author: Follett, J.:

text:
    The People of the State of New York ex rel. The Second Avenue Railroad Company, Respondent, v. Edward P. Barker, Thomas L. Feitner and Edward L. Parris, as Commissioners of Taxes and Assessments for the City and County of New York, Appellants.

      Assessment of a corporation for purposes of taxation — “capital stock" denotes the property not the shares of stock — realty and personalty must be sepa/rately valued — the debts of a corporation must be considered or deducted.

    The term “ capital stock,” as used in section 3 of chapter 456 of the Laws of 1857, denotes the property owned hy the corporation, and not the par or actual value of the shares issued to and held hy its stockholders.
    The realty and personalty of a corporation organized under chapter 140 of the Laws of 1850 must be separately valued for the purposes of taxation, and if the personalty be overvalued and tlie realty undervalued on the roll, the valuation of the personalty cannot be sustained on the theory that the undervaluation of the realty equals or exceeds the overvaluation of the personalty.
    ■Commissioners are required to deduct from the gross amount of the personalty of a corporation its just debts in determining the amount for which it should be assessed for taxation, or, in estimating the Value of the property, they should take into account those debts.
    Appeal by Edward P. Barker, Thomas L. Eeitner and Edward L. Parris, as commissioners of taxes and assessments for the city and county of New York, from an order made at the New York Special Term on the 27th day of March, 1893, and entered in the office of the clerk of the city and county of New York upon the report of a referee, and declaring their proceedings and adjudication in assessing the capital stock of the relator for the year 1892 to be illegal, erroneous and void, and directing that said proceedings and adjudication be reversed, and said assessment be vacated and stricken from the roll, and directing that the taxes heretofore paid by the relator upon said assessment be audited and allowed and paid to the relator, and included in the taxes levied in 1894.
    The Second Avenue railroad was incorporated January 21, 1853, under chapter 140 of the Laws of 1850 (the General Railroad Act), and thereafter constructed and operated, with horses, a road in various streets in the city of New York, and, pursuant to chapter 240 of the Laws of 1872, and chapter 252 of the Laws of 1884, it extended and operated tracks in other streets of the city. Its authorized capital is $2,500,000, which is divided into 25,000 shares of $100 each,. But 18,620 shares have been issued, amounting at their par value to $1,862,000. In 1892 the commissioners of taxes and assessments valued the capital of the corporation for the purpose of taxation at $1,500,000. The value of the real estate of the corporation, as fixed in 1892 by the commissioners for the purpose of taxation, was $531,027, which sum, deducted from $1,500,000, left $968,972 as the assessed valuation of the personalty of the corporation. It is not asserted by the corporation that the commissioners’ valuation of its property exceeded the actual value, nor that the valuation placed on its realty was excessive. At the time this valuation ivas made the corporation was indebted in the sum of $1,938,873, which is $438,873 more than the assessed valuation of its real and personal property.
    In 1891 the corporation paid a dividend of four per cent on its outstanding shares. Tho corporation insistexl before the commissioners that it was not liable to be assessed. on its personalty because its indebtedness largely exceeded the value of its entire personal property. The commissioners refused to allow the claim of the corporation and valued its personalty at $968,972, and entered that valuation on the roll as the basis for taxation. The corporation obtained a writ of certiorari, under chapter 269 of the Laws of 1880, to review the assessment, and a reference was had to take and report the evidence offered by the litigants. Upon the coming in of the report, the assessment on the personalty of the corporation was vacated and set aside. From that order this appeal is taken.

      George 8. Golemcm, for the appellants.

      Charles K Miller, for the respondent.
   Follett, J.:

It was conceded by the counsel for the commissioners on the hearing before the referee that the actual value of the realty of the corporation did not exceed $1,000,000, and he concedes in his brief that the evidence returned by the referee shows that the actual value of its personalty did not exceed $590,269, which fixes the total value of the relator’s property at $1,390,269, which is $348,604 less .than its liabilities. The learned counsel for the appellants’ states in his brief that the only question which he presents for consideration on this appeal is: “ Whether, as a matter of law, the debts of the relator were necessarily deductible from the value of its corporate assets ?n Section 3 of chapter 456 of the Laws of 1857 provides :

“ § 3. The capital stock of every company liable to taxation, except such pa’’t of it as shall have been excepted hi the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds, exceeding ten per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company, which are taxable upon their capital stock under the laws of this State, shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county.”

This section has been several times considered by the courts, and it Is now settled that the term “ capital stock ” as used, therein denotes tlie property owned by tlie corporation and not the par or actual value of tlie shares issued to and held by its stockholders. (People ex rel. U. T. Co. v. Coleman, et al., 126 N. Y. 433.) Neither the par nor the actual value of all the shares issued by the corporation is necessarily the measure of the actual value of its capital •— property — but such value is to be ascertained by evidence or inquiry.

The record conclusively showing that the value of the property, real and personal, of the corporation is considerably less than the par value of its shares issued and held by its stockholders, we need not concern ourselves with the meaning of the term surplus profits or-reserved funds,” used in the section quoted. The word “ capital ” in this judgment is used as denoting all of the property of every kind owned by the corporation.

In this case the commissioners estimated the real and personal property of the corporation to be worth $1,500,000. They estimated the value of the realty at $531,027, and they reached the value of personalty by deducting the latter amount from the former. The evidence returned by the referee shows, as the learned counsel for the appellants concedes, that the actual value of its personalty did not exceed $590,269. Realty and personalty must be separately valued for the purposes of taxation, and if the personalty be overvalued and the realty undervalued on the roll the valuation of the personalty cannot be sustained on the theory that the undervaluation of the realty equals or exceeds the overvaluation of the personalty. It is apparent, therefore, that the assessment against the relator for personalty was excessive. Should the relator have been assessed any amount on its personalty ?

In The People ex rel. Glens Falls Ins. Co. v. Ferguson et al., Commissioners, etc. (38 N. Y. 89), an assessment was made against the relator for $40,000 for personal property. The share capital of the corporation was $100,000, all of which had been paid in, and it liad a surplus of $141,932.55. It had personalty of the value, of $236,432.55, and real estate of the value of $5,500. After deducting from the personalty the property which was not liable to taxation there Avas left $46,490.55, but the relator had outstanding policies in force which it would cost $80,000 to reinsure. The commissioners refused to make any allowance for this contingent liability, and assessed the corporation upon $40,000 for its personalty. Their action was reviewed on certiorari and affirmed at General Term, but on appeal to the Court of Appeals it was reversed, and the commissioners were ordered to vacate their assessment on the personalty. The 3d section of chapter 456, Laws of 1857, was considered, and it was held that this contingent liability was not a debt, but that it was to be considered in ascertaining the actual value of the capital or property of the corporation.

In The People ex rel. The Pacific Mail Steamship Co. v. Commissioners of Taxes and Assessments (46 How. Pr. 315 ; S. C., 1 T. & C. 611), it was stated, although the question was not involved: “ I may add to this, in addition, it would equally be the duty of the commissioners to consider the indebtedness (of the corporation) as reducing the actual value of the stock and form their estimate on that basis. The valuation was reduced one-half, a sum much larger than any indebtedness of the company, and there is no ground for supposing the commissioners did not consider such indebtedness in making the assessment.”

In The People ex rel. The West Side & Yonkers Railway Co. v. The Commissioners of Taxes and Assessments (31 Hun, 32), the par value of the relator’s shares outstanding was $10,000. It owned real estate of the value of $183,000. An assessment of $10,000 was made upon the capital stock. The relator insisted that the assessment for personalty was invalid because a mortgage made by another railroad corporation as security for $4,000,000 of bonds oovered the property of the relator, and that this lien should be considered in determining the actual value of the relator’s capital. It was held that this sum was to be considered in determining the actual value of the relator’s property, and that as it exceeded its assets the corporation was not liable to be assessed for personalty.

In People ex rel. Butchers Hyde and Melting Co. v. Asten et al., Commissioners (100 N. Y. 597), the relator had a share capital of $200,000, which had been paid in and invested in real estate on which there was a mortgage for $80,000 given as security for the bonds of the corporation. Its real estate was valued by the commissioners at $100,000. It held stocks in other corporations of the value of $36,500. These two sums, aggregating $136,500, were deducted from- the amount of the share capital, which left a remainder of $63,500, on which the corporation was assessed. The relator insisted, among other things, that the amount of its debt, $80,000, should have been deducted. It was held that the evidence did not show that the value fixed by the commissioners was incorrect, and the assessment was affirmed. The court, in the course of its discussion, said: “ There is no provision of law which authorizes a deduction from the capital stock by reason of the indebtedness of the company. While this indebtedness is a proper subject for consideration in estimating the value of the stock, there is no authority for its deduction from the value of the stock after the estimate has been made.”

In People ex rel. The Commonwealth Ins. Co. v. Coleman et al. (16 N. Y. St. Repr. 940 ; affd., 112 N. Y. 565), the relator’s share capital was $300,000, and it had a gross surplus of $45,885. Its liability for unearned premiums was $24,666, which, deducted from the gross surplus, left a net surplus of $21,219, making its assets, assuming that its property outside of its net surplus was worth $300,000, $321,219. Of this amount $304,515 were invested in United States bonds, which, deducted from the total assets of the corporation, left $16,644, which sum was the assessed value of the relator’s property as fixed by the commissioners. The Special Term held that the deduction by the commissioners of $24,666, the liability for the unearned premiums, was erroneous and that the commissioners should have deducted ten per cent from the capital, $300,000, amounting to $30,000, which sum should have been added to the amount invested in United States bonds, $304,515, making añ aggregate of $334,515, which latter sum should ■ have been deducted from $345,885, the entire assets of the corporation, and imposed an assessment upon the remainder, $11,310.

