certain occasions to observe the amount of sums of money paid to her, or to correctly recognize and state the denomination of bills and coin when she handed them out to be used for her purposes. And some medical opinions, based upon hypothetical questions, were to the •effect that' Mrs. Pike was not rational at the time in question. As bearing upon her competency to take care of her property and upon her susceptibility to influence, it was proved that a few years prior to her death she loaned to one Pierpont $3,000, and took the note of him and his wife payable in three years without other security, and that Pierpont turned out to be unable to pay the note, and that in February, 1890, she conveyed to Edwin Yan Yorst a house •and lot near that occupied by her, by deed, expressing the consideration of one dollar and reserving to herself a life estate in the premises; that she received no greater consideration than that expressed in the deed. The amount so loaned constituted the larger portion of the money she then had, and her only real property remaining, other than such life estate, was the house and lot where she resided up to the time of her death. Yan Yorst had occupied the house so conveyed to him a number of years before the deed was made, and thereafter he paid her rent at the rate of thirteen dollars per month. On the part of the proponent evidence was given to the effect that Mrs. Pike, after she had made the deed, referring 'to that fact, stated that the premises belonged to Yan Yorst, and that the deed to him reserving to her a life estate was as she desired it, and that she expressed friendship for Mr. and Mrs. Yan Yorst ; that in respect to the loan to Pierpont she said substantially that she had known him for a long time; had acted as nurse in his family some years before; that she thought him honest; that she recognized the fact that he was unable to pay, and that the money was lost. And further evidence on the part of the proponent on the subject of the mental capacity and condition of Mrs. Pike for a period of time covering that when the will was made,, and up to near the time of her death, tended to prove that she was intelligent, maintained her acquaintance with and relation to her friends and neighbors, recognized them, understood what she did and was rational.

It is unnecessary to refer specifically to the evidence pro and con upon the subject. The evidence is in the testimony of a large number of witnesses and there is a marked conflict in that of those called by the respective parties bearing upon the capacity and condition of the decedent. It may be assumed that she had the feebleness of old age, both mentally and physically. This did not necessarily render her incapable of making a will, nor was she so if she was rational and had sufficient capacity to comprehend the condition of her propertyj her relations to the objects of her bounty and the scope and bearing of the provisions of her will. (Van Guysling v. Van Kuren, 35 N. Y. 70; Horn v. Pullman, 72 id. 269.)

The feeble condition of the decedent rendered her the more susceptible to artifice, fraud or undue influence. "While the burden of showing undue influence was with the contestants it cannot well be said that there was no evidence bearing upon that proposition. (Tyler v. Gardiner, 35 N. Y. 559; McLaughlin v. McDevitt, 63 id. 213; Matter of Will of Budlong, 126 id. 423.) The fact that Mrs. JBirdsall, until a month and a half before the will was made, had been a stranger to the decedent, and that she was the sole attendant having the care of her when it was made, together with the fact that Miss Scott, who had been in that relation to her for some years and then in the asylum; was not recognized as an object of her bounty, are circumstances for consideration upon the question whether or not the will expressed the voluntary purpose of the decedent and was her voluntary act. (Rollwagen v. Rollwagen, 63 N. Y. 504.) There is, however, some evidence tending to prove that Miss Scott in her attendance and care upon Mrs. Pike had not been entirely satisfactory to the latter, while the proponent had been quite so, and that the decedent was much pleased with her attendance and care, and desired the continuance of such relation during her life, a period then uncertain, and during'which, as age and feebleness increased, the care required might become more indispensable and substantially incessant, and the burden as well as the responsibility of it greater. Whether or how long she might be entirely helpless was unknown at the time the will was made. While the fact that Mrs. Birdsall had until recently been a stranger to the decedent is one for consideration upon both questions, the latter may have been prompted by reasons satisfactory to herself to dispose of her property as she sought to do it upon the condition expressed in the will. Her right to do this cannot be questioned if she was competent to make a will, and if the one in question was her voluntary act. (Matter of Mondorf, 110 N. Y. 450.)

It appears by the record that it contains all the evidence given upon the hearing, and, therefore, the questions of fact are for review and to be considered de novo. (Code Civ. Proc. § 2586.)

We are not entirely satisfied with the conclusion reached by the surrogate upon the facts, and as to what the result upon the evidence should be is a question of doubt. The matter should be sent to a jury. (Howland v. Taylor, 53 N. Y. 627; Matter of Lansing, 17 N. Y. St. Repr. 440; Van Orman v. Van Orman, 34 id. 824.)

The decree of the surrogate should, therefore, be reversed, with costs of this appeal payable out of the estate to abide the event of a new trial in the Circuit Court of Monroe county of the questions:

First. At the time of the execution of the will, on December 26, 1892, did the deceased have testamentary capacity ?

