author: Andrews. J.

text:
    Wilfred S. Mills, Appellant, v. Edmund T. Smith, as Executor, etc., and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Andrews. J.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    G. Weld Thomas, Appellant, v New York and Greenwood Lake Railway Company, Respondent.
   — Judgment affirmed, with costs. Opinion by

Andrews, J.


author: O’Brien, J.

text:
    James H Lusbie, as Administrator, etc., Respondent, v. Richard Meares, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

O’Brien, J.


text:
    Frank Donohue, as Administrator, etc., Respondent, v Richard Meares, Appellant, Impleaded, etc.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

O’Brien, J.


author: Van Brunt, P. J.

text:
    Charles A. Dunn, Appellant, v. George H. Lewis, Respondent.
   — Order affirmed, with ten dollars costs and disbursements, Opinion by

Van Brunt, P. J.


author: Van Brunt. P. J.

text:
    Charles Donohue and another, Respondents, v. William L. Pomeroy, Appellant.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt. P. J.


text:
    Joaquin Sanchez, Respondent, v. Andrew G. Dickinson, Appellant.
   — Order affirmed, with ten dolíais costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    Pittsfield National Bank, Respondent, v. William H. Bayne and others, Defendants, William H. Tailer, Appellant.
   —Judgment affirmed, with costs and disbursements, on opinion of Special Term.


text:
    Daniel E. Sickles, Sheriff, etc., Respondent, v. David A. Sullivan, as Executor, etc., Appellant.
   — Judgment affirmed,with costs. Opinion by

Van Brunt, P. J.


author: Per GuHam.

text:
    Decisions handed down July 7, 1892.
    Sarah E. Mellen, Appellant. v. Gordon McKay Mellen and others, Respondents.
   — Judgment affirmed, with costs and disbursements. Opinion

Per GuHam.


author: Patterson, J.

text:
    John R. Caswell, Respondent, v. Rowland N. Hazard and others, Appellants.
   —Judgment affirmed, with costs. Opinion by

Patterson, J.


author: Dykman, J.

text:
    Joseph M. Johnson and another, Executors, Respondents, v. Simon Feist, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


author: Cullen, J,

text:
    John C. Rocker and another, Respondents, v. Hulda Wildforester, Appellant.
   —Judgment affirmed, with costs. Opinion by

Cullen, J,


author: Barnard, P. J.;

text:
    Elizabeth McCauley, as Administratrix, etc., Appellant, v. Abram Smith and another, Respondents.
   — Exception sustained and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Cullen, J., not sitting.


author: Cullen, J.

text:
    Edwin Bailey and others, Respondents, v. Barbara Gluth, Appellant.
   —Judgment of County Court affirmed, with costs. Opinion by

Cullen, J.


text:
    David Patton and others, Respondents, v. Maurice E. Townsend and others, Appellants.
   Judgment and order overruling demurrer to complaint affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    In the Matter of Bridget Balin.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    William Smerling v. Wilson P. Foss.
   —Judgment affirmed, with costs and disbursements Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


author: Cullen, J.,

text:
    The New Rochelle Water Company, Respondent, v. Emma S. Siebrecht and others, Appellants
   Order modified in accordance with opiniou, and as modified affirmed, without costs of appeal. Opinion by

Cullen, J.,

Dykman, J., not sitting.


text:
    Matter of Application of James Grogan and another
   — Order affirmed, with costs and disbursements.


text:
    Matter of Application of Bridget Mullen and others.
   — Order affirmed, with costs and disbursements.


text:
    Matter of Application of Andrew Chrystie.
   Order affirmed, with costs and disbursements.


text:
    Matter of Application of Thomas R. Fisher and another.
   — Order affirmed, with costs and disbursements.


text:
    Matter of Application of Alicia Smiddy.
   — Order affirmed, with costs and disbursements.


text:
    Matter of Application of Robert C. Fisher.
   Order affirmed, with costs and disbursements.


text:
    Matter of Application of Alicia Smiddy and Ellen Ryan.
   — Order affirmed, with costs and disbursements.


author: Justice Barnard;

text:
    Matter of Application of Maria Jewell.
   — Order affirmed, with costs and disbursements. Opinion in preceding eight appeals by

Justice Barnard;

Dykman, J, not sitting.


author: Barnard, P. J.

text:
    The People of the State of New York ex rel. James Eckerson and others v. The Board of Trustees of the Village of Haverstraw.
   Pro^ ceedings and order of trustees affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Maria Lydecker v. Samuel Gilchrist.
   — Judg-. ment affirmed for non-submission of papers according to stipulation.


text:
    David M. Butler, Respondent, v. Thomas Dinan, Appellant.
   Judgment affirmed, with costs. Opinion by

Cullen, J.


author: Barnard. P. J.

text:
    Christian Jourgensen, Respondent, v. Benjamin D. Traitel and another, Appellants.
   — Judgment reversed and new trial granted, with cost6 to abide event, unless plaintiff stipulates to strike out sum allowed for extra power, and in which case judgment affirmed for balance, without costs of this appeal. Opinion by

Barnard. P. J.


text:
    Agnes Schleifer, Respondent, v Henry Schleifer, Appellant.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J.;

text:
    The People of the State of New York ex rel. The State Commission in Lunacy, Respondent, v. The Superintendent of Poor of Queens County, Appellant.
   — Order affirmed, with ten dollars costs. Opinion by

Dykman, J.;

Cullen, J., not sitting.


text:
    Matter of Petition of Charles E. O’Connor.
   Order of surrogate reversed, without costs, and proceedings remitted to surrogate for further nearing and proof. Opinion by

Cullen, J.


text:
    Leonora S. Gray, Respondent, v. William T. Baker and another, Appellants.
   — Order overruling demurrer to plaintiff’s complaint and interlocutory judgment therein affirmed, with costs; leave to answer given on payment of costs within twenty days. Opinion by

Barnard, P. J.;

Cullen, J., not sitting.


text:
    Edward D. Shipman, Respondent, v. Thomas J. Cummins, Appellant.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


author: Dykman, J ;

text:
    Alice Crocker and another, Respondents, v. Ervin G. Gollner and another Appellants.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J ;

Cullen, J., not sitting.


text:
    Sumner A. Mason, Appellant, v. Emma J. Mason, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Cullen, J.


text:
    Annie J. Parshall, Administratrix, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   — Reargnmeut ordered.


author: Cullen, J.;

text:
    Lillie S. Taylor, Respondent, v. Granite State Provident Association and others, Appellants.
   — Orders affirmed, with ten dollars costs of each appeal besides disbursements. Opinion by

Cullen, J.;

Barnard, P. J., not sitting.


text:
    Ann Eliza Wilcox, Appellant, v. Charles J. Quinby, Individually and as Executor, etc., Respondent.
   — Judgment reversed to the extent that defendant be decreed forthwith to sell the testator’s realty, and thereafter and upon such sale the defendants account for the rents and profits since the decree of the surrogate. Opinion by

Cullen, J.,

Dykman, J., not sitting.


text:
    Frederick A. Phillips, Jr., Respondent, v. Maria N. Winne, Appellant, Impleaded, etc.
   — Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Cullen, J. not sitting.


text:
    Anna M. Arnold, Appellant, v. Norfolk and New Brunswick Hosiery Company, Respondent.
   Order affirmed on condition that the defendant pay the plaintiff the sum of $260 and the dis- { bursements of this appeal, and stipulates that the defendant will not apply by motion or ac-1 tiou for restitution until after recovery of judgment in this action. Opinion by

Cullen, J.;

Dykman, J., not sitting.


text:
    The People of the State of New York, Respondent, v Andrew Steckenseider, Appellant.
   Conviction affirmed. Opinion by

Dykman, J.


text:
    Matter of Probate of Will of Christian Ziegler, Deceased.
   — Decree affirmed, with costs. Opinion by

Barnard, P. J.


author: Barnard, P. J ;

text:
    Albert F. Gescheidt, Executor, etc , Appellant, v. Frederika Drier and another, Appellants.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J ;

Dykman, J., not sitting.


text:
    Charles Siedler, Appellant, v. Edward T. Bell and others, Administrators, Respondents.
   Judgment affirmed, with costs Opinion by

Dykman, J.;

Barnard, P. J., not sitting


text:
    James J. Cooke. Respondent. v. The American Express Company, Appellant.
   —Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Susan Wrench, Appellant, v. Rieka Samenfeld, Respondent.
   — Exceptions overruled and judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Cullen, J., not sitting.


text:
    Charles H. Leonard and others, Respondents, v. Long Island City, Appellant.
   — Order overruling demurrer to complaint and judgment therein affirmed, with costs Opinion by

Dykman, J.;

Cullen, J., not sitting.


text:
    Patrick F. Fitzgerald, Appellant, v. William J. Moran and another, Respondents.
   — Judgment affirmed, with costs. Opinion by

Cullen, J.


text:
    Northport Real Estate and Improvement Company, Appellant, v. Jeremiah Hendrickson, Respondent.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    The Tarrytown and Irvington Union Gas-Light Company, Appellant, v. James Bird and others, Respondents.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Cullen, J.


text:
    United States Trust Company of New York, Respondent, v. Philip V R. Stanton, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Clara Fairchild, Appellant. v. Lucy A. McMahon, Respondent.
   — Judgment affirmed, with costs. Opinion by

Dykman, J.;

Cullen, J., not sitting.


text:
    Watson Van Benthuysen, Respondent. v. The Central New England, etc., Railroad Company, Respondent. and The Fidelity Insurance Trust and Safety Deposit Company of Pennsylvania, Trustee, Appellant
   — Appeal withdrawn.


author: Dyéman, J ;

text:
    James A. Thompson, Respondent, v. Frank J. McGreevy and another, Appellants.
   — Judgment affirmed, with costs. Opinion hy

Dyéman, J ;

Barnard, P J., not sifting.


text:
    The People of the State of New York ex rel. Patrick H. Duffy v John Ennis, as Commissioner of the Department of Fire of the City of Brooklyn.
   — Order dismissing relator affirmed, with fifty dollars costs Opinion by

Barnard, P. J.


text:
    Charles S. Knapp, Respondent, v. James S. Gregory and others, Appellants.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Mary A. Peckham and another, Respondents, v. The Dutchess County Railroad Company, Appellant.
   — Judgment affirmed, with costs. Opinion hy

Cullen, J.;

Barnard, P. J., not sitting.


text:
    Mary E. Warren, Appellant, v. Phœnix Insurance Company, Respondent.
   — Judgment affirmed,- with costs. Opinion by

Barnard, P. J.;

Cullen, J., not sitting.


text:
    Roscoe G. Chase and others. Appellants, v. Charles M. Evarts, Respondent
   —Judgment affirmed, with costs Opinion by.

