text:
    AMOS C. SANFORD, Respondent, v. SARAH J. VAN ARSDALL and JAMES W. VAN ARSDALL, her Husband, Appellants, Impleaded with Others.

      Order of sale of mortgaged premises, 'the title to part of which has been acquired by the mortgagee — application of payments as between several debts.

    A mortgagee who, subsequent to his having acquired the mortgages, is, hy agreement between the owner and a lessee of the property, made the payee of the rents, payable under a lease thereof, to be applied in reduction of the mortgage debt, and who thereafter receives from the grantee of the owner of the premises covered by such mortgage a deed of conveyance of the one undivided half thereof (such grantee of the owner having acquired title to such one-half under a warranty deed, ‘ ‘ excepting a mortgage by the parties of the first part, * * * and another held by Alexander Howell, the one-half of all of which mortgages, of the principal and interest now unpaid thereon, the party of the second part agrees to pay”), is not entitled, in an action brought for the foreclosure of one of such mortgages, to a judgment that the same shall be paid wholly from the^ proceeds of the sale of the one-half of the mortgaged premises still owned and in possession of the mortgagor.

      Smith v. Roberts (91 N. Y., 477) distinguished.
    The installments of rent paid to the mortgagee, under the terms of the lease, were credited to the mortgagor, but were not applied upon any particular indebtedness until after the beginning of the action brought to foreclose the mortgage.

      Held, that such election hy the mortgagee was too late; that, after the commencement of the suit for the foreclosure of the mortgage, it became the duty of the court, no application thereof having been theretofore made, to itself, then, make the application of the payments received by the mortgagee.
    That the application which would be made by the court in a case where, as in the present case, each mortgage held by the plaintiff was upon the same real estate as the others, and there were no intervening rights of third parties, would be in extinguishment of the liens according to the priority of the dates at which they were respectively created and at which they matured.
    There is no difference in principle, in this respect, in the case of debts which are secured and those which are unsecured.
    The right of a creditor, to apply a payment made by his debtor, exists only in the case of voluntary payments, and has no application to moneys received from a sale on foreclosure; and the same rule applies where the money is received from a third person who, in making the payment thereof, does not act as the agent of the debtor, hut as his debtor.
    Appeal by the defendants from a judgment rendered at a Special Term of the Supreme Court, held in Ontario county, and entered in the office of the clerk of Ontario county on the 6th day of December, 1887.

      The action was brought to foreclose a mortgage and fo a sale of the mortgaged premises.

      R. B. Durfee, for the respondent.

      John Gillette, for the appellant.
   Macomber, J.:

The defendant, Sarah J. Van Arsdall, became a purchaser of the mortgaged premises October 23,1872, and, by the terms of the deed to her, she agreed to pay the incumbrances then existing thereon, which consisted of a $1,000 mortgage executed by one Kellogg and wife to Bronson, and a mortgage, dated October 27, 1859 (the one involved in this action), executed by one Dewey and wife to Birch to secure the payment of $2,000.

The Birch mortgage was assigned to the plaintiff January 15, 1877. On the 13th day of March, 1873, the defendant and her husband executed a bond and mortgage to one Runyan in the sum of $1,000, which are now held by the plaintiff. On the 28th day of April, 1875, the defendants executed to the plaintiff a mortgage in the sum of $1,500. Both of the last-named mortgages contained; provisions for insurance for the benefit of the mortgagees. In the month of May, 1876, the property, which consisted of a grist-mill, was leased by the defendant Sarah J. Van Arsdall to Powell & Youngs, who paid their rent thereafter to the plaintiff under general directions from the lessor. On the 6th day of February, 1877, the lease to Powell & Youngs was assigned by this defendant in writing to the plaintiff, and payments were made by the tenants thereafter to the plaintiff as had been done before the execution of the assignment of the lease. The lease to Powell & Youngs having expired or terminated, the mill property was leased by the defendant Sarah J. Van Arsdall to Jay Dutcher May 2,1879. In September, 1880, she leased the same to Alfred Poyneer. The rent in both leases last named was made payable, by the terms thereof, to the plaintiff for the purpose of being applied upon the securities which ho held against the property. After the expiration of the above-named leases the mill was conditcted by the defendant Sarah J. Van Arsdall and by her son Emlon A. Van Arsdall. In the month of January, 1882, this defendant and her husband conveyed the undivided one-half of the mortgaged premises to their son Emlon A. Van Arsdall. On the 6th day of August, 1885, Emlon A. Van Arsdall conveyed his undivided half to the plaintiff. It is thus seen that the plaintiff had possessed himself of the Birch mortgage of 1859, of the Runyan mortgage of 1873, and still held the mortgage to himself of April, 1875, and had received in August, 1886, a deed of the undivided half of the premises covered by each of these mortgages.

The learned trial judge has decided : First. That the Birch mortgage, now in process of foreclosure in this suit, shall be made wholly out of the sale of the remaining one-half, still owned and in the possession of the defendant. The amount adjudged to be due and unpaid thereon is $250, with interest from the time that the instruments were assigned to the plaintiff in January, 1877. Secondly. The court has decided that sundry payments, amounting to much more than the sum found due upon this mortgage, which had been made between the year 1877 and the year 1885, when this action was begun, were applicable, not to the mortgage in suit, but to the $1,500 mortgage of April, 1875. It is these two conclusions of the learned trial court that present the interesting questions on this appeal. Are the lands now remaining unconveyed and in possession of the defendant liable for the whole of the unpaid mortgaged debt represented by the bond and mortgage in this action ? In the deed to the defendant of the whole of these mortgaged premises the grantee assumed the payment of this mortgage debt, together with that owing to Bronson. There is not made, however, in this action, any personal claim against her for any deficiency which may arise upon the sale of the mortgaged premises. Her personal obligations, therefore, as contained in the deed to her, can properly be left out of consideration. In the deed of the undivided half of the mortgaged premises to Emlon A. Van Arsdall there was inserted a covenant “ that the premises thus conveyed in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, will forever warrant and defend against any person whomsoever lawfully claiming the same, or any part thereof, excepting a mortgage by the parties of the first part, of April 28, 1875, to Amos C. Sanford, administrator, for the fifteen hundred dollars; another of the same parties of March 13, 1873, to Vincent L. Runyan, given for one thousand dollars; another of Edmond B. Dewey and wife, October 27, 1859, to Francis Birch, and another held by Alexander Howell; the one-half of all of which mortgages of the principal and interest now unpaid thereon the said party of the second part agrees to pay.”

The case mainly relied upon to support this decision is that of Smith v. Roberts (91 N. Y., 470). It is broadly stated in that case that a purchase by and conveyance to a mortgagee of an undivided part of the mortgaged premises, where it does not appear that there is a payment or merger of a mortgage or any portion thereof, operates as a release of the portion conveyed from the hen o^ the mortgage, leaving it to rest solely upon the portion unconveyed. In that case, however, the conveyance was made directly by the mortgagor to the mortgagee. There still remained the mortgagor’s obligation, and there was no agreement or understanding that the indebtedness should be reduced by the value of the premises conveyed. On the contrary, it was shown, and was a matter of strong comment by the learned judge writing the opinion, that there was, in fact, an actual, valuable and sufficient consideration for the conveyance of the undivided part of the mortgaged lands to the mortgagee arising outside of the particular indebtedness seemed by the mortgagee. Hence it is that the distinguishing features of that case are: (1.) A conveyance by the mortgagor to the mortgagee of a portion of the mortgaged' premises. (2.) The absence of an agreement that it should be pro temto a payment. (3.) An actual consideration for the conveyance outside of the mortgage.

In the case at bar, however, there has been made only a conveyance by the son of his undivided half of the mortgaged premises to the plaintiff. The defendant has not consented to any conveyance thereof. The deed from Emlon A. Yan Arsdall was an act entirely independent of the defendant. These are the features of this case distinguishing it from those of Smith v. Roberts. Indeed, in the case of Smith v. Roberts the court was extremely careful in its illustrations and argument to indicate (p. é77) that thé rule there enunciated could only prevail where the owner of the mortgaged premises had actually conveyed the same or had consented to a release of the portion thereof from a lien of the mortgage by the mortgagee.

The case before us, on the contrary, shows that the defendant, in conveying the undivided half .to her son, maintained the lien for one half of the mortgage debt of this particular mortgage with others upon the property so conveyed. She covenanted for an unincumbered title except as to this and other liens particularly named. The grantee thereunder, accepting the same with such reservation added thereto, personally covenanted thereby to pay one half of all the mortgages existing on the entire premises. The conveyance of Emlon A. Yan Arsdall being without the procurement or even knowledge, so far as is shown, of the defendant, she cannot be said to have done any act releasing any portion of the mortgaged premises from the lien thereof, and charging the whole of such lien upon the part still retained by her. The case, Matter of Wilbur v. Warren (104 N. Y. 192), has a strong application to the peculiar facts developed in this action. It is there distinctly held that one who purchases land subject to a mortgage makes the land thereby a primary fund for the payment of the mortgaged debt, even though the deed contained a covenant on the part of the grantee to pay such debt, the covenant being designed only to indemnify the grantor against the contingency that the land may not bring enough to pay such debt. Emlon A. Yan Arsdall has covenated to pay his half of this among other debts; and the deed to him also expressly preserved the lien to the extent of one half of the indebtedness of each of these several mortgages. Under these circumstances, it was not possible for Emlon A. Yan Arsdall and the holder of any of these outstanding mortgages to make any arrangement by which the defendant’s right to insist upon an equal charge of all the lands to extinguish the liens should be waived without her consent thereto affirmatively expressed. This result necessarily leads to a reversal of the judgment and to a new trial of the case. But there remains another important element contained in the decision which it is incumbent upon us to decide, lest upon the new tria#' the same error might be committed.

