text:
    In the Matter of Proving the Will of JOHN PATTERSON, Deceased, as a Will of Real and Personal Property.

      Surrogate — after an appeal to the Supreme Court, and a verdict on a new trial ordered by it, the surrogate cannot grant a new trial — effect of such an a/ppeal — • where the motion must be made.

    A will was, after a contest, admitted to probate by a surrogate’s decree, from wliicb an appeal was taken to the General Term, where it was reversed. Issues were framed and were directed to be tried before a jury in the Court of Common Pleas, where a trial was had, a verdict was rendered, was certified by the clerk of that court and was filed in the office of the surrogate.
    An application was then made to the surrogate for a new trial, upon exceptions and upon the usual grounds, which was denied by the surrogate upon the ground of a want of power.

      Held, that the denial was proper, and that the surrogate had no power to grant the application.'
    That such power was not conferred upon the surrogate by sections 2548 and 2588 of the Code of Civil Procedure.
    That after an appeal to the Supreme Court that court becomes one of original jurisdiction, and may decide any question of fact which the surrogate can decide.
    That the proceeding remains in the Supreme Court until, after judgment, it is remitted to the Surrogate’s Court.
    That such judgment is the only authority to the surrogate for his further action.
    That the phrase at the end of section 2588, “ after the trial a new trial may be granted as prescribed in section 2548 of this act,” refers to the cases in which a new trial may be granted, and does not refer to the tribunal before which the application for the new trial shall be made.
    That it was not material whether the issues were tried in the Supreme Court or in the Court of Common Pleas, it being the intention of the legislature that the surrogate should be ousted of jurisdiction to grant a new trial in either case.
    Appeal by Daniel Paxton and James B. Hackett, contestants, from an order made by tbe surrogate of tbe city and county of New York on the 11th day of February, 1892, denying, upon tbe ground that tbe surrogate bad not power or jurisdiction to grant tbe same, a motion made by them that tbe verdict of the jury herein, certified to the said Surrogate’s Court by tbe clerk of tbe Court of Common Pleas, be set aside and a new trial be bad of tbe issues.

      W. H. Hamilton, for tbe contestants, appellants.

      Henry Hoyt, for the proponent, respondent.
   Per Curiam:

The will of the deceased was presented to the surrogate for probate, and after a contest was admitted by him to probate. An appeal was taken from the decree of the surrogate, admitting such will to probate, to the Supreme Court. Upon the hearing of such appeal by the General Term the decree of the surrogate was reversed, and issues of fact were framed and directed to be tried in the Court of Common Pleas before a jury. Such trial having taken place, and a verdict having been rendered upon the issues so framed, which verdict appears to have been certified by the clerk of said Court of Common Pleas, and filed by the appellant herein in the office of said surrogate; thereupon an application was made to the surrogate for a new trial upon the exceptions taken at the trial, and because the verdict was rendered upon insufficient evidence, and against the weight of evidence, and as otherwise contrary to the evidence, and contrary to law, which motion was denied by the surrogate upon the ground that he had no power or jurisdiction to entertain the same, and from the order thereupon entered this appeal is taken.

In this disposition of the motion we think the learned surrogate was clearly right, as there is no authority in any provision of the Code conferring upon the surrogate the power to entertain the motion for a new trial in a case like the present.

It is claimed by the counsel for the appellant that such power is conferred by sections 2548 and 2588 of the Code. An examination of these sections, however, we think, will demonstrate the fact that they are not susceptible of the construction claimed by the appellant. Sections 2547 and 2548 primarily relate entirely to controverted questions of fact arising in a special proceeding for the disposition of real property by a decedent, and have no application to proceedings for the probate or to revoke the probate of a will.

Section 2588 relates to the practice which shall be followed upon a reversal or modification of a decree of the surrogate, by the Supreme Court, upon a question of fact in a probate proceeding. It is provided that the court must, in such a case, direct a trial by a jury of the material questions of fact arising upon the issues between the parties; and that it must direct the trial to take place either at a Circuit Court specified in the order, or in the County Court of the county of the surrogate, or in the city of New York in the Court of Common Pleas.

In the case at bar the Supreme Court having reversed the decree of the surrogate upon questions of fact, an order was made directing certain specified issues to be tried in the Court of Common Pleas.

The question is now presented as to .how, after such a trial, the results of that trial are to be reviewed. And it is provided for explicitly by the last clause of section 2588, which provides that a new trial may be granted as prescribed in section 2518. And it is upon the construction which is to be placed upon this clause that the question here presented, as to the proper practice, must be determined.

In determining this question it is necessary, in the first place, to bear in mind the effect of an appeal to the Supreme Court from the Surrogate’s Court. A probate proceeding by such appeal is removed into the Supreme Court. The Supreme Court becomes a court of original jurisdiction, and has the same power to decide questions of fact which the surrogate had, and may, in its discretion, receive further or documentary evidence and appoint a referee. (Sec. 2586.) By section 2581 the Supreme Court may reverse, affirm or modify the decree or order appealed from, and each intermediate order specified in the notice of appeal, which it is authorized by law to review as to any or all of the parties, and it may, if necessary or proper, grant a new trial or hearing. And by section 2585 it is provided that the judgment-roll containing the judgment of the appellate court shall be filed in the office of the clerk of the county of the surrogate from whom the appeal is taken. And the sole authority whicli the surrogate has for his subsequent action in the case is derived from the judgment-roll so filed. It is thus apparent that when once an appeal of this kind is taken the whole proceeding becomes a proceeding in the Supreme Court, and remains in such court until formally remitted back to the surrogate; and until it is so remitted the orders and decrees in the proceeding must be orders and decrees of the Supreme Court. Ve think, therefore, that the only portion of section 2518 which was intended to be referred to in section 2588 were the cases in which a new trial might be granted, and not the tribunal which should entertain the application therefor, the particular practice relating to such motions being governed by the other provisions of the Code in reference to actions or proceedings pending in the Supreme Court. And this view is supported by tbe fact that section 2548, where it speaks of the tribunals which are to entertain the motion,.expressly refers to the cases provided for in section 2547. In those cases the proceedings are all in the Surrogate’s Court, and the direction for the trial of the issues proceeds from the Surrogate’s Court; and even where they are sent to a Circuit Court the motion for a new trial may be made before the surrogate or in the Supreme Court; in the Supreme Court, because the Circuit Court has no power to entertain motions for new trials except upon the judge’s minutes, and such motions are not appropriate in a case where issues have been framed in another court and sent by such court to a Circuit Court for trial. In a probate case, where issues have been framed by the Supreme Court and sent to a Circuit Court for trial, it never has been claimed that the surrogate had any further jurisdiction of the case except to proceed in accordance with' the final judgment in the case,

It would be an anomaly which it cannot be supposed the legislature intended, that in the case of issues sent from the Supreme Court to the Court of Common Pleas for trial, the surrogate having lost all jurisdiction of the proceedings to probate, by the appeal to the Supreme Court, that a motion for a new trial might be entertained by the surrogate, while in the case of issues sent under precisely similar circumstances to a Circuit Court, the Supreme Court only could entertain such a motion ; the authority for sending the issues for trial being derived from the same section of the Code, viz., section 2588, and exercised under precisely the same circumstances.

In the cases mentioned in section 2548, where the power to grant new trials is conferred upon the surrogate, the surrogate retains jurisdiction of the proceedings, and, as has already been stated, the direction for the trial of the issues proceeds from the Surrogate’s Court; the clei'k of the court where the trial is had being required to certify the verdict to the Surrogate’s Court for further proceedings thereon, whether such trial be had in a County Court or a Circuit Court. It is, therefore, apparent that it was the intention of the legislature, in the enactment of the last clause of section 2588, only to specify the circumstances under which motions for new trials should be entertained in a case mentioned in that section. In a probate case where there has been an appeal to the Supreme Court, therefore, the further proceedings must be had in that court, and the verdict certified to that court for further proceedings thereon, whether the trial of the issues framed by the Supreme Court be had ut a Circuit Court or in the Court of Common Pleas.

The surrogate, therefore, had no jurisdiction to entertain the motion, and the order appealed from should be affirmed, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J., O’Brien and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    SARAH R. MEETEER, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence — damages — certainty of injuries being permanent — disregarding the plaintiff’s testimony — effect of a refusal to dismiss the complaint.

    Where, in an action for negligence resulting in personal injuries, the plaintiff seeks to recover for their future effects, it must appear that the injuries are such as will with reasonable certainty be permanent.
    It is error for the court to refuse to charge the jury that they may, if they see fit, reject the whole or any part of the plaintiff’s evidence as to how the accident happened or as to the extent of his injuries.
    It is error to refuse to charge that the jury must not deem a refusal to dismiss the complaint as any indication of the opinion of the court as to the facts of the case. Such a refusal to dismiss only indicates that the court considered that the plaintiff had produced some evidence in support of her action.
    Appeal by tlie defendant, tlie Manhattan Bailway Company, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 11th day of June, 1891, upon a verdict for the plaintiff for $6,000 after a trial at the New York Circuit before the court and a jury; and also from an order, entered in said clerk’s office on the 11th day of July, 1891, denying a motion to set aside the verdict and for a new trial.

      J. H. Adams, for the appellant.

      F. E. Bamiard, for the respondent.
   Per Curiam :

The action was brought to recover for injuries sustained by the plaintiff while a passenger on defendant’s elevated railroad through the alleged negligence of the defendant.