Cullen, J.;

Dykman, J., not sitting.


author: Barnard. P. J.;

text:
    Henry W. Sage and others, Appellants, v. Andrew R. Culver and others, Respondents.
   — Order affirmed, with costs and disbursements. Opinion by

Barnard. P. J.;

Cullen, J., not sitting,


text:
    Almira H. James, Respondent, v. Winifred K. Finch, Appellant.
   — Judgment affirmed, with costs. Opinion hy

Dykman, J.;

Barnard, P. J, not sitting.


text:
    John W Cleary, Respondent, v. The Municipal Electric-Light Company, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Cullen, J.


text:
    The Equity Gas-Light Company, etc., Respondent, v. Ferdinand McKeige, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    The Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children in the City of New York, Respondent, v. Michael Cronin, Appellant.
   — Reargument ordered.

Dykman, J., not sitting.


text:
    Hugh. J Keenan, Respondent, v. Paul Gantert, Appellant.
   — J udgment affirmed, with costs. Opinion hy

Dykman, J.;

Cullen, J , not sitting.


author: Dykman, J.,

text:
    Henry L Beakes, Appellant, v Commercial Union Association Company, Respondent.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.,

Barnard, l5. J., not sitting.


text:
    George B. Glover, Respondent, v. Lucy H. Glover, Appellant.
   — Exceptions overruled and judgment affirmed, with costs. Opinion hy

Barnard, P. J.;

Cullen, J., not sitting.


author: Cullen, J ;

text:
    Annie E White and another, as Administrators, etc., Appellants, v. The New York Central and Hudson River Railroad Company, Respondent.
   — Judgment reversed and new trial granted, costs to abide event. Opinion by

Cullen, J ;

Barnard, P. J., not sitting.


text:
    Catharine Lewis, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent
   —Reargument ordered.


text:
    Henry C. Bainbridge and others, Plaintiffs, v Maurice Lilienthal, Defendant.
   — Order affirmed, with costs and disbuisements Opinion by

Dykman, J.;

Cullen, J., not sitting


text:
    James I. Healey and others, Respondents, v Moritz Bauer, Appellant.
   — Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    The National Bank of Orange County, Respondent, v. -Burhans Van Steenburgh, Appellant, Impleaded, etc.
   — Judgment affirmed, with costs. Opinion hy

Dykman, J.


text:
    Abigail Allen, Appellant, v. Albert Heine and another, Respondents.
   — Judgment affirmed, with costs Opinion by

Dykman, J.


text:
    Margaret Ball. Respondent, v. Jeremiah Horrigan, Appellant.
   — Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard. P. J.


author: Barnard, P J.;

text:
    William Nelson, Respondent, v. Frederic W. Bleckwenn, Treasurer, etc., Appellant.
   — Part of order appealed from reversed, with costs and disbursements. Opinion by

Barnard, P J.;

Cullen, J., not sitting.


text:
    James M. Stephens, Plaintiff, v. John K. Van Ness, Defendant.
   — Judgment and order denying new trial affirmed, with costs. Opinion hy

Barnard, P. J.;

Cullen, J., not sitting.


text:
    Lewis E. Waterman and another, Respondents, v. Edward L. Shipman and another, Appellants.
   — Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


author: Dykman, J.

text:
    Margaret S. Ives, Appellant, v. Gustav Ranger and others, Respondents.
   — Order reversed, with ten dollars costs and disbursements, ana motion denied, with ten dollars costs. Opinion by

Dykman, J.


text:
    Matter of Petition of New York and Brooklyn Bridge
   —Order denying motion to confirm report reversed, with costs and disbursements, and motion to confirm report granted, without costs. Opinion by

Barnard, P. J.;

Cullen, J., dissenting.


author: Putnam, J.;

text:
    Lavina Spore, Appellant, v. Nathan Vaughn, Respondent
   — Judgment affirmed, with costs. Opinion by

Putnam, J.;

Mayliam, P. J., not acting.


author: Mayham, P. J.,

text:
    In the Matter of the Petition of Wilbur Alexander and others to Vacate an Assessment.
   Order reversed; temporary injunction vacated, with costs and printing disbursements. Opinion by

Mayham, P. J.,

Herrick, J., not actiug.


author: Herrick, J.

text:
    The Round Lake Association, Respondent, v Bradford D. Kellogg, Appellant.
   — Judgment affirmed, with costs. Mem. by

Herrick, J.


author: Mayham, P. J.

text:
    Almyron Conkey, Respondent, v. Charles Kenyon, Appellant.
   — Judgment of County Court affirmed, with costs. Opinion by

Mayham, P. J.


text:
    Emma Dunckel, Respondent, v William Dunckel, Appellant.
   — Judgment affirmed, with costs.


text:
    Mary J. Smith, Respondent, v. Byron J. Town, Receiver, etc., Appellant.
   — Judgment entered upon the demurrers, and order consolidating the interlocutory judgments affirmed, with costs; with leave to defendant, within twenty days after the service of order of affirmance, to answer on payment of costs.


author: Per Curiam.

text:
    Smith A. Skinner, Respondent, v. The Walter A. Wood Mowing and Reaping Machine Company, Appellant.
   — Judgment affirmed, with costs. Opinion

Per Curiam.


text:
    John P. Eisenlord, Appellant, v. David H. Clum, Respondent
   — Motion to set aside default granted upon payment of thirty dollars argument fees, and ten dollars costs of motion, with printing disbursements.


text:
    The People of the State of New York ex rel. Benjamin W. Wooster, Respondent, v. Edward A. Maher, as Mayor, etc., Appellant.
   Motion to correct decision by granting relator costs granted. <


text:
    Daniel C. Hewitt v. The City Mills.
   — Motion to dismiss appeal denied, with ten dollars costs.


text:
    The People of the State of New York ex rel. John A. Roebling’s Sons Company v. Edward Wemple, Comptroller.
   —Motion to resettle order granted.


text:
    James P. Schuyler, Respondent, v. The Fitchburgh Railroad Company, Appellant.
   — Motion for a reargument or leave to go to the Court of Appeals denied, with ten dollars costs, item, by

Herrick, J.


text:
    Sidney E. Maders, as Receiver of the Property of William J. Whallon, Respondent, v. William J. Whallon and William J. McAuliff, Appellants, Impleaded with Eliza Whallon
   — Motion for reargument denied, with ten dollars costs, Mem.

Per Curiam.


text:
    The People of the State of New York ex rel. Jehiel B. White, Sheriff of the County of Clinton, v. The Board of Supervisors of the County of Clinton.
   — Motion for reargument denied, order modified so as to permit an appeal to the Court of Appeals. Mem.

Per Curiam.


text:
    William Bradley v. Robert Shafer and others.
   Motion for reargument denied. Mem.

Per Curiam.


author: Per Curiam

text:
    John De Witt Peltz and Harriet Wagner, as Administrator and Administratrix de bonis non of Isaac II Watson, Deceased, Respondents, v. John A. Schultes and John Schultes, as Executors of Mary Watson, Deceased, late Surviving Executrix of Isaac H. Watson, Deceased, Appellants.
   — Motion to be relieved of costs denied, with cost6. Mem.

Per Curiam


text:
    Robert Dansinger and James H. Vandenburgh, Appellants, v. Edward C. White, Respondent.
   Motion for reargument denied, with costs.


text:
    The People of the State of New York ex rel. Daniel E. Sutliff, Respondent, v The Board of Supervisors of Fulton County, Appellant.
   Motion for reargument denied, without costs; order modified as per memorandum. Mem.