Second. Was the instrument purporting to be her last will and testament voluntarily made by her ?

Third. Was the instrument purporting to be the last will and testameiit of the decedent obtained, and the execution thereof procured, by fraud, circumvention or undue influence practiced upon her?

Dwight, P. J., Lewis and Haight, JJ., concurred.

Decree of the Surrogate’s Court of Monroe county appealed from reversed and a trial of the issues stated in the opinion ordered before a jury in the Circuit Court of Monroe county, with costs of this appeal payable out of the estate to abide the event.


author: Bradley, J.:

text:
    In the Matter of the Claim of Nelson Duntz, Respondent, v. William L. Horton and Another, as Executors, etc., of Henry H. Lewis, Deceased, Appellants.

      Bond and moi'tgage and guaranty of the collection thereof, pledged as security under a written agreement — effect of a compromise made between the pledgee and guarantor — liability of the former to the pledgor.

    Upon a trial, on the reference of a claim against the estate of a decedent, it was shown that one Gaylord, being indebted to the testator in the sum of §4,784, gave him his bond secured by a mortgage upon certain premises; that thereafter the testator, at the request of Gaylord, assigned the bond and mortgage to another person, and in lieu thereof received from Gaylord §800 on his debt, and the assignment of a bond with a second mortgage upon the premises, made by William and Iiezekiah Howe, together with a guaranty of collection made by one Chamberlain in the following words:
    “For value received of Henry H. Lewis, of Auburn, I hereby guaranty to him, his heirs and assigns, the collection of the moneys secured to be paid by said bond and mortgage according to the terms thereof.
    “Dated Auburn, N. Y., Aug. 28, 1884.”
    Thereupon the testator, as part of the transaction, made and delivered to Gaylord an instrument in the following words:
    “William Howe and Hezekiah Howe to Arthur M. Gaylord. Bond and mortgage dated July 21, 1884, to secure the payment of the sum of §5,000 and interest thereon from the date thereof. Amount owing me from Arthur M. Gaylord is $4,784, with interest thereon from April 1, 1884, less the sum of $800 cash paid this day, and he has assigned the above bond and mortgage to me, and has paid me such sum of $800. I do hereby covenant and agree that upon my receiving the balance owing me, either by payment from said Gaylord or collecting the same from said Howe bond and mortgage, or the guaranty of Chamberlain accompanying the same, that after such full payment I will transfer and assign such Howe bond and mortgage and guaranty to said Gaylord, or to such person as may be entitled to receive the same. Such bond and mortgage and guaranty having been assigned and transferred to me for the purpose of securing to me the payment of such am’t owing to me, and in case I shall receive the am’t of such Howe bond and mortgage, I covenant and agree to repay whatever sum I may receive in excess of the amount so owing me, with interest to the time I shall receive the same.
    •‘Witness my hand and seal this 18th day of September, 1884.
    “HENRY H. LEWIS, [l. s.]”
    The subsequent foreclosure of the Howe mortgage by the testator was productive of nothing to apply upon the debt. Thereupon a movement was made to obtain payment from Chamberlain upon the guaranty, which resulted in a compromise with him and the surrender of the instrument containing his guaranty upon the payment of a sum less than the amount of the debt due the testator. The compromise with Chamberlain was made without the knowledge or consent of Gaylord. It was also shown that at the time of such compromise Chamberlain was responsible and worth from $20,000 to $25,000. The attorney who consummated the settlement acted in good faith, but was misled by Chamberlain into the belief that the compromise was an advantageous one for his client and for Gaylord.
    Thereafter the present action was brought, founded upon an asserted claim arising out of the testator’s alleged breach of covenant contained in such agreement in consequence of the satisfaction of Chamberlain’s guaranty of collection of the Howe bond and mortgage, without payment in full, the plaintiff, the assignee of Gaylord, seeking to recover the nominal amount of the bond and mortgage in excess of that due to the testator.
    Held, that by the agreement the testator undertook that, upon receiving the balance owing to him either by payment from Gaylord or by collection of the Howe bond and mortgage, or from the guaranty of Chamberlain, he would transfer such bond and mortgage and guaranty to Gaylord, and that if he should receive the amount of the bond and mortgage he would pay the amount in excess of the money due him to Gaylord;
    That the compromise made with Chamberlain, although made in good faith, having been made without the knowledge or consent of Gaylord, would not conclude him if made to his prejudice, but that Gaylord was not prejudiced by the compromise if Chamberlain was his accommodation guarantor;
    That, under the circumstances, and in view of the terms of the guaranty, it could not be held that the guaranty was intended to cover the amount only of the debt which Gaylord owed the testator, and the fact that the promise was to the latter did not necessarily require the conclusion that such relation was intended;