The General Term held that the Special Term erred in refusing to deduct or take into account the liabilities of the corporation and vacated the assessment. In discussing the case it was said: “ It is undoubtedly true that after an estimate of the value of the capital stock has been made there is no authority for the deduction of the indebtedness of the corporation, but it is also true that the indebtedness of a corporation is a proper subject for consideration in estimating the value of the stock, and in the conclusion at which the learned justice arrived in this case in determining the value of the capital stock the indebtedness of the corporation was not considered. There being no market for the stock of this company, its value was attempted to be ascertained by determining the value of its assets,, and the aggregate value of its assets was $345,885.21. If, however, the corporation was indebted this did not represent the actual value .of its capital stock, because such value was reduced by the amount of its indebtedness. All the assets going to make up this aggregate had been assessed at their full market value, no deduction whatever being made therefrom. Consequently the value of those assets was diminished in determining the value of the capital stock" by the amount of the indebtedness. Therefore, deducting the amount of the indebtedness, which it i's conceded amounted to $24,666.16, the total value of the capital stock of the corporation was $321,219.05.

“ This deduction, however, the learned judge challenged upon the ground that it was improper to consider this indebtedness in ascertaining the value of the capital stock of a corporation liable to taxation.

“ In this it appears he has fallen into an error. It would be improper to deduct such indebtedness after having determined the value of the capital stock, because that would be deducting the indebtedness twice, but in estimating the value of the stock the indebtedness of the corporation is a proper subject for consideration.”

It is alleged in the petition of the relator : “ That on the second Monday of January, 1892, the total gross assets of your petitioner, exclusive of real estate and roadbed, did not exceed the sum of $590,269.12.” This is not denied by the return. One of the commissioners testified before the referee, but made no claim that the debts of the corporation were taken into account in making up their estimate of the value of the capital of the relator, and the learned counsel for the appellants, in his brief, states that: “ The gross assets of the relator then, on the second Monday of January, 1892, amounted to $1,590,269. The respondents adopted a valuation of $1,500,000, from which they deducted the assessed value of real estate as required by law. But the respondents did not deduct the indebtedness claimed by the relator, which exceeded the actual value of its real and personal property exclusive of franchises.”

The cases cited all arose under chapter 456 of the Laws of 1851, and they are decisive of the case at bar. The question cannot be regarded as an open one in this court. But, apart from these decisions, we think the language of the statute requires the commissioners to deduct from the gross amount of the personalty of corporations their just debts in determining the amount for which they should be assessed for taxation, or that, in estimating the value of their property, they should take into account those debts. The same result is reached by either process. By the section quoted it is provided that, after making the deduction therein specified, the capital stock of corporations “ shall be assessed at its actual value and taxed in the same manner as the other personal and real estate of the county.” In assessing the personal property of the citizens of the county, the debts owing by them are to be deducted from the assessed valuation of such property. (1 R. S. 391, § 9.) The sentence last quoted does not, as contended by the learned counsel for the appellants, merely prescribe the procedure by which commissioners or assessors are to impose assessments upon the property of corporations. The mode of making assessments against corporations is provided for by the 6th and loth sections of title 4 of chapter 13 of part 1 of the Revised Statutes, and the mode in which assessments are to be entered against corporations on assessment rolls is quite different from the mode in which they are to be entered against individuals. Ye think the sentence last quoted discloses an intent on the part of the Legislature to provide that corporations and individuals should be assessed on the same basis for their personalty. The theory of our statutes under which taxes' are imposed is that only the personal property owned by persons or corporations is assessable, and that all property of the same kind is to be equally assessed, and, in the absence of a clear legislative expression, we cannot assume that the law-making power intended to impose a greater burden upon corporations than upon individuals on account of the personal property owned by them.

In 1885 the Legislature provided, in’ an act which, by its limitation as to inhabitants though not in terms, relates only to the county of Kings (Chap. 411, Laws 1885, § 4), that the assessors of the towns of that county, in assessing the personal property of corporations, should deduct their just debts. This section was amended by section 4 of chapter 202 of the Laws of 1892, and the same provision was continued. This seems to be a legislative construction of tbe statute in respect to tbe assessment of corporations for tbeir personal property, and we can see no reason wby tbey should bave intended to have provided a different basis of assessments in tbe towns in Kings county than in tbe other counties in the State.

Tbe order should be affirmed, with costs.

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

Order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Theodore Conkling and Eugene Conkling, Respondents, v. Lizzie H. Zerega, Appellant.

      Damages caused by closing a, road belonging to the owner of the fee at that time — construction of a contract to sell.

    In the absence of an agreement to the contrary, the damages caused by closing a ■ road belong to the owner of the fee of the land at the date when the. road was closed.
    On March 3, 1868, a part of the Bloomingdale road was closed by the board of commissioners of Central Park, adjacent to which was a plot of ground known as block 1267. About the same time part of this block was taken for the purpose of opening One Hundred and Tenth street. On May 10, 1871, block 1267 was owned by Thomas W. Conkling, Elizabeth P. Conkling and Lizzie H. Zerega, as tenants in common, each owning an undivided third interest therein.
    On April 17, 1873, such owners entered into a contract with a firm of attorneys, by which such firm was to prosecute their claims for damages for one-third of the amount which might be collected. On September 3, 1873, an award of $3,264 was made against the city in favor of such owners for the land taken for 'the opening of One Hundred and Tenth street. On January 10, 1874, Elizabeth P. Conkling contracted to sell, on the twentieth of the same month, her interest in such premises to Lizzie H. Zerega, by an instrument which contained a provision that in case any awards were made by the city for taking away any portion of said property, Zerega would refund to Elizabeth P. Conkling one-third of the amount which should be paid for damages therefor, less one-third of the expenses of obtaining such award, it being understood that Elizabeth P. Conkling was not to receive any portion of awards thereafter made. On February 1, 1874, the award of September third was paid and divided between Elizabeth P. Conkling, Thomas W. Conkling and Lizzie H. Zerega. On November 11,1876, Thomas W. Conkling and Lizzie H. Zerega, the owners of the fee of such property, filed a petition for the assessment of the damages eaused to their property by the closing of the Bloomingdale road. In Decernber, 1880, the damages were assessed, and on April 27, 1883, Zerega received $2,074.64, two-thirds of the net amount realized from the award.
    Elizabeth P. Conkling assigned to. the plaintiffs all her claims against Zerega, and an action was brought to recover one-half the amount received by her for the closing of the Bloomingdale road, upon the theory that, under the contract, she became liable to pay Elizabeth P. Conkling one-third of the damages awarded.
    The trial court directed a judgment for the plaintiffs.

      Held, that Zerega, the defendant, having paid the one-third part of the award made before the execution of tlie contract, such payment terminated her liability under it;
    That had it been shown that the plaintiffs’ assignor owned the fee of the property at the date the road was closed, or that she had received an assignment of the interest in the damages from the owner of the fee, the plainitiffs would not have been entitled to recover, because no such cause of action was alleged in the complaint, and, under the evidence, the Statute of Limitations had run against a recovery on that ground.
    Appeal by tlie defendant, Lizzie H. Zerega, from a judgment of the Supreme Court in favor of the plaintiff's, entered in the office of the cleric of the city and county of New York on the 27th day of December, 1892, upon the verdict of a jury rendered at the New York Circuit, and also from an order made at the New York Circuit and entered in said clerk’s office on the 23d day of December, 1892, denying the defendant’s motion for a new trial upon the minutes.
    March 3, 1868, a part of the Bloomingdale road was closed by the board of commissioners of Central Park, pursuant to chapter 697 of the Laws of 1867. Adjacent to this road is a plot of ground known in this litigation as block No. 1267. At about the same time, the date not appearing, part of the block was taken for the purpose of opening One Hundred and Tenth street. The record does not definitely show who owned the fee of this block at the time the city closed Bloomingdale road and opened One Hundred and Tenth street. It is alleged in the complaint that for a number of years prior to May 10, 1871, Elizabeth M. Conkling owned the property, which allegation is not denied in the answer; but it is also alleged in the complaint, and not denied, that May 16, 1868, Elizabeth M. Conkling, Elizabeth P. Conkling, Jonas E. Conkling, Luella S. Conkling, Thomas W. Conkling and Lizzie II. Zerega mortgaged the property to "William B. Astor. It is alleged and admitted that on May 10, 1871, Elizabeth M. Conkling, being seized of the fee, conveyed the premises to Thomas ~W. Conkling, Elizabeth P. Conkling and Lizzie H. Zerega, who became the owmers thereof as tenants in common, each owning an undivided third interest. ■ On the 17th of April, 1873, said tenants in common entered into a contract with a firm of attorneys by which they were to prosecute the claims of the owners for damages for one-tliird of the amount which might be collected. On the 3d of September, 1873, an award of $3,261 was made against the city and in favor of Thomas W. Conkling, Elizabeth P. Conkling and Lizzie II. Zerega for the land taken for opening One Hundred and Tenth street.
    On the 10th of January, 1871, Elizabeth P. Conkling contracted to sell and to convey on the twentieth of the same month her third interest in the land to Lizzie II. Zerega by an instrument which contained the following provision : “And the said party of the second part hereby agrees that in case * * any awards are made by the city for taking awayany portion of said property, then in such an event said party of the second part will refund to the party of the first part * * * one-third amount which shall bo paid by the city as an award for damages to said premises * * * less one-third of the expense of * * * obtaining such jiward, it being understood, however, that the party of the first part is not to receive any portion of awards hereafter made.”
    February 1, 1871, the award of September third was paid to and divided between Elizabeth P. Conkling, Thomas W. Conkling and Mrs. Zerega.
    On the 11th of November, 1876, Thomas "W. Conkling and Lizzie II. Zerega (who were then the owners of the fee of the property) filed a petition with the board of assessors of the city of New York for the assessment of the damages .caused to their property by closing the Bloomingdale road. In December, 1880, the damages were assessed, and on the 27th of April, 1883, they were paid to the petitioners, Mrs. Zerega receiving $2,071.61, two-tliirds of the net amount realized from the award. Before this action was begun, Elizabeth P. Conkling had assigned all of her claims against the defendant to the plaintiffs, who brought this action to recover one-half of the amount received by Mrs. Zerega for closing Bloomingdale road, upon the theory that, under the contract, she became liable to pay Mrs. Conkling one-third of the damages awarded.