The question which has been principally urged upon this appeal relates to the amount of damages which were awarded, and which, it is claimed, were based upon an erroneous theory as to the evidence which was necessary to justify a finding that the injuries caused by the accident were of a permanent character. In the reception of evidence, and in the efforts made to exclude what was regarded by the defendant as incompetent evidence, and in the charge of the court, the effect was, to some extent, to permit the jury to understand that they were at liberty to award damages for injuries which were likely to be permanent, instead of confining their verdict to damages for such injuries as would with reasonable certainty be permanent.

It is not necessary for us to go over the entire testimony to point out the different instances in which such rulings were made. But, as an illustration, Dr. Dana, an expert, called for the plaintiff, was asked by the court the following question: “ Can you say with reasonable certainty whether this injury is likely to be permanent ? And the witness answered I can.” He was then asked, “ Is it, or is it not, likely to be permanent ? ” To which he answered: It is likely to be permanent in the sense that it will improve somewhat,, but she is not likely to ever get entirely over it.”

The same witness was also asked : Q. Can you say with reasonble certainty whether this disease tends to shorten life or not % A. I can say that. Q. Does it ? A. In many cases it does.”

The counsel for defendant excepted to the answer, and moved to strike it out as incompetent and improper. The court denied the motion and defendant excepted.

The court, in the charge, said: If you consider she has been permanently injured, you may award compensation for that.” And when defendant excepted to this portion of the charge, the court said: “ "When I say if you consider, I mean if you consider from the evidence ? ” In view of what had proceeded, to which attention has been called, it is evident that sufficient weight was not given to the true rule that should be applied in regard to giving-damages for permanent personal injuries in cases of this kind.

Furthermore, it appears from the record that counsel for the defendant requested the court to charge that the jury, if they saw fit, might reject the whole or any part of the plaintiff’s testimony as to how the accident happened, or as to the nature and extent of her injuries, because she was pecuniarily interested in the result.

This the court declined, except as charged. And it appears from a reading of the charge that the court did not instruct the jury at all as to their right to reject the plaintiff’s testimony because of interest, but simply left the questions at issue upon the evidence, leaving the jury to infer that they were bound to consider the evidence of the plaintiff as of equal weight with that of any other witness. And this view is emphasized by the fact that in reference to the expert testimony he expressly charged the jury that they were not bound by such evidence.

The counsel for the defendant also requested the court to charge that the jury were not to consider the fact of the refusal of the court to dismiss the complaint as any indication of the opinion .of the court as to the facts of the case. This the court declined and defendant excepted.

"We think that the court should have charged as requested, for the mere fact that the court held that it was bound to submit the question of fact to the jury was no indication that if the court had been at liberty to determine the questions it would have determined them in favor of the plaintiff. It was only an indication that in the opinion of the court there was some evidence tending to support the claim of the plaintiff.

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

Present — Yan Brunt, P. -I., O’Brien and Ingraham, JJ.

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


author: O’Brien, J.:

text:
    ALBERT M. PALMER, as Receiver of the Property of BARTLEY CAMPBELL, Appellant, v. DAVID F. COLVILLE and Another, as Executors of SAMUEL COLVILLE, Deceased, and Others, Respondents, Impleaded with Another, Defendants.

      Supplementary pi'oceedings — extension of a receivership over other judgments — the effect of countermanding the original execution — vested rights of other judgment-creditors.

    Ernest Harvier was appointed, on February 26,-1886, in supplementary proceedings, a receiver of the property of Bartley Campbell, upon an execution in favor of Bernard Brady, issued February 24, 1886, by an indorsement upon which it appeared that it was countermanded on or before March 5,1886. Subsequent to that date the receivership was extended over other judgments against Campbell.
    Upon a motion, made in proceedings taken upon one of the other judgments, Harvier was removed, and there was substituted as receiver one Palmer, who brought an action to satisfy an alleged equitable lien existing in favor of Campbell impressed upon a lease held by one Colville, now deceased, for the possession of the leased property, and for an accounting by the executors of Colville for moneys received by Colville under the lease.
    The complaint was dismissed upon the ground that there was no proof that the execution of Brady was not unreturned and outstanding at the time this proceeding was commenced, and at the time when Harvier was appointed receiver.

      Held, that this was improper.
    That as Palmer produced and proved an affidavit and order, in the usual form in supplementary proceedings, the papers were conclusive evidence of the regularity of the order, when questioned collaterally, and prima facie evidence of the existence of the facts necessary to confer jurisdiction.
    That, assuming that the court could take notice of the execution in favor of Brady, which was excluded from evidence, Palmer had a right to show that the execution was countermanded after the appointment of the receiver.
    That if the court had jurisdiction to make the order, the countermanding of the execution would not render the order void unless the order were also properly vacated.
    That subsequent orders extending the receivership over other judgments, made before the original order was duly vacated, would prevent Palmer from losing his title by any act of Brady.
    That, inasmuch as tlie Code of Civil Procedure provided for the extension of an existing receivership over other judgments against the same debtor, it did not depend entirely upon the will of the original creditor whether a receiver who had taken title should be divested of it.
    Appeal by the plaintiff, Albert M. Palmer, as receiver of tlie property of Bartley Campbell, from a judgment of tlie Supreme Court, entered in the office of the clerk of the city and county of New York on the 7th day of May, 1890, dismissing the complaint upon the merits, without costs, after a trial at the New York Special Term, with notice of an intention to bring up for review upon said appeafan order dated April 24, 1890, upon which the judgment Avas entered.
    The plaintiff Avas appointed receiver in an action in which Bernard Brady was plaintiff and Bartley Campbell was defendant.
    The plaintiff brought the action to obtain the following relief:
    1. That the equitable lien possessed by Samuel Colville and the defendant Edward G-. Gilmore, which Avas on the 1st day of May, 1886, impressed upon the lease of the Fourteenth Street Theatre, in the city of NeAv York, from said Colville and Gilmore to Bartley Campbell, be declared satisfied, canceled and discharged.
    2. That this plaintiff, as receiver of the property, property rights .and things in action of Bartley Campbell, be declared to be entitled to the possession of the said Fourteenth Street Theatre under and by virtue of the said lease.
    3. That the defendant be ordered and directed to deliver possession of the said theatre, and all the property belonging thereto or connected therewith, and of all of the papers, documents, books, vouchers and contracts relating thereto, to this plaintiff as receiver as aforesaid ; and to refrain from in any Avay, directly or indirectly, preventing this plaintiff from taking such possession or causing him to be so prevented, or in any way interfering with him in assuming and maintaining possession and control of the business of the said theatre and of all the papers, vouchers, books, documents and contracts pertaining thereto, connected therewith or in any Avay relating to the same.
    4. That the said defendants, severally and collectively, account for all moneys received and paid out by or for them or under their direction, and for which they or either of them are liable, in connection with, realized from or growing out of the conduct of the business conducted at the said Fourteenth Street Theatre in the city of New York.
    5. That the said defendants be severally ordered and directed to pay to the plaintiff, as receiver as aforesaid, all such sums of money as may be found to be due by reason of the premises, after deducting the amount of money that was owing by the said Bartley Campbell to the said Colville and Gilmore on the 1st day of May, 1886, and that the plaintiff have judgment therefor.

      B. S. Hw'moii, for the appellant.

      H. Thompson, for respondents Emeline Colville and J. "Wesley Rosenquest.

      T. JFIasoall, for Colville’s executors, respondents.
   O’Brien, J.:

The plaintiff brought this action, alleging himself to be a receiver appointed in supplementary proceedings, to procure satisfaction of an alleged equitable lien impressed upon a lease of property in this city, to have himself declared entitled to- the possession thereof, together with the books, papers and contracts connected therewith, and to have defendants account and pay over all moneys that may be found due to the judgment-debtor.

It will fee seen that the action was brought not only to enforce a lien as against real estate, but that it also involved the right of the plaintiff to recover personal property in the possession of the defendant belonging to the judgment-debtor.

The ground upon which the complaint was dismissed was because the proceedings supplementary, in which he was appointed, having been brought in aid of an execution, proof was not furnished that the execution was not outstanding at the time the proceeding was commenced and the order appointing the receiver made.

It was held by the Court of Appeals in the case of Wright v. Nostrand (94 N. Y., 45) that the production and pi’oof of an order made by a court or judge authoi’ized by law to make it in proceedings supplementary to execution, reciting the facts necessaiy to give such coui’t or judge jurisdiction to act in the proceedings, furnishes conclusive evidence of the regxxlarity of such order when questioned collaterally, and prima faoie evidence of the existence of the facts necessary to confer jurisdiction. The plaintiff produced on the trial an order made by a justice of the City Court inquiring the judgment-debtor to appear before him on the 25th of February, 1886, to make discovery on oath concerning his property, which order was based .upon an affidavit that recited the recovery of a judgment against the debtor, the issuing of an execution to the sheriff of the county of New York, where the judgment-debtor resided, that said execution had been returned unsatisfied; that said judgment remained unpaid, and that the judgment-debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, and that such property was so kept by the said debtor that it could not be identified and, with ordinary diligence, reached by execution. Upon the return day of that order the judgment-debtor appeared and was examined before the justice. Such examination disclosed the existence of property consisting of a lease of real estate, certain plays, and the scenery used in producing the plays, valued at about three hundred dollars; and at the close of the examination an order was made by the justice, before whom the examination was had, appointing a receiver of the property of the judgment-debtor.

