author: Sedgwick, J.

text:
    RICHARD S. GRANT, Survivor, &c., of Oliver De F. Grant, Plaintiff, v. HENRY W. HUBBELL and ROBERT L. TAYLOR, Defendants.
    A. and B., as copartners, commenced an action against 0., to recover money lent and advanced. Judgment was entered upon the offer of C. allowing the same.
    Afterwards, and on May 30, 1871 (A. having died), on motion of ' plaintiff’s attorney, in behalf of the survivor, plaintiff, and by the consent of the defendants’ attorney, an order was entered, vacating the judgment, and withdrawing the offer of 0. for judgment, and vacating all proceedings in the action after the service of the summons, and amending the summons by inserting the name of another defendant (D.), and allowing the complaint to be _ amended and served within twenty days, and on May 37, 1871, another order was entered on motion of plaintiff, and with the consent of the attorney for defendant, 0., reciting that the ■ amendments of the summons and complaint had been made, and ordering that the summons and complaint on file be amended in like manner.

      On June 1, 1871, defendant D. was served with the amended summons and complaint, and he moved at special term that such service be set aside, and that the order amending the summons and complaint, by which he was made a party defendant, be vacated. This motion was denied, and he appeals to the general term, from the order denying the same, and the plaintiff moves to dismiss the appeal.

      Held, that the defendant D. is not, under section 820 of the Code, entitled to appeal from, the order refusing to vacate the order complained of.
    The judgment vacated did not affect D., and the order vacating the same did not affect him, nor was he affected by any proceeding in the action before he was made a party; until then he was a stranger to the- action. By amendment of summons he was made a party, 'and having been served therewith he was then called upon to answer. He cannot complain of this any more than if he had been made a party, and served at the commencement of the action.
    He can plead the former judgment against C. in bar or as an ex-tinguishment of the original claim. No right or claim of his has been affected in the least by these proceedings, nor been the subject of adjudication, and therefore he has not been aggrieved.
    Before Barbour, Ch. J., and McCunn and Sedgwick, JJ.

      Decided March 2, 1872.
    This action, was begun against Hubbell, as sole defendant, by service of summons and complaint upon Mm on December 15, 1868. The action was to recover money lent by the plaintiffs, as copartners, to Hubbell. . He offered to allow judgment to be taken against him, and such judgment was entered on January 11, 1869. On May 20, 1871, an order was made, on motion of plaintiff’s attorney, and on the consent of the attorney for Hubbell, that such judgment be vacated, and that Hubbell’s offer of judgment with all the proceedings on it be withdrawn and countermanded, and that all proceedings after the service of the summons be vacated, and that said summons be amended by adding the name of Taylor as a defendant, and that the plaintiff, Richard S. Grant, survivor of Oliver Re F. Grant, deceased, have leave to amend his complaint as he might be advised, and that such amended complaint be served on the attorneys of- defendant Hubbell, within twenty days, &c.
    After the judgment was entered and before the making of the order of May 20, 1871, Oliver De F. Grant died, leaving Richard S. Grant surviving member of their former firm.
    Upon the consent of the attorneys for the defendant Hubbell, an order was entered on May 27, 1871, which recited that the complaint had been amended under the order of May 20, 1871, and had been served on the defendant Hubbell’s attorney, and it ordered that the amendments made in the complaint so served be incorporated in the complaint on file in the clerk’s office, and also that the name of Robert L. Taylor be inserted in the summons and complaint on file, after the name of Hubbell, wherever it appeared.
    The amendments, in this way made to the complaint, in substance alleged, that moneys were lent to Hubbell and Taylor jointly, and these moneys were in the aggregate two hundred and fifty-five thousand five hundred dollars, instead of sixty thousand dollars, which the original complaint alleged was lent to Hub-bell alone.
    The amount stated to be due, and the demand for payment in the original complaint were not altered in the amended complaint.
    On June 1, 1871, Taylor was served with a copy of the amended summons and complaint. He afterwards moved at special term that this service be set aside, and that^the order above referred to be vacated. This . motion was denied, and he appeals from the order denying it.

      George H. Forster, for plaintiff and respondent.

      Joseph H. Choate, for defendant and appellant.
   Sedgwick, J.

The defendant Taylor is not, by section 320 of the Code, entitled to appeal from the order refusing to vacate the order complained of, because he is not a party aggrieved by such order, i The judgment obtained against Hubbell individually did not in its operation as a judgment affect Taylor. The order vacating this judgment did not, in its operation as an order, affect Taylor. Nor was he affected by the operation of any proceeding in the action before he was made a party. Whether he had or had not notice of them, none of them passed upon any right of his.

The appellant supposes that there was an attempt to impair his rights in this wise; that inasmuch, as claimed by him, the judgment entered against Hub-bell individually extinguished, by merger, the claim on which it was based, so vacating the judgment was an endeavor to revive that claim, and that the accompanying amendment of the summons and complaint, taken together with all else that was done, subjected him to the expense and trouble of resisting their claim as made against him and Hubbell jointly. But the appellant does not claim that any order was made adjudging, directly or by legal effect, that such claim was revived.

Until Taylor was made a party defendant by amendment, he was a stranger to the action and as we have said, nothing done in it affected him. By amendment he was made a party, and, having been served with the summons, was called upon to answer. This no more aggrieved him, than the making and serving any summons and complaint is a grievance to a defendant. Taylor may, if he shall so choose, plead that the former judgment has extinguished the original claim, and then for the first time there may be some adjudication upon this point. As yet no order has said anything upon it, nor can the proceedings all taken together be considered in favor of or against Taylor as an adjudication as to it.

The order denying the motion to vacate has not passed upon the question as to what was the legal effect upon Taylor’s right, of these orders vacating the judgment and amending the summons, &c. It only passed upon the question as to whether the orders asked to be vacated were properly made at the time they were made. In fine, no rights of Taylor in the matter have been the subject of adjudication, and therefore he has not been aggrieved.