      IT. G. Atwater, for the appellant.

      Abraham, Gruber, for the respondents.
   Follett, J.:

The canse of action alleged in the complaint and sought to be established on the trial is that the defendant, by the clause quoted from the contract of January 10, 1874, became liable to pay to the plaintiffs’ assignor one-third of the damages awarded for closing Bloomingdale road. No other ground for the recovery of the sum for which the verdict was directed is stated in the .complaint, nor was there any evidence given on the trial which tends to support, upon any other theory, the judgment. The sole question is, did the defendant, become liable, under the clause quoted from the contract, to pay over any part of the damages awarded on account of the Bloomingdale road ? The language is not ambiguous, and it is provided in clear terms that the defendant should pay to the plaintiffs’ assignor one-third of all sums which had been awarded, and in the concluding part of the clause it is expressly provided “ that the party of the first part (plaintiffs’ assignor) is not to receive any portion of awards hereafter made.” By this language, the defendant became liable to pay over one-third of all awards then made, but she did not become liable to pay over any part of awards thereafter made. The defendant paid the third part of the award made before the execution of the contract which terminated her liability under it.

In the absence of an agreement to the contrary, the damages caused by closing the road belonged to the owner of the fee of the land at the date when the road was closed, which was March 3, 1868. (King v. The Mayor, 102 N. Y. 171.)

Who owned the fee at this date does not appear, but had it been shown that the plaintiffs’ assignor then owned one-third of it, or that she hacl received an assignment of an interest in the damages from the owner of the fee, the plaintiffs would not have been entitled to recover, because no such cause of action is alleged in the complaint, and for the further reason that, under the evidence contained in the record, the Statute of Limitations had run against a recovery on that ground.

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

YaN ÜRüNT, P. J., concurred.

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


text:
    Peter A. Welch and Others, Appellants, v. Solomon Seligman, Respondent.

      Obtaining goods under false pretenses — facts sufficient to go to the jury — an action for damages is not inconsistent with a repledn suit previously brought.

    In an action brought for the recovery of damages for obtaining goods by false pretenses, and with the preconceived design not to pay for them, it was shown that in May, 1891, the plaintiffs were partners, and that in that month they sold and delivered to the defendant sixty casks of alkali at the agreed price of $1,921.57, payable Juno 1, 1891, no part of which had been paid.
    The evidence reviewed, and held to be sufficient to justify the jury in finding that the defendant had misrepresented the amount of his property, the amount of his liabilities, the condition of his business, and the use which he intended to make of the sixty casks of alkali purchased from the plaintiffs, which propositions, if found in favor of the plaintiffs, would have sustained a verdict that the goods were acquired by false representations and with the preconceived design not to pay for them.
    That the action was in disaffirmance of the contract to recover damages for the fraud alleged to have been practiced, and was not inconsistent with a replevin action previously brought.
    Appeal by the plaintiffs, Peter A. Welch, Andrew M. Sherrill and Moses E. Clark, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the city and county of New York on the 3d day of March, 1893, upon a dismissal of the complaint after a trial at the New York Circuit, with notice of an intention on the part of the appellants to bring up for review on such appeal the direction of the trial judge dismissing the complaint, and from an order made at the New York Circuit and entered in the office of the clerk of the city and county of New York on the 21st day of February, 1893, denying plaintiffs’ motion to set aside the direction of the trial judge and for a new trial made upon the minutes of the court.

      Artémus B. Smith, for the appellants.

      David Leventritt, for the respondent.
   Follett, J.:

This action is for the recovery of damages for obtaining goods through false pretenses and with the preconceived design not to pay for them.

' In May, 1891, the plaintiffs were partners under the name of Welch, Holme & Co., and in that month they sold and delivered to. the defendant at the city of New'York, sixty casks of alkali, at the agreed price of $1,921.59, payable June 1, 1891, no part of which has been paid. Fifteen of the casks were delivered May fourth,, fifteen May twelfth, eight May eighteenth, and twenty-two about the twenty-sixth of May.

One of the plaintiffs testified that the defendant was introduced to him in February, 1891, by Mr. Kuschewsky, and that on that occasion the following conversation was had :

“ I then asked him (defendant) in regard to his means, and he stated that he had bought out Kuschewsky and paid him $1,500 in cash j furthermore I asked him, are all your fixtures and apparatus clear ? He said they were ; that there was no incumbrance on them whatsoever, and I want to make arrangements with you to furnish me with alkali. I said that we would be glad to sell to him if we could make satisfactory arrangements; how do you propose to pay ? He said, I will pay you on the first of every month, and I will want deliveries of alkali at different times. I told him this was a cash article. He said, I will pay you the first-of every month, any purchases previous to the first; you can rely on getting your money on the first of the month, and the statements I make to you are strictly true; I am an honest man and I have property in the West, about $2,000 worth of property.”

In February the defendant purchased of the plaintiff six casks of alkali which he paid for March first. In March he purchased thirty casks which he paid for April first. In April he bought thirty-four or thirty-five casks which he paid for May first. In May he purchased' the sixty casks for which he failed to pay. At the time he ordered the sixty casks the following conversation occurred : “ I (one of the plaintiffs) said, that is a large quantity; your business must be increasing very rapidly. He said it had and he wanted that quantity, and would have to have it because he had orders to fill for sal-soda that would require that quantity of alkali during that month. He said further, I will do as I agreed, and pay you the first of every month.”

The defendant took sixteen of the casks which were delivered on the twenty-sixth of May, to a warehouse on the same day, and received ■a negotiable warehouse receipt in the name of E. L. Goldnsor, representing to the person from whom he received the receipt that that was his name. He represented at the time of taking the receipt that he had a surplus of alkali, and wanted to raise some money on it, and gave that as a reason for getting the warehouse receipt. Shortly afterwards he tried to sell the receipt to one Green, requesting him at the time not to tell the plaintiff’s firm about his offer to sell. It was proved beyond dispute that the defendant agreed to pay but $800 for the plant, instead of $1,500, which he purchased •of Kuschewsky, and that he paid in cash $200, and gave his notes for the remainder, which have never been paid.

On April 28, 1891, defendant gave his promissory note to Harris ■J. Bramson for $620, due in twenty days, which was not paid at maturity, and May 25, 1891, an action was brought thereon in the •City Court of New York, and June 2, 1891, a judgment recovered thereon by default, on which an execution was immediately issued, under which the sheriff levied on the defendant’s property, •and took possession of his place of business. Immediately after the levy one of the plaintiffs called on the defendant, and had the following conversation: “I asked him at an interview at my office, what had become of the property he represented himself possessed of to me ; he said he didn’t know ; he had to pay little debts here and there, current expenses and other little things, and he couldn’t say; he said that the Bramson judgment that the sheriff had got into his place on was entirely unexpected to him. I asked him what had become of our alkali that had been delivered to him in May, or any part of it; he said a few casks were in the place, but the others had been used up, and he didn’t know; things were in a kind of mixed up shape, and he didn’t know what had become of anything; he couldn’t give an account of anything. He gave me no satisfaction concerning the remaining casks. I asked him if he had stored any of it. He said, ‘ I decline to answer.’ ”

In another interview with one of the plaintiffs the defendant said if forced to sell he could not pay more than $200 or $300 —• that he anight pay twenty-ñve per cent of his indebtedness. The person of whom defendant purchased the factory testified that not añore than thirty casks of alkali could be used in the factory in any oaae month; that it had not capacity to use more. The evidence was. sufficient to have justified the juay in finding that the defendant, misrepresented (1) the amount of his property; (2) the amount of his liabilities; (3) the condition of his business; (4) the use which, he intended to make of the sixty casks of alkali purchased in May.

These propositions, being found in favor of the plaintiffs, would have sustained a verdict that the goods were acquired by false representations and with the preconceived design not to pay for them.

This is not an actioir orr the corrtract to recover the agreed price, but arr action irr disaffirmance to recover damages for the fraud alleged to have been practiced, and there is nothing irr the point that this action is inconsistent with the replevin action previously brought, as the learned trial judge correctly held.

The judgment should be reversed and a rrew trial granted, with costs to the appellant to abide the event.