Upon the authority of Wright v. Nostrand (supra), the production and proof of this order was conclusive evidence of the regularity of the order and of the appointment of the receiver, when questioned collaterally, and prima facie evidence of the existence of the facts necessary to confer jurisdiction. The plaintiff, therefore, proved the valid appointment of the receiver, and by operation of law such receiver thereby became vested with the personal property, including the dioses in action belonging to the judgment-debtor.

Conceding that the defendants had the right to show that at the time of the appointment of the receiver the execution upon which the proceeding was based had been countermanded, the burden was upon them to show such fact; and if we can take notice of the execution that was offered in evidence by the plaintiff and rejected by the court upon defendant’s objection, the plaintiff had the right to show that the countermand of the execution was after the appointment of the receiver. And we think that if the court had jurisdiction to appoint the receiver at the time the order appointing him was made, a countermand of the execution subsequent to such appointment would not render the order void until it was vacated by the judge or the court in which the proceeding was pending; and the subsequent orders made after the appointment of the receiver, extending the receivership to other judgments, before any order liad been made vacating the appointment, and before the commencement of this action, would prevent the receiver from losing any right to recover possession of the property because of any act of the original judgment-creditor who obtained his appointment.

It seems to us, therefore, as was said in Wright v. Nostrand (supra), that the orders of a court or judge authorized by law to act in such a proceeding must be presumed to be regular until annulled in a direct proceeding to review or set them aside; and that such orders, so far as they recite the facts necessary to confer jurisdiction upon the court or judge to move in the proceedings, furnish f rima facie evidence of the existence of such facts.

If, therefore, the receivership was extended to other judgments, the mere fact that the execution in the original judgment was countermanded should not result in destroying the title of the receiver. This must follow from an examination of the provisions of the Code, which do not leave it entirely at the will of the original judgment-creditor to determine whether a receiver once vested with the property of the judgment-debtor shall be divested or iiot, because by the provisions of the Code where one receiver is appointed, subsequent judgment-creditors in proceedings supplementary must, instead of obtaining a new receiver, have the receivership already in existence extended so as to include their judgments. We think, therefore, that the countermanding of the original execution upon which the order appointing the receiver was based, after the appointment of the receiver and before the receivership had been executed, did not divest the receiver of his rights to the debtor’s property, so that the right of such subsequent judgment-creditors to have such receivership extended to these judgments was lost, and that when extended the receiver was vested with the title to the judgment-debtor’s property.

We are, therefore, of opinion that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, J., concurred.

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


author: Van Brunt, P. J.: O’JBrien, J.

text:
    JOHN F. ZEBLEY, Appellant, v. THE FARMERS’ LOAN AND TRUST COMPANY, Respondent.

      ISq,uity — pwchase by a trustee under mortgage foreclosure for the benefit of bondholders electing to contribute — the option must be exercised in less than fourteen years.

    The complaint, in an action brought to compel an accounting by a trust company ■which had purchased certain mortgaged premises under foreclosure of the mortgage thereon, for the.benefit of those bondholders who might come in and contribute, alleged that a railroad company executed to the defendant, a trust company, a mortgage to secure certain bonds, some of which the plaintiff owned; that the mortgage was foreclosed, and under a provision in the decree the trust company bought in the property for the benefit of such bondholders as should come in and pay upon their bonds their proportionate share of the cash sum which it was necessary to realize upon the sale; that the trust company afterwards sold the property to another railroad company, of which sale the plaintiff had no notice; that the plaintiff had at all times been ready to pay his share of such cash sum; and that; in 1887, which was fourteen years after entry of the decree of foreclosure, he had demanded of the trust company that it account, which demand was refused, and that the trust company had wrongfully converted the plaintiff’s share in the property.
    A demurrer was interposed to the complaint.
    Held, that the complaint was bad and stated no cause of action.
    That as the plaintiff had not paid, nor tendered his proportionate share of the cash sum, he had no interest in the purchase undei the foreclosure which entitled him to call the trustee to account.
    That the relation between the parties, failing payment or tender, was not that of trustee and cestui que trust.

    That the trust company was not bound to wait indefinitely to see what bondholders might come in and pay their share of the amount paid on the foreclosure sale.
    That it was obliged to wait for that purpose only a reasonable time, and that fourteen years was too great a delay upon the part of a bondholder. (O’Brien, J., dissenting.)

    Appeal by the plaintiff John F. Zebley from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 10th day of January, 1891, sustaining a demurrer to the amended complaint, and dismissing the latter, with costs; and also from an order, entered in said clerk’s office on the 11th day of November, 1890, upon which the judgment was entered after a trial by the court of the issues of law at the New York Special Term.

      W. W. Hewett, for the appellant.

      H. B. Turner, for the respondent.
   Van Brunt, P. J.:

This action was brought by the plaintiff, a bondholder of the New York and Boston Railroad Company, against the defendant as trustee under a mortgage given by said company. The plaintiff alleged the incorporation of the defendant; the incorporation of the New York and Boston Railroad Company; the execution of the mortgage; the issuance of the bonds ; and that the plaintiff, before the commencement of this action, became, and still is, the owner and holder of eleven of said bonds with the coupons thereon; that said railroad company made default in payment of the interest on said bonds, and that thereupon the defendant, as trustee, elected that the principal of the bonds should become immediately due and payable in pursuance of the power conferred therein ; that thereafter, on or about some day entirely indefinite, the defendant commenced an action in this court to foreclose the mortgage; and that on some day not mentioned a decree was entered directing a sale of the mortgaged premises, which decree provided that, in case there should be no bona fide bid in cash at such sale to an amount equal to that of all the bonds outstanding and secured by said mortgage, the defendant might bid for and purchase the premises, property and franchises so sold in behalf of all-holders of such bonds and coupons, in proportion to the respective interests of such holder’s, at a price not exceeding the whole of such outstanding bonds and coupons, so much being payable in cash only as should be necessary to meet and defray the expenses of the action and the several payments in said decree directed to be paid in cash; and that said decree further provided that thereupon, and upon the payment by each bond or coupon holder of his proportionate share of such cash payments, such purchase should inure to the benefit of each such bondholder in the proportion of his interest as aforesaid; such sale, however, to be subject to certain liens.

The complaint further alleged that, on June 5, 1876, no cash bid being made therefor, the said railroad property, franchises, etc., were sold to the defendant in conformity with the before-mentioned decree; tliat subsequently the New York, Westchester and Putnam Railroad Company was incorporated, and the defendant, in co-operation with the corporation, conveyed said mortgaged property to said persons or to said company for some consideration to plaintiff unknown, and that at all the times mentioned the eleven bonds alleged to be held by the plaintiff were outstanding, and the whole amount thereof, with interest, was due thereon.

The complaint further alleged that the plaintiff and the holders of said eleven bonds had no notice of the formation of said last-mentioned railroad company, or of said transfer by the defendant to said company, nor did said bondholders or this plaintiff in any wise assent or agree thereto; and that the New York and Boston Railroad Company was and is insolvent.

The complaint contains the further allegation that this plaintiff has at all times been ready to pay his reasonable share of the expenses of the defendant, if any there be; and has at divers times, particularly on the 16th of December, 1887, demanded that defendant account with him; and that defendant pay him his just and reasonable share of the value of said mortgaged property; and that the defendant has refused and still refuses so to account; and has wrongfully, and in violation of its duties as trustee, converted to its own use the share of the plaintiff; and judgment is demanded for an accounting.

The defendant demurs to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action; that the court has no jurisdiction of the action; and that there is a defect of parties defendant in that the New York, Westchester and Putnam Railroad Company is necessary to a complete determination of the questions raised therein. This demurrer was sustained and from the judgment thereupon entered this appeal is taken.

Without discussing the many interesting points upon this demurrer, there is one which stands at the threshold of the plaintiff’s right to recover, which seems fatal to the cause of action stated in the complaint. It is there alleged that by the terms of the decree of foreclosure and sale the defendant might, under certain circumstances, purchase the property which was the subject-matter of the foreclosure action, and that thereupon, and upon payment by each bond and coupon holder of his proportionate share of the cash payments required to be made under the decree, such purchase should enure to the benefit of each such bond and coupon holder, etc. It is not alleged what the amount of this cash payment was, but the plaintiff does allege that he has been at all times ready and willing to pay his reasonable share of the expenses of the defendant, if any there be, and demands an accounting. But he nowhere alleges that prior to the commencement of this action or in this bill, that he has ever made any effort to pay or even to ascertain what he was in duty bound to pay prior to his acquiring any interest under the foreclosure sale. And it is clear from the expression used in his allegation of willingness to pay his reasonable share of the expenses, viz., “If any there be,” that there is no admission upon his part of any obligation to pay anything. Now, as the interest of this plaintiff depended entirely upon the fact that he had paid his proportionate share of the expenses of the action and the several payments in the decree directed to be made in cash, until a tender of these amounts had been made, it is clear that he had no interest whatever in the purchase under the foreclosure action for which he -was entitled to call the defendant to account. This payment was a condition precedent to the acquiring* of an interest. Until it was made, or at least tendered, the defendant did not become his trustee for any purpose whatever. Ilis claim upon the property was represented by the mortgage. By the foreclosure that claim was cut off, and it was only by coming in and paying his proportion of these various charges that he could acquire any interest in the purchase made by the defendant as trustee. The fact that this defendant did convey this property to another corporation was a matter of no interest or moment to this plaintiff or his predecessors in interest of the bonds of which he now claims to be the holder. As it appears upon the face of the bill the defendant owed to them no duty. The defendant was neither his trustee nor was he the defendant’s cestui que trust.