The motion to dismiss appeal is granted, with costs.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    WILLIAM HEINMULLER, Plaintiff, and Respondent, v. JOHN C. ABBOTT and HIRAM B. GRAY, Defendants and Appellants.
    The evidence of what goods sold for at a sheriffs sale or auction should be received for the consideration of the jury as to the value of the same, in a case where an action is brought to recover the value of the same goods, and damages for the taking, &c.; and when compared with other evidences of value, offered in the case, should be allowed such weight as the circumstances of the sale and the degree of competition actually exhibited should entitle it to (Campbell v. Woodworth, 3 N. Y. 500; Dixon v. Buck, 42 Barb. 74; Gill v. McNamee, 43 N. Y. 46).
    Before McCunn, Curtis and Sedgwick, JJ.

      Decided March 2, 1872.
    Appeal from a judgment.

      The point raised upon the appeal appears from the opinion of the court.

      S. B. Brague, for respondent.

      Abram Wakeman, for appellants.
   By the Court.—Sedgwick, J.

The complaint alleged that one Hiram B. Cray obtained a judgment against one Appell, that execution was issued thereon ; that the sheriff under this execution levied upon and sold the property of the plaintiff, and that he was induced to this by the defendants, by means of a bond of indemnity given by them to him.

The-testimony showed that the bond was given by the defendants after levy and before sale.

An important question upon the trial related to the value of the property said to have been unlawfully taken. As to this the defendants offered in evidence the accounts of the sales made under the execution. The witness from whom the evidence was sought, was the deputy sheriff in charge of the execution and sale under it. He had been present at the sale. There was no objection that the witness had not said that the accounts were correct. This was inferentially shown by his presenting, as a witness," the accounts of the sales, in connection with his other testimony as to various details of the sale.

The respondent’s counsel argues that these accounts were allowed by the court to go to the jury, as evidence in respect of all matters stated in them, because it appears in the printed case that they were wholly read. • They do appear in full in the case, but subject to a direction vof the court (which, of course, the jury regarded), the court allowed these accounts to be read “ as descriptive of the property sold, but not as evidence of the amount it sold for.”

Another witness was a purchaser of part of the property sold at the sheriff’s sale.

The defense asked him, “ What did you bid it off for ?” This question was excluded by the court. He then produced a writing which he testified was the bill of sale of the articles bought by him at that sale.

The court allowed it to be read, “holding that the same might be read as evidence of the kind, character, and number of the articles of property sold to witness.” This was a ruling in effect, that it contained no evidence as to the value of the articles mentioned in it. The defendant read it, including in the reading, the price at which the bill stated the articles sold for. Under the court’s direction, the jury could not consider this to be any evidence of value.

The defendants excepted to the rulings of the court, in regard to the accounts of sales offered in evidence through the deputy sheriff, and to the question above specified.

The rule seems to be settled that in cases like the present, “the evidence of what the goods sold for at the auction, should be received for the consideration of the jury, to be compared with the other evidence of value that might be offered, and to be allowed such weight as the circumstances 'of the sale and the degree of competition actually exhibited should entitle it to (Campbell v.Woodworth, 2 N. Y. 500 ; Dixon v. Buck, 42 Barb. 74; Gill v. McNamee, 42 N. Y. 46).

The other exceptions in the case will not be examined, as the result thus far reached makes it necessary to reverse the judgment, with costs to the appellant to abide the event.


author: By the Court.—Curtis, J.

text:
    WILLIAM A. BROWN, et al., Plaintiffs and Respondents, v. THE ST. NICHOLAS INSURANCE COMPANY, Defendant and Appellant.
    Insurance was made upon a cargo of hay laden upon the “ George R. Hale,” a canal boat, on a voyage from New York to Washington City. The canal boat was towed with other boats down the Delaware River. A heavy gale came on, and caused the tugs and canal boats to separate, and the boat in question, with others of the tow, went ashore fifteen or twenty miles below the city, having lost her roof and some twenty-seven bales of hay and taken in fourteen inches of water. The ice froze around the boats the next morning and the weather continued cold for five or six days, and then came a thaw. . After two or three weeks, this boat, with others, drifted several miles down the river and came back on the return tide to nearly the same place, and that night another boat sank under the stern of the “ Hale,” and when the tide turned the “ Hale ” broke in two in the middle, and sunk in nine or ten feet of water. Most of the hay on deck washed off and went down the stream.

      Held, that, the stress of weather by which the “Hale” was separated from the tugs and driven ashore, must be regarded as the primary cause of the loss.
    The term “proximate cause” discussed, and the rules governing the same considered.
    Before McCunn, Curtis and Sedgwick, JJ.

      Decided March 2, 1872.
    This is an action to recover on a marine policy of insurance on hay, laden on the canal boat “ George R. Hale,” on a voyage from New York to Washington City. The boat left New York in December, 1863, mco the canals, and reached Philadelphia, December 31, and on the morning of January, 1, 1864, proceeded down the Delaware River to the Chesapeake and Delaware Canal at Delaware City, in a tow of about twenty-five boats, towed by four or five steamers. The weather was fair and . calm in the morning, but in the afternoon, when they had proceeded about fifteen or twenty miles down the river, a heavy gale came on from the north-west, it continued to increase in violence, and about seven p.m., the steamers having been broken loose from the boat in question, the latter was about eleven p.m. stranded in shoal water, at a considerable distance from the shore, as well as from the channel of the river. Previous to going ashore the roof of the boat which protected the hay was lost, and also a part of the hay, while the seams of the boat from straining and laboring opened so that she had fourteen inches of water in her, and being a scow bottom, the lower part of the cargo of hay • became soaked and damaged. In the .morning ice formed upon the. flats upon which the boat was stranded, and closed in about the boat. Other boats in the tow were also driven ashore at the same time, and remained surrounded by ice after it formed around them.
   By the Court.—Curtis, J.