      That it could he effectually transferred to Gaylord if it was made upon a consideration to guarantee the collection of the Howe bond and mortgage;
    That Gaylord was beneficially interested in the execution of the guaranty, and its ultimate benefit was intended for him, and that Chamberlain could not be treated as his surety;
    That Gaylord, having placed the guaranty and the bond and mortgage with the testator as security, with the right reserved to pay him the amount of his debt and take an assignment of them, was prejudiced by the discharge of the guarantor from liability to pay the amount which represented his (Gaylord’s) interest in the bond and mortgage;
    That when, by his compromise with Chamberlain, the testator disabled himself from performing his agreement with Gaylord, a liability arose on his part to respond in damages to the party entitled to such performance.
    Appeal by "William L. Horton and another, as executors, etc., of Henry IT. Lewis, deceased, from a judgment of tbe Supreme Court in favor of tbe claimant, Nelson Duntz, entered in tbe office of the clerk of tbe county of Cayuga on tbe 1st day of August, 1894, upon tbe report of a referee, with notice of an intention to bring up for review upon such appeal tbe evidence taken before the referee, and bis findings of fact and conclusions of law.
    Tbe facts out of which the alleged claim arose are that Arthur M. Gaylord, being indebted to tbe testator in tbe sum of $4,/T84, gave him bis bond, secured by a mortgage upon certain promises ; that on September 18, 1884, pursuant to an, arrangement to that effect, the testator, at tbe request of Gaylord, assigned tbe bond and mortgage to Nelson Beardsley, and in lieu thereof received from Gaylord $800 on bis debt and tbe assignment of a bond with a second mortgage on tbe premises, made by "William and Hezekiah Howe, together with a guaranty of collection made by one Chamberlain, of which tbe following is a copy:
    “For value received of ITenry H. Lewis, of Auburn, I hereby guaranty to him, bis heirs and assigns, tbe collection of the moneys secured to be paid by said bond and mortgage according to the terms thereof.
    “ Dated Auburn, N. Y., Aug. 28, 1884.”
    The testator then, and as part of tbe transaction, made and delivered to Gaylord an instrument as follows:
    “"William Howe and ITezeldah ITowe to Arthur hi. Gaylord. Bond and mortgage dated July 21,1884, to secure the payment of tbe sum of $5,000 and interest thereon from tbe date thereof. Amount owing me from Arthur M. Gaylord is $4,784, with interest thereon from April 1, 1884, less the sum of $800 cash paid this day, and he has assigned the above bond and mortgage to me, and has paid me such sum of $800. I do hereby covenant and agree that upon my receiving the balance owing me, either by payment from said Gay-lord or collecting the same from said Howe bond and mortgage, or the guaranty of Chamberlain accompanying the same, that after such full payment I will transfer and assign such Howe bond and mortgage and guaranty to said Gaylord, or to such person as may be entitled to receive the same. Such bond and mortgage and guaranty having been assigned and transferred to me for the purpose of securing to me the payment of such ain’t owing to me, and in case I shall receive the ain’t of such Howe bond and mortgage, I covenant and agree to repay whatever sum I may receive in excess of the amount so owing me, with interest to the time I shall receive the same.

      “ "Witness my hand and seal this 18th day of September, 1884.
    “ HENRY H. LEWIS, [l. s.].”
    The subsequent foreclosure of the Howe mortgage by Lewis was productive of nothing to apply upon the debt. Thereupon a movement made to obtain payment from Chamberlain upon the guaranty resulted in a compromise with him and the surrender of the instrument containing it on payment of a sum less than the amount of the debt due to Lewis. His agreement above set forth was afterwards transferred by Gaylord to the plaintiff.

      F G. Aiken, for the appellants.

      F. D. Wright and Frank G. Gushing, for the respondent.
   Bradley, J.:

The action, as it must be termed (Code, § 2718), is founded upon an asserted claim arising out of an alleged breach of covenant contained in the agreement above mentioned of the defendants’ testator, of date September 18, 1884, and in consequence of the satisfaction of Chamberlain’s guaranty of collection of the Howe bond and mortgage without payment in full. The plaintiff seeks to recover the nominal amount of the bond and mortgage in excess of that due to Lewis, which excess at the date of his agreement was $929.

By the agreement Lewis undertook that upon receiving the balance owing to him, either by payment from Gaylord or by collection of the Howe bond and mortgage, or from the guaranty of Chamberlain, he would transfer such bond and mortgage and guaranty to Gaylord, and that if he should receive the amount of the bond and mortgage he would pay the amount in excess of the money due him over to Gaylord. Having failed to realize anything upon the foreclosure of that mortgage, and having been led to suppose that Chamberlain was not resjDonsible, the defendants’ testator by his attorney made a compromise with him and received in satisfaction of the guaranty a sum less than the amount due him from Gaylord. It turns out, and the referee found, that at the time of such compromise Chamberlain was responsible and worth from $20,000 to $25,000. The attorney who consummated the compromise acted in good faith, but was misled by Chamberlain into the belief that the compromise was an advantageous one for his client and for Gaylord. But as it was made without the knowledge or consent of the latter, he was not concluded by it if it was made to his prejudice. He was not prejudiced by the compromise if Chamberlain was his accommodation guarantor. It is now urged on the part of the defendants that such was his relation to Gaylord, and there are some circumstances which tend in that direction. The instrument of guaranty was delivered by Gaylord to Lewis in a transaction between them whereby it and the Howe bond with the mortgage, which was a second mortgage on the premises, were taken by him as security for most of the amount secured by the first mortgage which was transferred by Lewis to Beardsley at the request of Gaylord.