This purchase was made under this decree in 1816 it would seem. When the sale was made to the New York, Westchester and Putnam Railroad Company does not appear. But can it be claimed for a moment that this trustee was bound to hold this property forever in order to see as to whether outstanding bondholders would come in and contribute their share of the expenses and cash payments as required by the decree, and thus be entitled to share or have a voice in the disposition of the property purchased under the foreclosure sale. The action in question seems to have been instituted nearly fourteen years after this foreclosure sale, and all that the defendant was bound to do was to wait a reasonable time in order to enable these bondholders to come in and participate; and it does not appear that it did not do so.

It is certainly too late, fourteen years after the entry of this decree, for the holders of these bonds now to claim that they may come in and contribute and participate in the benefits of the foreclosure sale. If such a scheme is to operate, then there never could be, in the case of bonds passing from hand to hand, the closing up of a foreclosure suit upon a mortgage given to secure such bonds; and bondholders might lie quiet and wait and see what might be the result of the purchase by the trustee, and if advantageous to them, come in and contribute; and if it turned out badly, then stay out. Such is not the rule. Under a decree such as is alleged in the plaintiff’s complaint, the bondholder must come in within a reasonable time and make himself a beneficiary under the trust, and if he does not do this, then the trustee may close out his trust without in any way consulting or notifying the defaulting bondholder.

It would seem to us to be almost too plain for argument, were it not for the fact that one of my associates thinks otherwise, that before an action of this kind can be maintained the party must be a beneficiary; and this plaintiff shows upon the face of his complaint that he is not a beneficiary, as he has not done those things which he is bound to do before he can participate in the trust.

The judgment should be affirmed, with costs.

Patterson, .1., concurred.

O’JBrien, J.

(dissenting):

Although several grounds of demurrer were assigned, the one upon which the judgment was based was that the complaint did not state facts sufficient to constitute a. causé of action.

In determining the sufficiency of the complaint it is not necessary for us to set it forth in full, and we shall, therefore, confine ourselves to a statement of such facts alleged therein as we deem necessary to dispose of the questions thus raised on this appeal.

The action is brought by the plaintiff, the holder of eleven bonds of the New York and Westchester Railroad Company, for an accounting from the defendant, the trustee, under which the bonds were issued. The complaint alleges the incorporation of the railroad company; the mortgage to the defendant; the default of the railroad company in the payment of interest and the election of the ■ defendant trustee, that the whole principal and interest of the bonds should become due; that the trust company thereupon brought suit to foreclose the mortgage in which a decree and sale was had, and the property of the railroad company bought in by the trustee for the benefit of all the bondholders under the power contained in the trust deed. It is further alleged that the bonds so now held by the plaintiff were ascertained to be outstanding, and that after the purchase the trust company conveyed the railroad property to the company which was formed in re-organization of the company in default, in which re-organization the holder of these bonds had no part, and in which he declined and declines to come; and that demand has been made upon the trust company, but the trust company denies that he has any rights whatever. Upon these facts the plaintiff demands that the defendant account for the disposition made of the property after the foreclosure.

The respondent contends that the facts stated do not constitute a cause of action for the following reasons:

. I. The plaintiff’s claim is too stale and speculative to engage the attention of a court of equity.

II. If the plaintiff is entitled to any relief, it must be sought in the original foreclosure suit.

III. When the defendant bought in the property, it held the same as trustee under the provisions of the decree. To sustain any action against the trustee personally, it must be alleged and proved that the trustee was guilty of a breach of trust, and departed from the provisions of the decree.

IY. The conveyance by the trustee to the new railroad company, if made by order of court, cannot be impeached collaterally; and if made without such order, is a breach of trust and absolutely void.

Y. The allegation as to conversion by the defendant is defective, and amounts to nothing.

In regard to the first, while it is true that a court of equity frequently declines to entertain claims which are too stale, and while' the complaint itself shows that many of the transactions now sought to be inquired into occurred more than ten years ago, still we have allegations of want of notice and knowledge on the part of the plaintiff, which, in the absence of a bar by reason of the statute of limitations (which could only be raised under our practice by answer), entitle the plaintiff to present the facts to the court and then have a ruling thereon.

As to the second ground, that the plaintiff’s relief, if any, must be sought in the foreclosure suit, this much need only be said. It may well be that the plaintiff might have intervened in that suit, and might have obtained the relief which he seeks in this. But that is all foreign to the question presented by the demurrer which relates to the question whether the allegations are sufficient in law to enable him to maintain this action, and that is the question to be hereinafter considered.

As to the third, we agree with the respondent, that when the defendant bought in the property it held the same as trustee under the provisions of the decree. It should, however, be remembered that there is no allegation in the complaint that all the property received by the defendant as trustee in the foreclosure suit was, by the terms of the decree or any order of the court, turned over to the new or reorganized company. It is true there is an allegation that the property was turned over; but there is an express statement that divers persons, having associated themselves together, formed, or attempted to form, a corporation;' * * * that the defendant, in co-operation with said persons, thereafter conveyed said mort7 gaged property to said persons for the said company upon some consideration to the plaintiff unknown; and “ that this plaintiff and the holders of said eleven bonds had no notice of the formation of said railroad company, or the said transfer of said property by defendant to said committee or company; nor did the said bondholders or this plaintiff in anywise assent or agree thereto; nor have they or he received any benefit or advantage under said so-called reorganization ; but, on the contrary thereof, they and he have at all times elected to have their distributive share of the proceeds of said mortgaged property.”

So far, therefore, as the complaint itself gives us any information upon the subject, it would appear that the defendant acquired the title to all the property of the mortgagor railroad and thereafter held the same as trustee, until, as alleged, it made a disposition thereof by transferring the same to another corporation, but for what consideration or under what arrangement, or whether it was the result of a decree or order of the court, is not made to appear. It seems to us reasonably clear, as an elementary principle, that where nothing else appears, and where the decree in foreclosure gave no specific directions as to the disjtosition to be made by the trustee of the property, that the defendant would hold the same as trustee for all the bondholders, subject, of course, to the terms and conditions fixed by the decree relating to the rights of the bondholders.

It was provided therein that upon payment by each bond or coupon holder of lfis proportionate share of the cash payment necessary to meet and defray the expenses of the action, and the other payments directed by the decree to be paid in cash, the purchase so made by the trustee should enure to the benefit of such bond or coupon holder in proportion to his interest. It appears that' the plaintiff did not pay his proportion, but he asserts his readiness and willingness to pay his reasonable share of the expenses of the defendant, which, when taken in connection with the statement of the demand upon the defendant to account, was undoubtedly intended as a statement of willingness to comply with the condition precedent to obtain an interest in the property purchased upon the foreclosure by the trustee.

There can be no doubt upon a trial, upon a showing that this property pursuant to a decree or order of the court was transferred to the reorganized company, or upon a showing that the plaintiff was not entitled to any share or interest therein, that that would be a complete answer to the plaintiff’s right to recover. It seems to us, however, upon the facts stated, that we cannot ignore plaintiff’s right to know what became of the property which was purchased in ■the interest of the bondholders, except by assuming that the property purchased by the trustee was properly and lawfully disposed of. All these presumptions, however, do not destroy the plaintiff’s right to have a statement from the trustee as to what was done with the property. The complaint does not allege that the property was wrongfully conveyed to another corporation, but there is a statement that the property was converted by the defendant. "Without giving any weight to that, being a conclusion unsupported by any facts otherwise alleged in the complaint, it still appears from the facts alleged that the property was transferred in some way and upon some consideration to the plaintiff unknown.

"While we must, therefore, concede the respondent’s fourth contention, that the conveyance by the trustee to the new railroad company, if made by order of the court, cannot be impeached collaterally, and if made without such order is a breach of trust and .absolutely void, the fact still remains that the property having come into the possession of the defendant, as trustee for the plaintiff and the other bondholders, the plaintiff has a right to know in what manner and how the defendant has disposed of the same. Upon such an inquiry, to he entered upon at a trial after answer, the presumptions as to lawful disposition, and that what has been done was pursuant to the trust reposed in it, will all arise in defendant’s favor. But it seems to us that the plaintiff has shown sufficient to entitle him to have the defendant, by answer, state just what was done with the property, and pursuant to what authority and upon what terms, to the end that it may he determined what, if any, rights he may have therein, and as to whether or not the defendant has received or holds, by reason of the transfer, any money or property to which the plaintiff is entitled. "We do not hold that this is a right which may not have been lost by laches or default of plaintiff, these being questions which the trial court must decide.

Upon this demurrer, therefore, it will be seen that our view is that the abstract question of the power of the trustee to convey in good faith and for an adequate consideration is not involved. The proposition before the court is whether, upon facts showing that the trustee has come into the possession of the trust property, he can dispose of the same upon terms and conditions unknown to the cestui que trust, and thereafter refuse or deprive the latter of a right to know just what has been done with the trust fund. We have always regarded it as elementary that a cestui que trust had a right to demand of a trustee an accounting as to the administration of his trust; and in this respect there can be no distinction between the trustee of a railroad company and any other trustees, for the reason that the former are governed by the general rules that govern trustees in the ordinary performance of the duties of a trust.