After the assignment of the Birch mortgage to the plaintiff, which was on January 15,1877, and for eight months prior thereto, the grist-mill was leased to sundry tenants, who, either by the terms of the leases or by a verbal arrangement, were permitted to pay the rent thereof to the plaintiff, who held the several mortgages already mentioned Only one of suck installments of rent was paid before the assignment of the mortgage in suit was made to the plaintiff. After such assignment payments were made from time to time by the tenants directly to the plaintiff, and they were credited, apparently, to the defendant, but not upon any particular indebtedness. These payments, after the assignment of the mortgage in question (the Birch mortgage), came to more in amount than the sum total remaining unpaid upon such mortgage at the time of the assignment thereof to the plaintiff. The first of such payments was made in February 1877, and the last in October, 1881.

The learned trial judge has found that no payments were made upon the mortgage now sought to be foreclosed, but the payments which were made, as above mentioned, were made upon and towards' the extinguishment of the $1,500 mortgage which had been executed by the defendant and her husband directly to the plaintiff. There is such evidence to support the conclusion of the trial judge in his finding, that no application of payments was made by the debtor himself, as that we should hesitate to differ from him upon that subject, considering the great advantage in his favor of being confronted personally by the witness on that subject. This right of a debtor to determine among several debts which he owes to a creditor upon which shall be applied a payment is undoubted and undisputed. The money or property which he applies being his own, he has the right to say, before parting with it, or at the time of parting with it, which debt or portion thereof it shall extinguish. In the absence of such election at the time of payment, the right of the creditor to apply it as he sees fit upon any item of indebtedness which he holds against the debtor is equally well established by the adjudged cases. Under what circumstances and under what limitations this right shall be exercised has been a prolific subject of discussion in numerous cases. These have been well collated by Munger in his work on Payments, but it would not be profitable to undertake to reconcile their conflicting utterances. This authority says : “ From such a clashing of the cases it is apparent that no fixed rule can be deduced. It is entirely clear that the creditor is not required to form his decision at the moment of receiving the payment, but as soon as we go beyond that the ground begins to lose its firmness and our path is beset with difficulties.” An interesting discussion ofthe question appears in the case of Taylor v. Coleman (20 Texas, 772). While admitting that the rule had been generally held to be as above stated, it was held that the application of payments deferred until after the beginning of the action was too late, and that it then became the duty of the court to make the application. This seems to he a just and reasonable rule, though it must be admitted that there are loose cases which contain the assertion that a creditor may exercise this power at any time before the day of trial.

Applying this rule to the facts. before us, it appears that the plaintiff is not entitled to make the application of the several payments which he now finds it convenient to make upon his debt. He testified that the indorsements upon the bond accompanying the $1,500 'mortgage were not made until after this action had been begun for some length of time. In the suit to foreclose the mortgage his counsel seemed to have proceeded upon the hypothesis that no act had been done by the parties affecting the extent of the lien of this mortgage since the time of the assignment of it to the plaintiff. It is apparent, however, that on reception of the answer, which set up payment, the plaintiff undertook to avoid the effect of the evidence, which he knew would be given, and thus anticipate the decision of the court. In this respect we think he was too late in his election. There is no evidence to show that he had made any entry of these several items in his book, or had done any act showing an application of them to the extinguishment of this particular indebtedness until after this suit was at issue. While not prepared to lay down any general rule upon this subject, we do hold that the failure of the plaintiff to make an application of any of these payments for the period of eight years after they began to be received, and not making any such application until after the action was brought and the answer was served, deprived him of the right to make any election at all so as to affect the result of this action. As Judge Talcott holds in Huffstater v. Hayes (64 Barb., 573), it is too late, after the creditor has kept an account in a general debit and credit form, to attempt, for the first time, upon the trial of the cause, to divide up the items and ajjply the payments to different classes.

This mortgage was originally $2,000,- and the computation by which the amount was ascertained at the time of the beginning of the action must have been quite complicated. It did not present a case like an independent cause of action represented, for instance, by a piece of commercial paper. Without taking any action one way or another, the plaintiff assumed that the amount unpaid when he received the mortgage still remained unpaid; yet he had not reduced any other of the several c^ebts owing to him by the defendant. When, therefore, he brought his action he devolved the duty upon the court to ascertain where these several payments should be applied. It would be extremely unsafe, under the peculiar cireiunstances disclosed in this action, to permit a party to exercise his right after the action was brought. The power of applying the rule governing payments given by the court is exercised in favor of extinguishing a first indebtedness in cases where all of the several items of indebtedness rest upon the same security and the rights of sureties and others are not involved. In this case each mortgage held by the plaintiff was upon the same real estate as the others and there are no rights of third parties intervening. The law, therefore, would immediately apply the payments made to the extinguishment of the lien first created and. first maturing* There is no difference in principle in the case of secured debts and those which are unsecured. (See the decision of the master of rolls in Dewaynes v. Noble, 1 Mer., 581-610, commonly spoken of as Clayton’s case, which has received general approbation by the courts of England and in this country since its rendition in the year 1816.)

But there is another reason for holding that it was not competent for the plaintiff to apply the payments under the peculiar circumstances shown in this action otherwise than in the extinguishment of his claims in their order of maturity. The several payments already mentioned, and which the plaintiff has attempted to apply upon the $1,500 mortgage, were not made by the defendant in person nor by any special agent sent to carry the money or property to the plaintiff. They were made by the tenants of the mortgaged premises from time to time directly to the plaintiff, though under a general arrangement, made either in the lease or verbally, that they should thus pay the amount of their rents. The defendant had no control over the time or mode of payment except as the same were determined by the leases. In point of fact she seems to have had nothing to do with the running up of the account from the time tliat the plaintiff took the assignment of the Birch mortgage. The right of a creditor to apply a payment made by his debtor applies only to voluntary payments, and not to moneys received from a sale or foreclosure. (Orleans County National Bank v. Moore, 48 Hun, 70; affirmed by Ct. of App. in 112 N. Y., 543.) In analogy to this principle there appeals to be no good reason why the plaintiff should be permitted arbitrarily to apply payments which he has collected from these parties though without suit. Had the several tenants been agents of the defendant this question would have an entirely different aspect, but they were not. They were her debtors.

Under these circumstances, the rule that permits the creditor to make the application of payments, in the absence of the exercise of that power by the debtor at the time of the payments, is inapplicable; on the contrary, the rule should require him to make the application which circumstances show would be most favorable to the debtor. The defendant had a right to assume that the plaintiff would apply the several sums so paid to him in the extinguishment of the indebtedness in its order.

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

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide the final award of costs.


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    ALBERT W. ELLIOTT, an Infant, by ANDREW ELLIOTT, his Guardian ad litem, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Railroad ticket at a reduced price for a continuous trip by a pa/rticulm' train— misdirection of the passenger, as to the proper train, by an employee of the com-pa/ny — right of the passenger to continue the journey from a way station.

    A passenger upon the West Shore Railroad purchased a ticket at a reduced price for a continuous trip, good for train 59, leaving Weehawken January fifteenth. In the evening of the fourteenth day of that month he presented the ticket to the railroad company’s doorkeeper, at its station at Weehawken, and asked what traiD the ticket called for. The doorkeeper pointed to a train, which the passenger entered.
    After the train had left the Weehawken station the conductor called for the ticket, stated to the passenger that he had got on to the wrong train, and put him oil the train at Haverstraw, the passenger being informed that the ticket called for the first train coming behind the one upon which he was then riding.
    Early in the day of January fifteenth train 59 came along, stopped at Haverstraw and the passenger entered it. The conductor upon this train called for his ticket and refused to allow the passenger to continue his journey upon train 59, upon the ground that it was a condition of the ticket that the passage should begin at Weehawken.
    In an action, brought by the passenger to recover the damages sustained by him by reason of this refusal of the company to carry him to his point of destination:

      Held, that, in view of the facts of this case, the company was bound to receive the passenger on board train 59, at Haverstraw, and was liable for the damages resulting to him from his removal therefrom.
    Appeal by tbe defendant from a judgment, entered, upon tbe verdict of tbe jury, in favor of tbe plaintiff for fifty dollars, in tbe office of tbe clerk of tbe county of Niagara, after a trial at tbe Niagara Circuit.

      James F. Gluch, for tbe appellant.

      E. M. & F. M. Ashley, for the respondent.
   Macomber, J.:

This action was brought to recover damages sustained by tbe plaintiff, by reason of being wrongfully ejected from a railway car wliile traveling as a passenger from New York to Rochester on a special ticket, on tbe West Shore Railroad of which tbe defendant is tbe lessee.