The guaranty ran directly to Lewis. It, however, was not in terms limited to the security of the debt due to him, but went further, and guaranteed the collection of the Howe bond and mortgage in the amount of which Gaylord nominally had an interest in excess of the amount due to Lewis. The question whether the guaranty was made for the accommodation of Gaylord was not, as it could not well be, treated at the trial as one of law upon the evidence. and, therefore, was not specifically raised there. And the referee found that in consideration of the guaranty by Chamberlain a sum of money was paid to the firm of which he was a member, “ and an agreement made for the payment of an additional amount.” As it was not deemed advisable to specifically except to sncb finding, it is unnecessary to refer to the evidence upon which it was made by the referee.

It cannot, in view of the terms of the instrument and the findings of the referee, be held here that the guaranty was intended to cover the amount only of the debt which Gaylord owed Lewis. And the fact that the promise was to the latter does not necessarily require the conclusion' that such relation was intended. It could be effectually transferred to Gaylord if it was made upon a consideration to guaranty the collection of the Howe bond and mortgage. Whatever suspicion to the contrary arises out of the" appearance of the transaction, and from which it may not be entirely free, the findings of the referee are such as to show that Gaylord was beneficially interested in the execution of the guaranty, and that its ultimate benefit was intended for him. In that view Chamberlain cannot be treated as his surety. And having placed that instrument and the bond and mortgage with Lewis as security, with the right reserved to pay him the amount of his debt, and take an assignment of them, Gaylord was prejudiced by the discharge of the guarantor from liability to pay the amount which represented his interest in the bond and mortgage. It is contended that in view of the circumstances under which the compromise was procured it was reasonable, and that no damage can be deemed to have been suffered by'Gaylord. From the fact that it was made without his knowledge or authority (and as Chamberlain was amply able to pay the full amount'and its collection could have been enforced from him), there is no fair opportunity to conclude that Gaylord may not have been deprived of an effectual remedy upon the guaranty to obtain the amount remaining of the bond and mortgage after satisfying the debt due to Lewis. This seems to have* been the value of the guaranty, and its availability to Gaylord to^ realize such amount. And when Lewis disabled himself from performing his agreement his liability arose to respond in damages to the party entitled to such performance. (Woolner v. Hill, 93 N. Y. 576.)

The question whether Lewis could or the defendants can rescind the contract of compromise for fraud or deceit on the part of Chamberlain is not here for consideration. The transaction was rendered apparently effectual as to Mm by the fact that he furnished something more than his promise as security for the payment of the stipulated sum agreed upon, and he is a necessary party to an action for such relief.

These views lead to the conclusion that the judgment should be affirmed,

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    Alonzo C. Pickard, Appellant, v. Adam V. Pickard, Respondent.

      Duty of entering judgment devolves upon the successful pa/rty — an attorney enters into an entire contract to conduct Ms client’s case to its termination — he is entitled to demand advances for expenses and compensation — a refusal to pay them justifies his withdrawal from the case.

    The duty of entering judgment in an action devolves upon the attorney for the successful party.
    An attorney, who is retained generally to conduct a legal proceeding, enters into an entire contract to conduct the proceeding to its termination, and he cannot abandon the service of his client without justifiable cause and only upon reasonable notice. If his compensation is stipulated and he, without just cause, abandons his client before the proceeding, for which he was retained, has been conducted to its termination, he forfeits his right to payment for services rendered.
    If the value of an attorney’s services has not been agreed upon, but he is merely retained in a case upon the implied understanding that he shall have what his services are fairly and reasonably worth, the attorney may properly ask from time to time for advances with which to pay the expenses of the litigation and to apply upon his services, and if the client unreasonably refuses to .advance money for such purposes in a reasonable amount during the progress ■of a long litigation, sufficient cause may be furnished to j ustify the attorney in withdrawing from the service of his client.
    Appeal by the plaintiff, Alonzo O. Pickard, from a judgment of the County Court of Chautauqua county ih favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 12th day of June, 1893, upon the verdict of a jury, and also from the order denying the plaintiff’s motion for a new trial.