We are of opinion, therefore, that the judgment should be reversed, with costs to the appellant to abide the event, and with leave to the defendant to answer, without costs.

Judgment affirmed, with costs.


author: Ingraham, J.:

text:
    CHARLES B. ROWLEY, Respondent, v. THE NATIONAL BANK OF DEPOSIT OF THE CITY OF NEW YORK, Appellant.

      Bills and notes —pleading — afailwe to allege that the payee of a eheeh indorsed it— demurrer.

    Tlie complaint in an action alleged that the plaintiff drew a check upon the defendant, a national hank, whereby he directed it to pay to the order of E. B. Stimpson twenty-five dollars; that the check was thereafter deposited in another hank to the credit of E. B. Stimpson & Son; that it was presented to the defendant for payment, and that the defendant, although it had sufficient funds of the defendant, refused to pay the check.
    To this complaint a demurrer was interposed.

      Held, that, as there was no allegation in the complaint that the payee indorsed the check, or that the defendant was hound to pay it, the demurrer should he sustained.
    Appeal by the defendant, the National Bank of Deposit of the city of New York, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 5th day of January, 1892, overruling a demurrer to the complaint; and from the interlocutory judgment of the Supreme Court, entered in the office of the said clerk on the 7th day of January, 1892, upon said order.
    The action was brought to recover the amount due upon a check, which the complaint alleged was drawn for twenty-five dollars, and was deposited in the National Park Bank to the credit of E. B. Stimpson & Son.
    The complaint, among other things, alleged:
    That on the 31st day of July, 1891, this plaintiff drew a check upon the defendant, wherein and whereby he directed said defendant to pay to the order of E. B. Stimpson the sum of twenty-five dollars ($25), and delivered said check to the said E. B. Stimpson.
    That at the time when said check was so drawn and delivered this plaintiff had on deposit with the defendant the sum of not less than ninety-two dollars and thirty-six cents ($92.36), and said defendant was justly indebted to this plaintiff in said amount; and, as plaintiff is informed and verily believes, such sum was credited to him upon the defendant’s books.
    That on both the 4th and 5th days of August, 1891, this plaintiff had on deposit with the defendant the sum of not less than one hundred and sixty-eight dollars and seventy-one cents ($168.71), and said defendant was justly indebted to this plaintiff in said amount; and, as plaintiff is informed and verily believes, such sum was credited to him upon the defendant’s books.
    This plaintiff further alleges, upon information and belief, that the check above referred to, drawn by him to the order of E. B. Stimpson, was deposited in the National Park Bank of the city of New York, to the credit of E. B. Stimpson & Son, on the 4th day of August, 1891; that it was presented to the defendant by said National Park Bank for payment on that day or the following day, and that at the time when the same was presented to defendant for payment this' plaintiff had on deposit with said defendant an amount largely in excess of the amount of said check.
    Plaintiff further alleges that when said check was presented to defendant for payment, the defendant dishonored the same and refused payment thereof, although well knowing that it was indebted to plaintiff in an amount far in excess of the amount for which said check was drawn, and that said defendant returned said check to said National Park Bank after having marked, or caused to be marked, conspicuously upon the face thereof the letters or characters “ N. G-.” in blue pencil marks.

      JR. W. Gilbert, for the appellant.

      3. F. Andrews, for the respondent.
   Ingraham, J.:

The complaint alleges that the check described in the complaint was deposited in the National Park Bank, of the city of New York to the credit of E. B. Stimpson & Son on the 4th of August, 1891, that it was presented to the defendant by such National Park Bank for payment on that or the following day, and that at the time when the same was so presented for payment, the plaintiff had on deposit with said defendant an .amount largely in excess of the amount of such check; and that when said check was jiresented for payment the defendant refused payment thereof, although well knowing that it was indebted to plaintiff in an amount in excess thereof; and that said defendant returned said check to the said National Park Bank after having marked or caused to be marked upon the face thereof the characters “N. Gr.” in blue pencil, and that such letters or characters when written conspicuously upon the face thereof by bankers, etc., mean not good,” and that the drawer thereof has not a sufficient sum on deposit to warrant the payment thereof. There is no allegation in this complaint that the check was indorsed by the payee, or that the defendant was bound to pay the same, and the court cannot assume that the check was so indorsed. Until it was indorsed the defendant was not bound to pay it; and before there can be any cause of action against the defendant, because of its refusal to pay the check, the plaintiff must allege that the defendant was under a legal obligation to pay the same.

There is no allegation in the complaint that the check was presented for certification, nor do we know of any rule of law that requires the bank to certify its customer’s checks or makes it liable for a refusal to certify. Without passing upon the question as to the liability of the defendant for damages for failing to pay a customer’s check, we think, for the reason above stated, that the demurrer should have been sustained.

The judgment should, therefore, be reversed and the demurrer sustained, with costs and with leave to the respondent to amend within twenty days upon payment of costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment reversed and demurrer sustained, with costs, and with leave to the respondent to amend within days upon payment of costs.


text:
    ROBERT L. MORDECAI, an Infant, by ALLEN L. MORDECAI, his Guardian Ad Litem, Respondent, v. DYER PEARL and Others, Appellants.

      Infant — employing brokers in stock speculation — fight to recover the margin paid.

    An infant deposited money with stock-brokers as a margin, upon the credit of which he engaged in a speculation in stocks, which resulted in a loss.
    He never received any of the stocks from the brokers.

      Held, that he might avoid the contract, and that, having repudiated the orders given by him, on the ground of infancy, he was entitled to recover his deposit in full.
    Appeal by the defendants, Dyer Pearl, Engene L. Mordecai and George C. Thomas, from a judgment of the Supreme Court, entered in the office of the cleric of the city and county of New York on the 1st day of July, 1891, upon a recovery by the plaintiff of $2,300, and interest and costs, after a trial before a referee.

      W. D. Leonard, for the appellants.

      A. J. Simpson, for the respondent.
   Per Curiam :

It is conceded by the appellants that the plaintiff, an infant, had a right to recover the money deposited by him with the appellant on his returning to the appellant all that he had received under the contract.

It does not appear, however, that the infant has received anything under this contract except the notices of the purchases and sales of the stock made by the defendants for his account. He certainly never received any of the stock alleged to have been purchased for him, nor the proceeds of the sales of any of the stock alleged to have been sold for his account; and as the notices of purchase and sale of stock do not appear to have been of any special value, it is difficult to see that any advantage would be derived by the defendants if he had returned or offered to return them.

The plaintiff, an infant, deposited with the defendants a sum of money belonging to him, and he now seeks to recover that sum of money. The defendants claim the right to retain it to satisfy an indebtedness, which they claim exists in their favor, arising out of transactions in stocks, which, they claim were authorized by the infant. The infant never received the stocks or their proceeds. He has received no benefit from any of the transactions made by the defendants for his account, and to ask him to return to the defendants stocks which have never been in his possession, but which have always been in the possession of the defendants, and been disposed of by the defendants, would be asking him to perform an impossibility.

As was said in Green v. Green (69 N. Y., 552): “ The right to rescind is a legal right established for the protection of the infant, and to make it dependent upon performing an impossibility, which impossibility has resulted from acts which the law presumes him incapable of performing, would tend to impair the right and withdraw the protection. Both upon authority and principle we think a restoration of the consideration could not be exacted as a condition to a rescission on the part of the defendant.”

The case of Heath v. Mahoney (12 Week. Dig., 404) is an express authority for the proposition that, in the consideration of the rights of the parties to this action, the orders for the purchase and sale of stock given by the infant, having been effectually repudiated on the ground of infancy, they must be regarded, so far as they affect his legal rights, as though they never had any existence.

"We think, therefore, that the judgment was right, and should be affirmed, with costs.

Present — Van Brunt, P. J., O’Brien and Ingraham, JJ.

Judgment affirmed, with costs.


text:
    THE APOLLINARIS COMPANY (Limited), Appellant, v. GEORGE W. VENABLES and Another, Respondents.

      Injunction — an action to restrain the infringement of a trade-ma/rk— decision that the plaintiff was not entitled to an injunction — reference to assess damages.

    A foreign corporation brought an action, in which an injunction issued to restrain a firm from using certain labels which infringed, as was alleged, upon trademarks belonging to the corporation.
    In this action a final judgment was entered dissolving the injunction and dismissing the complaint.

      Held, that as the injunction was the gravamen of the action, and not auxiliary to it, ' the decision relative to the preliminary injunction and the dismissal of the complaint was a final decision that the corporation was not entitled to any injunction.
    That the court, therefore, had jurisdiction to appoint a referee to ascertain the damages sustained hy the firm from the injunction, and that the sureties upon the undertaking were hound hy such action.
    Appeal by the plaintiff, The Apollinaris Company (Limited), from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 3d day of February, 1892, appointing a referee to ascertain the damages sustained by the defendants by reason of an injunction granted in the action.

      II. Melville, for the appellant.

      I. A. Englehart, for the respondents.
   Per Curiam :

The appellant, a foreign corporation, brought this action to restrain the respondents from using certain labels which the complaint alleged infringed upon its trade-mark rights. On motion of the plaintiff a preliminary injunction was issued and subsequently an order was made dissolving the injunction and dismissing the complaint, and a final judgment was entered dissolving such injunction and adjudging that the complaint be dismissed, with costs. Thereupon this motion was made and granted.