Per Curiam.


text:
    Decisions handed down August 23, 1892.
    The People of the State of New York, Respondent, v. James Hughes, Appellant.
   — Motion for a reargument denied.


text:
    Clarinda T. Killick, Respondent, v. James H. Hooker, Appellant.
   — Motion for a reargument or for leave to appeal to the Court of Appeals denied.


author: Hardin, P. J.

text:
    The People of the State of New York ex rel. William J. Cramond, Respondent, v The Common Council of the City of Rome, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Hardin, P. J.


author: Martin, J.

text:
    Edwin A. Root, as Administrator, Respondent, v. Charles A. Borst, Appellant.
   — Judgment affirmed, with costs Opinion by Hardin, P.J.; dissenting opinion by

Martin, J.


text:
    Arthur L. Hall, Appellant, v. George Hanchett and another, Administrators, Respondents.
   Judgment and order affirmed, with costs.


author: Hardin, F. J.

text:
    William L. Hopkins, Respondent, v. Menzo Marlette, as Surviving, etc., Appellant.
   — Judgment and order affirmed, with costs. Mem» by

Hardin, F. J.


text:
    William C. Goff, Respondent, v. The Village of Little Falls, Appellant.
   — Judgment and order affirmed, with costs. Opinion by

Martin, J.


text:
    Maurice Nellegan, Respondent, v. George G. Campbell, Appellant.
   — Judgment of the County Court of Onondaga county and that of the Justice’s Court affirmed, with costs. Opinion by

Hardin, P. J.


text: In the Matter of the Final Judicial Settlement of the Accounts of Douglass Boardman, as Executor of the Last Will and Testament of Jennie McGraw Fiske, Deceased.


text:
    Thomas H. McGrane and others, Appellants, v. George R. Williams and another, as Executors, Respondents.
   — Decree of the Surrogate’s Court modified by deducting from the amount of commissions allowed therein to the executor the sum of $2,575, and, as modified, affirmed, without costs of this appeal to either party,

Hardin, P. J., not voting.


author: Hardin, P, J.

text:
    Edmund M Reed, Jr., Respondent, v. The Canastota Northern Railroad Company, Appellant.
   Judgment reversed on the law and facts and a new trial ordered, with costs to abide the event. Opinion by

Hardin, P, J.


text:
    De Witt C. Middleton and another, Respondents, v. Richard M. Esselstyn, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Marcus Brounstem, Appellant, v. Julius M Wile and others, Respondents.
   — Judgment reversed and a new trial ordered, with costs to abide the event. Opinion by Merwin, J.; dissenting opinion by

Hardin, P. J.


text:
    Jane Teeter, Respondent, v. Andrew Teeter and others, Appellants.
   — Judgment and order affirmed, with costs against the appellants. Opinion by

Hardin, P. J.


author: by Merwin, J.

text:
    William W. Gilmore, Appellant, v. Edward E. Ham, Respondent.
   — Judgment affirmed, with costs. Opinion

by Merwin, J.


author: Merwin, J.

text:
    William H. De Mott, Appellant, v. Francis M. Kendrick, Respondent.
   — Judgment modified by striking out the portion thereof which awards the title to the claim against Collins, Dasey & Leahy to the defendant, and by adding to the amount of the recovery by the defendant $525, thus making the amount of the recovery the sum of $957.28 instead of $432.28; and, as so modified, affirmed, without costs to either party. Opinion by

Merwin, J.


text:
    Morris S. Miller, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   — Judgment and order affirmed, with costs. Mem.

Per Curiam.


text:
    Philip R. Corlyon, Respondent, v. Timothy N. Doane, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.


author: Martin, J.;

text:
    Helen C. Beardslee and another, Respondents, v. Henry A. Dolge, Appellant.
   — Judgment and order reversed and a new trial ordered, with costs to abide the event. Opinion by

Martin, J.;

Hardin, P. J., not voting.


text:
    Malinda Hall, Respondent, v. London Assurance Corporation, Appellant.
   — Motion denied.


text:
    William Evans, Appellant, v. Margaret Dalton, Respondent.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Ebenezer H. Hart, Respondent, v. Minor T. Jones and others, Appellants.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    Austin O. Ames and another, Respondents, v. Amos L. Mason, Appellant, Impleaded, etc.
   Order modified so that the appellant be restrained only until the further order of the court or the determination of the action, and as so modified, affirmed, without costs to either party.


text:
    Nina Howe, Appellant, v. James R. Pickett, as Surviving Administrator, Respondent.
   — Judgment and order affirmed, with costs.


text:
    Duane Pickert, Appellant, v. Richard D. Bunkey, Respondent.
   — Order reversed, with ten dollars costs and disbursements; motion denied, with ten dollars costs. (Following 43 Hun, 214; 24 Weekly Dig.. 168; 45 Hun, 319.)


text:
    Wilmot E. Knapp, Appellant, v. Carrie A. Knapp, Respondent.
   — Order reversed, with ten dollars costs and disbursements.


text:
    Watts T. Loomis and others, Executors, Respondents, v. Abram E. Bellinger, Appellant.
   Judgment affirmed, with costs.


text: In the Matter of the Probate of the Last Will and Testament of Lorenzo M. Sheldon, Deceased.


text:
    Solemus D. Seamans, Appellant, v. Truman H. Day, Respondent.
   —Decree of the Surrogate’s Coitrt affirmed, with costs.


text:
    James J. Dunham, Appellant, v. Ezra P Allen, Respondent.
   — Judgment reversed and a new trial ordered, with costs to abide the event. (See 121 N. Y., 250; 60 Hun, 495.)


text:
    Jane Vader, Respondent, v. William Reed, Appellant
   —Judgment and order reversed upon the exceptions and a new trial ordered, with ■ costs to abide the event.


text:
    William C. Allison, Appellant, v. Harvey N. Loomis and another, Respondents, Impleaded, etc.
   — Judgment affirmed, with costs.


text:
    Same v. Same.
   — Order modified so as to limit the allowance to $200, and as modified affirmed, with ten dollars costs and disbursements to the appellant. (See 31 Him, 384; 39 id., 566; 59 id., 351; 15 Civ. Pro. Rep., 171.)


text:
    Flora M. Cronk, Respondent, v. Asel Wilcox, Appellant.
   — Judgment and order reversed and a new trial ordered, with costs to abide the event. Held: (1st.) Verdict is against the weight of evidence. (2d.) The court erred in instructing the jury that Warner would be entitled to the recovery awarded. (3d.) The court erred in excluding the evidence of the witness Walters as to the conversation between her and the defendant.


text:
    Melville L. Greenfield, Respondent, v. George W. Getman and another, as Executors, Appellants.
   — Judgment and order affirmed, with costs.


text:
    Jane Mills, Respondent, v. Charles Mills, Appellant.
   —Judgment affirmed, with costs.


text:
    John A. Johnson, Respondent, v. David Dovan, Appellant.
   — Judgment of the County Court and of the Justice’s Court reversed, with costs. Held, that the justice erred in excluding the second mortgage and evidence that it was fraudulent.


text:
    Mary Frink, Respondent, v. Freeman Frink and another, Appellants.
   — Judgment and order affirmed, with costs.


text:
    Ed. Farr, Respondent, v. Catharine Warren, Appellant.
   — Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York, Respondent, v. Edwin S. Hoagland, Appellant.
   — Appeal dismissed.


text:
    James Murphy, an Infant, by Guardian, Appellant, v. New York, Ontario and Western Railroad Company, Respondent.
   — Judgment affirmed, with costs.


text:
    Jay A. Loomis, Appellant, v. The Rome, Watertown and Ogdensburg Railroad Company, Respondent.
   — Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


text:
    William G Cross, Respondent, v. Philo W. Casler and David F. Broughton, Appellants.
   — Judgment’ reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that the question of plaintiff’s ownership of the horse should have been submitted to the jury.


text:
    Alice Roberts, Appellant, v. James S. Love, Respondent.
   — Judgment and order reversed on the exceptions and anew trial ordered, with costs to abide the event. Held, that the question of plaintiff’s ownership of the horse should have been submitted to the jury.


text:
    James Whitney, Appellant, v. John C. Roe, Respondent.
   Order affirmed, without costs of appeal to either party.


author: Pratt, J.;

text:
    Ophelia J. Cuthbert, Respondent, v. Cordelia D. Chauvet and others, Appellants.
   — Affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    The People of the State of New York ex rel. A. D. Baird and others v. G. Cochran Browne and others, Members of the Board of Supervisors of the County of Kings.
   — Order affirmed, with ten dollars costs and* disbursements* Opinion by

Dykman, J.


author: Barnard, P. J.

text:
    In the Matter of the Petition of the Trustees of the New York and Brooklyn Bridge, Respondent, v. William Irving Clark and others. Appellants.
   — Judgment reversed, with costs. Opinion by

Barnard, P. J.


author: Lewis, J.

text:
    In the Matter of the Probate of the Last Will and Testament of John McCarthy, Deceased.
   Decree of the surrogate of Ontario county appealed from affirmed, with costs to both parties, payable out of the estate. Opinion by

Lewis, J.


text:
    Charles R. Maltby and another, Respondents, v. Amanda M. Pickett, as Administratrix, etc., of Benjamin Pickett, Deceased.
   — Judgment of the County Court of Steuben county appealed from affirmed, with costs.


author: Dwight, P. •!.

text:
    Hannah Clark, Appellant, v. George H. Bradley, Executor, etc., Respondent.
   — Order appealed from reversed, with costs. Opinion by

Dwight, P. •!.


text:
    William Wolfe, Appellant, v. Christine Benedict, Respondent.
   —Judgment of the County Court of Niagara county affirmed, with costs. Opinion by

Lewis, J.


text:
    Chauncey Whitcher, Appellant, v. Holland WaterWorks Company, Respondent.
   — Judgment and order appealed from affirmed. Opinion hy

Lewis, J.


text:
    Henry Nicolas, Respondent, v. John E. McIntire and another, Appellants.
   — Judgment of County Court of Erie county appealed from affirmed, with costs. Opinion hy

Lewis, J.


text:
    Manley T Sayles, Respondent, v. Charles F. Hoeltzel, Appellant.
   Judgment and order appealed from affirmed. Opinion by

Lewis, J.


author: Macomber, J.

text:
    Edward Pettingill, Respondent, v. The Town of Olean, Appellant.
   —Judgment and order appealed from affirmed. Opinion by

Macomber, J.


text:
    Carrie Oughterson, Respondent, v. David Clark, Appellant.
   — Judgment appealed from affirmed. Opinion by

Macomber, J.


text:
    The Cleveland Seed Company, Appellant, v. Sarah A. Harris and another, Respondents.
   Judgment appealed from affirmed, with costs.