O’BeieN and Pareer, JJ., concurred.

Judgment should be reversed and a new trial granted, with costs: to the appellant to abide the event.


text:
    Emory M. Van Tassel v. The Greenwich Insurance Company of the City of New York.

      Insurance policy — how canceled — offer of a company to insure in a less amount, not binding unless accepted, within reasonable time —what is a reasonable time.

    A policy of insurance provided for its cancellation on five days’ notice by the company, or on the request of the insured, also, for its renewal from time to time. It was once renewed, and on January 1, 1891, a binding slip was issued by the company, continuing the insurance from noon of that day. On January seventh the company wrote, notifying the. agents who obtained the insurance, that the policy would be renewed for only §5,000, half the original amount, and was not held binding for more.

      On January thirteenth, the property was totally destroyed hy fire, and thereafter an action was brought to recover the sum of $5,000 as the amount due on the policy, a tender of the premiums for that amount having been made.
    The plaintiff, the insured property, the office of the defendant and of its agents, were all in the city of New York.

      Held, that the policy was renewed hy the binding slip;
    That the letter was not effectual as a notice of cancellation, hut was a mere proposition for reduction;
    That had the defendant stood on the original contract he could have recovered the full amount;
    That the plaintiff had elected to consider the original policy at an end, and that the letter did not create a new insurance as its terms had not been accepted;
    That such an offer must he accepted within a reasonable time, and that a delay of six days, under the circumstances of the case, the fire having intervened, was an unreasonable delay.
    When the facts are undisputed, the question as to what is a reasonable time is one for the court.
    MotioN by the defendant, tbe Greenwich Insurance Company of the city of New York, for a new trial upon exceptions ordered to be beard at the General Term in the first instance, a verdict having been directed for the plaintiff at the New York Circuit on the 12th day of April, 1893.
    In consideration of fifty dollars the defendant, by its policy dated January 11, 1889, insured the plaintiff from noon, January 1, 1889, until noon, January 1,1890, against loss by fire on his building situated on the northeast corner of Thirteenth avenue and "West Eleventh street in the city of New York. Among other provisions, the policy contained the following :
    “ This policy may, by a renewal, be continued under the original stipulations, in consideration of premium for the renewed term, provided that any increase of hazard must be made known to this company at the time of renewal or this policy shall be void.

      “ This policy shall be canceled at any time at the request of the insured, or by the company by giving five days’ notice of such cancellation. If this policy shall be canceled, as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that, when this policy is canceled by this company by giving notice, it shall retain only the pro rata premium.”

      In consideration of fifty dollars tbe defendant, by its renewal receipt, dated January 2, 1890, continued tbe policy in force until noon of January 1, 1891.
    On tbe 1st day of January, 1891, Beecber & Benedict, insurance brokers, presented to tbe defendant tbe following application :
    “ Beecher & Benedict,
    “New York,............189 .
    “ Insure E. M. Van Tassel.
    “ $10,000 for 12 months @
    “ On
    “ Building N. E. corner 13tb Ave. & W. lltb Street, N. T. City. “ In Store
    “Binding this 1 day of January, at noon.
    “ (This memo, to be void on delivery of tbe policy at the office of Beecber & Benedict.)
    “ COMPANY. AMOUNT. ACCEPTED.
    “ Greenwich. 10,000
    “ Renewal.
    “ 559298. not in force. ¥M. ADAMS.”
    Afterwards tbe defendant wrote to Beecber & Benedict as follows:
    “ The Gbeenwich Insurance Company,
    “ 161 Broadway,
    “New York, Jem. 7, 1891.
    “ Beecher & Benedict, 145 Broadway:
    “ Gentlemen —Your application for renewal of insurance for E. M. Van Tassel at n. e. Cor. 13th Ave: & West lltb St. IS DECLINED for $10,000; would renew for $5,000, if wanted.
    “ You will, therefore, consider that tbe risk is NOT HELD BINDING by this Company for more than $5,000.
    “ Very truly yours,
    “M. A. STONE,
    “ Secretary.”
    During tbe night of January 13,1891, tbe building was destroyed by fire, and on tbe fifteenth of tbe same month Beecber & Benedict gave tbe defendant written notice of tbe loss, claiming that it was liable on a contract of insurance for $5,000, and on tbe thirty-first of that montli they offered to pay the premium on that sum, for one year, at the rate of seventy-five cents per annum, amounting to thirty-seven dollars and fifty cents, less twenty-five per cent, their commission, which the defendant refused to receive. On the 20th of February, 1891, the plaintiff served the defendantVith proofs of loss, claiming that it was liable on a contract insuring the property for $5,000, which proofs of loss the defendant returned on the next day. No policy or renewal receipt was ever delivered by the defendant to Beecher & Benedict or to the plaintiff. This action was brought to recover $5,000 with the interest thereon. The following allegation is contained in the complaint:
    “2. On and before the 1st day of January, 1891, the plaintiff applied to the defendant for insurance against loss on the building and property situated on the northeast corner of Thirteenth avenue and West Eleventh street in the city of New York, and the defendant on said day agreed to and did become insurers of said property for twelve months from said first day of January, 189.1, for the sum of five thousand dollars, and the defendant further agreed that it would execute and deliver to plaintiff a policy of insurance covering said property in the usual form of policies of insurance issued by it, the defendant, for the sum of' five thousand.”
    The defendant denied that it insured the plaintiff’s property for $5,000 as alleged, and also denied that it agreed to execute and deliver to the plaintiff a policy of insurance on the property for $5,000.
    At the close of the plaintiff’s evidence the defendant moved that the complaint be dismissed, which was denied and an exception was taken. The plaintiff thereupon moved that a verdict be directed in his favor for. $5,591.86, the amount of his claim, which was granted, and the defendant excepted. The defendant’s exceptions were ordered to be heard at the General Term in the first instance.

      Henry G. Wcurd, for the appellant.

      G. N. JBovee, Jr., for the respondent.
   Follett, J.:

There is a distinction between a contract of insurance and a contract to insure. (Union Mutual Ins. Co. v. Commercial Mutual Marina Ins. Co., 2 Curtis, 524; affd., 19 How. 318; Insurance Company v. Colt, 20 Wall. 560; Putnam v. Ins. Co., 123 Mass. 324.) The complaint was evidently drafted with this difference in mind and with the view of enabling the plaintiff to recover on whichever kind of contract he should be able to establish.

Was there a contract of insurance outstanding January 13, 1891, the date of the fire ?

The policy provides : This policy may, by a renewal, be continued under the original stipulations in consideration of premium for the renewed term.” The policy had been once renewed for the year 1890 at the same rate of premium charged for the original policy, and the defendant understood from the application filed that the plaintiff desired not a new policy but a renewal of the one outstanding for the year 1891. This is apparent from defendant’s letter of January 7, 1891, in which it said : Tour application for renewal of insurance for E. M. Van Tassel,” etc. The binding slip of January 1, 1891, continued the original policy for $10,000 in force subject to the original stipulations ” therein contained. It ■was provided in the policy that any renewal of it should be subject to its provisions, which is the legal effect of a binding slip.” (Lipman v. The Niagara Fire Insurance Co., 121 N. Y. 454; Karelsen v. The Sun Fire Office, 122 id. 545; May on Ins. [3d ed.] §§ 44-59.) By the binding slip the defendant contracted to continue its policy in force for $10,000 during the year 1891. This slip bound the company as effectually as the usual renewal receipt issued by insurers, and there was no way in which the defendant could, without the plaintiff’s assent, terminate its contract except in the mode provided in the policy. This it failed to do. The letter of January seventh was not effectual as a notice of cancellation, and at most it simply informed the insured that unless he consented to accept a policy for $5,000 and surrender the contract which he then held, that the insurance would be canceled. To give this letter greater effect would be permitting the defendant to put an end td its contract in a way not provided for. The letter amounted only to a proposition by the defendant to the plaintiff to consent to a reduction of the amount insured. He had the right to accept the proposal or to stand by the contract then existing. He was not bound to take further action in the matter. Until the policy was canceled in accordance with its provision it was in force and the plaintiff was liable for the premium earned while the risk was covered. Had the plaintiff stood on this contract it is difficult to see how a recovery for the full amount insured by it could have been defeated. But the difficulty with the plaintiff’s case is that his conduct shows that he elected to consider the original policy at an end. This intention was manifested:

(1) By claiming that the defendant was liable for $5,000 when he gave notice of loss;

(2) By tendering the premium on an insurance for $5,000;

(3) By filing proofs of loss for $5,000 ;

(4) By bringing this action for the recovery of $5,000.

This conduct requires ns to hold that the plaintiff acquiesced in the termination of the contract of insurance for $10,000, and it follows that there was no outstanding contract of insurance at the date of the fire, unless the sentence in the defendant’s letter of January seventh can be construed to be such. The sentence is : “ You will, therefore, consider that the risk is not held binding by tiffs company for more than $5,000.”