The boat - in question remained in this condition about three weeks, when at half-past eleven o’clock one night, at pretty nearly high water, it drifted in the ice about two miles down the river, floating back with the return tide to within a few rods of its. former position, and went ashore, the bow going up. on the ice, stone or some obstruction, and another boat sinking under her stern. The result was, when the tide fell, , the boat in question (“ George R. Hale ”) broke in two in the middle, and her stern broke, off, leaving but one tier of bales out at high 'water. Most of the hay on deck floated off. The other boats ultimately completed the trip to Washington. The channel of the river was open during the time the boats were ashore, but there was considerable floating ice in the river. The cargo . was injured and damaged from contact with the water to more than half its value. After the boat broke up and was sunk the last time, the plaintiffs abandoned the cargo to the defendants, and claimed for a total loss.

The defendants, by answer, set up they were exonerated from liability by reason of the following clause in the insurance policy :

“It is understood and agreed that if any boats, the cargo of which is covered by this policy, are prevented or detained by ice or the closing of navigation, from terminating the trip, then, in such case, this policy shall cease to attach upon such cargo, and this Company shall return the premium for the unexpired portion of said trip.”.

The cause was tried .before the Hon. Samuel Jones, at the May Term in" 1871, and a verdict rendered for the plaintiff for the full amount claimed, by direction of the court, on the ground that the stress of weather, by driving the vessel ashore, was the primary cause of the loss. To this direction the defendants’ counsel excepted. The case comes before this court on appeal from the judgment entered on the verdict.

John C. Dimmick, for appellants.

R. H. Underhill, for respondents.

It is to be observed, in construing this policy, that it contains a provision that the vessel may, in her voyage, ‘ proceed and sail to, touch and stay, at any port or places, if thereunto obliged by stress of weather or other unavoidable accident, without prejudice to this insurance.” The contract of insurance seems to be one, that courts, without indulging in niceties, seek to administer justice upon according to the fair interpretation of the intention of the parties. Although it is well settled that the insurer’s liability is to be measured, by the rules causa próxima non remota spectatur, yet its application practically has not been unattended with difficulties. There have been different definitions, more or less stringent, of the term proximate cause. A just expositiou of the rule is, that all the consequences naturally flowing from the peril insured against, or incident thereto, are properly attributable to the peril itself (Peters v. Warren Ins. Co., 14 Peters, 99: Parsons on Marine Ins. 555; Magoun v. N. E. Ins. Co., 1 Story, 164).

In the present case the vessel had liberty by the terms of the policy, “to stay at any ports or places, if thereunto obliged by stress of weather, or other unavoidable accident, without prejudice to this insurance.” Consequently no prejudice attaches to the plaintiff’s claim by reason of the vessel staying where it first went ashore, so long as it was obliged to do so by stress of weather, or the water freezing about it on the flats, or other unavoidable accident. The freezing in seems to come under the provisions both of stress of weather, and unavoidable accident. The vessel was driven ashore by reason of a peril insured against, and staid there under precisely the circumstances that the policy provides she might stay without prejudice to the insurance. After some days she floated in the ice in a high tide, and moved some two miles, it is said, and when the tide receded, was deposited stranded within a few rods of her former position, and then broke in two. It does not appear that after the first storm she ever got off from the shoals into the river channel, or in any way resumed her trip. This was the completion of the loss. It cannot justly be held that this moving of the position of the vessel on the shoal by the tide, changed or affected the provision in the policy which we have just considered. She went ashore, with loss of roof and part of cargo and leaking, in the first instance, a peril insured against. She staid there under the very circumstances under which the policy provides she might stay without prejudice to the insurance, and while there, incapable to perform the voyage, and at no time ever delivered from the original peril, was virtually destroyed.

It would be making an over-nice distinction to say that the gale of wind that first stranded the vessel was not the proximate cause of the loss. It drove her from her course, out of the channel of the river, and it was the original and effective cause of her incapacity to complete the voyage. She was never delivered from the restraint and loss occasioned by this peril, so great to vessels of her helpless class, and to hold that it was causa remota, would be to negative the intentions of the parties and to depart from a just interpretation of the policy.

The earliest case where this distinction came up for consideration, and is relied upon by the appellants, is that of Livie v. Janson, 12 East, 648. An American vessel, warranted free from American condemnation, went ashore on Governor’s Island, when clandestinely leaving" New York in the night, to avoid the embargo. In the morning she was seized by the authorities and condemned for violation of the embargo. It was held that the assured could have no claim for indemnity where there is ultimately no damage to him from any peril insured against. In the case of Hahn v. Corbett, 2 Bingham, 205, where goods were insured in a ship warranted free from capture and seizure, and the ship was stranded on a shoal, within a few miles of the port of destination, disabled from proceeding, and lost, and while she lay in the sand, was seized and the goods confiscated, it was held to be a loss of the goods by the perils of the sea. Burroughs, J., in his opinion, says, “ that the causa próxima of the loss of the goods, is the loss of the ship,” and he draws a distinction between that case and that of Livie v. Jansen, where he says, “ the loss was virtually occasioned by her breaking the embargo.”

Applying the- principle to be deduced from these cases, and considering what actually occasioned the loss of the hay on board of the canal boat, which was intact the gale that stranded her, a peril insured against, the insurer is entitled to recover.