author: Dwight, P. J.

text:
    The People of the State of New York, Respondent, v. Columbus Wiley, Appellant.
   — Judgment and conviction appealed from affirmed, and the case remitted to the Court of Sessions of Cattaraugus county to proceed thereon. Opinion hy

Dwight, P. J.


author: Macomber. J.

text:
    The People of the State of New York, Respondent, v. Michael Blute. Appellant.
   — Judgment and conviction appealed from reversed and a new trial granted and the case remitted to the Court of Sessions of Steuben county to proceed therein. Opinion hy

Macomber. J.


text:
    The People of the State of New York, Respondent, v. Authony Cole, Appellant.
   — Judgment of conviction and order denying motion for a new trial appealed from affirmed and the case remitted to the Court of ¡sessions of Monroe county to proceed therein. Opinion by

Lewis, J.


text:
    The People of the State of New York ex rel. William Carter, Supervisor of the Town of Avon, and others, v. James L Williams and others.
   Certiorari dismissed and the determination of the State Board of Assessors confirmed, with costs to the defendants. Opinion bv

Macomber, J.


text:
    Rosabel Langworthy, Respondent, v. Village of Olean, Appellant.
   — Judgment and order appealed from affirmed.


text: Max Miller, Respondent, v. Harry S. Brooks and others, Appellants.


text:
    Max Miller, Respondent, v. Harry S. Brooks and others, Appellants.
   — Order in each case appealed from affirmed, with ten dollars costs and disbursements of one case. Opinion by

Macomber, J.


text:
    In the Matter of the Application of the City of Rochester to Acquire Lands for Park Purposes, Respondent, v. William H. Robinson, Appellant.
   — Order appealed from affirmed, with costs. Opinion by

Lewis, J.


text:
    Sophia Foels, as Administratrix, Respondent, v. Town of Tonawanda, Appellant.
   — Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by

Dwight, P. J.


text:
    In the Matter of the Final Judicial Settlement of the Accounts of Bernard McGorray, as Sole Executor of the Last Will and Testament of John A. McGorray, Deceased.
   —Order of surrogate of Monroe county appealed from reversed and the case remitted to that court to open the final decree, with costs of this appeal to abide the final award of costs. Opinion hy

Macomber, J.


author: Per Curiam left with Macomber. J.

text:
    Frank Harley, Respondent, v. Buffalo Car Manufacturing Company, Appellant.
   — Judgment appealed from affirmed. Opinion

Per Curiam left with Macomber. J.


text:
    C. Henry Amsden and another, Plaintiffs, v. Charles R. Smith, Defendant.
   — Motion for a new trial granted, with costs to abide the event. Opinion by

Lewis, J.


text:
    Frank Ellicott, Respondent, v. Eva L. Ellicott, Appellant.
   Judgment appealed from affirmed.


text:
    In the Matter of the Judicial Settlement of the Accounts of Jane A. McDougall, Deceased, and Shirley E. Brown, as Administrators, etc., of John McDougall, Deceased, Executor of the Last Will of Dan. E. Spooner, Deceased.
   Decree of the surrogate of Steuben county affirmed, with costs to the respondent Cornelia Spooner, payable out of the estate.


text:
    Louis Knell and others, Respondents, v. William Stephan and another, Appellants.
   — Judgment appealed from affirmed, with costs. Opinion hy

Dwight, P. J.


text: Jessie Haussauer, Appellant, v. George D. Terry, Respondent.


text:
    Jessie Haussauer, Appellant, v. Edward T. Young, Respondent.
   — Judgment appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    John Preston, Appellant, v. Henry Smallwood, Respondent.
   — Judgment of the County Court of Chautauqua county appealed from affirmed, with costs. Opinion by

Lewis, J.


text:
    John Smith, Respondent, v. Margaret Watson, Appellant.
   — Judgment of the County Court of Chautauqua county appealed from affirmed, with costs.


author: Lewis. J.

text:
    Kenneth B. McEwen, Appellant, v. Daniel Butts and another, Respondents.
   Judgment appealed from affirmed, with costs. Opinion by

Lewis. J.


text:
    Nelson Beardsley, Appellant, v. Arthur M. Gaylord and another, Respondents.
   — Judgment appealed from affirmed. Opinion by

Macomber, J.


text:
    Michael Dunn, Respondent, v. Amos Robbins, Appellant.
   — Judgment and order of the County Court of Erie county appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    William Delzer, Respondent, v. The Buffalo Star Brick Company (Limited). Appellant.
   — Judgment appealed from affirmed. Opinion by

Lewis, J.


text:
    Frederic Palmer, Appellant, v. Mary L. Culbertson and another, Respondents, Impleaded, etc.
   — Judgment appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    Mary J. Clancy and others, Respondents, v. George R. Losey and another, Appellants.
   Judgment and order of County Court of Monroe county appealed from affirmed, with costs. Opinion by

Dwight, P. J.


text:
    Rochester Railway Company, Appellant, v. William Fuller, Respondent.
   — Order appealed from affirmed, with costs.


text:
    Otto Albrecht, Respondent, v. Rochester Railway Company, Appellant
   —Judgment and order of the County Court of Monroe county appealed from affirmed, with costs.


text:
    Charles J. Herdt, Respondent, v. The Rochester City and Brighton Railway Company, Appellant.
   Judgment and order appealed from affirmed. Opinion by

Macomber, J.


text:
    George W. Crouch, Jr., Appellant, v. Gustave Muller, Respondent.
   — Judgment appealed from affirmed. Opinion by

Lewis, J.


text:
    William Ziemendorf, Respondent, v. The Town of Wheatfield, Appellant.
   — Judgment and order appealed from affirmed.


author: Macomber, j.;

text:
    Samuel C. Cotton, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   — Judgment and order appealed from affirmed. Opinion by

Macomber, j.;

Lewis, J., not acting.


author: Dwight, P. J.;

text:
    Matilda Wienke, Respondent, v. The Village of North Tonawanda, Appellant.
   — Judgment and order appealed from affirmed. Opinion Dy

Dwight, P. J.;

Lewis, J., not acting.


text:
    Peter Dukelow, Respondent, v. William Searles, Administrator, etc , Appellant.
   — Order appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    Nehemiah Park, Respondent, v. Lyman Ayrault, Appellant.
   — Judgment appealed from affirmed.


author: Per Curiamf left with Macomber, J.;

text:
    Isaac W. Allen, Respondent, v. James J. McFadden, Appellant.
   — Judgment and order appealed from affirmed. Opinion

Per Curiamf left with Macomber, J.;

Lewis, J., not sitting.


text:
    Albert G. Smith, Plaintiff, v. Charles E. Mott, Defendant.
   — Motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


text:
    Calvin Haines, Plaintiff, v. Robert K. Smither, Defendant.
   — Motion for a new trial denied, with costs, and judgment directed for the de fendant on the verdict. Opinion by

Dwight, P. J.


text:
    Brackett H. Clark, Respondent, v. The Lake Avenue Permanent Savings and Loan Association, Appellant, Impleaded, etc.
   — Judgment of the County Court of Monroe county appealed from affirmed, with costs. Opinion by

Macomber, J.


text:
    Libbie M. Noble, Appellant, v. The Massachusetts Benefit Association, Respondent.
   Order appealed from affirmed, with ten dollars-costs and disbursements of this appeal.


text:
    John Byrne, in behalf of himself and others, Respondents, v. Spencer S. Bullis, Appellant.
   Order appealed from affirmed, with ten dollars-costs and disbursements of this appeal.


text:
    Betsey Whitman, as Administratrix, etc., Respondent, v. Matthew T. Foley and others, Appellants.
   — Order appealed from granting a new trial affirmed, with costs.


text:
    Harvey Owen and another, Appellants, v. Boston and Lockport Block Company, Respondent.
   Order appealed from affirmed, with ten dollars-costs and disbursements.


text:
    Ernest Gunlach, Respondent, v Henry H. Turner and others, Appellants
   —0 rder appealed from affirmed, with ten dollars costs and. disbursements.


text:
    In the Matter of Proving the Alleged Last Will and Testament of Peter Berst
   —Decree of the-surrogate of Erie county appealed from affirmed, with costs to the respondents, payable by the appellant personally.


text:
    Richard Foran, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
   — Motion for reargument denied.


text:
    John Rorbach, Appellant, v. Lloyd W. Crossett, Respondent.
   — Motion for leave to appeal to the Court of Appeals denied.


text:
    Isaac Allman and another, Administrators, etc., Respondents, v. Gabriel Wile and others, Appellants.
   Motion by defendant Eli Hofeller to amend memorandum of decision granted;, motion by plaintiffs for reargument denied.


text: John H. Howe, Respondent. v. Frederick A. Bell, Executor, etc., and others, Appellants.


text:
    Frederick A. Bell, Executor, etc., and others, Appellants, v. John H. Howe, Respondent,
   Motion in each case for a realignment denied.


text:
    John Hyatt, Respondent. v. The New York, Lake Erie and Western Railroad Company, Appellant.
   — Motion to amend memorandum of decision and for leave to appeal to the Court of Appeals denied.


author: O’Brien, J.

text:
    Morris Rubens and others, Plaintiffs, v. The Ludgate Hill Steamship Company (Limited), Defendant.
   — Motion to set aside verdict granted and new trial ordered, with costs to abide event. Opinion by

O’Brien, J.


author: Patterson, J.

text:
    Radcliffe Baldwin, Respondent, v. The Sullivan Timber Company, Appellant.
   — Judgment and order denying motion for new trial affirmed, with costs. Opinion by

Patterson, J.


text:
    In the Matter of Opening Wendover Avenue.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Patterson, J.


author: Per Curiam.