A contract cannot be made without a meeting of the minds of the parties and an agreement on its terms. The defendant could not impose on the plaintiff 'a new contract of insurance for $5,000, and at a higher rate of premium, without his assent. It is clear, we think, that the company could not have collected tiffs premium on this sum from the plaintiff without his acceptance of the. new contract tendered. He did not manifest his acceptance of the new contract offered by the defendant until after the fire. This was too late, provided a reasonable time had elapsed in which he should have signified his assent. An insurer is not bound by an offer to insure property unless it is accepted, and it cannot be maintained that an owner can delay his acceptance for six days under the circumstances disclosed by this case and until the property is destroyed by fire, and then by an acceptance bind the company. The plaintiff, his agents and the defendant were engaged in business in the same city, and the property to be insured was situated in that city. We think that permitting six days to elapse without accepting the defendant’s proposition was an unreasonable delay. When the facts are undisputecl, tlie question, wbat is a reasonable time, is one of law for tbe conrt. (Wiggins v. Burkham, 10 Wall. 129-132; May on Ins. [3d ed.] § 368 ; Tliomp. on Trials, §§ 1530 et seq.) There was no contract of insurance outstanding when tbe building was burned.

Was there a binding contract to insure the property for $5,000 when the fire occurred ? As before stated, an insurance company is not bound by its offer to insure unless it is accepted, which, as we have held, was not done in this case within a reasonable time. No binding contract to insure existed when the loss occurred.

The defendant’s motion for a new trial must be granted, with costs to it to abide the event.

Tax BeuNt, P. J., and Paekee, J., concurred.

Defendant’s motion for new trial granted, with costs to abide the event.


author: PARKER, J.:

text:
    Frank Brown, Appellant, v. Charles E. Coddington and Others, Respondents, and Emily K. Bond, Appellant.

      Action for the pm'tition of real pi'operty — an agreement not to pa/rtition is a defense to the action — when it is supported hy a sufficient consideration.

    An agreement made not to partition certain real property during a certain time constitutes a legal defense to an action 'brought during such time for its partition.
    An agreement not to partition certain property, during the continuance of the contract in which such agreement was contained, was entered into by all the owners of such property, who appointed an agent for its management and provided for the creation of a fund to pay off liens, mortgages and debts thereon.

      Held, that such agreement was supported by a sufficient consideration.
    Appeal by the plaintiff, Frank Brown, and also by the defendant Emily K. Bond, from a judgment of the Supreme Court in favor of certain of the defendants, made at the New York Special Term and entered upon the decision of the court in the office of the clerk of the city and county of New York on the 3d day of June, 1892, dismissing the plaintiff’s complaint upon the merits, with costs.

      Devoid MoGVitre, for the appellants.

      Alfred B. Gruikshank, for the respondents.
   PARKER, J.:

By tbis action it was sought to partition certain property of which Kathleen E. Brown was, at the time of her death, seized and in possession of.

She died intestate September 5, 1886, leaving the plaintiff, Prank Brown, and the defendants Lily A. G. Coddington and Emily K. Bond, her children, as her only heirs at law and next of kin. The trial court held that the plaintiff had neither actual or constructive possession, and dismissed the complaint. A few days after the death of intestate, Lily A. G. Coddington and her husband, Charles E. Coddington, were duly appointed administrators of the personal estate of said intestate, and thereafter entered upon the discharge of such office.

About the 10th day of October, following, the parties named, entered into a tripartite agreement, in which the administrators were named as the parties of the first part; the heirs at law and next of kin of intestate as parties of the second part, and Charles E. Coddington party of the third part.

After describing the property of -which intestate was the owner at the time of her death, and reciting that the property was incumbered with liens and claims for taxes, water rates, ground rents, bonds, mortgages and debts; declaring it to be the belief of the parties that a sale or division of the property would result in great loss, and further, that the actual management of all of said interests should be had by one person, rather than by the acts of all the persons interested in said property, the agreement provided for the conduct and management of the estate in substance as follows:

The party of the first part and the party of the third part to act as the agent and attorney of all the other parties; that a fund should be accumulated wherewith to pay liens, mortgages and debts, to accomplish which, it was agreed that the parties of the first and third parts would not bo required to deliver to any of the parties any of the property during the existence of the agreement, or to pay to either of them in any one year a sum exceeding $1,200.

The compensation of the party of the third part was fixed at five per centum on the moneys received.

By the seventh clause it was expressly covenanted that no partition should be had during the continuance of the agreement. The tenth clause fixed the term of the agreement at eight years from the date of the instrument, unless canceled by the written consent of all the parties of the second part, or until the death of the party of the third part, or his refusal to act further in the matter, either of which events should terminate the agi’eement. At the time of the commencement of this suit neither of those events had happened.

The parties of the first and third parts at once entered upon the performance of the obligations assumed by the agreement, and were so continuing at the time this suit was begun, September 12, 1890.

Paragraph J of the amended complaint alleged: That the said defendant Charles E. Coddington has been in the possession and control of said premises, and collecting the rents thereof, under an alleged authority claimed by him to be conferred ” by the- instrument in writing, to which reference -has already been made; and as to it the complaint further averred: “ That in truth and in fact this plaintiff was wholly uninformed as to the contents thereof when he signed the same, and the same is not, and never was, a binding obligation on this plaintiff.”

His assertion of lack of knowledge of the contents of the agreement was not borne out by the testimony on the trial. The references so far made to the contract establish its mutuality, and the agreement therein contained, that “ it is now expressly covenanted and agreed that no partition whatever of such real estate shall be had during the continuance of this agreement without the written consent, previously given, of the said party of the third part,” has sufficient consideration to support it.

But the appellant contends that the agreement not to partition during the existence of the contract does not constitute a legal defense to this action commenced while it is still in force. His position being that it is in effect a contract not to sue for a limited time, and, therefore, not pleadable either in bar or abatement to this suit, within the rule asserted in Chandler v. Herrick (19 Johns. 129), and Winans v. Huston (6 Wend 471).

These cases, as well as the other leading cases both in England and this country, were carefully examined and considered by the Supreme Court of Michigan in two cases (Robinson v. Godfrey, 2 Mich. 408 ; Morgan v. Butterfield, 3 id. 615), and a contrary conelusion reached. With the reasoning of the court in those cases we concur.

The judgment should be affirmed, with costs.

Follett and O’Bbien, JJ"., concurred.

Judgment affirmed, with costs.


author: PARKER, J. I

text:
    Anna Schierloh, Respondent, v. Mathilda Schierloh, Appellant.

      Action of ejectment — when a lien against the premises in frnor of the occupant is no defense thereto — trust resulting in favor of a person furnishing a portion of the purchase price — evidence.
    Fasten Schierloli died, intestate November 30, 1887, seized of certain real estate, and leaving him surviving his widow, his mother and seven brothers and sisters, his only heirs at law. His widow continued in, and claimed the right to, the possession of the real property, and an action of ejectment to recover possession thereof was brought by his mother, who claimed to be the owner of an estate for life therein and entitled to the possession thereof, subject to the dower right of the defendant.
    The widow, as a defense to such action, alleged that the premises were bought and paid for with money furnished the intestate by her; that he applied to her for the money and she gave it to him to pay for the property, he promising that if she furnished the money he would have the premises conveyed to her. That relying on such promise she delivered to him the money, but that without her knowledge or consent he caused his name to be inserted in the deed ; and in her prayer for relief she asked that she be adjudged to be the equitable owner of the premises.
    It was shown that the purchase price of the property was 113,500, of which $5,500 was paid in cash, and the balance was secured by a purchase-money mortgage, which the intestate had reduced by payments from time to time to $3,000. Of the amount of such purchase price the defendant claimed to have furnished $1,175, and the jury found that the defendant, at the request of her husband, furnished him with $1,175 with which to pay in part for the property, that at about the time of the delivery of the deed, he promising that, in consideration thereof, he would have her made the grantee in the deed, which promise he did not keep.

      Held, assuming the facts to be as found by the jury, that the defendant failed to establish that the equitable title to the premises was in her ;
    That the establishment by her of a lien against the property would not constitute a defense in this action, to which neither the heirs at law nor the legal representatives of the intestate were parties, for which reason, if for no other, the defendant could not have a decree of specific performance ;

      That tlio evidence did not justify a finding that Fasten Schierloh, during his lifetime, permitted and directed the defendant to collect, receive and dispose of the rents and issues of such property as her own, she being at that time under the belief that such property was hers, and that she was entitled to the possession of the same, and to the enjoyment of the rents derived therefrom.
    Where a person furnishes and understands that she is furnishing only a portion of the purchase price of premises, such portion not being an aliquot part thereof, and the grantee named in the conveyance takes the title to the same absolutely in his own name, without the consent or knowledge of the person furnishing such portion of the purchase price, no use or trust results in favor of the person by whom such portion of the purchase price was furnished.
    Appeal by tlie defendant, Mathilda Schierloh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 12th day of May, 1892, after a trial at the New York Circuit.

      Geo. A. Yeamcm and E. A. Jacobs, for the appellant.

      Geo. IF. Roderick, for the respondent.
   PARKER, J. I

The legal estate of the premises in question was in .Kasten Schierloh at the time of his death, November 30, 1887.

He left him surviving his widow, this defendant, his mother, this plaintiff, and seven brothers and sisters, his only heirs at law.

Some months after his decease, his widow continuing in and claiming the right to possession of the property, this action was commenced to recover possession, the plaintiff claiming, as the mother of deceased, to be the owner of an estate for life therein, and entitled to the possession thereof, subject to the dower right of the defendant.

The defendant, as a defense to the action, alleged that the premises were bought and paid for with money furnished said Kasten Schierloh by her; that he applied to her for the money to enable him to pay for the property, at the same time promising that, if she would furnish it, he would cause the same to be conveyed to her, and relying upon such propuse, she delivered to him the money with which to pay for the property and obtain a conveyance to her, but in violation of his promise, and without her knowledge or consent, he caused his own name to be inserted, and in her prayer for relief she asked that she be adjudged to be the equitable owner of the premises.