Mr. Elliott, tbe plaintiff’s father, on tbe léth day of January, 1887, at about three o’clock in tbe afternoon, purchased two tickets, at tbe ticket-office of tbe West Shore Company, for Rochester, and in tbe evening proceeded by ferry-boat to Weehawken, N. J., which is tbe eastern terminus of tbe railway track. Tbe tickets were purchased at a reduced price, and were limited, continuous trip tickets, good for train 59, leaving New York, January fifteenth. In the evening of January fourteenth, at Weehawken, Mr. Elliott presented these tickets to tbe doorkeeper and asked tbe latter what train these tickets called for. Pointing to a train tbe doorkeeper said: “ That is the train,” and ordered him to pass along. Mr. Elliott went back to get his son and his overcoat, and when he returned he was ordered again to show his tickets. "Which was accordingly done, and he was again directed to the train as before. The train indicated was standing near by and was boarded by the plaintiff and his father. It proved, however, not to be train 59. After the train had passed through what is known as the tunnel the conductor called for tickets and was handed these two tickets of the plaintiff and his father. The conductor asked Mr. Elliott how he got on to the train, and was told that he came on along with the rest of the passengers. He-was asked if he showed the tickets to the doorkeeper, and he said he did, not only once but twice. Mr. Elliott and his son were then ordered by the conductor to get off for the reason that they could not be carried on that ti’ain. They were allowed to ride to Ilaverstraw, the nearest station, and being ordered off the train they alighted. Mr. Elliott was informed before alighting that the tickets called for the first train coining behind the one upon which he was then riding. It then being early in the day of January fifteenth, train 59 came along and stopped at Ilaverstraw, when Mr. Elliott and his son, after being wakened from a sleej) in the ladies’ room, boarded it. A moment after the train started the conductor of this train appeared and called for tickets, and these tickets were shown him and he asked, “Where did' you get these tickets?” He was informed that they were bought in New York. The conductor said: “ At reduced rates, I suppose ? ” The answer was: “ That makes no difference to you.” Mr. Elliott was then informed that he and his son must pay their fare or get off.

It is argued by the appellant’s counsel that Mr. Elliott must be presumed to have known that the tickets which he purchased were for train No. 59, and for the fifteenth day of January, and he cites the case of Elmore v. Sands (54 N. Y., 512) as authority therefor. It is not incumbent upon us to decide whether this proposition is correct or not. The case differs in many essentials from the one cited, in that the number of the train and the day of its starting, in the case at bar, were indicated by the punch-holes rather than by plain writing which any person could understand. The doorman, G-ifford, testifies: But a man that does not know what the numbers were originally on the ticket, before the ticket agent punched it, would not know from the ticket what train his ticket was for unless somebody told him, and I was put at the door, and the doorman was put at the door for the purpose of giving that information, among other things.” It is not necessary for us to decide this question, for the reason that when the passengers presented themselves at Weehawken, and tendered these tickets to the doorkeeper and were pointed to this train, they were justified in getting aboard and entering upon their journey. No deceit was practiced upon the doorkeeper. On the contrary, it appears that Mr. Elliott and his son in good faith took their places in the car, believing that the tickets were good for their passage.

This action is not specifically for any damages for putting the plaintiff off the train at Haverstraw. If the case of Elmore v. Sands (supra) is applicable to these facts, the conductor of that train would have been justified in leaving the passengers at the first station from which they could board the train for which their tickets were designed. At all events, the conductor attempted to correct the errors which had been committed, and instructed the persons whom he thus put off to take the train at that point, which, as above stated, they accordingly did. At last they were on board train 59, which their tickets called for. They had escaped one horn of the dilemma which the conditions of the tickets presented, but were impaled upon the .other, for the tickets had the further condition that such passage on train 59 should begin at the city of New York, meaning, undoubtedly, Weehawken; therefore, the conductor of train 59 refused to let these passengers ride on the train for which the tickets were purchased, because they did not get on at New York or Weehawken, and accordingly dropped them off at Stony Point, three miles from Haverstraw, not, however, without some indignant resistance on the part of the old gentleman. When the principal managers of the railway ascertained the true situation of affairs, reparation was attempted to be made and transportation free of further charges was given to Mr. Elliott and his boy to their destination. The jury, undoubtedly, have taken this attempted reparation into the account, for they gave only fifty dollars damages, which, under the circumstances, is not excessive. This case involves a principle of some importance.

When train 59 came along at Haverstraw the embarrassing predicament of these passengers had been brought about by the mutual mistake of Mr. Elliott and of the doorkeeper at Weehawken. What was the duty of the railroad company under the circumstances ? The station agents awakened the plaintiff and his father and put them aboard train 59 at Haverstraw. The conductor was bound by that act, inasmuch as they were upon the proper train, or at least he was bound, at his peril, to ascertain the facts of the case before ejecting them because they did not board the train at Weehawken. We are not prepared to say that the condition of this ticket, that the journey should begin at New York or Weehawken, is unreasonable, but we do hold that the provision should have a reasonable application. Inasmuch, therefore, as the plaintiff and his father found themselves at Haverstraw through the act, in part, of the defendant’s agents, the company was bound to receive them on board the train which their tickets called for and to cany them to their destination. Having failed to do so, and having ejected them from the car, a right of action accrued.

The judgment should be affirmed, with costs.

All concurred.

Judgment and order affirmed.


author: Dwight, J.:

text:
    THE VILLAGE OF PALMYRA, by its President, CHARLES H. BRIGHAM, Respondent, v. ALONZO WYNKOOP and Others, as Administrators of the Estate of LYMAN LYON, Deceased, Appellants.

      Appeal-book must contain a written decision — order for judgment on the trial of a demurrer, unmcessm'y.

    On. an appeal irom an interlocutory judgment, overruling a demurrer to tlie complaint, the appeal-hook must contain a decision by the court determining the issues of law made by the demurrer.
    There can be no judgment on a demurrer, either final or interlocutory, without such written decision.
    An order for judgment is not necessary in such a case, nor can such order take the place of a decision in writing by the court which should direct the judgment to be entered thereupon.

      Appeal by tbe defendants from an order made at tbe Monroe County Special Term, dated tbe 24th day of September, 1888, overruling a demurrer and directing tbe entry of an interlocutory judgment, and from an interlocutory judgment, entered in tbe Monroe county clerk’s office, bearing date November 20, 1888.
    Tbe action was brought to trial on issues of law arising on a demurrer interposed by tbe defendants to tbe plaintiff’s complaint, to tbe effect that tbe court bad no jurisdiction of tbe subject of tbe action; that tbe complaint did not state facts sufficient to constitute a cause of action, and that tbe plaintiff bad not legal capacity to sue.
    Tbe action was brought to obtain an adjudication that tbe money, chattels and credits, of which Lyman Lyon died seized, were impressed with a trust in favor of the complainant to tbe amount of $2,l'lr8.Y3, with interest.

      S. B. McIntyre, for tbe appellants.

      Aldrich & Sawyer, for the respondent.
   Dwight, J.:

Either tbe record on this appeal is not properly made up or the practice lias not been in accordance with tbe requirements of tbe Code of Civil Procedure. Tbe appeal-book contains no decision by tbe court of tbe issues of law joined by tbe demurrer.

Tbe requirement of tbe Code is positive that: “ Upon a trial by tbe court of an issue of fact or of law, its decision in writing must be filed in tbe clerk’s office within twenty days after tbe final adjournment of tbe term where tbe issue was tried,” (Sec. 1010.) And, further, “ tbe decision of tbe court * * * upon tbe trial of a demurrer, must direct tbe final or interlocutory judgment to be entered thereupon.” (Sec. 1021.) There is no room for doubt as to tbe meaning and effect of these provisions of tbe statute. There can be no judgment on a demurrer, either final or interlocutory, without a decision in writing of the issue or issues of law which have been tried. Such decision is as necessary on tbe trial of a demurrer as on tbe trial of an issue or issues of fact. In either case such decision in writing, signed by tbe judge, is what is commonly denominated tbe “findings” of the court — in tbe one case embracing findings of fact and conclusions of law, in the other case embracing conclusions of law only. In neither case is an order for judgment necessary, nor can sucb order take the place of the decision in writing by the court; the decision itself directs the judgment to be entered thereupon. (Sec. 1021, supra.)

By the demurrer m this case, issue was joined upon three distinct propositions of law: 1st. That the court had not jurisdiction of the subject of the action. 2d. That the complaint did not state facts sufficient to constitute a cause of action. 3d. That the plaintiff had not legal capacity to sue. These issues were to be severally decided by the court, and the only manner in which its decision could be properly entered in the judgment-roll and in the record on appeal was by the decision in writing, to be made and filed as required by the section of the statute above quoted. Without such decision the case is not properly here for review. If such decision has been made and filed, the record may be amended by its insertion. If it has been made and not filed, application may be made at Special Term for leave to file it n/une pro tunc. If such decision has not been made, and cannot be supplied by reason of the retirement from office of the judge who tried the demurrer, it would seem to be a case of mistrial, and the parties must avail themselves of such remedy as the practice affords. We must decline to consider the appeal upon the record as it stands.

All concurred.

The court declines to consider the appeal for the reasons stated in the opinion by Dwkjht, J.


text:
    JAMES G. KNAPP, Respondent, v. THE PREFERRED MUTUAL ACCIDENT ASSOCIATION OF NEW YORK, APPELLANT.

      Accident insun'cmce — total disability — dangerous occupation — injuries not occurring in the pursuit of the occupation named in the policy.

    A policy of insurance against “bodily injuries effected tlirougli external, violent and accidental means,” provided for certain payments “ if said member shall sustain bodily injuries by means as aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to tlie occupation under which he receives membership.”
    The party assured, being described in the policy as a retired gentleman, and having, in fact, no occupation except to amuse himself, injured himself while operating a buzz-saw at a wagon manufacturing company’s shop, of which he was a stockholder and director, and in consequence thereof he was obliged to carry his arm in a sling, and was deprived of its use to. a greater or less extent during a period of some months.

      Held, that he was not entitled to recover.

      Mrst. Because the injuries sustained resulted from an exposure not incident to the plaintiff's occupation named in the contract of insurance.

      Second. Because he was not thereby totally disabled and prevented from the prosecution of any and every kind of business pertaining to the occupation under which he received membership.