text:
    Ophelia J. Cuthbert, Respondent, v. Margaret S. Ives, Appellant, Impleaded, etc.
   Order modified as directed in opinion, and, as so modified, affirmed, without costs Opinion

Per Curiam.


author: O’Brien. J.

text:
    Herman J. Von Kamen, Appellant, v. Diedrich Roes, Respondent.
   — Judgment and order affirmed, with costs. Opinion by

O’Brien. J.


text:
    The Christopher and Tenth Street Railroad Company, Respondent, v. The Twenty-third Street Railway Company and others, Appellants
   — Order affirmed, with costs. Opinion by

Patterson, J.


text:
    Charles E. Wells, as Administrator, etc., Respondent, v. Florence Disbrow, Individually, etc., and others, Appellants.
   — Judgment modified as directed in opinion, and, as modified, affirmed, without costs or disbursements to-either party upon this appeal. Opinion by

O’Brien, J.


author: Patterson, J.;

text:
    Ellis N. Crow, Respondent, v. Patrick J. Gleason, Appellant.
   — Judgment affirmed, with costs. Opinion by

Patterson, J.;

dissenting opinion by Van Brunt, P. J.


author: Patterson, J., and Van Brunt, P. J.

text:
    Gas Works Construction Company, Respondent, v. Joseph A. Monheimer and others, Appellants.
   — Order affirmed, with costs ana disbursements. Opinions by

Patterson, J., and Van Brunt, P. J.


text:
    James B. White and others, Appellants, v. Alexander Roes, Respondent.
   — Decree affirmed, with costs. Opinion by

Patterson, J.


author: Van Brunt, P. J.

text:
    The National Park Bank, Plaintiff, v. Warren N. Goddard and others, Defendants; Appeal of Joseph Lilienthal.
   — Order affirmed, without costs; with leave to the appellant to renew his motion upon notice to all the parties in interest. * Opinion by

Van Brunt, P. J.


text:
    The National Park Bank, Appellant, v. Warren N. Goddard and others, Henry W. Gray, Special Receiver, etc., Respondents.
   — Order modified as directed in opinion, and, as modified, affirmed, without costs. Opinion by

Van Brunt, P. J.


text:
    Joseph Lentilhon and others. Respondents, v. Williamson Bacon, Appellant.
   — Order reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave, upon the payment of the costs of the motion and of this appeal, for the plaintiff to move for a commission upon interrogatories. Opinion by

Van Brunt, P. J.


text:
    William Comyns, Appellant, v. William H. Ryker and others. Respondents.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    Alfred C. Cheney v. Samuel W. Schuyler and others.
   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


author: YaN BeuNt, P. d.:

text:
    HENRY M. BARROWCLIFFE, as Ancillary Executor of ALICE M. BARROWCLIFFE, Respondent, v. HENRY CUMMINS and Another, Appellants.

      Replevin — will not lie between tenants in common unless there is a conversion — hypothecation of stock — breach of contract.

    Henry Cummins 'borrowed certain stock in g manufacturing corporation of Charles B. Hall, in order to raise money upon it, and a few days later, pledged it for a loan, which was never redeemed either by Cummins or Hall. Subsequently, Cummins purchased of Hall a half interest in the stock, which Cummins then transferred to George D. Roberts. At a later date Hall transferred his interest in the stock to Alice M. Barrowcliff e, and upon her death her executor demanded the stock of Cummins, which demand was refused and the executor brought an action of replevin for its recovery against Cummins and Roberts. Upon the trial of this action the defendants requested the court to charge that if the jury believed that Cummins bought of Hall a half interest in the stock, he then became a tenant in common with Hall and the action could not be maintained against the present defendants, which request was denied and a verdict was rendered and judgment was entered in favor of the plaintiff.
    Upon appeal by the defendants from this judgment:

      Seld, that the refusal to charge as requested was error.
    That if Cummins bought a half interest, this constituted him a tenant in common . with Hall of the stock.
    That replevin will not lie in such a case, by one tenant against the other, unless-the latter has been guilty of a conversion.
    That as the stock was borrowed to raise money upon, its hypothecation by Cummins, was not a conversion.
    That if he failed to return the stock because he was unable to redeem the pledge, he was liable only for a breach of contract.

      Appeal by the defendants, Iienry Cummins and George D. Roberts, from a judgment of tlie Supreme Court, entered in the office of the clerk of the city and county of New York on the 25th day of March, 1891, upon a verdict in favor of the plaintiff against the defendant Cummins for $8,521, and against the defendant Roberts for $758, after a trial before the court and a jury at the New York Circuit.

      J. W. Lawton, for the appellants.

      J. M. H'lmt, for the respondent.
   YaN BeuNt, P. d.:

This action was brought to recover possession of 700 shares of Electro-Graphic Manufacturing Company stock borrowed by the defendant Cummins from one C. B. Hall, and also for the recovery of certain bonds and stock of the Postal Telegraph Company, declared as dividends upon Electro-Graphic stock.

It appeared that the said Electro-Graphic Manufacturing Company stock, together with a large quantity of other stock, had been borrowed by Cummins from one C. B. Hall for the purpose of raising money thereon, and said stock was pledged therefor within a few days after its loan, from which pledge the shares have never been redeemed by either Cummins or Hall. The dividend in question was declared in September, 1883, and it is claimed that the stock had been sold under the pledge long before. It further appeared that in September, 1883, the defendant Cummins purchased from Hall an undivided half interest in and to all the interest Hall then had in the Electro-Graphic stock theretofore borrowed by Cummins from Hall, and that on the same day Cummins transferred to the defendant Roberts said one-half interest. In May, 1884, Hall transferred to the plaintiff’s testator all his right and interest in said stock, and demand having been made upon Cummins for the delivery of the stock and refused upon the ground that the stock had been parted with, this action was commenced in replevin. Upon the trial the jury having rendered a verdict in favor of the plaintiff, from the judgment thereupon entered this appeal is taken. As the judgment only is appealed from, only exceptions are brought up for consideration ; and in the disposition of this appeal it is not at all necessary to refer to the many intricate facts which are indistinctly shadowed forth by the evidence which was produced upon the trial. And we need do no more than consider one exception which was taken to the refusal of the court to charge, although many other points against the maintenance of the action might be suggested.

The court was asked to charge that if the jury believed that under the assignment Cummins became possessed of an undivided half interest in any of the stock, inclusive of the 7,200 shares, which included the 700 shares, that then he became the tenant in common with Hall, and no action of replevin could be brought against Cummins or Roberts. The court refused so to do, and left the jury to find that a co-owner of a chattel may maintain replevin against his co-tenant. It hardly needs argument to show that such a position cannot be true.' It is only when there has been an exclusive right in denial of the title that such an action can be maintained. And such might have been the case at bar if the hypothecation of these stocks by Cummins had amounted to a conversion thereof. But under the circumstances developed upon the trial, Cummins was not guilty of conversion by such hypothecation.

The case conclusively shows that the stocks were borrowed for the purpose of raising money upon them. And when he hypothecated them for the purpose of raising such money, he did not convert them; and when he did not return them because he had so hypothecated them and could not redeem the pledge, it was simply a breach of contract and not a conversion of the stock.

There was no assertion of a claim hostile to any that Hall might have and which he had not parted with, but simply a failure to comply with his contract to return. This would form no basis for a possessory action of one co-tenant against another.

It was error, therefore, upon the part of the court, to refuse to charge that if the jury believed that under the assignment the defendant became possessed of an undivided half interest in the stock in question, he then became a tenant in common with Hall therein, and no action in replevin could he brought against Cummins or Roberts. This error was fundamental and goes to the root of the whole action; and none of the transactions had between Hall and the plaintiff, as representing the testator, in any way affected his status in this regard. It seems to be assumed upon the part of the plaintiff that because Cummins failed to return the stock pursuant to bis contract, that, therefore, he had become liable in tort therefor. On the contrary the only penalty which he had incurred was for damages for the breach of contract.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

O’BrieN and LawreNce, JJ"., concurred.

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


author: YaN BeuNt, P. J.:

text:
    GEORGE P. ROWELL and Others, Respondents, v. EDWARD W. LAMBERT, Appellant.

      Corporation — non-filing of a certificate of paid-up stock — the complaint of a creditor against a stockholder must show for what the stock was issued — liability of the holder of stock issued for property.

    In an action brought by a creditor of a corporation, organized under the general manufacturing act, to recover the amount of his claim from the defendant, as a stockholder of such corporation, upon the ground that no certificate of paid-up stock had been filed, the defendant moved to dismiss the complaint because there was no allegation in it that the stock was issued for cash rather than for property.
    Upon an appeal by the defendant from an order denying the motion:

      Held, that such an allegation was necessary, and that the issuing of stock for property was not an affirmative defense.
    That, since the passage of chapter 333 of the Laws of 1853, amending chapter 40 of the Laws of 1848, the general manufacturing act, it had been permitted to issue stock for property, and the holders of such stock were not liable thereon even though the certificate required by section 10 of chapter 40 of the Laws of 1848 had never been filed.
    That, therefore, a complaint, simply alleging a failure to file such certificate, did not state a cause of action, since ihe stockholder might hold stock issued for property.
    That if one seeks to attack an issue of stock for property, and thereby create in his favor a cause of action, he must allege that such issue was for property received by the corporation at a fraudulent valuation.
    That the burden of establishing fraud is upon the person asserting it.
    Appeal by the defendant Edward W. Lambert from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 31st day of March, 1892, upon a verdict for tlie plaintiffs for $545, directed by the court after a trial at the New York Circuit before the court and a jury.