The record discloses that the purchase price of the property was $13,500, of which $5,500 was paid in cash and the balance was secured by a. purchase-money mortgage which Schierloh, prior to his death, had reduced by payments made from time to time to $3,000.

Defendant does not claim to have furnished the whole of the money paid at the delivery of the deed, but only $1,175 of such amount* So that it appears, eyen from the testimony presented on her behalf, that $4,300 of the original payment was made by Schierloh from his own funds, and it is not disputed 'that the payments in, reduction of the principal of the mortgage, aggregating $5,000, were also made by him.

The cause was tried before a court and jury. Five questions of fact were submitted to and answered by them. The result of such questions and answers may be briefly stated as follows: The defendant, at the request of her husband, furnished him with $1,175 with which to pay in part for the property, at about the time of the delivery of the deed, he promising that, in consideration thereof, lie would have her made grantee in the deed, which promise he did not keep.

An attentive examination of the testimony upon which the jury founded the finding that Schierloh promised to cause the property to be conveyed to his wife, in consideration of her furnishing the sum of $1,175 towards the payment of the purchase price of $13,500, leaves us in doubt as to the correctness of the finding.

One witness testified that in a casual conversation which Schierloh had with him about the time the property was purchased, which was nearly twenty years before, he said that his wife expected that the deed would be made out to her, but he was going to take it in his own name, as it would help his credit.

Another, that at Schierloh’s request he had asked her to let him have the money, and she said she would if lie would put the money in the deed.”

And still another testified that he told Schierloh liis wife would give him that money if he put her name in the deed, to which •Schierloh replied, “Yes, I will.” This is the strongest expression used, and considered in the light of the other testimony of the witness, as well as the evidence to the effect that she would let him have the money if he would put it in the deed, suggests, rather, that the wife was attempting to secure an interest in the property proportionate to her investment, rather than the entire estate.

This witness testifies to another suggestive fact, that when the $1,175 was paid over to Scliierloh, in the presence of his wife, the witness prepared the receipt, which Scliierloh was requested to, and did sign. It was in these words: I, the undersigned, receive $1,175 from my wife, through Louis Ilahn.”

It is worthy of note that pains were taken to secure a receipt for $1,175, but no effort was made to ascertain whether her name was in a deed hy which she would now have it appear that she- expected to secure a much larger return than her investment.

Again, if an agreement had been made by which she was to become the purchaser of the property, to be paid for by her husband, with the exception of the $1,175, it is a little remarkable that she should have deemed it necessary to exact from him a receipt for the money, as well as his promise that she should have the entire” property.

Still another pregnant fact appears : Mrs. Scliierloh left her husband in 1884, remaining awray from him a few months. During her absence she commenced an action for limited divorce, and then, as she testifies, she for the first time learned that the title to the property was in his name, yet she went again to live with him, and continued to do so down to the time of his death, a period of about three years, and it does not appear that she took any steps whatever during his lifetime to right the wrong which she claims to have suffered at his hands.

But, assuming the facts to be as found by the jury, and adopted by the court, -we reach the same conclusion as did the trial court, that the defendant has failed to establish that the equitable title ivas in her.

As the legal title wras in Scliierloh at the time of his death, it was necessary for her to establish that she was the owner of the equitable title in order to prevent a recovery in the action. It could not avail her as a defense to establish a lien against the property.

Nor could it be done in this action, to which neither the heirs at law nor the legal representatives of the intestate are parties. For that reason also, if there were no other, defendant could not have a decree of specific performance, and the point made on the appeal touching that subject will not receive other consideration.

We have left then for decision whether, under the facts found, there resulted a trust in favor of the defendant.

The rule at common law was that if lands were conveyed to one person, the consideration for whiph was paid by another, a trust resulted in favor of the person who paid the price. But our present statute relating to uses and trusts (Part 2, chap. 1, tit. 2, art. 2, § 51, R. S.) jiravides “ where a grant for a valuable consideration shall be made to one person, and tlie consideration thereof shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.”

To this provision the Legislature very properly made one exception. It declared that its provisions should not extend to cases where the1 alienee named in the conveyance, shall have taken the same as an absolute conveyance in his own name, without the consent or knowledge of the person paying the consideration, or where such alienee, in violation of some trust, shall have purchased the lands so conveyed with moneys belonging to another person.” (§ 53.)

The latter exception has no application to this case. Whether the former has we are to determine. If the defendant had furnished the whole consideration, there would be no doubt but, under the facts found, she would be within the protection of section 53.

Hoes the fact that she only furnished and understood that she was only furnishing a portion of the purchase price, take this case without the statute ?

The appellant has not called our attention to any case holding that a trust results for the benefit of a person furnishing only a part of the consideration, and it would be strange indeed if such a case could be found unless it should be one holding that a trust resulted as to an undivide i one-fifth or one-half of the property, accordingly as the party had contributed a one-fifth or one-half of the purchase money.

Justice BRONSON, in Sayre v. Townsend (15 Wend. 649), in a learned1 opinion, reviewing the cases in this State, and England as well., reached the conclusion that the consideration for the whole estate,, or for the moiety or one-tliird part, or some other definite part of the whole, must be paid to be the foundation of a resulting trust* which would necessarily be for such a definite part of the estate as the money contributed would pay for.

In Garfield v. Harmaker (15 N. Y. 477), and Lounsbury v. Purdy (18 id. 515), this question was not presented, and, therefore,, cannot be deemed to have been decided; but in the opinions of the court, delivered through Judge Comstooií, it was assumed that in. order to establish a resulting trust, the whole consideration must be paid by the party claiming it.

In Niver v. Crane (98 N. Y. 40), the court had under consideration a case which it was claimed was within section 52, and from the similarity of the language employed in sections 52 and 53 the-argument and decision of the court under section 52 would be alike applicable to a case claimed to arise under section 53 as here.

Section 52, referring to section 51, provides that “ Every such, conveyance shall be presumed fraudulent as against the creditors at that time of the person paying the consideration.”

Section 53 declares that The provisions of the preceding fifty-first section shall not extend to cases, where the alienee named in the. conveyance, shall have taken the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration.”

In that case it appeared that the alienee in the conveyance and her husband, who was the debtor of the plaintiffs, each furnished a part of the consideration, and the court said: From what has been already stated it is apparent that a part of the consideration came from Mrs. Crane, and not from her husband,, enough, therefore, to show that the plaintiff’s case is not within the exception created by the statute. The respondent cites various cases as supporting the. judgment. (Wood v. Robinson, 22 N. Y. 564; McCartney v. Bostwick, 32 id. 53; Baker v. Bliss, 39 id. 70; Ocean National Bank v. Olcott, 46 id. 12.)

In each of these the entire consideration for the property sought: to be reached was paid by the debtor, at or before the conveyance,, and so they came directly within the statute, and entitled the 'creditor to the benefit of the trust declared in his favor.”

Because the same language is used in each section touching the payment of the consideration, this case is deemed not only in point, but controlling here.

We have observed nothing in conflict with this decision except Sayre’s Oase (supra), and cases therein cited, and there the only exception suggested is where the contribution of purchase money was of ■some definite part, such as-one-third or one-half.

But defendant is not aided by that case, if it be assumed that it is still the law, for her contribution is not of an aliquot part of the purchase price, nor does she claim to recover an undivided interest.

¥e have so far considered the defense pleaded and the one which the defendant sought to establish on the trial. Appellant now urges that independently of the statute the equitable title should be held to have been in the defendant.

She urges that the facts of this case bring it within Freeman v. Freeman (43 N. Y. 34), and kindred cases, where, upon the faith of an oral contract, a party has entered into the possession of, and made substantial improvements on lands, resulting in a determination that the owner of the legal title was estopped from invoking the Statute of Frauds, and adjudging the party in possession to have the ■equitable title.

It is not claimed that the facts found entitle this case to be regarded within the principle of those cases, but that the evidence required a finding proposed by defendant and refused by the trial court which, had it been found, would have brought this case within the rule which they establish.

The finding requested was as follows: That thereafter the said Hasten Schierloh, during his lifetime, permitted and directed the defendant to collect, receive and dispose of the rents and issues of said property as her own, she being at the time under the belief that the said property was hers, and that she was entitled to the possession of thq same, and to the enjoyment of the rents derived therefrom.”

We shall not consider whether, if the facts were in accordance with. the request, her contention would be well grounded, for we agree with the trial court in its refusal to so find.

The evidence supported a portion of-the request, but there were other and substantial portions not authorized.

Wood v. Rabe (96 N. Y. 414), cited by the appellant, does not aid her. That was an action brought to enforce an oral agreement in which all the parties to be affected by the determination were before the court. The oral agreement purported to create a trust, and the question was whether a court of • equity could uphold it,, notwithstanding the Statute of Frauds.

The court said that the breach of an oral agreement to convey lands is not such a fraud as will authorize the court to compel a conveyance, but that plaintiff was not induced to acquiesce in the oral agreement by the promise alone; in addition there were his pressing-necessities and the assurance of those sustaining confidential relations to him, viz., his mother and her attorney who had been his general guardian, and held that the case was within the principle that one who uses a confidential relation to acquire an advantage, which he ought not in equity and good conscience to retain, the. court will convert into a trustee and compel him to restore what lie. has unjustly acquired.