It is urged that the court had no power to grant this motion because there had been no decision as to the plaintiff’s rights at the time the injunction was granted, and our attention is called to the eases of Palmer v. Foley (71 N. Y., 106); Musgrave v. Sherwood (76 id., 194); Benedict v. Benedict (Id., 600); Johnson v. Elwood (82 id., 365) and Delafield v. Commercial Telegram Company (22 Abb. N. C., 450). But it Avill be observed upon an examination of those cases that they have no application to the state of facts presented by the record upon this appeal.

It appears that the gravamen of the action was the plaintiff’s right to an injunction, and that the preliminary injunction was granted upon the theory that the plaintiff had a good cause of action for a permanent injunction as against the defendants. It was not auxiliary to the cause of action declared upon in the complaint, but, as already stated, was the cause of action. The action was instituted for the purpose of obtaining this permanent injunction. When, therefore, by the judgment of the court, the preliminary injunction was dissolved and the complaint dismissed it was an adjudication by the court that the plaintiff had no right to maintain this action for an injunction. And it was, therefore, an adjudication that as the preliminary injunction depended upon the right to maintain the action for a permanent injunction, no right to the preliminary injunction ever existed.

It would seem, therefore, that the order was properly made and should be affirmed, with ten dollars costs and disbursements.

Present — Van Brunt, P. J., O’Brien and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Dwight, P. J.:

text:
    ERASTUS F. ROOT, as Sole Overseer of the Poor of the Town of Bolivar, Respondent, on the Relation of ARTHUR C. FISHER and Another, Appellants, v. ALBERT J. ALEXANDER, Respondent.

      Excise lato —penalties sued for, after default by the overseer of the poor, by other

    The statutes, relative to penalties under the excise law, provide that if the overseers of the poor of a town “shall, for the period of ten days after complaint to them that any person has incurred such penalty, accompanied with reasonable proof of the same, neglect or refuse to prosecute for such penalty, any other person may prosecute therefor in the name of the overseers of the poor of the town.”
    Due complaint to the effect above stated was made to the sole overseer of a town on February 30, 1891, who, brought no action, and went out of office March 5, 1891.
    On March twentieth certain persons brought an action for the recovery of the penalty-in the name of the new overseer.

      Held, that the action could be maintained.
    That the overseer of the poor was a quasi municipal corporation, having perpetual succession.
    That as proper complaint had been made to the old overseer, and as he had, for a period of ten days thereafter, taken no action, the right of other persons to prosecute became complete, and that an action in the name of the overseer in office when the action was brought was proper.

      Appeal by Arthur C. Fisher and John Nicholson, relators, from an order of the Supreme Court, entered in the office of the clerk of Allegany county on the 20th day of July, 1891, dismissing the complaint in the above-entitled action, with costs, and discontinuing the action.

      W. Mrn'tin Jones, for the relators, appellants.

      O. U. Brown, for the overseer, respondent.

      Rufus Seott, for the defendant, respondent.
   Dwight, P. J.:

The statute relating to penalties under the excise law provides that they shall be sued for and recovered by the overseers of the-poor of towns. (Laws of 1857, chap. 628, § 22, as amended by Laws of 1873, chap. 820, § 1; Birdseye, 1053, § 26.) It is further provided by section 30 of the former enactment, as amended by section 2 of the latter (Birdseye, 1051, § 31), that in case the overseers shall for the period of ten days after complaint to them that any person has incurred such penalty, accompanied with reasonable proof of the same, neglect or refuse to prosecute for such penalty, any other person may prosecute therefor in the name of the overseers of the poor of the town.”

February 20,1891, Mark A. Furnald was sole overseer of the poor of the town of Bolivar, and on that day the relators served upon him, as such, the requisite complaint and proof, in writing, that the defendant had incurred penalties for violations of the excise law. The overseer neglected, for the-period of ten days thereafter, to bring an action for the recovery of such penalties, and on the fifth day of March his term of office expired, and he was succeeded by Erastus F. Root. On the twentieth day of March the relators commenced this action for the recovery of the same penalties in the name of the new overseer of the poor. The single question, oh the merits, presented by this appeal is whether, under the statute, the action can be maintained without a renewed service of the complaint and proof upon the overseer in office at the time the action was commenced. The court at Special Term held otherwise, and on that ground, on motion of the overseer, made the order from which the appeal is taken. "We think the order ivas erroneous.

The overseer of the poor is a quasi municipal corporation having-perpetual succession. The incumbency of the office changes, but the office remains the same. All rights acquired by others under one incumbency of the office continue under those 'which succeed. By making the complaint to the overseer in February, no action having been commenced by him within ten days thereafter, the relator acquired the right to bring the action in the name of the overseer in March. It was the overseer of the poor to whom the complaint was required to be made, and it was the overseer of the poor in whose name the action was required to be commenced; not necessarily the same .overseer in both cases, but in each case the overseer in office at the time. The statute, with this construction, imposes no personal liability upon one incumbent of the office for the neglect or default of his predecessor. The new overseer is only the nominal plaintiff, and in no event can be made liable for the costs of the action. He is even relieved from the responsibility for the conduct of the action which he would have assumed had he brought it in his own name as overseer, on a complaint made to him, and he bears no other relation thereto than he would have done had he declined to bring the action on a complaint so made.

The question seems not to have been adjudicated in any reported case, but, upon the principles suggested above, we think the motion should have been denied. The order appealed from should be reversed and the motion denied, with ten dollars costs to the appellants of opposing the motion, and ten dollars costs and the disbursements of the appeal.

Macombee and Lewis, JJ., concurred.

So ordered in this and five other appeals submitted herewith.


text:
    ELLA WEED CENTER, Respondent, v. JAMES I. WEED, Appellant.

      Bquity — fraudulent misrepresentations —the existence of a remedy at law must he pleaded — equitable estoppel and relief — extent of such relief.

    Charles H. Weed died intestate owning- three parcels of land. Soon afterwards his wife, E. Ann Weed, died intestate, the owner, as was supposed by her children, other than her son, James I. Weed, of the homestead and its furniture. In fact, she had, before her death, conveyed them to James I. Weed by a deed which he withheld from record. He represented to his sister, Ella Weed Center, that their mother had never parted with the title to llie house or the furniture; and upon this representation, and upon a statement that she would own one-third of the homestead and one-fourth of certain personal property, he induced her to sign deeds, by one of which one sister quit-claimed to the other three children all her interest in two parcels of their father’s real estate, and in the homestead, in consideration of the execution of another deed by which the three-grantees in the first deed quit-claimed to that sister all their interest in the third parcel of the father’s real estate. Before these deeds were executed James I. Weed put on record his deed of the homestead from his mother.
    In an action in equity, brought by Ella Weed Center to recover the share in the real and personal property which James I. Weed stated that she would have if she executed the deed:

      Held, that the case was one of equitable cognizance, and that she was not confined to her legal action for the recovery of damages for fraud.
    That equity acquired jurisdiction from the allegation in the complaint that James I.- Weed' obtained the deed from his mother by fraud-and deceit, although that question was found against the plaintiff.
    That the defense to the action that a remedy existed at law was waived by the failure of the defendant to plead it.

    That section 1688 of the Code of Civil Procedure, prescribing three years actual possession in the plaintiff before an action, can be maintained to determine conflicting claims to real estate, had no application, being an action given to the holder of the legal title.
    That the fraud of James I. Weed created an equitable estoppel which entitled the plaintiff to relief in equity.
    That James I. Weed should be compelled to make good to their full extent his representations as to the interest in the real and personal property which the plaintiff would acquire if she executed the deeds; and this irrespective of the question whether the execution of the deeds actually vested in her an estate less than he stated would so vest.
    Appeal by tlie defendant James I. Weed from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Cayuga, on tbe 8th day of August, 1891, in favor of tbe plaintiff, adjudging lier, among other things, to be entitled to a one-third interest in the homestead formerly owned by Ann Weed, and to a one-fourth interest in the personal property upon said premises formerly belonging to Charles II. Weed and to Ann Weed.

      J.-D. Teller, for the appellant.

      G. M. Elliott, for the respondent.
   Dwight, P. J.:

The parties to the action were brother and sister, and, with two other sisters, were the only lieirs-at-law and next of kin of their father and mother, both of whom had died intestate within a year before this action was commenced. The father died seized of three parcels of real estate in the village of Weedsport, and the mother had been, and it was supposed by the sisters that she was, at the time of her death, the owner in fee of the homestead house and lot in the same village, and the household furniture therein, of which she died in possession. In fact, however, she had, shortly after the death of her husband, conveyed the homestead and furniture to the defendant, subject to lier own use during her life, by a deed which he had withheld from record, and the existence of which he had concealed from his sisters, although he had been in the possession of the property conveyed from the time of his mother’s death. The defendant, moreover, for the purpose of'inducing the plaintiff to become a party to the two deeds hereafter mentioned, fraudulently represented to her that his mother' had never parted with her title to any of the property in question, but that his sisters and himself had inherited it from her, and, in effect, that if the proposed deeds were executed, the plaintiff would become the owner of one-third of the homestead property as well as of certain property left by her father. By such concealment and fraudulent representation the defendant induced the plaintiff to become a party to two deeds', by one of which Mrs. Putnam, one of the heirs, quit-claimed to the other three all her interest in two parcels of the real estate of their father, and in the homestead real estate, in consideration of the other deed by which the three grantees in the first quit-claimed to her all tlieir interest in the remaining parcel of the father’s real estate, consisting of eight acres of land, with farm buildings. The deeds were prepared for execution, with the knowledge and assistance of the defendant, on the third day of April, and were executed, acknowledged and delivered on the fifth day of the same month; but intermediate their preparation and their execution, the defendant caused his deed of the homestead to be recorded. These facts were found by the referee with great particularity of detail, and upon proofs which support the findings; and lie found, as conclusions of law therefrom, that the defendant is estopped from denying, as against the plaintiff, the truth of the representations above mentioned, and is bound to make them good; that he is estopped from asserting, as against the plaintiff, any title in himself, under the deed from his mother, to the one-third interest in the homestead and the one-fourth interest in the personal property which he represented would be hers in case she entered into the proposed arrangement with Mrs. Putnam; that the plaintiff is entitled, legally and equitably, to an undivided one-third interest in tlie homestead property, and to an undivided one-fourth part of the personal property in those premises; that she is entitled to a decree adjudging her seized in fee of an undivided one-third part of the homestead premises, and the owner of an undivided one-fourth interest in the personal property thereon, and that the decree should direct the defendant forthwith to convey to her by good and sufficient deed such interest in the homestead premises; and judgment was directed and entered accordingly.