      D. W. Richards, for the appellant.

      Philip Carpenter, for the respondents.
   YaN BeuNt, P. J.:

This action was brought to recover from the defendant, as stockholder of a manufacturing corporation, a debt owing by the corporation to the plaintiffs on the ground that no certificate cf full payment of capital stock was filed as required by the act of 1848. The defendant moved for judgment dismissing the complaint, because there was no allegation that the stock was issued for cash rather than for property. The motion was denied ; and the plaint iffs made formal proof of debt, of judgment against the corporation, and return of execution unsatisfied and rested. The defendant again moved to dismiss, which motion was denied, the court holding that the issuance of stock for property was an affirmative defense, and -must be proved. The defendant offered no evidence, and the ■court directed a verdict for the plaintiffs, and, from the judgment thereupon entered, this appeal is taken.

In this ruling we think error was committed. It is plain from an ■examination of the complaint that the theory upon which the action was tried, was that because no certificate that the whole amount of the capital stock fixed and limited by the articles of incorporation of said corporation had been paid in, had been filed and recorded as required by sections 10 and 11 of chapter 40 of the Laws of 1848, and their amendments, a liability existed upon the part of the defendant as a stockholder. And the question involved upon this appeal is whether a cause of action is alleged against the stockholder ■of a corporation when the complaint alleges the ownership of stock .and the failure to file the certificate required by section 10 of the statute above mentioned. Section 10 requires that all stockholders shall be' severally liable to the creditors to the amount of their capital stock until the capital is paid in, and a certificate thereof recorded. The president and trustees were, by section 11, required to make and record this certificate, and, as the law originally stood, section 14 provided that nothing but money should be considered as payment of any part of the capital stock. In 1853 an act was passed, providing that the trustees of such corporation might purchase property necessary for their business, and issue stock to the amount of the value thereof in payment therefor, and that the stock so issued should be declared and taken to be full stock and not liable to any further calls; neither should the holder thereof be liable,for any further payments under the prolusions of section 10.

It seems, therefore, that under the language of this act, where stock was issued for property, the necessity for filing a certificate does not exist, as it is provided that the holder of such stock shall not be liable for any further payments under the provisions of section 10 of the act. Therefore, if the stock was isssued for property at its value, there can be no further call made upon the stockholder whether the certificate is filed or not. Hence a complaint, simply alleging failure to file a certificate does not set up a cause of action against a stockholder, because such stockholder may be a. holder of stock issued for property at its value. And this seems to' have been what was held in the case of Brown v. Smith (13 Hun, 408), and affirmed by the Court of Appeals (80 N. Y., 650).

A similar rule was recogized in the case of Douglass v. Ireland (73 N. Y., 100), where it is held that in order to maintain a recovery upon the ground that stock was issued in excess of the value of the property, it must be shown that the purchase was in bad faith and to avoid the statute. In other words the transaction must be impeached for fraud, but not for error of judgment or mistaken views of the value of the property, inasmuch as good faith in the exercise of an honest judgment is all that is required. The liability resting in fraud, it is a cardinal rule of the law that the party claiming must establish the existence of the fraud, and it cannot be presumed, and that a party defendant is never compelled to establish that there was no fraud.

Applying this principle to the case at bar it is apparent that it is necessary, in order to make out a complete cause of action against a stockholder, to show either that the stock was issued apparently for cash and no certificate filed, or that it was issued for property at a fraudulent valuation for the purpose of evading the statute. It cannot be, therefore, that a stockholder who seeks to evade liability must show tbe facts entitling him to relief. We thinlc that the principles laid down in Wheeler v. Millar (90 N. Y., 353), cited by the respondent, are entirely misapplied. The fact that a party is the holder of stock issued for property is not a defense, because the mere absence of a certificate creates no cause of action. The plaintiff must allege, if the stock has been issued for property, that it has been taken at a fraudulent valuation in order to set out a good cause of action. It is claimed that this rule is a great hardship, and that creditors are not expected to' know whether stock has been issued for cash or property, which is a fact peculiarly within the means of the knowledge of the stockholder. That this argument cannot prevail is strikingly illustrated by the case of Griffeth v. Green (129 N. Y., 517), where the liability depended upon the fact of the stock held by the party being part of an increase of the capital stock. Tinder those circumstances in order to a recovery the plaintiff was required to allege and prove this fact.

It has been suggested that the case last cited was in conflict with the previous cases with reference to the necessity of the filing of the certificate and the question of the burden of proof. We have examined the case in vain to find anything in conflict with the previous case upon this point, and we think that a reading of the statute clearly shows that no liability exists even where a certificate is not filed for stock issued for property unless fraud is established.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

O’BRIEN, J., concurred.

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


author: Van Brunt, P. J.:

text:
    HENRY ABEGG and Others, Appellants, v. JOHN W. BISHOP and Others, Respondents.

      Fraudulent convey azuces — transfers in contemplation of a general assignment — fraudulent intent on the pa/i't of the assignor alone is sufficient — when the intent of the assignee is material — a series of acts, one of which is fraudulent — 3 B. 8., m. p, 137, secs. 1, 5.
    On tlie 11th day of January, 1890, a firm, known as Bishop & Crawford, made an assignment for the benefit of their creditors to Henry Grasse, having theretofore, and on the 10th of January, 1890, transferred to one Tilge accounts which exceeded in value one-third of the estate assigned. An action was thereupon brought by Henry Abegg and others, as judgment-creditors, to set aside the assignment and transfer as creating a fraudulent preference, upon the trial of which the court refused to find that the transfer was made by Crawford & Bishop in contemplation and as a part of the general assignment.
    Upon an appeal the General Term considered that this refusal might have been based upon the assumption that if Tilge knew nothing of the contemplated assignment, it was immaterial whether Crawford & Bishop intended to make an assignment when they transferred the accounts.

      Held, that this view was erroneous, and the refusal necessitated a new trial.

      Semble, that, under the statute of frauds (2 R. S., m. p. 137, § 1), relative to fraudulent conveyances or assignments, knowledge by the assignee that the assignment was intended by the assignor to defraud creditors was not necessary to make the transfer fraudulent, it being sufficient that the assignor had such an intent.

      Semble, that it was only in the case of a bona fide purchaser for value that his intent became important, and this because of the language of section 5 of the statute.
    That where a series of acts is done tending to a common end, and a fraudulent purpose is connected with any one of them, all the acts and the entire transaction is thereby invalidated.
    Appeal by the plaintiffs, Henry Abegg, Henry H. Daeniker and Adolph Rnsch, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 15th day of February, 1892, sustaining a certain transfer and assignment and dismissing the complaint, with costs, after a trial by the court at the New York Special Term.

      Emanuel Ebumenstiel, for the appellants.

      J. A. Welsh, for the respondent Tilge.

      Maurice Rapp, for the respondent Grasse.
   Van Brunt, P. J.:

This action was brought to set aside a general assignment made by the defendants Bishop & Crawford to the defendant Grasse, and also a transfer of outstanding accounts executed and delivered by the defendants Bishop & Crawford to the defendants Tilge.

It was claimed that the general assignment and the transfer of accounts were executed contenrporaneously, and as part and parcel ■of the same transaction, and with intent to violate chapter 503 of the Laws of 1887 forbidding preferences except to the extent of one-third of the actual assets of a 'debtor, and that, therefore, the assignment, as well as the transfer, is tainted with fraud and must fall.

It appears from the evidence that the transfer of accounts was •executed and delivered on the 10th of January, 1890, and that the assignment was not executed until the following day. But it further appears that the assignment had been determined upon on the day of the execution of the transfer. It is true that the learned court below refused to find that the transfer was made in contemplation of and as part and parcel of the making of the general assignment. But it is apparent that this refusal may have been based upon the assumption that, if the assignee of the accounts knew nothing about the contemplated assignment, it was entirely immaterial whether such assignment was contemplated or not by the assignoi’s at the time of the making of the transfer of accounts.

I think this view of the law was entirely incorrect, as I shall attempt hereafter to show; although it seems to receive some countenance from what is said in the cases of Berger v. Varrelmann (127 N. Y., 281) and Manning v. Beck (129 id., 1), the decision in which latter case was to some extent founded upon what was supposed to have been decided in the first case cited.

It seems to me that it is too plain for argument that where a party resorts to trick and device to escape a statutory limitation, everything which is done or performed to carry out this design is fraudulent, and is voidable at the instance of a judgment-creditor. Therefore, if a party, for the purpose of evading the restrictions of the statute above referred to, resorts to the device of a transfer of accounts, and then the making of a general assignment, thereby giving preferences to a greater extent than the statute would allow, intending and endeavoring so to do, his intent in the performance of these various acts is a fraudulent one; and a transfer to anybody, except for value, by a party with a fraudulent intent is void as against his creditors, and that too whether the transferee was cognizant of the fraudulent intent or not. If, in the cases cited, a contrary rule has been held, viz., that, in order to invalidate a transfer given merely as security, it-is necessary not only to show that the transferrer had a fraudulent intent, but that the transferee was cognizant thereof, then no force seems to have been 'given to the statute of frauds as contained in the Hevised Statutes (vol. 2, p. 137). Section 1 is as follows :

Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or any goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods or things in action, or upon the rents or profits thereof, made with intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered with a like intent as against the person so hindered, delayed or defrauded, shall be void.”