      Third. Because the work of operating a buzz-saw was not incident to the occupation named in the policy and was dangerous, and accidents arising therefrom were, by the terms of the policy, not covered by the provisions thereof, although such occupation was engaged in only for the purpose of amusement.
    Appeal by tbe defendant from a judgment entered upon a verdict rendered at tbe Cayuga Circuit in favor of tbe plaintiff for tbe sum of $317.85, and entered in tbe office of tbe clerk of tbe county of Cayuga on tbe 2d day of October, 1888.

      E. C. Aiken, for the appellant.

      Tabor & Brainard, for the respondent.
   Dwight, J.:

The action was on a policy of insurance in tbe form of a certificate of membership of the plaintiff in tbe defendant association. Tbe insurance was against death or total disability resulting from “ bodily injuries effected through external, violent and accidental means; ” payable, in case of death, to tbe beneficiary named in tbe contract, and, in case of disability, to tbe plaintiff himself. The total disability insured against was defined in tbe following language: If said member shall sustain bodily injuries by means as aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from tbe prosecution of any and every kind of business pertaining to tbe occupation under which be receives membership ; ” and tbe undertaking was, in such case, to indemnify tbe assured against loss of time thereby in a sum not to exceed twenty-five dollars a week for such period of total disability as shall immediately follow the accident and injuries as aforesaid, not exceeding,” etc.

The occupation under which the plaintiff received membership was stated in the contract to be that of “ a retired.” It may be assumed that the substantive “ gentleman,” or some equivalent, was omitted by clerical error after the adjective “retired” in this description. The plaintiff testified that at the time he made his application for insurance he had no occujiation, except to amuse himself; that his income was derived from investments; that he had a shop at his house, where he spent some leisure moments working at different things, for his amusement; a steam yacht on Owasco Lake, which he ran himself, and a horse and carriage for his own driving ; that he was a stockholder and director in a wagon manufacturing company, and at times used some of the machinery of the wagon-shops in connection with his amusement.

It was when operating a buzz-saw at the wagon-shop that he-received the injury for which he seeks to recover indemnity under his certificate or policy of insurance. The injury consisted of a bruise and cut on the back of his right hand caused by a blow from a stick which he was sawing, being thrown backwards by the saw. The wound was severe and painful, the hand required to be carried in a sling, and the plaintiff was deprived of its use, to a greater or less extent, during a period of some months; for the loss of which time he was awarded compensation by the verdict in this action.

Among the conditions of the contract, besides those already mentioned, was the following: “ This certificate shall be wholly void as to all accidents occurring in any occupation, profession or employment, or exposure not named, or incident to the occupation under which he receives membership;” by which is apparently intended any occupation, etc., not named in the certificate as that of the insured, or any exposure not incident to the occupation named ’

Two questions arise upon the facts thus stated, both of which seem to have been presented by the motion for a nonsuit, and the exceptions to the charge, viz.: First. Did the injury sustained by the plaintiff result from an exposure incident to the plaintiff’s occupation named in the contract ? And, second, Was the disability incurred “ total ” within the definition of the contract ? Both of these questions, we think, require to be answered in the negative, and, therefore, adversely to the plaintiffs claim. The undertaking of the defendant, as expressed in the contract, was not to indemnify against pain, suffering or inconvenience, but against loss of time in the prosecution of the occupation under which the insured received membership; and the injuries must be such as to “ wholly disable and prevent him from the prosecution of any and every kind of business pertaining ” to such occupation. Can it be said that a man with his hand in a sling, and suffering a degree of discomfort from a painful wound in that member, is wholly disabled and prevented from the prosecution of every kind of business pertaining to the condition of a retired gentleman ? The question is one which does not seem to admit of much discussion, but it would be easy to suggest many duties, and even pleasures, pertaining to the domestic, social and business relations of a retired gentleman, from which he would not be wholly debarred by a disabled hand. He might still, it would seem, keep an eye upon his investments, collect and disburse or reinvest his income, attend the meetings of the boards of directors of which he was a member, superintend repairs and improvements to his property, and, generally, devote considerable attention to the care of himself, his family and his estate. That the plaintiff was totally disabled and prevented from any and every kind of business pertaining to the situation in life which he ascribes to himself seems not to be established by the evidence before us.

But his ease seems to us to be even more clearly excluded from the provisions of the contract by the answer to the first of the two questions above suggested. The work of operating of a buzz-saw is proverbially dangerous; and is, probably, not less so when engaged in for amusement than when practiced as a business or occupation. The dangers are such as probably to exclude the case of one engaged in the business from the class of preferred risks. The injury sustained by the plaintiff occurred from voluntary exposure to those dangers. Can it be said that such exposure was incident to the occupation or condition of a retired gentleman ? If not, the contract was, by its terms, void as to the accident resulting therefrom.

Hpon either and both of the grounds considered we think the motion for a nonsuit was well based, and that its denial was error, for which a new trial must be granted.

All concurred.

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


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    SEBASTIAN SHORER, Respondent, v. THE TIMES PRINTING AND PUBLISHING COMPANY, Appellant, Impleaded with Others.

      Corporations — judge’s order, accompanying the answer of, in an action against it as indorser of a note, when not required,— Code of Civil Procedwe, sea. 1778.
    Tlie provisions of section 1778 of the Code of Civil Procedure, requiring a judge’s order to accompany the answer of a defendant, which is a corporation, in an action to recover damages for the non-payment of a promissory note, or other evidence of debt, for the absolute payment of money, does not cover a case in which the corporation is liable only as an indorser of the note.
    Appeal by the defendant, The Times Printing and Publishing Company, from an order denying a motion made by it before the Monroe County Court, entered in the office of the clerk of the county of Monroe on the 19th day of January, 1889.
    The action was brought to recover upon a promissory note made by the defendant, Edmund W. Merritt, and indorsed by the Times Printing and Publishing Company. The Times Printing and Publishing Company answered, but did not serve any order of a judge under section 1718 of the Code of Civil Procedure. Whereupon the plaintiff entered judgment against the company, from an order denying a motion to vacate which this appeal was taken.

      D. G. Feely for the appellant.

      Charles M. Williams, for the respondent.
   Dwight, J.:

The judgment was entered under section 1718 of the Code of Civil Procedure, for want of a judge’s- order to accompany the answer of the defendant, which is a domestic corporation.

Tlie action was on a promissory note made by one Merritt and indorsed by tlie defendant corporation. The only question in the case is wlietlier tlie statutory provision referred to applied to a corporation liable, if at all, only as indorser of a promissory note. The text of tlie provision is as follows: “ In an action against a foreign or domestic corporation to recover damages for the non. payment of a promissory note, or other evidence of debt, for the absolute payment of money, upon demand, or at a ¡^articular time, * * * unless tlie defendant serves, witli a copy of bis answer or demurrer, a copy of an order of a judge directing that the issues presented by the pleadings be tried, the plaintiff may take judgment, as in case of default in pleading, at the expiration of twenty days,” etc. This provision of statute is plainly in derogation of the common law, and must, therefore, be strictly construed. (Bradley v. Albemarle Fertilizing Co., 2 Civ. Pro. R. [Browne], 50; Barr Co. v. Kuntz Co., 18 Abb. N. C., 476.) It is a provision which authorizes a plaintiff to disregard the answer of the defendant, though it con sist of a general denial and be supported by a solemn verification, and to enter judgment, notwithstanding such answer, without so much as an application to the court. Such a statute will not be extended beyond the strict limitation of the terms employed. By the original act of 1825 (chap. 325, § 4), the analogous provision was applied to every suit prosecuted against any incorporated company upon any contract, mite or other evidence of debt.” When the provision was incorporated into the Revised Statutes the word “contract” was stricken out and the words “for the absolute payment of money on demand, or at any particular time ” were added after “ evidence of debt,” and the provision of the Code of Civil Procedure retains the modification introduced by the Revised Statutes. This modification is of great significance as indicating an intention to circumscribe the application of the rule of practice. And yet, even under the original provision, it was held by the Supreme Court, in two cases, that it had application only to an action upon some instrument which was in itself fer see evidence of debt. (Anonymous, 6 Cow., 41; Tyler v. The Ætna Fire Ins. Co., 2 Wend. 280.) These cases were commented upon and approved in the case of The New York Life Insurance Company v. The Universal Life Insurance Company (88 N. Y., 424), and in that case the rule of tlie application of the statute is stated as follows: The provision applies only to “ instruments which admit, on their face, an existing debt payable absolutely.” The rule thus stated, we thinlc, clearly excludes the case of an action against the indorser of a promissory note. The contract of indorsement is not “ an instrument which is in itself ‘per se ’ evidence of debt; ” it is not “ an instrument which admits, on its face, an existing debt payable absolutely.” The liability of an indorser is not absolute, but contingent ; it is not established by production and proof of the instrument upon which the indorsement is borne, and of the indorsement itself. It requires proof aliunde the instrument, of presentation to the maker, demand of payment, non-payment, and notice thereof to the indorser, to show that the contingent liability has become absolute, and none of this proof appears ¿>n the face of the instrument nor of the indorsement. "We have been referred to no case, and know of none, in which the provision in question has been applied to the case of an indorser. The case cited by counsel for the respondent in which it was applied to an action on a policy of life insurance (Studwell v. Charter Oak Ins. Co., 19 Hun, 127), was expressly overruled in the case of New York Life Insurance Company v. Universal Life Insurance Company (supra). We think the practice of the plaintiff in entering the judgment was unwarranted by the statute, and that the motion to vacate the judgment was improperly denied.

The order of the County Court should be reversed and the motion granted, with costs of the motion and of the appeal.

All concurred.