We have no doubt that the case was properly one of equitable cognizance. The plaintiff could not have maintained ejectment for an undivided share of the premises in question, because the legal title to the whole was in the defendant. Nor was she, on the facts ■of this case, confined to her action for damages by the fraud of the defendant. The mere finding that the defendant was not insolvent at the time of the commencement of the action gives no assurance of his ability to respond in damages for the wrong done to the .plaintiff, and the whole case tends to show that the only effectual remedy for her was to be found in a resort to the land itself under the protection of a Us pendens. Besides equity acquired jurisdiction of the case by virtue of the allegation of the complaint that the deed to the defendant from his mother was without consideration and was obtained by fraud and deceit, and — albeit that issue was finally decided adversely to the plaintiff — equity having thus acquired jurisdiction of the action will retain it until the whole subject is disposed of. (Hollister v. Stewart, 20 N. Y. St. Rep., 941, 949; Ostrander v. Weber, 22 id., 980, 983 ; Valentine v. Richardt, 126 N. Y., 272.) Moreover, the defendant waived the defense that the plaintiff had her remedy at law by not pleading it. (See the cases last cited and Town of Mentz v. Cook, 108 N. Y., 504.)

The case is clearly not within the statutory rule which prescribes three years’ actual possession in the plaintiff before an action can be maintained to determine conflicting claims to real estate. (Code of Civil Pro., § 1638.) It is apparent from the terms of that statute that the action there given is one which is based upon the legal title held or claimed by the plaintiff, and that it has no reference to an action for similar relief which proceeds upon equitable grounds; and, so far from possession in the plaintiff being required in the latter class of actions, relief may, in a proper case, be obtained to set aside a deed, or remove a cloud upon title, and to recover possession in a single action (Lattin v. McCarty, 41 N. Y., 107; Phillips v. Gorham, 17 id., 270; Bockes v. Lansing, 74 id., 437, 443), the proper cases for the exercise of such jurisdiction being those in which- special circumstances 8f an equitable character exist outside the legal title and right to possession. (Moores v. Townshend, 102 N. Y., 387, 393.)

We can have no doubt that an equitable estoppel, especially when it is created by intentional and fraudulent representation, may become the basis for affirmative equitable relief. The principle is fully recognized, though not actually applied, in the case of Trenton Banking Company v. Duncan (86 N. Y., 221) where, as we gather from the opinion of the court by Andrews, J., at pages 228-230, the plaintiff would -have been held entitled to affirmative relief against the defendant, if there had been a finding of fraudulent representation or concealment on the part of the latter, in respect to the title to property which had been conveyed to him by a deed not recorded, or proof that his withholding his deeds from record was with a fraudulent intent. The cases of Wendell v. Van Rensselaer (1 Johns. Ch., 344); Hungerford v. Earle (2 Vern., 261), and Storrs v. Barker (6 Johns. Ch., 166), were cited as authority for such holding; and in those cases the principle of estoppel was distinctly applied in favor of the plaintiff in the action.

In the opinion, referred to the court says: “ To authorize the finding of an estoppel in pads, against the legal owner of land, there must be shown, we think, either actual fraud or fault or negligence equivalent to fraud on his part, in concealing his title.” There can be no question but that the present case comes fully up to the requirement of the rule thus stated. Here the defendant not merely concealed the fact that he held a deed of the homestead property, but affirmatively represented that his • mother had never parted with her title to it, and that it belonged, by inheritance, to the four children, and this he did for the purpose of inducing the plaintiff to consent to a division of his father’s estate by which he would himself be the gainer to the extent of one-third of the interest of his sister, Mrs. Putnam, in that portion of the property quit-claimed by her; and it was by means of these representations that he induced the plaintiff to part with her interest in the eight acres conveyed to Mrs. Putnam. There can be no doubt of the apjfiication here of the principle of estoppel.

The only question is of the extent to which that principle shall apply in favor of the plaintiff. In Grissler v. Powers (81 N. Y., 57) the court, in amopinion by Andrews, J., says: “We are 0& opinion that as a general rule the estoppel created by a false representation acted upon, is commensurate with the thing represented, and operates to put the party entitled to the benefit of the estoppel in the same position as if the thing represented was true.” Mr. Pomeroy, in his treatise on Equity Jurisprudence, says that the party against whom such an estoppel is established “ may even be compelled, at the suit of an innocent purchaser, to make good and specifically perform his representations. Eraud, actual or constructive, is the essential and central element.” (2 Pomeroy’s Eq. Jur., § 821.) And, further: “The general rule is that if a person interested in an estate knowingly misleads another into dealing with the estate, as if he were not interested, he will be postponed to the party misled, and compelled to make his representations specifically good.” (Id., § 807.) It is contended on the part of the appellant here that the principle of estoppel, if it has any operation in this case, can only operate to require the defendant to make good his representations to the extent of the interest in the homestead property which the plaintiff would have taken under the deed of Mrs. Putnam liad the latter been, as the defendant represented, the owner of one-fourth of that property; and the interest thus acquired would have been only one-tliird of one-fourth, or one-twelfth of the 'property in question. But this view of the case we regard as too restricted. The representations of the defendant were not confined to a statement of what the plaintiff would receive under the deed from Mrs. Putnam, but extended to an assurance that by entering into the general scheme for a division of the inheritance, and parting with her interest in the eight acres, the plaintiff would become the owner of one-third of the homestead real estate and onefourtli of the household furniture; and such would have been the case blit for the deed which he held and fraudulently concealed. It was in reliance upon this representation of the status of the title, and in the expectation of this result, that the plaintiff consented to the scheme proposed and parted with her property.

Under the doctrine of the authorities cited, we think the conclusion of law of the referee was correct, that the defendant was bound to make good to the plaintiff the representation in respect to the title to the property of his mother.

None of the exceptions to the reception and exclusion of evidence on the trial seem to have been well taken.

The judgment appealed from should be affirmed.

Macomber and Lewis, JJ., concurred.

Judgment appealed from affirmed, with costs.


author: Dwight, P. J. :

text:
    THE BOARD OF SUPERVISORS OF ERIE COUNTY, Respondent, v. THE CITY OF BUFFALO, Appellant.

      JSminent domain — an award, confirmed becomes a judgment and may be sited for at law — statute df limitations — payment of an assessment for damages — laches — interest.

    Tlie city of Buffalo, having condemned property belonging to the county of Erie by proceedings which were confirmed in October, 1876, went into possession of the premises and caused certain grading'and paving to be done, the expense of which was assessed upon the residue of the land of the county, and was paid by it.
    No assessment for benefits from which the award could be paid ever having been made, the county, in 1887, brought an action at law to recover the award made to it in the condemnation proceedings.

      Held, that such an action could be maintained.
    That the award upon confirmation became in the nature of a judgment, upon which an action could be brought at any time within twenty years from the entry of the order of confirmation.
    That the payment of the assessment for paving and grading was not a waiver of the right of the county to be paid the award.
    That mere forbearance to press a claim, especially upon the part of a board of supervisors whoso composition was continually changing, was not laches.
    That as the city charter (chap. 519 of the Laws of 1870, tit. 8, § 15) prescribed that the award should be paid within one year after confirmation, the county was. properly allowed to recover interest upon the award from a date one year subsequent to confirmation.
    Appeal by the defendant, the Oity of Buffalo, from a judgment, of the Supreme Court, entered in the office of the clerk of Erie county on the llth day of February, 1891, upon a recovery in favor of the plaintiff, of $36,439.38, with costs, after a'trial before the court at the Erie Special Term.

      Philip A. loving, for the ajipellant.

      John Cunneen, for the respondent.
   Dwight, P. J. :

The action was to recover the amount of an award, with interest, made to the plaintiff in proceedings instituted by the defendant to acquire title to real estate belonging to. the county of Erie, situated in the city of Buffalo. The city required the premises for the extension of one of its most important streets, and it instituted the necessary proceedings in the Superior Court of Buffalo to acquire the title by condemnation. In those proceedings the award in question was duly made by commissioners, and was duly confirmed by the court on the 2d day of October, 1816. Immediately thereupon the city took possession of the premises, removed whatever structures were upon them, graded and paved the surface for the purposes of a highway, and has ever since been in exclusive possession and control of the same as a public street of the city of Buffalo.