The judgment should be affirmed with costs.


text:
    FRANK J. TINKHAM, et al., Plaintiffs and Appellants v. ANDREW J. THOMAS, Defendant and Respondent.
    After a jury had been, charged by the court, and were leaving the jury box, it is too late for counsel to request the court to make any specific charge in the case.
    Bequests to charge should be presented to the court in the hearing of the opposing counsel, and before the jury are leaving the jury box, and should not be handed up to the court in a paper writing as the jury were leaving.
    In this case the judge refused to entertain or consider the proposed requests to charge, and it was the exercise of a proper discretion in the premises and under the circumstances.
    Before McCunn, Curtis and Sedgwick, JJ.

      Decided March 2, 1872.
    Appeal from a judgment.
    This action is brought to recover three thousand dollars damages claimed to have been sustained by reason of certain false and fraudulent representations alleged to have been made' by the respondents to the appellants, by which the latter were induced to purchase the stock and fixtures of a cigar stand in the premises No. 585 Broadway, New York, paying therefor one thousand, and twenty-four dollars, and also to take a lease of the stand from tlie respondent for one year at the rent of two thousand five hum-/ dred dollars per annum, payable weekly.
    The complaint alleged that the defendant falsely and fraudulently represented to the plaintiffs that the business as previously conducted by defendant was profitable, and that the sales averaged forty dollars a day, and would continue to average not less than forty dollars a day as conducted by the plaintiffs. These allegations were denied by the answer.
    The issues raised by the pleadings were -tried before the Hon. James C. Speuoer and a jury, December 21, 1870, and a verdict rendered for the defendants. The plaintiffs’ counsel moved for a new trial on the minutes, which motion was denied. The case comes before the general term on appeal from the order denying the motion for a new trial, and from the judgment entered in favor of the defendant.

      Samuel H. Randall, for appellants.

      Charles H. Bailey, attorney for respondent.

      A. Phillips, of counsel.
   By the Court.—Curtis, J.

The appellant seeks a new trial upon the ground that the verdict is against evidence, and that the court erred in denying the motion for it made upon the minutes. The testimony of the plaintiff, as to the making of the alleged false representations, is contradicted by other testimony, and the question as to whether they were made or not was fairly submitted to the jury, who found for the defendant. It was their exclusive province to determine this question; and an examination of the evidence in the case shows no reason why their verdict should be disturbed. The rulings of the judge, during the progress of the trial, to which the appellants excepted, were correct. The entries made by the witness from the statement of the clerk were properly excluded, and the clerk was subsequently called and testified for the appellants.

After the jury had been charged by the court, and were leaving the jury box, the appellants’ counsel handed a paper to the judge, which he alleged contained specific requests on the part of the plaintiffs to charge the jury. The judge refused to receive the paper, or to receive any requests to charge the jury, or to recall the jury for that purpose, some of them having left the jury box and were near the door, although all of them were in the court room,—holding that the counsel should have presented any requests to charge before that time; to which ruling and refusals the appellants’" counsel excepted.

There seems to be a manifest propriety that requests to charge should be presented to the court in the hearing of the opposing counsel, and before the jury are leaving the box, and not handed up in a paper after they are leaving. The nature of these requests, or what they were, is not disclosed by the case, and there appears to be no sufficient reason for interfering with the exercise of the discretion of the court under the circumstances.

The motion for a new trial should be denied, and the judgment of the court below should be affirmed, with costs.


text:
    WILLIAM KERN and CONRAD HORNEL, Plaintiffs and Appellants, v. JOHN RACHOW, Defendant and Respondent.
    The plaintiffs’ affidavit shows that one month before the defendant’s note became due he sold his property, &c., worth two thousand dollars, to his brother-in-law, for five hundred dollars (payable some time afterwards), provided the business was good and he (brother-in-law) was successful; also, that defendant refused to show his book or give a satisfactory or full statement of his affairs.
    The defendant did not explain or deny any of these verified statements, but moved upon the insufficiency of plaintiff’s affidavit, thus admitting the same to be true (see Wolfe 0. Brower, 5 Bolt. 604; Union Bank 0. Mott, 9 Alb. 108).
    When a debtor, shortly before the maturity of his indebtedness, sells his property for less than its value, to a relative, on the credit of nearly a year, and only payable then on the condition that the business proved to be good, and the said relative was successful, a case arises where the original creditor is entitled to an order of arrest, or the remedy afforded under subdivision 6 of section 179 of the Code.

      Held, That plaintiff was entitled to the order of arrest, and that the order vacating the same should be reversed.
    Before McCunn, Curtis and Sedgwick, JJ.

      Decided March 2, 1872.
    Appeal by the plaintiff from an order made on June 14, 1871, granting a motion to vacate an order of arrest.
    The action is to recover the .value of wood mouldings sold by the plaintiffs to the defendant, between March 1, 1870, and January 1, 1871, and for which defendant gave plaintiff his note, dated January 18, 1871, payable three months after date. An order of arrest was granted, on the ground that the defendant had disposed of his property with intent to defraud his creditors. The defendant moved at special term to vacate this order, and the motion, was granted. The plaintiff appeals to the- general term from this order vacating the order of arrest.

      David McAdam, for the appellant.

      Henry Wehle, for the respondent. ,
   By the Court.—Curtis, J.

The plaintiff’s affidavit shows that about one month before the defendant’s note fell due, the defendant sold his stock, business and articles contained in his place of business,, which, with the outstanding claims, were worth two thousand dollars, to one Holstein, his brother-in-law, and who had failed several times, for the price of five hundred dollars, payable January 1,1872, provided the business was good and he was successful. That the defend-" ant has refused to show his books, or give any satisfactory or full statement of his affairs. That he owes other debts, and that his property has been attached.

The defendant moves to vacate the order of arrest on the plaintiff’s own affidavit, and does not explain or deny any of the matters alleged in the plaintiff’s affidavit. If these allegations are not met by a denial, on a motion to discharge from arrest, they must be taken to be true (Wolfe v. Brower, 5 Rob. 604; Union. Bank v. Mott, 9 Abb. 108).