Order reversed; motion granted, with ten dollars costs of the motion and ten dollars costs and the disbursements of this appeal.


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    WILLIAM S. HOLLINGSWORTH, Appellant, v. LUCY O. MOULTON, as Executrix, and JAMES ADAMS, as Executor of the Estate of JOHN F. MOULTON, Deceased, Respondents.

      Gambling debt — what is an insufficient consideration for a note, given in place of a protested, check made inpayment of a gambling debt — who is a trustee of an express trust.

    A cheek, given in payment of a gambling debt, having been protested for nonpayment, was subsequently delivered up, together with certain letters and telegrams written by the maker of the check, and a note of such maker and a check for $500 was received in return therefor.
    In an action upon the note it was claimed that the surrender of the letters and telegrams, together with that of the protested check, constituted a new consideration which would uphold the promissory note.

      Meld, that no recovery could be had upon the note.
    Where a promissory note is, by its terms, made payable to a party who is, in fact, the agent of the real owner thereof, such payee of the note becomes a trustee of an express trust, under the provisions of section 449 of the Code of Civil Procedure, and an action is properly brought in his name to enforce payment thereof.
    Appeal by the plaintiff from a judgment dismissing his complaint, entered upon the report of a referee in proceedings under the statute instituted to establish a claim of the plaintiff against the estate of one John F. Moulton, deceased, which judgment was entered in the office of the clerk of the county of Erie on the 11th day of February, 1889.
    It appeared upon the trial of the action that John F. Moulton, the testator, had, in his lifetime, lost in gambling to one John Daly the sum of $3,500, in payment of which amount he gave Daly his check, which was presented for payment and was protested. Subsequently, on the receipt of a note for $3,000 and a $500 check from Moulton, William S. Hollingsworth, who had acted in the matter solely as agent for John Daly, surrendered letters and telegrams which had been written by Moulton in reference to this matter, together with the protested check of $3,500. The $500 check was paid, and the note not being being paid at its maturity this action was brought to recover the amount thereof.

      Henry O. Root and Thaddeus D. Kenneson, for the appellant.

      George J. S¡card, for the respondents.
   Macomber, J.:

The defendant’s testator, John F. Moulton, bad, in his lifetime, prior to the month of November, 1886, lost in gaining to one John Daly the sum of $3,500, for which he gave- said Daly his check on a bank. Payment of the check, when presented, was refused and it was accordingly protested for non-payment. Certain letters and telegrams passed between John P. Moulton and the said Daly in regard to the transaction. .On the 20th day of November, 1886, the plaintiff, who had authority to act for Daly in the premises, returned to John F. Moulton the protested check, together with the letters and telegrams written by said Moulton, and received in return therefor a check for the sum of $500, which, on presentation, was paid, and the note now in suit for $3,000. The note upon which this action was brought was made and delivered for the sole purpose of taking up the protested check, in part, which had been given for a gambling debt. This fact is not only not denied but it is stipulated as true in the case. The learned counsel for the appellant ingeniously argues that the surrender of the letters and telegrams, together with the protested check, constituted a new consideration which would uphold this promissory note. To this proposition we cannot accede. There is no evidence that the telegrams and letters were regarded as of any pecuniary value. But whether of any pecuniary importance or not it is not shown that they entered into the consideration of this note. But whether they did or not, no recovery can be had upon the note under the statute aimed against gaming, which provides (3 B. S. [Ith ed.], 1963, § 16) that “ all things in action * * * and every other security whatsoever, given or executed by any person, where the whole or any part of the consideration of the same shall be for any money * * * wonbyplayingatany game whatsoever * * * shall be utterly void.” Under this statute, if the note in suit is tainted in any respect by the vice of gaming, no recovery can be had upon it. This consideration necessarily leads to an affirmance of the judgment.

The learned referee, however, has fallen into an inadvertent-error in deciding that if any action can be sustained upon this note, it can be brought only by Mr. Daly, the principal, and not by this plaintiff, who is shown to be the agent only of Daly. But the note was made payable to the plaintiff’s order. Section 449 of the Code of Civil Procedure authorizes a trustee of an express trust to bring an action in his own name. A trustee of an express trust is there defined to be a person with whom or in whose name a contract is made for the ' benefit of another.” The action was brought by the proper party. Put, as is pointed out above, no action by any person can be maintained upon this paper.

The judgment should be affirmed, with costs.

Barker, P. J., and Dwight, J., concurred.

Judgment and order affirmed.


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    ELWOOD H. PIXLEY, Appellant, v. MARGARET INGRAM AND JOHN C. INGRAM, Respondents.

      Usury —payments alleged to constitute, cannot be deducted from the recovery where the usm'y is not established and no counter-claim is set up in the answer.

    "VVliero Uie defense of usury lias been interposed, in an action brought upon a promissory note, and a verdict has been rendered in favor of the plaintiff, it is not competent for the court, where the payments, which, it is alleged, constituted the usury, have not been set up in the form of a counter-claim, to hold that the amount of the plaintiffs claim should be reduced by the aggregate amount of such payments.
    Appeal by the plaintiff from an order of the County Court of Eric county, setting aside the verdict and the judgment in his favor and granting a new trial in this action, which order was entered in the office of the cleric of Erie county December 6, 1888.
    The action was brought upon two promissory notes, to which the defense of usury was interposed by the defendants, and the issues raised thereby were tried before the Erie county judge and a jury, at a term of the Erie County Court held on the 20th day of November, 1888, at which trial the jury found a verdict in favor of the plaintiff for the sum of $105.50, upon which verdict judgment was subsequently entered, and on a motion by the defendants for a new trial on the minutes it was ordered that the verdict and judgment be set aside and a new trial was ordered, with costs to abide the event, unless the plaintiff should within ten days stipulate to reduce his recovery in the action by certain amounts which it was claimed had been paid by the defendant to the plaintiff, although such amounts were not set forth in the form of counter-claims in the defendant’s answer.

      George Wing, for the appellant.

      Fitch & Braulein, for the respondents.
   Macomber, J.:

This action was brought upon two promissory notes made by the respondent John O. Ingram, and indorsed by the respondent Margaret Ingram, payable to the order of one Albert Church who transferred the same to the plaintiff.

The defense was usury. Evidence of the taint of usury was of a conflicting nature, and the county judge submitted the question fairly to the jury, who have rendered a verdict for the plaintiff, for the amount remaining unpaid thereon, in the sum of $105.50. The learned county judge has granted a new trial upon the ground that, under the undisputed testimony in the case, there has been sundry payments reducing the amount due on the first note to nine dollars and five cents, and the amount due on the second note to thirty-five dollars and fifty-six cents, making due only forty-four dollars and sixty-one cents in all. These several items of so-called payments, which are thus said to be allowable to the defendants, are the precise items of usury which it was alleged had been taken by the plaintiff for repeated extensions of time of payment. There is no evidence that any one of these items was intended by the defendants to be a payment applicable to the reduction of the principal of either of these two notes. They were severally made, as stated before, not by way of diminishing the amount unpaid upon the paper, but as consideration, so-called, for the omission of the plaintiff to insist upon immediate payment of the original notes. The jury having decided in favor of the plaintiff upon the question of usury growing out of these several payments, we do not think it was competent for tbe court, under the pleadings, to hold that the amount of the plaintiff’ claim should be reduced by the sum total of such payments. The statute (1 R. S., 772, § 3) permits a party who, for any loan or forbearance of money shall pay or deliver any greater sum than is allowed by law, to recover in an action against the person who shall have 'taken or received the same over and above the legal rate, provided such action shall be brought within one year after such payment. Under this statute it was competent for the defendants to set up as a counter-claim these payments, and, had they done so, the amount found due upon the notes by the jury would have been further reduced by the several sums which were shown to have been paid within a year, or within any time, for that matter, unless the short statute of limitations had been pleaded by the plaintiff in a reply to such counter-claim. There being no counter-claim set up in the answer, the jury would not have been warranted in finding that these usurious payments of money, for the forbearance of collection of the loan, were -applicable to the principal sum remaining unpaid. We, therefore, think that the order of the County Court granting a new trial should be reversed, with costs, and judgment ordered for the plaintiff upon the verdict.

All concurred.

Order of County Court granting new trial reversed, with costs and judgment order for plaintiff on the verdict.


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    HERMAN C. BASKIN and Others, Respondents, v. JOHN T. ANDREWS, HENRY HUNTINGTON, as Executor of the Last Will and Testament of JAMES HUNTINGTON, Deceased, and CHARLES BELL, as Late Sheriff of Yates County, Appellants.

      Death of one of several joint sureties — former rule as to the release of Ms estate — reason thereof— effect of the recovery of a judgment against the surety before his death.

    The rule existing prior to its change by section 758 of the Code of Civil Procedure, that upon the death of one of two or more sureties, jointly liable for a debt of which such sureties received no part of the consideration or benefit, that his estate was discharged from the payment of such obligation, did not apply to a case where, after the maturity of the principal obligation, and prior to the death of the surety in question, a judgment was obtained by the payee therein against all the parties liable therefor.