The expenses of the grading and paving were assessed wholly upon the residue of the plaintiff’s land from which the portion condemned liad been taken, tliat being the only land then abutting upon the extension, and the assessment (of $2,700) was paid by the plaintiff.

In May, 1885, the defendant moved, in the Superior Court, to set aside the award in question on the ground of irregularities in the proceedings leading up to it. This application was met by the plaintiff with an offer to waive all such irregularities, and was denied by the court. In February, 1886, the defendant gave notice of an appeal from the last-mentioned order, hut in the following April withdrew that notice, and the appeal was dismissed.

On July 27, 1887, the plaintiff gave notice of its claim to the defendant, and demanded payment of the award and interest, or a surrender of the possession of the premises, and on the tenth day of October of the same year this action was brought; no payment, or offer of payment, having, in the meantime, been made to the plaintiff, and no assessment of benefits having been made with which to pay for the premises appropriated.

The cases of Sage v. The City of Brooklyn (89 N. Y., 189), McCormack v. The Same (108 id., 49) and Donnelly v. The Same (121 id., 9) furnish undoubted authority for resorting to a common-law action for the recovery of the award; also for the proposition that the confirmation of the award was in the nature of a judgment of the Superior Court of’Buffalo, and that an action for the recovery of the award so confirmed, may be brought at any time within twenty years from the entry of the order of confirmation. We find nothing in this case which takes it out of the doctrine of the cases cited. The proposition that, by paying the assessment for grading and paving, the plaintiff waived its right to have payment of the award is not at all tenable. It may, perhaps, have been entitled to have the assessment offset against the award, but there is no principle upon which its omission to claim such a disposition of the matter can be construed as a waiver or relinquishment of its claims to the award of $20,000. The time within which the award was payable had not yet expired, and it may well have been supposed that the assessment of benefits would be made, and a final adjustment of the whole matter be reached within that time.

There seems to- us to be no evidence that would have warranted the finding that the plaintiff had dedicated the premises to the use of the public; nor that it was estopped to claim that the award was ■unpaid and due. Mere forbearance to press a claim does not constitute ladies, especially on the part of a board of public officers, the composition of which may be changed every year; and there is no period at which the claim of the plaintiff would outlaw except that prescribed by the statute of limitations.

The only real question here, as it seems to us, under the authorities above cited, relates to the time from which interest is to be computed on the amount of the award. The findings and judgment in this case give interest from a date one year subsequent to the order of confirmation. In the case of Donnelly v. Brooklyn (supra), it was held that interest did not run until a formal demand of payment or other proceeding on the part of the land owner to fix the period within which damages were payable. But the two cases are distinguished in two very material features. In the Brooklyn case the statute did not, in any way, definitely fix the time when the award was payable. In this case the statute positively prescribes that the award shall be paid within one year after its confirmation by the court. (Laws of 1870, chap. 519, tit. 8, § 15.) Moreover, in the case of Donnelly it appeared that the claimant had remained all the time, down to the commencement of his action, in the occupation and use of the condemned premises, and that no steps had been taken by the city to obtain the possession; and the case of Hamersley v. The Mayor (56 N. Y., 533), is cited, where Andrews, J., said: It would require very clear evidence of legislative intent to Ayarrant such a construction of the statute as Avould give the OAvner both the use of his land and the interest upon the purchase-money.” In this case, as Ave have seen, the defendant took immediate possession of the condemned premises, and has used and occupied them for its OAvn purposes ever since. It is plain that these facts take the case out of the rule established in the Brooklyn case, and that the latter is, by implication, authority for the rule applied by the court below in the judgment appealed from. In this case the amount of plaintiff’s claim was liquidated by the order confirming the aAvard, and the time at Aidiich it Avas payable is fixed by the statute.

The provision of the charter of Buffalo, Avhich requires notice of demand before action brought, has no effect upon the question of interest, and the required notice was given before the action Avas commenced.

We do not find that any of tlie excejitions taken by tlie defendant indicate error which affects the result.

The judgment appealed from must be affirmed.

Macomber and Lewis, JJ., concurred.

Judgment appealed from affirmed.


text:
    ESTHER O’HARA, Appellant, v. LEWIS W. ROBINSON, Respondent.

      What is not a good consideration — judgment lien, on land conveyed with covenant for quiet enjoyment — grantor not hound to discharge it.

    Esther O’Hara conveyed, by a deed which contained no covenant against incumbrances, but only one for quiet and peaceable possession, certain lands to Lewis W. Robinson, who paid part of the purchase-price by his note, and was at the time indebted to O’Hara upon another note.
    Before these notes became due Robinson discovered that there was an apparent lien upon the premises, and thereupon OTIara agreed to deposit the notes with a third person, to be held by him until the lien was discharged.
    In an action brought by O’Hara to enforce payment of tlie notes,

      Held, that there,was no consideration for the promise of O’Hara, as there was no legal liability whatsoever upon her to procure tlie lien to be discharged.
    .Appeal by tlie plaintiff Esther O’Hara from a judgment of tlie Supreme Court, entered in the office of the clerk of Niagara county •on the 16th day of September, 1891, dismissing the complaint upon the merits, with costs, after a trial at the Niagara County Circuit before the court and a jury.

      II. M. Dams, for the appellant.

      Q. W. Pound, for the respondent.
   Dwight, P. J.:

In May, 1883, the defendant was indebted to the plaintiff on two promissory notes, one of $250, for a part of the purchase-price of lands sold by the former to the latter; and one of fifty dollars for borrowed money, both due on the 1st day of April, 1884. In June, 1883, the defendant learned that a judgment of $226 had been docketed in Niagara county, in the year 1876, against John O’Hara (since deceased), the grantor of the plaintiff, and Robert O’Hara, his son, which had never been discharged, and was then an apparent lien on the premises which the plaintiff had conveyed to the defendant, with covenant, only, for quiet and peaceable possession. The defendant thereupon applied to the plaintiff, as he testifies, to secure him in some way against the judgment, and the result of the negotiation, and of the defendant’s urgency, was that the plaintiff, who was an aged woman, entered into an agreement in writing with the defendant, by which she agreed to place her two notes in the hands of a neighboring magistrate as collateral security for the satisfaction of the judgment mentioned, to be given up to her only on the satisfaction of such judgment; and in case the judgment was not satisfied, the defendant was to pay it and keep the money paid out of the amount due to the plaintiff on the notes. The two notes and the agreement were accordingly deposited with the person named.

In March, 1890, a few days before the statute of limitations had run against the notes, the plaintiff, by her agent, applied to the defendant for their payment, and that being refused she accepted a renewal note for the amount of the two, with interest, payable in one year, and executed with the defendant' a second agreement of the same character as the first, relating to the renewal note, and placed it, with the new agreement, in the hands of the same depositary.

When the extension of time given by the new note had expired, this action was brought, wherein the complaint alleged the giving of the original notes and the extension of time by the new one, and asked judgment for the amount of the latter, with interest.

On the trial the plaintiff made proof of all the notes; the defendant proved the two agreements, and the plaintiff offered to prove that the judgment was paid. The last-mentioned evidence was excluded, the court holding that the notes were not enforceable until the judgment was discharged of record. At the close of the evidence the defendant moved for a nonsuit on the ground that the agreement in evidence had not been complied with, and the plaintiff moved for the direction of a verdict on the ground, among others, that the agreement ivas void for want of consideration. The court denied the plaintiff’s motion and granted that of the defendant, holding that there was a moral obligation on the part of the plaintiff to remove incumbrances from the title to the land conveyed by her, which afforded a sufficient consideration for the agreement in question.

In this ruling we think the learned court -was in error, and that the motion for the direction of a verdict should have been granted on the ground, if no other, that the plaintiff’s agreement, to delay the collection of her notes until the judgment mentioned was satisfied, was without consideration and of no effect.

A mere moral obligation is not a sufficient consideration to support a promise. It must be founded upon a previous legal liability; or it must be one which can be enforced at law; or which, at least, furnishes an available defense; or be based upoh facts which estop the promisor to deny a legal obligation to the same effect. (Goulding v. Davidson, 28 Barb., 438 ; Watkins v. Halstead, 2 Sandf., 311; Geer v. Archer, 2 Barb., 420; Smith v. Ware, 13 Johns. Rep., 257 ; Ehle v. Judson, 24 Wend., 97.)

But there was no moral obligation resting upon the plaintiff to discharge the judgment. The only obligation assumed by her, in connection with her conveyance to the defendant, was that embodied in her covenant for quiet and peaceable possession, of which there had been no breach. Indeed, the learned judge at the circuit seems to have based his theory of moral obligation upon the assumption that some representation had been made by the plaintiff at the time of the conveyance, to the effect that the title was free from incumbrance. But we find in the case no evidence whatever upon which to base such an assumption, and the ease stands simply on the plaintiff’s covenant contained in her deed, from which it is certain that no obligation has yet arisen which could be the ground either of an action or a defense on the part of the defendant.

Such being the case, there was no consideration for the agreement of the plaintiff to postpone the collection of the original notes beyond the time to which they were extended by the renewal. The agreement embraced no element of benefit to her, nor of harm or detriment to the defendant. She was in no case to receive nor he to pay anything more than the amount actually due on the original notes • and the agreement of the defendant to pay the judgment (at such time as lie should see fit) only provided a mode in which he might pay a portion of his debt to the plaintiff.

For the error here indicated the judgment should be reversed.

Macomber and Lewis, JJ., concurred.

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