When-a debtor, shortly before the maturity of his indebtedness, sells his property for less than its value, to a relative, to be paid for conditionally, under the circumstances and in the manner charged by the plaintiffs, and makes no denial or explanation, a case arises where the creditor is entitled to the remedy afforded under subdivision 5 of section 179 of the Code. A contrary view of it would tend to withhold the relief and protection designed by the framers of the law to be given to creditors, and serve substantially to promote the designs of knavish and fraudulent debtors.

The order appealed from should be reversed, with costs to the plaintiff.


author: Spencer, J. By the Court.—Monell, J.

text:
    ST. LUKE’S HOME FOR INDIGENT CHRISTIAN FEMALES, Respondents, v. AN ASSOCIATION FOR THE RELIEF OF RESPECTABLE AGED INDIGENT FEMALES IN THE CITY OF NEW YORK, Impleaded with others, Appellants.
    A devise or bequest should not be considered void, but carried into effect by the court, whenever it is possible for the court to ascertain and determine the meaning and intentions of the testator, and execute the saíne in accordance with law-and equity.
    When it appears that there is a latent ambiguity or object arising dehors or beyond the will itself, such as words of description of persons or things that are incorrect, or a misnomer or language susceptible of inore than one meaning or interpretation, whereby the intention of the testator cannot be determined by the language of the will, then parol or other evidence, is admissible fo explain to, or inform the court, as to what were the intentions of the testator in the premises, and in such case evidence or testimony is admissible, that informs the court of the habits of thought and action of the testator in matters and subjects germane to those contained in and alluded to in the will, as also his expressions and statements in regard to his intentions and views in respect to the society- or institution claiming the bequest, with the ultimate view of ascertaining therefrom and judicially determining, if possible, the institution or legatee for whom the testator intended his charitable bequest.
    The fact that the plaintiff was well acquainted with the plaintiffs’ institution and with its direction and management, and that he had been one of its patrons, and terms of intimacy and friendship existed between him and some of its founders and leading managers, and there being no positive evidence that he had ever been informed of or acquainted with the defendants’ institution, is a strong point in favor of the plaintiffs’ claim that the testator intended the bequest for plaintiffs.
    Before Monell, Freedman, and Curtis, JJ.

      Decided March 30, 1872.
    Appeal from a judgment at special term.

      This action was brought to obtain a construction of the will and codicil of John Alstyne, deceased, and to determine the identity of one of the legatees.
    The will, among several other gifts to charitable institutions, bequeathed the sum of five thousand dollars in the following words : “ Ninth. I give and bequeath to the Society for the Relief of Indigent Aged Females, five thousand dollars.” By the codicil, the legacy was increased to twenty-five thousand dollars, as follows : “To the Society for the Relief of Indigent Aged Females, twenty thousand dollars.”
    The plaintiff, claiming to have been intended by the testator as his legatee, brought this action against the defendant, also claiming to be such legatee.
    The executors of the will were made parties, but did not answer the complaint.
    The action was tried at special term by Mr. Justice Spehoeb,. who found as a fact, and as a construction of the will, and of the testator’s intentions in regard to the legacies in question, based upon the testimony adduced before him, and all the facts appearing in the case: that the said testator, John Alstyne, intended the. legacy given by the said will, and likewise the legacy given by the said codicil, to the Society for the Relief of Aged and Indigent Females, for the plaintiff, the St. Luke’s Home for Indigent Christian Females, and by said words, “to the Society for the Relief of Aged and Indigent Females,” in said will and codicil set forth, he intended to designate and. name IM plaintiff, and to bequeath to the plaintiffs the sums therein mentioned.
    The prominent facts in this case, and the views and conclusions of the justice before whom the case was tried, appear in the following opinion:
    The plaintiffs are a charitable institution and corporation of the city of New York, and bring this action against another charitable institution, and against the executors of John Alstyne, for the purpose of establishing their claims to certain bequests made in the will of said Alstyne, and a codicil thereof, amounting to twenty-five thousand dollars, which plaintiffs claim and insist the testator intended to bequeath to them, although the words of the bequest do not correctly name designate the plaintiff’s institution by their legal and corporate name; the bequests are made in form—■ “To the Society for the Belief of Indigent Aged Females.”
    The association defendants claim and insist that their institution was intended by the testator, while the executors, defendants, although they do not formally answer in the premises, yet they claim that the court shall decide against the right of either of these institutions to the legacies; thus substantially causing this large amount devoted to charitable purposes by the testator, and evidently intended for one of these institutions, to revert to the estate or to his residuary legatees, and thus defeating the clear intentions of the testator in the premises. ‘ The important and leading facts in this case were not contested, and the following statement contains substantially the same as found by the court.
    John Alstyne, the testator, departed this life at the city of New York, June 3, 1869, leaving his last will and testament, which had been duly executed and published, October 3,1865, and which contained the following bequests, in their order.
    “ Fourth. I give and bequeath to the rector, church wardens and vestry of St. Paul’s church, Eastchester, in the county of Westchester, State of New York, the sum of ten thousand dollars, and request that the same be invested in New York city or State stocks, or in bonds and mortgages on real estate as permanent fund, and that the interest be applied from time to time to the support of the minister, for the time being, of said church.”
    "And I further give and bequeath to said rector, church wardens and vestry of St. Paul’s church, Eastchester, the.further sum of ten thousand dollars, to be used by them towards the erection of a parsonage.”

      “Fifth. I give and bequeath to the New York Bible and Common Prayer Book Society, five thousand dollars, and direct and request that the same be invested in bond and mortgage on productive real estate, as a permanent fund and that the interest thereof be used for the purchase of Bibles and Prayer Books for free distribution.”