' Were this action of the same character as that, and the necessary parties in court, the facts here would be found to differ in the following essential respects : The oral agreement does not purport to-create a trust.

It was not mainly induced by the influence of the husband, but, rather by the expectation of the wife, as appears from the evidence in her behalf, of securing by such means her husband’s money as well as her own. That she was dealing with him at arm’s length is further evidenced by the testimony of an avowed intermediary, who exacted from Schierloh in her presence a receipt for the money which she claims to have furnished.

Nor did she act promptly on discovery that the agreement had been violated by her husband, but waited until death had sealed his lips before attempting in any manner, so far as appears, to assert her claim.

Neither is she attempting to secure merely the sum which the alleged trustee obtained from her under the oral agreement, but in addition nearly nine times that sum which was invested by him.

Other differences exist but need not be alluded to, as the inapplicability of Wood v. Rabe to this one already sufficiently appears.

We refrain from discussing the other cases cited, but assert that none of them support ah interference with the decision of the trial court.

The judgment should be affirmed, with costs.

Follett and O’Beien, JJ., concurred.

Judgment affirmed, with costs.


author: PaRKee, J.:

text:
    The New York News Publishing Company, Respondent, v. The National Steamship Company, Appellant.

      Amendment to complaint — when deemed made — evidence of agency sufficient to support a verdict.

    In an action brought to recover for services rendered in publishing an advertisement the plaintiff alleged an indebtedness from the defendant, and proved, ■without amending the complaint, a contract to advertise and take pay in tickets, a demand of the tickets, and a refusal by the defendant to deliver them.
    Some of this testimony was taken “ de bene esse,” and when the same evidence was offered on the trial the defendant did not allege surprise.
    On the trial the agent of the defendant admitted that he must have given authority to someone to insert the advertisement which it was claimed by the plaintiff had been inserted by the direction of an employee of the defendant, and a judgment was rendered in favor of the plaintiff.

      Held, that as no injustice had resulted from such judgment the complaint would be deemed amended to conform to the proof, and that under the proof the jury were not required by the evidence to find for the defendant.
    Appeal by the defendant, the National Steamship Company, Limited,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 21st day of December, 1892, upon the verdict •of a jury rendered at the New York Circuit, and also from an order made at the New York Circuit on the 12th day of December, 1892, denying the defendant’s motion for a new trial.
    The complaint in this action alleged “ That the said defendant is indebted to the said plaintiff in the sum of $591.18, with interest thereon from June 28,1884, said sum being a balance due said plaintiff from said defendant for work, labor and services in advertising for and at the special instance and request of said defendant.”

      John Chefooood, for tlie appellant.

      James M. Smith, for tlie respondent.
   PaRKee, J.:

Tlie jury were authorized in finding, as from their verdict it must be assumed they have, that an agreement was made between the parties by which the plaintiff was to do certain advertising for the defendant, and to take its pay in tickets.

The agent of tlie defendant attempted, but unsuccessfully, to challenge the authority of the employee McLean, who represented himself as acting for tlie defendant, and with whom plaintiff made the contract which it has substantially performed. He testified, however, that there was some conversation with him (McLean) and tickets taken out.

(It appeal’s that after the advertising had run for some time, steamship tickets of the value of $360 were applied for and issued to the plaintiff.)

“ Q. You say you never gave any authority to anyone to put the advertisement in ? -A. I must have given authority to somebody to put that advertisement in, but I do not recollect it. * * * I say distinctly, if I made any arrangements, it was made for tickets, a certain number of tickets which were taken out of the office afterwards by Mr. Wood or his agents. * * * Q. Did you authorize McLean to make any bargain with the Daihj Jiews, in reference to advertising % A. I don’t recollect it; I must have done it with somebody, because the tickets were taken out, so that I must have passed them at the time. * * * I must have authorized someone, but I cannot recollect who it was with, or what I said at the time so as to be able to swear to it.”

The rest of his testimony need not be referred to, as it is evident from that already cpioted that the jury were not required to find from his testimony that McLean acted without authority.

The contract having been established, it was shown that the value of the advertising done thereunder by the plaintiff was $951.18, while it had received tickets only of the value of $360; that it had demanded the tickets of the defendant, but had been refused.

Pefusal of performance on the part of the defendant operated to convert its obligation into one for the payment of money. (1 Sedg. on Dam. 509; Gleason v. Pinney, 5 Cow. 152; Smith v. Smith, 2 Johns. 235, 243; Brooks v. Hubbard, 3 Conn. 58.)

This was the view adopted, by the trial court, and the exception ■taken to his charge, intended to raise the question that there should be no recovery in money, is without merit.

Defendant objected to the evidence on which the recovery is founded on the ground that it was not pleaded. The complaint merits some criticism, but it called the attention of the defendant to the contract on which plaintiff rested its right to recover.

Besides, it appears that some of the testimony was taken “ de bene esse,” so that the defendant came to the trial understanding full well the theory of the plaintiff’s action.

"When the testimony was offered, he did not allege surprise, and, from what has been said, it is apparent that he could not well have done so.

As no injustice has resulted, the complaint will be deemed amended to conform to the proofs.

The judgment and order should be affirmed, with costs.

O’BeieN and Follett, JJ., concurred.

Judgment and order affirmed, with costs.


author: Parker, J.:

text:
    In the Matter of the Judicial Settlement of the Account of James Brown, as former General Guardian of Elizabeth Sandison, an Infant.

      Sureties of a general guan'dian — liability of, for.sums paid to such guardian by himself as executor; credited to Mm on his accounting as executor.

    James Brown, the general guardian of an infant who became a residuary legatee under a will of which Brown was the executor, on his accounting as such executor, credited himself as executor with certain funds alleged to have been paid to himself as guardian, and filed vouchers for the payments. In fact the payments had never been made. He was subsequently removed as guardian, and on his accounting as guardian he charged himself, as guardian, with the amounts which, as executor, he had previously credited himself as paid to himself as guardian, and was ordered by the court to pay to the guardian of the infant who succeeded him a certain sum of money, which payment Brown, being insolvent, failed to make.

      An application was thereupon made by the sureties upon Brown’s bond, as guardian, to have the accounting as guardian opened, under a claim that Brown’s payments as executor, to himself as guardian, were irregular and should-only have been made pursuant to a decree directing them and requiring the guardian to give a bond to cover them, and that Brown was liable for the deficiency as executor and not as guardian.

      Held-, that an omission of the surrogate to require the bond could not avail a guardian receiving the money.
    That he must account for it, and on his failure to do so, his sureties must, there being no evidence to show that the infant or her special guardian on the executor’s accounting did not fully believe the accounts to be true.
    Appeal by George McGrath and Charles M. Johnson, as sureties on the bond of James Brown, from an order of the surrogate of the county of New York, entered in the office of the clerk of the New York Surrogate’s Court on the 2d day of May, 1893, denying a motion to open a decree made on the 5th day of January, 1893, on the accounting of said Brown as general guardian of Elizabeth Sandison.
    The amount with which Brown was chargeable upon such accounting included certain payments with which Brown credited himself in his account as executor, as having been made to himself as guardian, which were in fact never made, and with which the sureties claimed that he should not be charged as guardian.

      Black (& King, for the petitioners (appellants).

      John G. Clark, for the respondents.
   Parker, J.:

The appellants, sureties on a general guardian’s bond, petitioned the surrogate that the decree settling the guardian’s accounts be opened, to the end that the sureties might be permitted to show that there was not anything due to the ward from the general guardian.

James Brown was the general guardian of the infant, and also the executor under the will of her grandmother, in which capacity he received certain moneys bequeathed to the infant.

The sureties insist that the general guardian was, in the decree settling his accounts, wrongfully charged with moneys he held as executor. The moneys belonged to the infant in either event, but it is urged that Brown as executor, and not as genera] guardian, should be decreed to pay them.

The surrogate denied the application. An appeal having been taken to this court, his determination must be reviewed as if an original application had been made to this term. (Code Civ. Proc. § 2481, subd. 6.)

Briefly, the history of the parties, so far as material in this proceeding, is as follows: James Brown was appointed general guardian of Elizabeth Sandison, June 8, 1880, appellants being his sureties. On the same day letters of administration on the estate of Elizabeth Sandison, deceased, mother of the infant, were issued to him, appellants again becoming his sureties.

Six months later Sarah Armstrong, grandmother of the infant, died leaving a will, in which she named the infant as residuary legatee, and appointed Brown executor.

Being compelled to a final judicial settlement as executor, he filed a verified account on June 8, 1890, in which he credited himself, as executor, with having paid to himself, as general guardian of the infant Elizabeth Sandison, the residuary legatee of Sarah Armstrong, the following sums: 1882, April 19, $2,000; 1885, January 15, $1,100; 1885, March 26, $500; 1887, February 20, $300.

In support of his account he filed vouchers and a decree was thereupon entered, settling his accounts, and discharging him as executor. Nearly eighteen months later, on February 4, 1892, Brown was removed from his office as general guardian, and thereafter required to render an account.

In the account he charged himself as guardian with having received from himself as executor, the sums with which he credited himself in his accounts as executor. In the decree, which hears date January 5, 1893, he was ordered to pay over to the present general guardian of the infant the sum of $2,512.86. Having failed to make the payment, an action was brought against the sureties to recover such amount, hence this proceeding, which has for its apparent object the shifting of the burden imposed by the decree from the general guardian, who has sureties, to the executor, who has none.