      A. G. Wade, for the appellant.

      Oled JEdson, for the respondent.
   Haight, J.:

This action was brought to recover for services rendered and disbursements made by the plaintiff as the attorney for the defendant. The answer alleged negligence in the performance of the services; that they had not been fully performed, and set up a counterclaim. The counterclaim to the extent of forty-five dollars and thirty-five cents was admitted.

Upon the trial the plaintiff showed that he was an attorney and counselor in this court, and that he had been retained by the defendant to prosecute an action in the County Court of Chautauqua county upon an appeal from a justice’s judgment, in which the defendant in this action was plaintiff ancl one Norman Strong was defendant; that he appeared in such action, jprepared the case for trial, put it upon the calendar and conducted the case upon the trial, and that it resulted in a nonsuit. Thereupon the plaintiff told the defendant that he" knew he was right; that he would make a motion for a new trial on the judge’s minutes, and, if the judge decided against him, take an appeal to the General Term, and if he did not succeed in getting the case back upon the calendar he would not charge anything for wliat he should do in the matter, and the defendant then told him to go on and do it. In that conversation it appears there was nothing said about the plaintiff’s pay for what had been done. The plaintiff thereupon procured a stay for sixty days and made a motion before the judge for a new trial, but, in consequence of adjournments agreed to by counsel, the motion had not been argued when this action -was brought. It also appeared that one Johnson Y. Goodwill and another brought an action in the Supreme Court against the defendant, and this plaintiff was employed to defend him in such action, and that there was another action brought in the Supreme Court by the defendant against one Jeffords and another, which the plaintiff, as attorney for this defendant, prosecuted. These cases were referred to a referee and tried. In one this defendant was beaten, and in the other he was successful.

It also appeared that the plaintiff had performed other services for the defendant in drawing papers, and that he had made some disbursements in the prosecution and defense of the actions above referred to. After the trial of the two actions before the referee, they were summed up by counsel, and after this plaintiff had' finished, he testifies that he told the defendant that he wanted some money, and asked him if he would not pay him some or give him a note. The defendant then answered, saying that he would be in Jamestown the next Tuesday, and would come in and settle with him; he said he had the money and would rather pay the money than give a note. The plaintiff further testified that on the Tuesday following the defendant came to Jamestown, but did not come near him; that thereupon he wrote him a letter, and after writing the letter the defendant again came to Jamestown to a Mr. Green’s office, who called the plaintiff up through the telephone; that Green did the principal talking, but the plaintiff knew that the defendant -was there at the time, because he could hear him speaking to Green, and could distinguish his voice. Green wanted to know how much the plaintiff claimed the defendant owed him; that he answered he had not figured it up, but would do so at any time; that Green then wanted to know how much he would take, and the witness answered him. Finally, Green said : u Yernet, meaning the defendant, says he don’t owe you anything and shan’t pay you anything.” The plaintiff further testified that he thereafter told the defendant that he should do nothing more in the cases. On his cross-examination he stated that he might be mistaken in regard to the time the conversation took place, but that he thought not; that it was arranged that the stenographer’s minutes should be procured and submitted to the referee, and that the conversation might have occurred before such minutes were delivered. He also gave evidence as to the value of his services.

At the conclusion of the plaintiff’s evidence the defendant’s counsel asked the court to direct a verdict in favor of the defendant for ten dollars as an affirmative judgment. This motion was granted, and an' exception was taken thereto by the plaintiff. It is evident that the trial court, in reaching this result, must have allowed certain items to the plaintiff and deducted the amount thereof from so much of defendant’s counterclaim as was admitted. It does not, however, appear that the court allowed anything for the services rendered by the plaintiff in the three actions above mentioned. In the first, as we have seen, the plaintiff had prosecuted the same through the trial and had been unsuccessful. The duty of entering judgment did not devolve upon him, but upon the successful party. His services as to that case had been fully completed under the original retainer. True, he then entered into an agreement with the defendant for a new trial, and, if necessary, to prosecute the case on an appeal to the G-eneral Term, but that was under a separate and distinct arrangement. As to the other actions, his services may not have been fully performed when this action was brought. He had, however, tried them, summed them up, and submitted them to the referee for decision. It was then that the conversation took place already related in reference to his having some money, and in which the defendant appears to have repudiated the plaintiff’s claim and refused to pay him anything. The question is thus presented as to whether the plaintiff was justified in abandoning the cases and insisting upon his payment in full for the services rendered.