      “Sixth. I give and bequeath to the New York Institution for the Instruction of the Deaf and Dumb, five thousand dollars.”
    “ Seventh. I give and bequeath to St. Luke’s Hospital, five thousand, dollars.”

      “Eighth. I give and bequeath to the New York Eye and Ear Infirmary, five thousand dollars.”

      “Ninth. I give and bequeath to the Society for the Belief of Indigent Aged Females, five thousand dollars.” (This is the legacy in question.)
    ‘‘ Tenth. I give and bequeath to the Orphans’ Home in the city of New York, twenty-five hundred dollars.”
    ‘‘ Eleventh. I give and bequeath to the Institution for the Blind, twenty-five thousand dollars.”
    The said codicil, being the second one referred to in the complaint, was executed on June 15, 1868, and the following are all the bequests contained therein.

      “First. I give to the following named legatees, the sums hereinafter mentioned, in addition to the amounts given them respectively, in and by my last will and testament.”
    “To the rector and churchwardens, and vestry of St. Paul’s church, Eastchester, State of New York, five thousand dollars, to be added to their permanent fund.”
    “To the New York Bible and Common Prayer Book Society, fifteen hundred dollars to be added to the permanent fund.”
    “To the Institution of Deaf and Dumb, twenty thousand dollars.”

      ‘ ‘ To St.’ Luke’s Hospital, twenty thousand dollars. ’ ’
    “To the New York Eye and Ear Infirmary, five thousand dollars.”
    “To the Society for the Belief of Indigent Aged Females, twenty thousand dollars.” (This is the additional legacy in question.)n • “To the Orphans’ Home in the city of New York, seven thousand five hundred dollars.”
    “To the Institution for the Blind, seven thousand five hundred dollars.”
    “ To the New York Hospital, I give and bequeath, twenty-five thousand dollars.”
    That of the bequests made in said will, by said testator (excluding the one in question), five were made to corporations that are known as sectarian institutions, all of which were under the influence and management of the Protestant Episcopal Church, and the remaining three were made to corporations of a non-sectarian character, which are public institutions for the relief of the deaf, dumb and blind, and in one or more of the latter the said testator was a director.
    That the plaintiffs’ institution was incorporated in the year 1850, and was organized, and is now existing as a sectarian charitable society, through and under the influence of the Protestant Episcopal Church, and has always received and depended upon the care, influence and support, and the charitable donations and collections, and has always been under the direction of the churches, clergy and laity of the said Protestant Episcopal Church. That among its earliest friends, and most earnest and energetic advocates and supporters, were the late Rev. Dr. Francis Hawks and the Rev. Dr. Eigenbrodt, who were also the intimate friends of the testator, who was a member of the church wherein they officiated.
    That the institution of the defendants was incorporated in the year 1815, and was organized, and has always existed, as a charitable association of a nonsectarian character, and has always claimed and fully deserved the support and friendship of all religious sects and denominations, and among its friends claimed the said Rev. Dr. Hawks, who, on some occasions, officiated at the institution as a clergyman"; and its first directress, Mrs. Inness, and her son, Edward Inness, its present treasurer, were members of Dr. Hawks’ congregation in Calvary Church.
    That the defendants’ institution is much larger, more wealthy, and more extended in its benefactions than the plaintiffs, but both of said institutions are in all respects creditable and deserving charitable institutions, and each doing its utmost in a like charitable and good work, namely, in providing a home, and extending aid, to aged and indigent females, and for many years each have been known among its Mends and patrons, and by the public, by the same title, namely, The Old Ladies’ Home.
    That for many years prior to his death, and the execution of said will, the testator was a member and a communicant of the Protestant Episcopal Church, and was known as a liberal contributor to its many institutions and charities. That he was connected with St. Paul’°s Church, of Trinity Parish, and left that church and connected himself with Calvary Church after Dr. Hawks became the rector and pastor of the latter, and continued with last named church until Dr. Hawks became pastor of the Chapel of the Holy Saviour, when he joined the latter, and continued connected with the same until his death. That he was an intimate friend and great admirer of Dr. Hawks, and his relations with the latter gentleman were most intimate and close in all respects.
    The testator also claimed and exercised great friendship and intimacy with the Rev. Dr. Eigenbrodt, who at one time was associated with Dr. Hawks, in his charge of Calvary Church, and he, the testator, frequently consulted with Dr. Eigenbrodt, in regard to his benefactions and charitable plans and donations.
    That on one occasion before the execution of the codicil in question, the testator consulted freely with the latter gentleman, and laid before him a plan he had made and intended to execute for the formation of a charitable institution for the relief of aged and indigent men, to which he proposed to devote much care, labor and money during his lifetime, and endow the same liberally from his estate by his will. His plans involved the disposition of nearly a million of dollars to this object, and on this occasion, and in discussing his plan with Dr. Eigenbrodt, he spoke fully and freely to him of the great value and benefit of a similar charitable institution for aged and indigent females, and the conversation was continued by and between him and Dr. Eigenbrodt about the institution of the plaintiffs, whose charitable work, and its claims to the consideration and support of the church, individuals and the public, were fully set forth and commented upon by the testator and Dr. Eigenbrodt; the latter gentleman testified that, on this occasion, the testator seemed to be well informed and familiar with the plaintiffs’ institution, which was spoken of as “The St. Lukes’ Home,” and “ The Old Ladies’ Home,” and also by its corporate name.
    That soon after this and other conversations between the testator and Dr. Eigenbrobt, about this proposed new charitable institution, the testator sent for and con-suited with his counsel, Mr. Wetmore, about the same plan, and told him his intentions and wishes in the premises ; Mr. Wetmore was an intimate friend, as well as the counsel of the testator, and his advice and counsel had great influence with him, and on this occasion, Mr. Wetmore not agreeing with the testator as to the expediency and propriety of the testator devoting his labor and wealth to this charitable object, was able and succeeded in inducing the testator to abandon his scheme and plan of instituting and endowing this proposed charitable institution, and the testator then and there determined and announced to his counsel, that he would materially increase the benefactions bequeathed in his will to divers institutions, by a codicil, which he directed his counsel to prepare for execution.
    The testator’s will was then produced and examined, and directions for the several amounts of increase then made, and the codicil was afterwards duly executed according to those directions. Mr. Wetmore testified, that on this occasion, he had the will in his hand, calling off, or reading therefrom the several charitable legacies, and that on reaching the ninth bequest therein, instead of reading the same, he said to the testator, “ John, here is the Old Ladies’ Home, what will you do with that \ ” and the testator answered, “I will increase that twenty thousand dollars.” ■ Whereupon Mr. Wetmore said, “ You are doing well for the Old Ladies’ Society” ; to which remark, excused himself to his counsel on his liberality, in these words. “I give that in compliment to my mother, who is a very old lady.”
    Mr. Wetmore testified, that this conversation related to the institution named in the .ninth bequest of said will, as ‘‘ The Society for the Belief of Indigent Aged Females,” and that in preparing the bequest in the codicil, for this increase of twenty thousand dollars, he copied from the will the name of the society as therein set forth.
    It also appeared from the testimony in the case, that the testator, Alstyne, was well acquainted with plaintiffs’ institution, prior to the execution of his will, and had on one occasion, contributed or donated to it, the sum of twenty-five dollars, and that collections were statedly taken up for the benefit of the same, in the church of which he was a member, and that Dr. Hawks frequently preached for or solicited donations to said institution, in said church, from its members ; and the court found as a conclusion of fact, that the testator knew that plaintiffs’ institution was organized under the influence of, and supported by the contributions and donations of the Protestant Episcopal Church, and that his intimate friends, said Eev. Dr. Hawks and Rev. Dr. Eigenbrodt, were greatly interested in its organization and maintenance, and its general prosperity.
    There was no testimonygiven in the case, that showed that the testator had ever known of, of concerning, or had ever taken any interest in, or contributed anything to the association of the defendants. Mr. Innes, the treasurer 'of defendants’ association, testified, that he had been connected with the institution for twenty years, and that he was not acquainted with the testator, and no evidence was given or offered, tending to show that the testator had ever been acquainted with defendants’ institution, except the fact that Dr. Hawks was acquainted with and friendly to the same, and had officiated therein as a clergyman, on several occasions.