All that is necessary in order to make a transfer of property or the suffering of a decree or judgment void, is that it shall have been made or suffered with intent to hinder, delay or defraud creditors. Now, in case a party contemplating making an assignment for the purpose of evading the restrictions of the assignment law, knowingly makes transfers of his property as security to creditors in excess of that which is allowed by the assignment law, and thereby attempts to evade the provisions of the statute, such transfer is made with intent to hinder, delay and defraud his creditors; and, therefore, under the express words of the statute, it is void whether the transferee has knowledge of such intent or not. The only saving clause specified in the statute is that contained in section 5 where it is provided that “ the provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valucible consideration, unless it shall appear, that such purchaser had previous notice of the fraudulent intent of his immeditae grantor, or of the fraud rendering void the title of such grantor.” Therefore, the question of the intent of the transferee is only of importance where he is a purchaser for value, and then, even, he is not protected if he knew of the intent of the transferer. Therefore, the confession of a judgment, or the transfer of accounts for security, if made with intent to evade the statute, is necessarily void; and if a general assignment f01 the alleged benefit of creditors is also made as part and parcel of this scheme, that must also necessarily fall.

It is entirely erroneous to suppose that the case of Berger v. Varrelmann is an authority for the proposition, that an intent to evade the statute by the confession of a judgment and then making an assignment does not invalidate the assignment. In the opinion of the minority of the court that position is expressly held, and nothing to the contrary can be found in the prevailing opinion. It must be borne in mind, in considering the question involved in that case, that the action was not brought to set aside the assignment on the ground of fraud, but, on the contrary, was brought in aid of the assignment because of fraud on the assignment, such fraud consisting of the confession of a judgment to Yarrelmann by which preferences were given beyond the amount allowed by law. In such an action, brought for the purpose of putting in the hands of an assignee funds which had been fraudulenty abstracted from the estate, it was clearly improper to give the relief of vacating the assignment as well as the judgment..

It is a familiar principle that wnere a series of acts are done, all tending to one end, and there is a fraudulent purpose connected with any one of them, such fraud permeates the whole transaction, and the fraudulent intent vitiates each and every of them.

Now, in the case at.bar, if this transfer of accounts to Tilge was made in contemplation of the proposed assignment, and for the purpose of evading the limitations of the law, it is entirely immaterial whether Tilge & Co. were bona fide creditors and received the transfer in good faith or not. If their transferrers had a fraudulent intent it invalidated the transaction.

Without expressing any opinion upon what conclusions are to be drawn from the facts as they were developed upon the trial, it appears to me that the finding in regard to the relation of these transactions to each other was made by the learned judge below under a misappehension of the law. and that, therefore, there should be a new trial in order that this evidence should be weighed unfettered by what it was supposed was decided in the cases in the Court of Appeals above cited.

The judgment should be reversed and a new trial ordered, with costs to the finally successful party to abide the final event.

Lawrence and O’Brien, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the finally successful party to abide the final event.


author: Tan Brunt, P. J.: O’Brien, J.: Patterson, J.

text:
    WILLIAM K. BEARD, Appellant, v. SIDELL TILGHMAN and Others, Respondents.

      Pleading —■ evidence inadmissible under the answer — conforming the ansioer to the proofs after objection to the evidence —- a failure to deny an allegation of the complaint — it excludes an inconsistent affirmative defense.

    ■William K. Beard, as assignee of tlie administrator of Samuel G-. Jones, brought an action for the alleged conversion of certain bonds which Jones in his lifetime had pledged, in order to secure a loan, to Henry H Walker, who in turn pledged them to the defendants in the action as a margin for stock operations.
    The complaint alleged that Walker pledged the bonds to the defendants in 1886, which the answer did not deny.
    The answer set up, however, as an affirmative defense, that in 1882 the defendants were brokers; that they had advanced Walker money, and that as collateral security therefor they had received the bonds in question in good faith, and that when they were notified of the claims upon the bonds Walker was indebted to them in a much larger amount than the value of these bonds and all other securities of his which they held as collateral to such indebtedness.
    Upon the trial of the action the defendants were allowed to show that Walker delivered the bonds to them in 1882, and that they were held as margin for his general account and to secure subsequent advances until the commencement of this action in 1889; although the objection was made that the answer alleged that the advance was made at the time that the bonds were delivered; and after all the evidence was in the court, on its own motion, conformed the affirmative defense in the answer to this proof.
    Upon an appeal by the plaintiff from a judgment in favor of the defendants:
    Held, that the court had no power to make such amendment.
    That as the plaintiff had duly objected to the evidence, he was entitled to rely upon his exception, and could not be deprived of it by the action of the court in conforming the answer to the proof.
    That the exception when offered was good, and if it made an amendment of the answer necessary this should have been done before the introduction of the evidence.

      The complaint alleged tliat tlie bonds were deposited by Walker with the plaintiffs, in 1886, to secure an antecedent debt.
    The answer did not deny this, but set up the affirmative defense above stated. Held, that by failing to deny the allegation of the complaint the defendants admitted it and could give no proof of the new matter contained in their affirmative defense, because such new matter was inconsistent with the allegation which they failed to deny. (Patterson, J., dissenting.)
    Appeal by the plaintiff, William K. Beard, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 20th day of February, 1892, upon a verdict directed for the defendant after a trial at i^ie New York Circuit before the court and a jury.
    The action was begun in 1889 to recover the value of certain bonds. It was alleged in the complaint among other things:
    II. That at the times hereinafter mentioned, one Samuel G. Jones, of Sewanee, Franklin county, Tennessee, was the owner of ten certain bonds of the city of Pensacola, in the State of Florida, numbered 1046 to 1055, both inclusive, and each of the par value of $500.
    III. That on or about the 28th day of February, 1882, the said Samuel G-. Jones, being the owner aforesaid of the said bonds, deposited the same with one Henry H. Walker, of the city of New York, as collateral security for a loan made by said Walker to said Jones, and on or about the 1st day of October, 1886, there was due said Walker from said Jones a balance on account of the said loan amounting to the sum of $470.
    IY. That on or about the said last-mentioned date the said Walker was indebted to the said defendants herein in a large sum of money, of the amount of which the plaintiff is not informed, and, being so indebted, did transfer and deliver to the defendants the said bonds without the knowledge or consent of the said Jones, the owner thereof.
    Y. That thereafter, and on the 4th day of October, 1886, the said Samuel G. Jones died intestate, at Winchester, Franklin county, Tennessee, and on the 22d day of February, 1887, letters of administration on the goods, chattels and credits which were of said Samuel G. Jones, deceased, were duly issued to one Charles P. Jones, who thereupon duly qualified as such administrator.
    YI. And the plaintiff further alleges that on the 18th day of December, 1889, the said Charles P. Jones, as administrator, etc., of Samuel G. Jones, deceased, for value received, duly assigned, transferred and set over to tbe plaintiff herein the said bonds and coupons thereto attached, and all his right, title and interest in and to the same, their value or proceeds, and all his right of action of any hind whatsoever arising from or concerning the said bonds, as will more fully appear by the said assignment which the plaintiff will produce on the trial of this cause.
    YII. Thereafter, and on the 30th day of December, 1889, the plaintiff duly tendered to the said defendants the sum which was due by said Samuel G. Jones, deceased, to said Walker on account of the said loan, and the interest on the same, and demanded the return and delivery of the said bonds and coupons, and the defendants refused to accept said sum and interest or to return or deliver the said bonds and coupons and converted the same to their own use, to the plaintiff’s damage, in the sum of $6,000.
    The answer alleged as a separate defense :
    1. That heretofore, and in and about the year 1882, the said defendants, through their said firm of Tilghman, Rowland & Go., then being bankers and brokers and doing businesss as such in the city of New York, in the course of such business advanced and loaned to one Henry M. Walker, of said city, certain large sums of money, at his request, and received from him, to be held by them as collateral security for the repayment of the sums so loaned, with interest, among other securities, five certain negotiable bonds of the city of Pensacola, in the State of Florida, then in the possession of the said Walker, who claimed to be the owner thereof, which bonds, these defendants are now informed and believe, are the bonds mentioned and described in said complaint; that at the time of making the said loan to the said Walker, and at the time of receiving the said bonds from him as collateral security as aforesaid, and for a long time thereafter, the said defendants had no notice, knowledge or information that he was not the lawful owner and holder thereof, or that he might not or could not lawfully transfer good title thereto.
    2. Said defendants further allege that at the time when they were first informed of the plaintiff’s claim in respect of said bonds, there was still due and owing to them from said Walker, on account of the said loan so made to him, and that there is still due and owing to them on account thereof an amount largely in excess of the aggregate market-value of all securities, including the said bonds held by them as collateral security for the payment thereof.
    A further statement of facts will be found in the dissenting opinion of Patterson, J.

      W. M. Arnoux, for the appellant.

      G. AT. Morgan, for the respondents.
   Tan Brunt, P. J.:

I cannot agree with the conclusion arrived at by Mr. Justice Patterson in this case.

The court had no power at the close of the case to conform the affirmative allegations in the answer to the proof, for the reason that the evidence at the time it was offered, to which the allegations in the answer were made to conform, was- objected to, and admitted under exceptions. Under these circumstances, the court had no power to conform the pleadings to the proof, because the party whose objection had been overruled had a right to rely upon his exception, and the rights which such exceptions gave to him could not be taken away by the device of conforming the allegations of the pleadings to the proof offered, such exception having been well taken at the time the proof was offered. If any amendment to the pleadings was necessary, it should have been made prior to the introduction of the evidence if the evidence was objected to, and, for the reasons stated, it is apparent that such a motion could not be made under such circumstances at the close of the case.