An attorney who is retained generally to conduct a legal proceeding doubtless enters into an entire contract to conduct the proceeding to its termination, and he cannot abandon the service of his client without justifiable cause and only upon reasonable notice. If his compensation is stipulated, and he, without just cause, abandons his client before the proceeding, for which he was retained, has been conducted to its termination, he forfeits his right to payment for services rendered. If the value of his services has not been agreed upon, but he is merely retained in a case upon the implied understanding that he shall have what his services are fairly and reasonably worth, the attorney may properly ask from time to time for advances with which to pay the expenses of the litigation and to apply upon his services, and if the client unreasonably refuses to advance money for such purposes in a reasonable amount during the progress of a long litigation, sufficient cause may be furnished to justify the'attorney in withdrawing from the service of his client. (See Tenney v. Berger, 93 N. Y. 524-529; Sessions v. Palmeter, 26 N. Y. Supp. 1016.) Applying this rule to the facts under consideration, it appears to us that the trial court could not properly sajr, as a matter of law, that the plaintiff’s request for money, under the circumstances, was unreasonable, and that the jury might have found from the evidence that the language in which the defendant repudiated his claim and refused to pay him anything, furnished sufficient grounds for him to consider his services as an attorney for the defendant terminated.

Upon a retrial it may turn out that the plaintiff’s services were so negligently performed as to be without value, but this branch of the defense is not now before us. It is true that the plaintiff subsequently entered judgment in the action in which he was successful, but this appears to have been under an express arrangement between the parties made after this action was brought.

The judgment should be reversed and a new trial granted, withl costs to abide the event.

Dwight, P. J., Lewis and .Bradley, J.J., concurred.

Judgment of the County Court of Chautauqua county appealed from reversed and new trial granted, with costs to abide the event.


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    Goodyear’s India Rubber Glove Manufacturing Company, Respondent, v. Frank B. Gorham and Others, Appellants.

      Discovery of a booh — allegations in the petition therefor made upon information and belief — the essential facts must be stated of deponent’s knowledge.

      A petition for the discovery of a copy book of a firm, alleged to have been the 'undisclosed principals in the buying of certain goods, to recover the price of which the action was brought, is defective if its statements in regard to some of the material facts alleged are made upon information and belief, and are unsupported by the affidavit of the plaintiff’s informant.
    The petition in such a proceeding is in the nature of a pleading, and although, when duly verified, its allegations, made on the personal knowledge of the petitioner, are to be accepted as proofs, yet its statements made on information and belief are mere allegations and do not partake of the nature of proofs.
    Among the things most essential to be shown to the court, in proceedings of such a character, are the facts from which the court may determine that the loook or . paper of which discovery is sought, contains some matter material to the issue in the action, the discovery of which would be to the advantage of the party seeking the discovery.
    Appeal by the defendants, Frank B. Gorbam and others, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Cayuga on the 18th day of September, 1894, granting the plaintiff a discovery and inspection of a certain copy book.

      J. Ml. F. O' Grady, for the appellants.

      Scott Oummings, for the respondent.
   Dwight, P. J.:

The action was to recover of the firm of Gorham, Wilcox & Co. the price of goods sold and delivered by the plaintiff to the firm of Pitt & Esser, on the ground that the defendants were the undisclosed principals for whom the last-námed firm purchased the goods as agents, and the question of the existence of that relation between the two firms constituted the chief, if not the only, issue in the action. It is for the purpose of obtaining information relating to that issue, in advance of trial, that this proceeding was instituted by the petition of the plaintiff, unsupported by any other proofs.

The petition is defective as proof of some of the material facts alleged, for the reason that its statements in those particulars are on information and belief only, and are unsupported by the affidavit of the plaintiff’s informant. (Husson v. Fox, 15 Abb. Pr. 464; Matter of Bronson, 78 Hun, 351.) The petition in a proceeding like this is in the nature of a pleading, and although, when duly verified, its allegations, made on the personal knowledge of the petitioner, are to be accepted as proofs, yet its statements, made on information and belief, are mere allegations, and do not partake of the nature of proofs.

So far then as this petition, which stands alone on the part of the plaintiff, is upon information and belief only, the matters so stated are without any proof whatever, and furnish no ground for any action by the court affecting the rights of others.

Among the things most essential to be shown to the court in a proceeding of this character are the facts from which the court may adjudge that the book or paper of which discovery is sought, contains some matter which is material to the issue in the action, and which would be to the advantage of the party seeking discovery. (Rule 15 of General Rules of Practice; Brownell v. National Bank of Gloversville, 20 Hun, 517.) But in this petition all the allegations even tending' to establish those facts are upon information and belief; and, as we have said, are, therefore, mere allegations, which require proof before they can furnish ground for the order of the court. The petition attributes the information upon which these allegations are made to one John R. Pitt, who, it seems, as one of tbe firm of Pitt & Esser, is to be relieved from liability for tlie. cause of action herein, if the same can be enforced against the defendants, and who, it is said, wrote the originals of said letters.” He might, no doubt, have made proof of facts indispensable to this proceeding, but his affidavit is wanting, and no reason is given why it could not have been procured.

In the particular considered the moving papers are clearly insufficient to warrant tíre granting of the order for discovery, and the application should have been denied.