      Owen, Wash & Gray, attorneys for plaintiffs.

      Mr. Nash, of counsel.

      William Venvill, attorney for the association, defendants.

      Mr. Marsh, of counsel.

      Mr. W. C. Wetmore, for executors, defendants.
   Spencer, J.

In this case, there were two like charitable institutions who claimed the bequests.

If the plaintiffs hád been the only institution claiming these legacies from the executors, I think there would have been no doubtful questions in the case, and the bequests would have been decreed to the plaintiffs, notwithstanding the misnomer in the will and codicil, and perhaps a like observation would apply to the case of the defendants’ association being a sole claimant.

The testator evidently intended to designate one of these institutions as the object of his charitable bequests, and he has not properly named either, and I believe the misnomer was no. fault of his, but was attributable to the negligence of the person to whom he entrusted the preparation of the will and codicil; therefore, I hold this to be a case of latent ambiguity in a will, where the court is authorized to admit parol testimony, tending to show the intentions of the testator, to enable the court to determine which of these two corporations he intended to name and designate in the bequests.

This question of the admission of parol testimony, to explain a latent ambiguity in a will, is first reported in this State, in the case of Stevens v. Maxwell (4 Johns. Ch. 607)." Chancellor Kent decided substantially in that case, that although a testator had been entirely mistaken in the name of a legatee, the bequest was good if the person intended by the testator could be clearly ascertained; and he held that the intention of the testator, and the misnomer, might be shown by evidence not contained in the will, by parol testimony, and that the person whom the testator intended was ■entitled, and should take the legacy. In that case, the name of Cornelia Thompson was set forth in the will, and one Caroline Thomas claimed, and was decreed to be entitled to the bequest.

This early decision of our former court of chancery had some earlier precedents in English decisions, and it has been approved and followed in the courts of this country in the following later cases: Conolly v. Pardon, 1 Paige, 291; Smith v. Smith, 1 Edw. Ch. 189 ; Same case on appeal, 4 Paige, 271; Roman Catholic Asylum v. Emmons, 3 Brad. 144 ; Domestic & Foreign Mission Society, 30 Penn. 425; Butler v. Tract Society, 23 N. 336 ; Vansant v. Roberts, 3 Md. 119.

After due consideration of these and other precedents, and the opinions of distinguished writers on this subject, I conclude the following propositions embrace the law on this point in this country :

First. A devise or bequest should not be considered void, but carried into effect by the court whenever it is possible for the court to ascertain and determine the meaning and intentions of the testator, and execute the same, in accordance with law and equity.
Second. When it appears that there is a latent ambiguity, or object arising dehors or beyond the will itself, such as words of description of. persons or things that are incorrect, or a misnomer, or language susceptible of more than one meaning or interpretation, whereby the intention of the testator cannot be determined by the language of the will, then parol or other evidence dehors the will is admissiblé, to explain to or inform the court as to what were the intentions of the testator in the premises.

There seems to be a diversity of opinion as to whether, in-such a case, the statements or directions of the testator to his counsel, in regard to the draCwing of the will, can be given in evidence. I hold that the weight of authority and reason favors its admissibility in every case that the court considers one of latent ambiguity, and therefore I have admitted and considered (although objected to by plaintiffs) the testimony of Mr. Wetmore, in this case, as to the conversation between him and the testator, when the latter instructed him to draw the,codicil.