      Hauck v. Craighead (67 N. Y., 483); Richardson v. Draper (87 id., 837); Randall v. Sackett (77 id., 480) distinguished.
    The rule existing prior to section 758 of the Code of Civil Procedure was not a rule of liability, but rather a rule of procedure, arising from the inability of the courts first enunciating the principle, before the consolidation of the modes of procedure in law jmd equity, to say how the liability of the estate of the deceased surety could be enforced in an action at law in conjunction with that of other parties who were liable for the indebtedness.
    The rule was not that the estate of the surety or of the joint obligor was entirely released by his death, but rather that the remedy at common law against the personal representatives of such deceased person was lost by the death of the latter.
    The liability existing after judgment is one of lien and not of procedure.
    Although, by bringing the action against all parties liable under the obligation, the payees elect to treat such obligation as joint only, the judgment, as to each party thereto, imposes a joint and several liability upon the judgment-debtors.
    Appeal by tlie defendants from a judgment of the Supreme Court, entered upon the report of a referee in the office of the clerk of the county of Yates oil the ljth day of December, 1888, by which it was adjudged that the estate of William R. Baskin, deceased, was discharged from the payment of a judgment recovered by the defendants, John T. Andrews and one James Huntington against the said William R. Baskin, James L. Brewer and Alary E. Huson, and by which the defendants and all persons claiming under them were perpetually restrained from enforcing the payment of an execution issued on said judgment from the estate of said WillianJR. Baskin, and from the lands and real estate of which he died seized.

      Charles S. Baker, for the appellants.

      Lyman J. Baskin, for the respondents.
   Macomber, J.:

The questions presented by this appeal arise mainly from facts alleged in the complaint and admitted by the answer.

One Mary E. Huson, as principal maker, and James L. Brewer and William R. Baskin (the latter now deceased), as sureties, did, on the 22d day of February, 18J6, execute and deliver their joint and several promissory note to the defendant Andrews and to James Huntington, now deceased, of whose last will the defendant Huntington is executor, in the sum of $800, payable on the first day of March thereafter. After the maturity of the note action was brought thereon by the payees, which resulted in a judgment against all the parties liable upon the note for the full amount thereof, with costs, which judgment was entered and docketed in the proper clerk’s office on the 7th day of June, 1876. One year thereafter, namely, on the 7th of June, 1877, William R. Baskin, one of the defendants in that action, died intestate seized of certain real estate described in the complaint. This real estate is now, by inheritance and otherwise, owned by and in possession of the plaintiffs. Execution was issued upon such judgment on the 11th day of March, 1881, to the sheriff of Tates county. No return was made upon this execution, so far as appears in the record, but, on the 7th day of April, 1886, after the expiration of the term of office of the sheriff to whom such execution had been issued,-the lands above mentioned were levied upon and offered for sale to satisfy such judgment.

This action is brought for the purpose of enjoining perpetually the enforcement of the judgment against the lands of the plaintiffs. The referee lias found, as a conclusion of law, that by reason of the judgment taken against all of the parties, including the principal debtor, Mary E. Huson, and the two sureties, Baskin and Brewer, the estate of Baskin became discharged from all liability thereon by reason of his death.

The argument of the learned counsel for the plaintiffs is to the effect that, though the note which was so put in judgment was a joint and several obligation, by taking a judgment against all parties thereto, the payee selected to treat the obligation as joint only, and hence the note was merged in the judgment, and became a joint obligation of the parties defendant in the judgment; and that William R. Baskin, having died after such joint judgment was taken, being a surety only upon the note, and receiving no part of the money upon the note or any benefit therefrom, was, and his estate is, discharged from the payment of such judgment. Mr: Baskin having died' before the enactment of section 758 of the Code of Civil Procedure, the rule applicable to this case is the one existing at common law, as established, by sundry cases in our courts, as is contended by the counsel for the plaintiffs. It becomes necessary, therefore, to examine somewhat in detail the authorities relied upon for such contention.

In the case of McNulty v. Hurd (18 Hun, 1), there is language used by the court which would go far to sustain the argument thus made, but upon an examination of the case it will be found that the decision turned upon the fact that the creditor had, by his dealing with the principal debtor without the knowledge or consent of the surety, released the surety from his obligation.

In the case of Risley v. Brown (67 N. Y., 160), it was held that upon the death of one of the makers of a joint promissory note, who had simply signed as surety, his estate was absolutely discharged from the payment thereof, both in law and in equity. The case arose upon a motion to substitute the personal representatives of a surety, against whose principal a joint judgment had been obtained, as defendants in his stead, he having, died after the affirmance of the judgment by the General Term and during the pendency of an appeal to the-Court of Appeals, upon which appeal an under, taking had been given staying execution. The head note in this case speaks of the judgment against the surety being discharged by his death, but there is nothing in the case itself that would warrant such an assertion.

The case of Hauck v. Craighead (67 N. Y., 432), was one either of joint liability or suretyship, and it was there held that in such a case the estate of the deceased party was released. In the case of Richardson v. Draper (87 N. Y., 337), it was held that the death of a joint obligor discharges his obligation only in a case where it appears that he is a mere surety and received no benefit whatever from the obligation. The court there says : It is, undoubtedly, the rule that in case of a joint obligation of sureties, if one of the obligors die his representatives are, at law, discharged, and the survivor alone can bo sued; but, that where the joint obligors were all principal debtors or received some benefit from the joint obligation, courts of equity have taken jurisdiction in the case of the death of one of the obligors and enforced the obligation against his representatives. The ground upon which those courts have proceeded is that in conscience the estate of a deceased obligor ought to respond to tbe obligation; and they have given relief in all cases where, in consequence of a primary liability on the part of the deceased obligor, or of a benefit received by him from the joint obligation, it was morally and equitably just that his estate should be made liable, and unconscionable that it should be discharged. * * * The reasoning upon which the exemption of the deceased surety’s estate from liability is founded, though sanctioned by numerous cases, is not very convincing, and has not always been viewed by judges and jurists with favor. It is difficult to perceive why the estate of a surety who was a joint obligor, upon whose credit and responsibility, mainly, the obligee loaned his money, should be discharged by the death of the surety. It would seem that, in good conscience and sound morals, and upon principles of natural justice, it should respond and bear the loss, if any, rather than the obligee who trusted the surety. But it has been quite uniformly held that the mere joint obligation of a deceased surety is not sufficient to create an equity against his estate.”

The case of Randall v. Sackett (77 N. Y., 480), which arose before the passage of the section of the Code already referred to, merely decides that it is not permissible, on a motion before judgment, to bring in the personal representatives as defendants, in place of one of two sureties who had died after action brought.

None of the cases above mentioned, nor others upon the same general subject referred to in the several opinions in those cases, involve the question before us. When thoroughly analyzed it is found that they go no further than to hold that, under the practice as it stood before the enactment of section 758 of the Code of Civil Procedure, the personal representatives could not be charged in an action with other parties where the deceased person, whom they represented, was a mere surety or a joint obligor. This, however, was not a rule of liability; it was rather a rule of procedure. Its origin, doubtless, may be found in the inability of the courts first enunciating the principle before the consolidation of the modes of procedure in law and in equity, to see how the liability should be enforced in an action at law in conjunction with other persons who were liable for the entire indebtedness. If there be a defect in the reasoning of the earlier cases upon this subject, it is attributable rather to the distribution of judicial powers among the different courts than to any inherent difficulty in enforcing liability against persons standing in different relations to the creditor. Provisions did not then exist for enforcing a judgment that might be procured against the personal representatives in such an action. I do not understand, however, that the cases have gone to the extent of holding that the estate of a surety, or of a joint obligor, is entirely released by his death, but rather only to the extent of holding that the remedy at common law against the personal representatives of such deceased person is lost by the death of the latter. None of the cases have gone so far as to declare that any lien which a creditor might have upon the property of the surety or of the joint obligor should be discharged by the death of the latter. The rule was established only to relieve the personal estate and personal representatives from the beginning of an action, or the continuance thereof after it was begun, before judgment, when instituted to collect the indebtedness incurred by the surety or joint obligor.

The case which comes nearest to being a guide for us in the case at bar is that of Smith v. Osborne (31 Hun, 390). In that case the party executed a joint promissory note, solely for the accom. modation of the maker, with knowledge of such relationship of the parties by the payee. ' The transferee of the note brought an action against the surety alone, and recovered judgment thereon. Eleven months thereafter the defendant in such judgment died. The action was brought by the administrators of Osborne to have the judgment vacated, and to have the estate relieved from all liability thereon, the same as prayed for in this case. It was there held that the entry of the judgment severed the joint liability of the makers of the note, and that thereafter the judgment-debtor alone was liable, and that the death of the debtor did not relieve his estate from liability upon the judgment, and that the action could not be maintained. It is true that in the case last cited the court emphasized the fact that there was, in effect, a severance of the cause of action, inasmuch as it was brought only against the surety, and held that the promise to pay the judgment, -which the law implies, was a several promise. Resort, however, need not bo had to the relations of the several jjarties to the original cause of action after judgment has been entered, because the question of liability after judgment is one of lien and not of procedure. The liability of each party to the judgment in tliis action was joint and several. The lien of the judgment was joint and several. Why, therefore, it may well be asked, should the lien of the judgment be discharged by the death of the owner of the property upon which it was a lien ? There is no provision of law for so holding. Suppose, for instance, that Mr. Baskin had given his mortgage, which would have been a lien of very much the same nature as this judgment, could it be reasonably contended that his property was released from the lien by reason of his death ? There is no difference perceptible between the lien in this instance and that created by a mortgage. In both instances, it may be said, it would be a voluntary lien, in one instance created directly by his own act, and in the other by his failure to meet, at maturity, the obligation which he had signed.

It follows, from these considerations, that the judgment should be reversed and a new trial ordered before another referee, with costs to the appellants, to abide the final award of costs.

All concurred.

Judgment reversed, and new trial granted before another referee, with costs of this appeal to the defendants, to abide the final award of costs.


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    GEORGE L. PRATT, Plaintiff, v. THE DWELLING-HOUSE MUTUAL FIRE INSURANCE COMPANY, of Orleans, Niagara and Monroe Counties, N. Y., Defendant.