Lewis, Haight and Bradley, JJ., concurred.

Order appealed from reversed and motion denied, with ten dollars costs and disbursements, but without prejudice to renew on further papers.


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    Frank Ball and Another, Individually and as Executors, etc., of Edwin J. Dixon, Deceased, Appellants, v. Charles Dixon and Others, Respondents.

      term, “personal property” used in a will• — construed with reference to other provisions disposing of it — intestacy avoided if possible — admissibility of eonvmunieations between an attorney and a deceased client.

    Property is divided into two general divisions, real property and personal property, and construíng the words personal property in their broadest sense — as used in a clause of a will devising and bequeathing' a farm and the personal property thereon, including all the personal property in the house erected thereon — • promissory notes, certificates of deposit and money in bank, represented by pass books contained in a safe in such house, would pass thereunder; such construction, however, should not be adopted when such will contains a residuary clause, under which such notes, certificates and money would pass, were they not included in the specific devise and bequest.
    The presumption is that testators intend to dispose of all their property by will, unless the contrary intention plainly appears, and such a construction of a will which avoids intestacy on the part of the testator will be adopted, if possible.
    The communications of a deceased client to his attorney are inadmissible in evidence upon the trial of an action if not made competent by, and coming within, the provisions of section 8S6 of the Code of Civil Procedure.
    The will of a testator contained, among others, a clause in the following words: “ I give, devise and bequeath to my nephew, William I, Ball, the farm on which I now reside, containing about one hundred and forty-four acres of land, together with all the pei^onal property upon said farm, including all the personal property in the house and in the other buildings on said premises, subject, however, to a bequest of 82,000 to Frank Ball.”
    It was shown upon the trial of an action brought for the construction of such will, that the farm referre'd to in such clause was an ordinary country farm, upon which there was personal property of the value of §1,500, consisting of stock, farming implements, household furniture and a small amount of farm products; that "William I. Ball was a nephew of the testator, and had assisted the deceased to some extent upon the farm, and was with him during his last sickness. In the house upon such farm was a safe containing about one-third of the entire value of the testator’s estate, consisting of promissory notes,- certificates of deposit and pass books, representing money in bank, amounting in value to the sum of §16,161.42.
    The will contained a residuary clause under which the securities in the safe would pass if they did not pass under the clause above quoted, and authority was given by the will to the testator’s executors to sell such securities of the testator as they should deem best for the purpose of carrying out the provisions of his will.
    Ho reason was shown why the testator should exercise his bounty particularly in favor of the legatee, William I. Ball.

      Held, that the promissory notes, certificates of deposit and money represented by pass books contained in the safe, passed under the residuary clause of the will of the testator aDd not under the clause above quoted.
    Appeal by the plaintiffs, Frank Ball and another, individually and as executors, etc., of Edwin J. Dixon, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cayuga on the 13th day of February, 1894,'upon the decision of the court rendered after atrial at the Cayuga Special Term, construing, the will of Edwin J. Dixon, ■deceased, and dismissing the plaintiffs’ complaint upon the merits, with notice of an intention to bring up for review upon such appeal an order dated January 27, 1894, granting additional allowances of costs.

      J. D. Teller, for the appellants.

      Ddwin G. Dams and James Dyon, for the respondents.
   Lewis, J.:

This action was brought by the plaintiffs individually and as executors to secure a construction ■ of the will of the testator, the material parts of which are as follows:

“ I give, devise and bequeath to my nephew, William I. Ball, the farm on which I now reside, containing about one hundred and forty-four acres of land, together with all the personal property upon said farm, including all the personal property in the house and in the. other buildings on said premises, subject, however, to a bequest of $2,000 to Frank Ball.

“I give and bequeath to Frank Ball the sum of $2,000, to be paid as above set forth.

“I give and devise to the children of Moses Dixon, deceased,, the Oakland real estate in the town of Brutus, of which I own an undivided three-fourths; the value of said three-fourths interest I place at $3,000, for the purposes hereinafter set forth. I give,, devise and bequeath all the rest and remainder of my real, personal and mixed estate, share and share alike, to my brother Charles. Dixon, my sister, Jennette Ball, the children of my brother Aaron Dixon, deceased (which shall represent one interest), the children of my brother Moses Dixon, deceased (which shall represent one-interest), but out of the interest of the children of Moses Dixon, deceased, shall be deducted the sum of $3,000, the value of the Oakland real estate, which shall be so much payment of the share' bequeathed to said children. * * * In addition to the sum of $2,000 bequeathed to Frank Ball, I give and bequeath to him the further sum of $3,000, to be deducted from the sum beqtxeathed to the children of Moses Dixon. For the purpose of carrying out. the provisions of this will my executors are authorized to sell such, securities as they shall deem best.”