There is another error which was committed during the progress of this trial, and which is fatal to the judgment. The allegation in the complaint is that the deposit of the bonds in question took place on or about the 1st of October, 1886, to secure an antecedent debt. This allegation is not denied in the answer. It is true that the answer sets up new matter or an affirmative defense which is inconsistent with this allegation in the complaint. But it is a well-settled rule of pleading that no proof can be admitted in support of new matter contained in the answer which is inconsistent with an allegation in the complaint, which is not denied. In other words, a party cannot be permitted, after admitting a fact, to offer evidence to controvert it. This rule is illustrated in the case of Fleischmann v. Stern (90 N. Y., 110). In that case the action was brought upon a promissory note payable to the order of the defendant and indorsed by him; and the complaint, after setting forth the note, alleged that it was indorsed to the plaintiff, before maturity, by the defendant in payment of an indebtedness. The answer did not deny any of the allegations of the complaint, but alleged that the note was made for accommodation, and was indorsed to plaintiff upon a usurious agreement, and demanded a dismissal of the complaint. Held, that the answer did not put the averments of the complaint in issue; and, as by section 522 of the Code, every material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true, the defendant was not at liberty to deny the facts constituting the cause of action stated in the complaint, or to prove any state of facts inconsistent therewith, and that the omission to deny was equivalent to a formal admission of the truth of the averments, and was conclusive as such.

Now, in the case at bar, the affirmative defense depends upon the fact of the deposit of these bonds with the defendants in February, 1882, whereas, the admission in the pleadings is that they were deposited on or about the 1st of October, 1886. The evidence, therefore, was clearly incompetent, and, under the pleadings as they existed during this trial,'the defendants could not be permitted to show a different state of facts from that which was admitted by their failure to deny this allegation of the complaint. As far as this condition of the pleadings was concerned, there was no attempt at amendment. The motion to conform the pleadings to the proof related to the affirmative allegation in the answer only.

I think there was fatal error, and that a new trial should be granted, with costs to appellant to abide event.

O’Brien, J.:

Fleischmann v. Stern (90 N. Y., 110), is authority for the proposition that an affirmative defense, though inconsistent with the allegation of the complaint, when not coupled or accompanied by a denial of such allegations, raises no issue. "When the objection was first taken to the admissions of transactions prior to 1886, upon the ground that such year was the one admitted by the failure to deny, the counsel for defendants saw their position and made a motion to amend the answer, which was denied. This left the issues as the parties had made them by the pleadings, and as there was an admission by the failure to deny that the bonds were delivered as collateral security in 1886, it was error to permit evidence of transactions in 1882, and plaintiff’s objection thereto and exception were good. Conforming the pleadings to the proof, which was done by the court on its own motion, was expressly limited to the affirmative defense. This in no way affected or cured the error committed in allowing evidence contrary to the facts admitted by the pleadings. I, therefore, concur with the presiding justice.

Patterson, J.

(dissenting):

The appeal in this cause is from a judgment entered upon the verdict of a jury directed by the court at ciicuit.

On the trial it appeared that the plaintiff was the assignee of the administrator of one Samuel G. Jones, who, in 1882, was the owner of ten negotiable bonds issued bv the city of Pensacola, in the State of Florida, which bonds the said Jones, in his lifetime, had pledged to one Henry H. Walker as collateral security for a loan made by Walker thereon. While these bonds were thus in possession of Walker they were delivered by him to the defendants’ firm as margin for a speculative account Walker had with that firm in the purchase and sale of stocks and other securities. On the 1st of October, 1886, Walker was indebted to the defendants in a certain sum, and on the 30th of December, 1889, the plaintiff tendered to the defendants the sum which they alleged was due by Samuel G. Jones, deceased, to Walker, and demanded the return of the bonds and certain coupons connected with such bonds, and the defendants refused to accept the amount tendered and interest, or to return or deliver the bonds and coupons.

The action was brought for the alleged conversion of these bonds and coupons. The defendants, in their answer, admit the tender and demand. They deny the allegations respecting the ownership of the bonds by Samuel G. Jones, and the relations claimed to have existed between Samuel G. Jones and Henry H. Walker, with respect to such bonds and the amount of the alleged indebtedness of Jones to Walker, but they technically admit, by failing to deny, that the bonds, on or about the 1st day of October, 1886, were transferred or delivered by Walker to them as security, without the knowledge or consent of Jones, the owner thereof. They, however, set up affirmatively, as a distinct defense, that in the year 1882 the defendants, then being bankers and brokers in the city of New York, in the course of business, advanced and loaned to Henry H. Walker certain sums of money, and received from him to be held as collateral security for the repayment of sums so loaned, the bonds in question and other securities, and that they had no notice, knowledge or information as to who was the lawful owner or holder thereof, and that when they received notification that the bonds did not belong to the plaintiff there was still a balance due from Walker on account of the loan made to him, and that there was still, at the time the answer was interposed, an amount due them largely in excess of the aggregate market-value of all the securities held by them, including said bonds.

At the trial it appeared in evidence that the bonds in question were delivered by Walker to the defendants as margin on a general account Walker had with them and upon which there was an apparent balance against him at the time of the delivery of such bonds in a very large sum exceeding the value of all the securities they held as collateral, and. that this- speculative account was continued for several years after 1882, and that these bonds were continuously held during the whole currency of that account. The date of the deposit of these bonds becomes important in view of one of the questions arising upon the appeal. The learned justice at the trial permitted the defendants to show, notwithstanding the condition of the answer, that these bonds were not transferred and delivered to the defendants on or about the 1st day of October, 1886, but in the year 1882, and that they were held as margin on a general account extending from and before December, 1882, and continuing until the action was brought. It is claimed that under the condition of the pleadings it was error on the part of the learned judge to allow this evidence to be given, but it is quite apparent that on the rulings made the whole case was put before the jury on the affirmative defense set up in the answer, and that there was no surprise caused to the plaintiff; for the particular defense was plainly stated and indicated in the answer, and after all the evidence was in, an amendment was allowed to conform the answer to the proofs, and, therefore, we think that there was no such error in the ruling of the court in this regard as would compel a reversal of the judgment on the ground claimed. The case of Fleischmann v. Stern (90 N. Y., 110), we do not regard as controlling this, under its special circumstances and m view of what was done at the trial.

This brings us to the consideration of the substantial question of law presented by the record. On the entire proof, the learned judge at circuit directed a verdict for the defendants,.holding that they acquired a good title to the bonds as against Walker and the plaintiff, and that there was nothing to go to the jury under the issues as framed by the pleadings when conformed to the proofs.

With reference to this aspect of the case, it is strenuously urged by the appellants that the defendants under the pleadings and proofs are not bona fide holders of the securities, the subject of this action. These are bonds virtually payable to bearer, and it is claimed by the appellant that their use in the particular transaction under consideration is controlled by the general principles of law relating to the diversion of negotiable paper, and that the defendants could acquire no other or different rights than would have been acquired by them, had promissory notes been given them as collateral. We may assume, for the purposes of this appeal, that these bonds are to be treated as negotiable paper would be, and that a pledge of them as security for an antecedent debt of Walker to the defendants would not be valid as against the real owner, except to the extent of an advance actually made at the time of the deposit; but we do not consider, ■in view of the nature of the transaction had between the defendants and Walker respecting these bonds, that they were pledged for an antecedent indebtedness in the manner or under circumstances that would render applicable the rule respecting diverted paper. It fully appeared that there was a current, unadjusted account of Walker with the defendants and that it was the ordinary account of a customer with his brokers who bought and carried for him securities upon margin.

There was no liquidated, fixed or presently enforceable indebtedness at all. It was a transaction not completed, and by which the defendants were bound to carry the account until default was made by Walker in placing with the defendants such money or securities, by way of margin, as they were entitled to demand. They applied to him for more margin, and the result of his depositing the securities with them under such circumstances was precisely the same as if they had been originally deposited in the transactions, or for the account which they were carrying, and when this deposit was made the defendants bound themselves to the continuance of the account. They could not sell any of the stocks they had bought for Walker, and a consideration sufficient to support the pledge was furnished in their maintaining the account for him. We think the learned judge in the court below was entirely right in his characterization of these transactions as not being ordinary loans, and that “the plain object of the transaction was to secure the defendants and to enable Walker to continue his speculative account without submitting to the loss which would result to him had his stocks been sold on a declining market for the want of a sufficient margin.” We must take into consideration the nature of the general account which existed between the defendants and Walker, and so doing, it cannot, in any just sense, be said that these negotiable bonds were given as security for an antecedent debt, but they were furnished to be used as general security on transactions, which, although they had originated before the bonds were thus given as security, nevertheless had not reached a point at which an enforceable indebtedness had accrued absolutely, but only one which would have accrued after selling the securities or stocks carried, had Walker failed to furnish money or otherwise provide margin for the continuance of the account.

It is contended, however, by the defendants, that even if they did assume the obligation to further carry Walker’s speculative account by receiving the bonds in suit, they were only holders for value to the extent of the liability which they actually incurred at that time, by such obligation to hold the securities, and not for any liability arising out of their subsequent transactions; but, here again, we must have regard to the nature of the transactions had between the defendants and Walker. The bonds in question were not pledged as collateral for any one particular item, but for the whole general account. That is distinctly testified to by Mr. Tilgliman. It is true that Mr. Walker testified that they were given for no other purpose than as additional security for a loan -which he then had with the firm, and upon which they held other securities as collateral, but it is apparent from the account and the transactions themselves, that these particular bonds, with other securities, were intended to cover all the transactions that entered into the speculative account at the time they were given, and the pledge was intended as security for whatever transactions might be had under that general account, and the advances made by the brokers on such subsequent transactions, and until they were notified of the real ownership, were on the faith of the pledge of such securities, and under the peculiar and exceptional situation of the parties, such advances as were made from time to time until the notification referred to was given, must be regarded as having been specifically made upon the faith of the pledge.

On the whole evidence we are of opinion that the direction of the verdict was correct, and that the judgment should be affirmed, with costs.

Judgment reversed and new trial granted, with costs to appellant to abide event.