      Insurance — by the secretary of a company, of his oven property — invalidity of— what notice necessary to establish a ratification.

    A director and secretary of a county co-operative insurance company filled out and signed an application for an insurance of $500 “on his wine-house and cellar,” and of $1,500 “ on his personal property kept stored therein,” and as a member of the executive committee signed his own name to the certificate of approval indorsed on the application, and afterwards obtained to such approval the signature of the vice-president, who was also a member of the executive committee, and who signed it on the highway where he met the secretary. Under this application the secretary issued to himself a policy of insurance for $2,000 upon a blank already signed by the vice-president, which he countersigned himself.
    By the by-laws of the company policies might be issued provisionally, but it was provided that they should be submitted thereafter to the executive committee for examination and approval. This was not done in this case, although two stated meetings of the executive committee had "been had prior to the time of the fire, to recover the damages resulting from which an action was brought by the secretary.

      Held, that the policy issued by the secretary, as agent of the insuring company, to himself as the insured, had no valid inception as a contract and could not be made the basis of a recovery in the action.
    That he was not in a position to take advantage of the provision of the by-laws of the company, to the effect that “applications for insurance, taken by a person duly authorized, shall take effect at noon of the date of the same, provided the premium is actually paid. The property shall be held insured until the applicant is notified by the secretary of its modification or rejection,” for the reason that, although authorized in general to receive applications for insurance, the secretary could not, as secretary, properly take an application from himself, any more than he could approve his own application or issue his own policy; and for the further reason that the secretary was guilty of a neglect of duty, as secretary and as a member of the executive committee, in withholding the application from the attention oj the committee for their action, and he could not, by his own fault, gain an extension of the term of his insurance.
    That the approval of the vice-president was not sufficient: 1. Because not given at a meeting of the committee. 3. Because tlie secretary being incompetent to act upon his own application, it did not receive the approval of a majority of the committee.
    That the fact that the application for the insurance was on its files, and the policy had been entered in its records, might constitute constructive notice to the company of the existence of both for some purposes, but that such constructive notice was not sufficient to charge a party with a ratification of the void contract, as actual notice, and a full knowledge of all the facts, were necessary conditions of the ratification.
    !MotioN by tbe plaintiff for a new trial on a case and exceptions after a trial at tbe Orleans Circuit before tbe judge and a jury, on tbe 5th day of June, 1888, at which tbe court, on motion of tlie defendant, granted a nonsuit and dismissal of plaintiff’s complaint, and ordered that tbe exceptions taken by tbe plaintiff upon tbe trial of tbe action, and to the granting of said nonsuit, be beard in tbe first instance at tbe General Term of the Supreme Court, and that tbe entry of judgment be in tbe meantime suspended.
    Tbe action was brought to recover a loss by fire upon property covered by a policy of insurance alleged to have been issued by tbe defendant in favor of tbe plaintiff.

      F. Brundage, for tbe motion.

      S. E. Filkins, opposed.
   Dwight, J.:

Tlie defendant is a “county co-operative insurance company,” organized under chapter 362 of the Laws of I860, as amended by chapter I'll of the Laws of 1881. The plaintiff was one of the original incorporators óf the company, and was one of its directors and its secretary from its incorporation until January, 1886.

By its by-laws (art. 2, § 1) the powers of the company are vested in its board of twelve directors. By section 8 of the same article the president, vice-president and secretary constitute an executive committee, possessing and exercising all the powers of the board of directors when the latter is not in session; that committee holds stated meetings, quarterly, on the second Saturdays of January, April, June and October; and at each stated meeting it is their duty “ to examine and approve all applications upon which policies have been written during the quarter next preceding and cancel or modify all policies which they do not approve.” By section J of the same article “ every application (for insurance) must receive the approval of one of the executive committee before a policy can be issued.”

On the 11th day of July, 1885, the plaintiff, being such director and secretary of the defendant, filled out and signed an application for an insurance of $500, “on his wine-house and cellar,” and of $1,500, “on his personal property kept stored therein;” he signed his own name as member of the executive committee to the certificate of approval indorsed on the application, and afterwards procured the signature of George Brown, who was vice-president and one of the executive committee, to the same certificate. Brown was driving on the highway at the time. He testifies that he was returning home from a meeting of the executive committee, at which he had met the plaintiff, and that, on the highway, the latter presented the application to him, saying it was one which he, Brown, had overlooked ; that he (plaintiff) had signed it and it was all right. He testifies that he did not examine the application further than to see that the plaintiff had signed the approval, and that he signed it without knowing whose application it was. On the other hand, the plaintiff testifies that he told Brown it was liis, the plaintiffs’ application, and that Brown looked at the contents of the paper before signing the approval. The 11th day of July, 1885, which is the date of tbe application, was also tbe date of tbe second Saturday of July of that year, wbicb was tbe time fixed by the by-laws for one of tbe stated quarterly meetings of tbe committee. It is not asserted that tbe plaintiff presented bis application to tbe committee at its meeting on that day. Upon this application, thus made and approved, tbe plaintiff, at some time, issued to himself a policy of $2,000, corresponding in number (No. 747), and in tbe description of tbe property insured, to tbe application. Tbe policy bears no date, but purports to insure tbe plaintiff for tbe term of three years from tbe 11th day of July, 1885, wbicb was tbe date of tbe application. It was filled out by tbe plaintiff on a form in bis possession as secretary, already signed by tbe vice-president, and be countersigned it himself as secretary.

By section 5 of article 2 of tbe by-laws of tbe company it is provided that tbe secretary shall write and countersign all policies of insurance; * * * be shall act as general agent of tbe company during bis term of office, and may canvass and receive applications for insurance, and receive such fees and commissions as may be paid to any .other agents of tbe company.” On tbe secretary’s book tbe plaintiff charged himself,» under date of July 11, 1S85, with tbe amount of tbe premium payable on tbe application ($10) and credited himself with “commissions on do. $1.00.” At what date be wrote tbe policy for himself does not appear; but it does appear that at neither of tbe stated meetings of tbe executive committee, in October or January following tbe date of tbe application, was it submitted to tbe executive committee for examination and approval, as required by section 8 of article 2 of tbe by-laws as above quoted. That tbe policy bad been written before tbe quarterly meeting in January appears from tbe testimony of tbe plaintiff, that on tlie second day of December be wrote on tbe face of both tbe policy and tbe application a memorandum, “ Loss, if any, on tbe buildings payable to S. Salisbury, as bis mortgage interest may appear.” There is every reason to suppose that tbe policy was written immediately after tbe so-called approval by Brown; and tbe allegation of tbe complaint is that it was issued on or about tbe 11th day of July, 1885. If so, there were two stated meetings of tbe executive committee, while tbe plaintiff was a member of it, at wbicb it was bis duty to present bis application for examination and approval by the committee, and his policy for cancellation or modification if not approved by them. As we have seen, a policy might be issued upon the approval of the application by a single member of the executive committee; but such issuance is clearly provisional and subject to the action of the executive committee at its next stated meeting.

We think the -statement of facts, so far made, sufficient to demonstrate that the policy issued by the plaintiff, as agent of the insurer, to himself as the insured, had no valid inception as a contract, and cannot be the basis of a recovery by the plaintiff. It is a truism of the law that no man can make a valid contract with himself as the agent of another ; it is equally impossible that a trustee should secure a benefit to himself by the neglect or violation of his duty to his cestui que trust; and both of these propositions must be negatived in order to maintain the validity and binding force of the policy of insurance in this case. But the plaintiff contends that, granting the invalidity of the policy, he may still insist upon a contract of insurance effected by the acceptance of his application. In support of this proposition he refers to a provision of the by-laws of the company, contained in section 7 of article 5, which is as follows: “All applications for insurance taken by a person duly authorized shall take effect at noon of the date of the same provided the premium is actually paid. The property shall be held insured until the applicant is notified by the secretary of its modification or rejection.” But the claim of the plaintiff, based upon this provision, is subject to the same objections as those which we sustain to his claim on the policy. In the first place, the secretary, though authorized in general to receive (or take) applications for insurance, cannot properly take an application from himself any more than he could approve his own application or issue his own policy. In taking, accejoting or receiving the application he acts for the company, and he cannot act for himself and for the company in. the same transaction. There was no reason in the necessity of the case for his taking his own application, because any one of the twelve directors of the company were authorized to receive it. (By-laws, art. 2, § 7.)

But, if it be contended that the approval of the application by Brown, was tbe taking referred to, or in any way satisfied tbe requirement of the provision quoted, and thus an insurance was effected from the date of such approval, how long did such insurance continue in force ? The language of the provision is “ until the applicant is notified of its modification or rejection,” i. <?., the modification or rejection of his application; and by whom ? Clearly by the executive committee at its next quarterly meeting. But we have already seen that the plaintiff was guilty of a neglect or violation of his duty as secretary and member of the executive committee in withholding the application from, or failing to bring it to the attention of, the committee for their action at any meeting after the issuance of the policy; and he could not, by his own fault, gain an extension of his own insurance. And if it were contended, as we do not understand it is, that the approval of the application by the plaintiff and Brown, on the eleventh of July, constituted the action of the executive committee required by the provision of the by-laws last referred to, the answer to the contention would be two-fold: First. That such pretended action was not taken at a meeting of the committee, but after the meeting had dissolved. Second. That, upon the princijtles here recognized, the jfiaintiff was disqualified to act upon his own application, and, therefore,' the approval did not receive the assent of a majority of the committee.