Frank and William I. Ball were appointed executors of the will.. The testator was a bachelor, and resided upon the farm mentioned,, located in Oayuga county. Upon the farm were the ordinary stock and farming implements, the household furniture and a small amount of products of the farm in the barns. The personal property mentioned upon the farm was of the value of about $1,500. It does not appear from the record what the farm was worth. Fie owned a three-fourths interest in the Oakland property, and in addition thereto bonds and mortgages of the value of $31,815.51, promissory notes, certificates of deposit and money in banks, amounting in value-to $16,161.42.

The testator had, some time prior to the execution of his will,. delivered to his attorney a part of the bonds and mortgages, and the balance of them he delivered to him the day prior to the execution of his will. The promissory notes, certificates of deposit and pass books representing the money in bank were, at the time of the execution of the will, in a safe at the testator’s dwelling house upon the farm. The will was executed on the 16th day of February, 1892, and the testator died on the fourteenth day of March following. Frank and 'William I. Ball were nephews of the deceased.

It is the contention of the appellants that the contents of the safe were, by the first clause of the testator’s will, bequeathed to the plaintiff "William, and that is the principal question presented for our decision. The trial court held that they did not pass under the will to "William, but were disposed of by the residuary clause of the will, and we agree with the construction given to the will by the trial court.

The evidence tended to show that William had assisted the deceased to some extent about the farm, 'and was with him during his last sickness. While there is no direct evidence as to the value of the farm, a general description of it is given by the evidence. It seems to have been an ordinary country farm. If the testator intended to give to William the contents of the safe, he was giving him about one-third of the entire value of his estate. We naturally look to see the reason for his bestowing upon William so large a part of his property, and nothing appears in the record throwing any light upon that question. • No reason is apparent why William should have been so highly favored as his contention would imply. The plaintiff Frank Ball was a brother of William. The deceased left a brother, two sisters and the children of two deceased brothers. If the contents of the safe are to be held to be disposed of by the residuary clause of the will the deceased would seem to have made an equitable and reasonable disposition of his property. If we should give to the words personal property ” in the first clause of the will their broadest and most comprehensive signification they would undoubtedly carry the contents of the safe. Property is divided into two general divisions, real property and personal property. Had the will failed t'o dispose of the contents of the safe by the residuary clause there are authorities justifying the giving to such words their broadest meaning; but we are not required to adopt that rule here, for, as stated, if the property in question was not bequeathed to William it passed to the legatees mentioned in the residuary clause. In construing the clause in question we are to ascertain, if possible, the intention of the testator. ■ William had assisted him to some extent in the management of his farm and it was quite natural that he should desire to give it to him. To carry on the farm he needed the stock, farming implements, products of the farm and the household furniture. The testator, we think, had in mind in framing the clause in question that class of property. Had he intended to give to William the contents of the safe he would, we think, have specifically described them in language ordinarily used in describing that kind of property, especially as its value composed so large a part of his estate. In speaking of such property laymen do not ordinarily call it personal property; they designate it as promissory notes, certificates of deposit and money in bank. Had it been the intention of the testator to give the contents of the safe to William we think he would have given a particular description of the property in language that would not be likely to be misunderstood.

He authorized his executors by the will to sell such, sécurities as they should deem best for the purpose of carrying out the provisions of the will. Had he intended that William should own tlie contents of the safe he would naturally have designated the securities which the executors were to sell and excluded the promissory notes in the safe. We are referred to many authorities, both in England and in this country, where questions somewhat similar have been passed upon. The current of the authorities is in harmony with the construction which we give to this clause. In the case of Matter of Reynolds (124 N. Y. 388) construction is given to the language of a will somewhat analgous to the case at bar, and is an authority sustaining the conclusion we have reached. Many of the cases to which we are referred by the appellants’ counsel, where a broader meaning was given to similar words, were cases where, if the words were held not to carry the property, the testator would have died intestate as to the property in question, and that is to be avoided, if possible, for the presumption is that testators intend to dispose of all their property by their wills unless the contrary intention plainly appears. That portion of the testimony of the attorney Sliertleff, which was received under objection and without prejudice to a motion to strike out, was, we think, incompetent and was properly stricken out. It consisted of communications made to him by the testator in the course of his professional employment, and it was not made competent by section 836 of the Code of Civil Procedure.

The testator having given to the children of Moses Dixon his interest in the Oakland real estate, the value of which for the purposes of the will he fixed at $3,000, he deducted that sum from the share of the estate given to them by the residuary clause of the will.

The judgment appealed from should be affirmed, with costs to the appellants and to the respondents Ered Dixon and others, and also costs to the respondents Arthur Dixon and others, to be paid by the executors out of the estate.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Judgment appealed from affirmed, with costs to the plaintiffs and to the defendants Fred Dixon et al. and the defendants Arthur Dixon et al., payable out of the estate.