As the executor is insolvent the ultimate result of the contest must he that either the sureties or the ward must lose the sum which the executor guardian has misappropriated.

The sureties contend that the only way in which he could have transferred the moneys from himself as executor to himself as general guardian would have been in pursuance of a decree of the Surrogate’s Court, requiring that the general guardian first give a new bond, conditioned to faithfully apply such legacy or distributive share. (Code, § 2746.) Cases are cited where the Surrogate’s Court has required this to be done, and it is now argued that in default of such a bond, a payment to a guardian, although pursuant to a decree, would he illegal.

"We do not understand such to be the effect of the statute, or that the decisions quoted attempt to give it such a construction.

The statute requires the surrogate to exact such a bond from the guardian, to more certainly assure the property of the infant’s estate, because it frequently happens that a bequest to an infant succeeds the granting of letters of guardianship, and, therefore, is not considered in determining the value of the infant’s estate as a basis for the bond. And this provision of law is generally enforced, but an omission to do so could not avail a guardian receiving the moneys.

He could not say, I cannot be compelled to account for these moneys, because the Surrogate’s Court omitted to decree that I should give a special bond, as provided by statute.”

He would not be permitted to dispute that moneys paid to him under such circumstances were the moneys of the ward, and the statute as well as his bond obliges him “ to render a true and just account of all moneys and property received by him, and of the application thereof.”

So, if he did receive these moneys as general guardian, he must account for them, and that for which he is chargeable on an accounting, his sureties are responsible. On the accounting as executor he credited himself with having paid to himself as general guardian the sum of $3,900, but urge the appellants, “ we are not bound by his acts as executor, and it was in that capacity he presented his accounts for settlement.” True, but in support of that account he filed receipts for the several amounts from himself as general guardian.

On the strength of those receipts lie was discharged from al'l liability as executor. Thereafter the general guardian could not be heard to deny the right of the ward to a decree charging him with such amount, nor would the sureties be in any better position than their principal.

An exception to this general rule would be presented if a guardian and ward should conspire together for the purpose of creating a situation where the guardian would be relieved at the expense of his sureties. But that is not this case.

There is no evidence here that would justify a finding that the ward, or the special guardian representing her on the final settlements, did not fully believe the accounts presented by the executor and guardian to be true.

The order should be affirmed, with ten dollars costs and printing disbursements.

O’Brien and Follett, JL, concurred.

Order affirmed, with ten dollars costs and printing disbursements.


author: Per Curiam:

text:
    Edward A. Ridley and Others, Respondents, v. The Manhattan Railway Company and Another, Appellants.

      Order opening default — what terms should be imposed as a condition thereof.

    In an action for the recovery of damages begun in March, 1885, by the service of the summons, the defendant appeared and demanded a copy of the complaint. The time to serve the complaint was extended until November, 1887, • when the plaintiff beoame in default by reason of his failure to serve it.
    In March, 1893, a motion was made to open the default, which was granted on the payment of ten dollars costs.

      Held, that the terms imposed, which would give the plaintiff a cause of action for damages extending over a period of fourteen years, the greater part of which would be barred by the Statute of Limitations, if a new action were brought, were insufficient;
    That the court should have required the waiver by the plaintiff of all claim for damages during any period more than six years prior to March, 1893, and in addition, payment to the defendant of the costs of the action and motion.
    Appeal by the defendants, the Manhattan Railway Company and the Metropolitan Elevated Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in tbe office of tbe clerk of tbe city and county of New York on tbe 21st day of April, 1893, opening tbe plaintiffs’ default.

      Herbert Ba/rry, for the appellants.

      William, B. Wilder, for the respondents.
   Per Curiam:

This action was begun by service of a summons on March 26, 1885, and thereafter the defendants duly appeared and demanded a copy of the complaint. The plaintiffs were given by the defendants two years and a half within which to prepare and serve a complaint, and by the last extension, which was of one day only, the plaintiffs were apprised of the fact that defendants were unwilling to further extend the time to serve the complaint. At the end of such time, namely, on November 3, 1887, the plaintiffs were in default in failing to serve their complaint, and no attempt was made to have this default opened until March 13, 1893, a period of more than five years.

Upon the motion the excuse offered for what would appear to be gross laches, was that the former attorney for plaintiffs was sick and subsequently died, and that the fact that no complaint was served was not discovered for some years. It appears, however, that the plaintiffs’ present attorney was the brother and associate in business of the former attorney for plaintiffs, and the excuse offered for the laches is thus deprived of much of its force and weight.

The learned judge at Special Term granted the motion to open the default upon condition that plaintiffs pay ten dollars costs of motion. Such terms, we think, were not sufficient.

The effect of opening the default in an action of this kind is to give the plaintiffs a cause of action for damages extending over a period of more than fourteen years, the greater part of which would be barred by the Statute of Limitations if a new action should not be brought, and thus, instead of losing, the plaintiffs would be rewarded for their neglect. This, we think, should not be permitted. Upon opening the default the judge should have required the plaintiffs to stipulate to waive all claims for damages during any period more than six years prior to March 30, 1893, which was the date of the order to show cause why the plaintiffs’ default should not be opened; and in addition tbe plaintiffs should have been required to pay to defendants not only tbe costs of tbe motion, but tbe costs of tbe action. .

¥e think, therefore, that tbe order appealed from should be reversed, with ten dollars costs and disbursements, and tbe motion to open tbe default denied, with ten dollars costs.

Present— O’Brien, P. J., Follett and Parker, JJ.

' Order reversed, with ten dollars costs and disbursements, and tbe motion to open tbe default denied, with ten dollars costs.


author: Per Curiam :

text:
    Edison General Electric Company, Appellant, v. John F. Zebley, Respondent, Impleaded with Another.

      Indorser of a note before its delivery to the payee — pleading and proof necessm’y to a recovery by the payee against such indorser.

    In an action brought to recover the amount secured to be paid by a number of promissory notes drawn by the defendant, the Eastern Electric Company, Limited, payable to the order of the plaintiff, and bearing the indorsement of the defendant Zebley, the complaint alleged that the notes were “duly indorsed by the defendant 3ohn F. Zebley, for value, before said delivery ” to the plaintiff, and set up copies of the notes.
    On appeal from a judgment sustaining a demurrer interposed to the complaint by Zebley, on the ground that it did not state facts constituting a cause of action as against him,

      Held, that the facts stated in the complaint were not sufficient to destroy the legal presumption that the defendant Zebley intended to become an indorser subsequent to the payee;
    That the rule is well settled in this State that, from the face of the paper, without explanation, such is the presumption created by an indorsement of this kind ; that such an indorser is not liable to the payee, and that the demurrer should be sustained.
    Appeal by tbe plaintiff, Edison General Electric Company, from an interlocutory judgment of tbe Supreme Court in favor of tbe defendant, made at tbe New York Special Term and entered in tbe office of tbe clerk of tbe city and county of New York on the 4th day of May, 1893, sustaining a demurrer interposed to tbe complaint by the defendant John F. Zebley.

      W. Laird Goldsborough, for tbe appellant.

      Amasa A. Red field, for the respondent.
   Per Curiam :

The indorser Zebley demurred to the complaint on the ground that it did not state a cause of action as against him.

After certain formal averments the complaint alleges (paragraph 4th) as follows : “ That heretofore and on or about the 8th day of February, 1892, at the city and county and State of New York, the Eastern Electric Company made and delivered to the plaintiff, for value, a certain promissory note in writing, which said note was duly indorsed by the defendant John F. Zebley, for value, before said delivery, in words and figures following, to wit: ” and then follows a copy of the note.

The question on this appeal is, whether or not such an allegation is sufficient to charge the respondent Zebley as an original party to the several notes in suit, or as privy to the consideration for which they were given by the maker to the payee.

Undoubtedly the rule is well settled, as stated in Coulter v. Richmond (59 N. Y. 478), that: In this State it has been repeatedly held, and is too strongly settled by authority to be disturbed, that a person making such an indorsement is presumed to have intended to become hable as second indorser, and that on the face of the paper, without explanation, he is to be regarded as second indorser, and of course not liable upon the note to the payee, who is supposed to be first indorser.”

Are the facts stated in the complaint sufficient to destroy the legal presumption that the indorser wrote his name for the accommodation of the maker, intending to become indorser subsequent to the payee ? -We think not, and concur with the court below in sustaining the-demurrer. f

Great reliance has been placed upon the case of Lynch v. Levy (11 Hun, 145), which it is claimed is on all fours with the case at bar, as establishing a new rule for determining the sufficiency of the complaint in an action of this character against an indorser. An examination, however, of that case will show that the court had in mind the rule of law and the legal presumption which has been stated, but held that the allegations in that complaint stated a suffieient cause of action; and the learned judge writing the opinion recognizes the settled rule of law in this State, and correctly says: “ There can be no doubt that if in such a case as this there are allegations showing that the indorsement was made to give the maker credit with the payee, the action can be maintained.” This is but another way of stating that the legal presumption, that an indorsement upon a promissory note made before that of the payee is a second indorsement, may be overcome by proper allegations showing that the person so indorsing the note intended to charge himself either as joint maker, guarantor or surety. There being an absence of such allegations in the complaint in this case, the demurrer was properly sustained by the court below, and the judgment should be affirmed, with costs.

Present — O’Brien, P. J., Follett and'Parker, JJ.

Judgment affirmed, with costs.