Neither do we find in the case facts to support the contention of the plaintiff that the contract of insurance, though invalid in its inception, was ratified by the acts of other officers of the company. There is no evidence that any other officer of the company knew of the existence of the policy until after the fire, which occurred August 7, 1887. Chamberlain was elected secretary in January, and the books and papers of the company were turned over to him, but his attention was not called to the application or record of the policy of the plaintiff, and he testified that he never knew or heard of either of them until after the fire. So far as the evidence shows, the same is true of the other officers of the company, unless it were to be found that Brown knew of the application in July; but, if that were true, he had a right to suppose, from the fact that it was not presented to the executive committee at the next, or any subsequent meeting, that no policy had been issued upon it. The fact that the application was on its files, and the policy entered in its records, might constitute constructive notice to the company of the existence of both, for some purposes; but constructive notice is not sufficient to charge a party with the ratification of a void contract. Actual notice and full knowledge of all the facts are necessary conditions of a ratification.

One other ground upon which the plaintiff seeks to avoid the objections to his policy is that of waiver, on the principle recognized in the case of Titus v. The Glens Falls Insurance Company(81 N. Y., 410). In that case a provision of the policy required the insured, at the request of the company, to submit to an examination on oath concerning his loss and its circumstances, under the penalty of forfeiture of his policy. There it was held that to insist upon and enforce such a provision was to affirm the validity of the contract in which it was contained. In this case there was a provision of the by-laws that members sustaining loss should “give any information required by the adjusting officers, and submit to examination under oath,” but no condition of the avoidance of the policy for refusal to do so was attached to it, and the provision of the by-laws, such as it was, was not insisted upon by the officers of the company. Some questions were asked by them and answered by the plaintiff in respect to the particulars of his loss, but he was not required to submit to an examination under oath. Blanks for proof of loss were furnished to him at his request, and all the steps towards the establishment of his claim were voluntary on his part.

We find no evidence of facts in the case which preclude the defendant from insisting upon the invalidity of the alleged contract of insurance; and we are of the opinioi} that the court below was right in holding that such alleged contract was invalid, and in granting the defendant’s motion for a nonsuit.

The plaintiff’s exceptions should be overruled, and judgment ordered for the defendant, dismissing the plaintiff’s complaint.

All concurred.

Motion for new trial denied, and judgment ordered for the defendant on the verdict.


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    THE FIRST NATIONAL BANK OF HORNELLSVILLE, N. Y., Respondent, v. JOHN HYLAND, Appellant.

      Presumption, from the failure of a party to produce a witness, that his testimony would not be /amor able to him — when rebutted — test of an expert as to signatures.

    In an action upon a promissory note, in which tlie defendant denied the indorse ment thereof by him charged in the complaint, the plaintiff’s counsel was permitted on the trial to make a statement, which was not objected to or questioned, that as attorneys for the plaintiff they had procured a writ of habeas corpus to bring the prisoner before the court to testify in this case, but that, on the day before the cause was reached for trial, they had received telegraphic information from their correspondents in Rochester to the effect that the defendant had been that morning taken from the custody of the sheriff by the United States marshal, and that they could not tell to what place nor for what time.
    The court charged the jury that, under the circumstances of the case, no legal presumption arose by reason of the failure of the plaintiff to produce the defendant as a witness, to which instruction the defendant’s counsel excepted and requested the court to charge that the presumption did arise that the evidence of the defendant would not be beneficial to the plaintiff, which the court declined to do.

      Held, no error.

      Mills v. Twist (8 Johns., 121) and Jackson v. Waldron (13 Wend., 199) distinguished.
    The judgment of an expert as to handwriting may be properly tested by inquiries as to his opinion in regard to the genuineness of defendant’s signatures to other notes or indorsements which are in evidence.

      Hilsley v. Palmer (32 Hun, 472) not followed.
    Appeal by tbe defendant from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury after a trial at tbe Steuben Circuit, before tbe court and a jury, wbicb judgment was entered in tbe clerk’s office of tbe county of Steuben on tbe 24th day of November, 1888.

      William A. Sutherland, for tbe appellant.

      DeM. Page, for tbe respondent.
   Dwight, J.:

Tbe action was against the defendant as indorser of a promissory note, which purported to be made by Lester B. Fnulkner, and to be indorsed by James Faulkner and tbe defendant. Tbe defendant denied tbe indorsement attributed to him. Tbe evidence was conflicting, but amply sustained tbe allegation of tbe plaintiff. Tbe defendant’s appeal is based upon exceptions taken on the trial. The first of these points to alleged error in the charge of the court in respect to the failure of the plaintiff to produce James Faulkner as a witness. The bocly of the note was in the handwriting of James Faulkner, as was also the indorsement of his name. The note was delivered to the plaintiff by James Faulkner, in renewal of a former note, bearing the same names. The delivery was by mail, under cover of a letter of Faulkner, in which he wrote : “I herewith inclose new note, with same indorsers and check to pay interest. I would have sent it before, but Mr. Hyland has been absent and returned last evening.” The evidence contains no history of the note for which this renewal was given, nor of the note in suit, beyond what is stated above. James Faulkner was not called as a witness. He had been for some months in the custody of the sheriff of Monroe county, under process of the United States courts. At the close of the evidence the plaintiff’s counsel was permitted to make the statement, which was not objected to or questioned, that, as attorneys for the plaintiff, they had procured a writ of habeas corpus to bring the prisoner before the court to testify in this case, but that on the day before the cause was reached for trial they had received telegraphic information from their correspondents in Rochester to the effect that Faulkner had been that morning taken from the custody of the sheriff by the United States marshal, and that they could not tell to what place nor for what time. The court charged the jury that, under the circumstances of the case, no legal presumption arose by reason of the failure of the plaintiff to produce James Faulkner as a witness. To this instruction the defendant’s counsel excepted, and requested the court to charge that the presumption did arise that the evidence of James Fanlkner would not be beneficial to the plaintiff. The court declined to vary its charge in that respect, and to that ruling the defendant’s counsel excepted.

We do not think these exceptions indicate error in the disposition of the question presented. Conceding that the evidence in the case showed that James Faulkner must have personal knowledge of the genuineness or falsity of the indorsement in question, and that the plaintiff was bound to use reasonable diligence to procure his testimony for the trial of the case, it might have been a question for the jury whether such reasonable diligence had been employed; but there was no request to submit that question to the jury. The case, in that respect, was allowed to stand upon the unquestioned statement of counsel that a writ of habeas corpus ad testificandum had been procured in due time; and upon evidence which tended to show that the execution of the writ had been prevented by the removal of the prisoner from the custody of the officer to whom it was directed. If such was the case, the plaintiff was not required to lose the trial of the cause at the circuit for which it was prepared, and no presumption of law did arise to the prejudice of the plaintiff’s case. The question here was not, as in the cases in Mills v. Twist (8 Johns., 121), and Jackson v. Waldron (13 Wend., 199), a question of the admission, under objection, of secondary evidence. In those cases it was a question for the court whether sufficient excuse had been made for the non-production of primary evidence. Here there was no question between primary and secondary evidence, because all the evidence given on the part of the plaintiff was primary in its character. There was only, at the most, a question for the jury, whether the plaintiff had wrongfully withheld or negligently omitted to produce other, and possibly more convincing, evidence of the same general character; and, as we have seen, there was no request to submit that question to the jury more fully than already had been done.

The second class of exceptions argued are those which relate to the admission of evidence of security taken by the defendant for his indorsements for James Faulkner. Four conveyances — three mortgages and a deed — were received in evidence, all given by Faulkner to Hyland within ten days before the closing of the bank. The deed expressed a consideration of $5,000, and purported tobe given in payment of money advanced to the party of the first part by the party of the second part. One of the mortgages, for $20,000, purported to be given as security for the payment of that sum “ to cover certain promissory notes made and indorsed by said John Hyland for the benefit of James Faulkner.” The other two mortgages were each intended as security for the payment of fifteen thousand dollars ($15,000), “ according to the condition of a bond,” etc., but no such bond was, in either case, produced by the defendant and, so far as appears, none was delivered to him. Here was, apparently, payment, or security for the payment, of a total sum of $55,000, apparently either due to the defendant from Faulkner, or for which the former was liable by indorsement or otherwise for the latter. The nominal amount of the securities thus proved corresponded very nearly with that which witnesses for the plaintiff testified the defendant stated he held as security for his indorsements, at the time when, as they testify, he admitted that the note in suit was a genuine evidence of such liability on his part. The evidence in the case gave room for the contention on the part of the plaintiff that the amount of the note in suit was necessary to make up the amount for which there was an attempt to give security; and, so far as that contention was supported, the evidence in question had some relevancy to the question of the genuineness of the defendant’s indorsement of the'note. It also tended to illustrate the relations and mode of dealing between the parties, and, possibly, had some bearing upon the probability or otherwise of Faulkner’s making an unauthorized use of the defendant’s name. Though not very direct or important evidence, we are not prepared to say that it was incompetent evidence, nor likely to have been to the prejudice of the defendant.

The cross-examination allowed of the witness O’Meara was not improper. Fie had testified, in behalf of the defendant, to his opinion of the genuineness of the indorsement of the defendant’s name on the note in suit. The questions put to him as to his opinion of the genuineness of defendant’s signatures to other notes or indorsements which were in evidence was calculated to test the correctness of his judgment. So far as the opinion of the court in Ililsley v. Palmer (32 Hun, 472) can be construed to hold that such a test of the judgment' of an expert may not properly be applied, we are not inclined to follow it as authority.

¥e find no error in the rulings of the court in this case which vitiate the judgment, and conclude that the judgment should be affirmed.

All concurred.

Judgment affirmed.