In pursuance of these legal views in the case, I have admitted testimony of facts tending to inform me of the habits of thought and action of the testator in matters and subjects germane to those contained in it, and alluded to in the will, as well as his expressions or statements in regard to his intentions in the premises, with the ultimate view of finding out therefrom, and judicially determining, if possible, the institution or legatee for whom this testator intended his charitable bequests.

' Each of these institutions appear to have been in every way equally entitled to the favorable consideration of- the testator in respect to the attainment of his charitable object; and in my final conclusions I have considered the claim of each of these institutions for these legacies as equally reasonable and good, except in two positions, developed by the facts and evidence, wherein I conclude the plaintiff has established a claim, to be considered and decreed the legatee of the testator, which is superior in point of fact and legal position to any maintained or urged by defendant’s counsel, and they are briefly these:

First. The testator was acquainted .with the plaintiffs’ institution, and with its direction and management, and he had been one of its patrons, and there was no positive evidence that he had ever been informed of, or acquainted with, the institution of defendants. This is a strong point in favor of the plaintiffs’ claim that the testator intended these bequests for them; and there are precedents that go far towards making this point conclusive in favor of plaintiffs, and against defendants.

In the case of Carless v. Carless (1 Mem. 384; S. C., 19 Vesey, 601), a testator gave a legacy to Robert Carless, his nephew, the son of Joseph Carless.”

The testator never had any brother Joseph, but he had two brothers, each of whom had a son named Robert, and these two Roberts, both nephews of the testator, claimed the legacy. The proofs in the case established the fact that the testator was intimately acquainted with one of the Roberts, and but little known to the other, and the court determined that the testator intended the bequest for the nephew with, whom he was best acquainted, and on the most intimate terms, and did not intend it for the nephew of whom he knew but little.

In Smith v. Smith (1 Ed. Ch. 189), the vice chancellor decided in favor of one claimant, and against another, because of the greater intimacy and friendship of the former with the testatrix, although the latter was related by blood to the testatrix, and the former was not.

There are other cases holding like conclusions.

Second. The plaintiffs’ institution was one of a sectarian character, and connected with and sustained by the Protestant Episcopal Church.

The testator was an active and zealous member of that church, and was an intimate friend of two of its influential clergymen, Dr. Hawks and Dr. Eigenbrodt, and the two latter gentlemen were among the most energetic friends and supporters of the plaintiffs’ institution, and one of these clergymen was frequently consulted and advised by the testator in regard to the charitable benefactions of the latter.

The bequests of the will and codicil clearly show the inclination or rather determination of the testator to make liberal provisions for the charitable institutions of his own church, and for the church itself, and I conclude that in choosing between two equally meritorious institutions of this character, that were equally well known to him, the testator would select as his legatee, that institution which was sectarian, and connected with the Protestant Episcopal church, and which was receiving the special friendship and support of its clergy, especially that of the testator’s friends, the said Rev. Doctors Hawks and Eigenbrodt, in preference to that institution that was not sectarian, and not connected with any particular church or denomination. Sectarianism and religious denominational feelings and prejudices exert a strong influence over the human mind. They ever have, and ever will affect mens’ actions and control or guide their charitable benefactions. While I do not find any cases or precedents especially illustrating this point, I do know and feel, that I have no right to ignore the existence of these prejudices and feelings in the mind of the testator, so far as appears from the evidence, but as a judge, I am bound to recognize and duly consider the same, and their effect and influence in a case like this ; and therefore I hold, that the fact of the testator being an Episcopalian, associated with, and surrounded by the influences of that church, as appears from the testimony, raises a strong presumption in favor of his intentions to designate, in these bequests, an institution that was managed and directed by the Protestant Episcopal Church.

For these’ reasons, I have found and decided that the said testator intended 'to designate the plaintiffs in these bequests; and did not intend to name the defendants.

There must be a judgment decreeing these bequests to the plaintiffs.

Mr. L. R. Marsh, for appellants.

Mr. S. P. Nash, for respondents.

From the judgment thus entered the defendants appealed.

By the Court.—Monell, J.

Neither of the parties to this action is designated in the will and codicil by its full corporate title. Some of the words employed by the testator, are in each, and some are not in either; and, therefore, neither the plaintiffs nor defendants can claim the legacies, as against each other, without the aid of extrinsic facts, to more clearly establish the intention of the testator. These two societies, each having the same purpose and object specified by the testator, each claim to be the intended recipients of his bounty.

Some ot the words used by the testator to designate the object of his charity are found in the respective titles of each of these societies. The designation by the testator is “ The Society for the Relief of Indigent Aged Pernales.” The words indigent females ” are the only words found in the plaintiffs’ corporate title ; while in the defendants’ are found the words “aged indigent females,” and “relief.” The word “ society” is not in either,• although “home” in the one, and “association” in the other, may be regarded as equivalent terms. It is evident, therefore, that, neither of these institutions can claim absolutely, to have been so clearly and certainly designated by the testator, as to entitle it to take the legacy. It is understood that this was substantially conceded at the trial, although it is now contended, that there is enough, upon the face of the will and codicil, to determine the questions in favor of the defendants.

Upon this concession,. if it was made, or in the view of its necessity, the learned justice below. admitted such extrinsic evidence as was offered, and upon it determined as a fact, that the testator intended to bestow his bounty upon the plaintiffs.

The evidence thus adduced, and which was supposed to furnish a sufficient reason for the belief that the plaintiffs were the intended recipients of the gift, was without conflict, leaving the only question for us to examine, to be, whether it is sufficient to sustain the finding of fact.

A finding upon conflicting evidence will not, ordinarily, be disturbed, although the court may do so, where it is clearly against the weight of the evidence (Loeschick v. Baldwin, 38 N. Y. 336); but will do so with great caution and only in a clear case. Where, however, there is no conflict, the court can only see whether the evidence is sufficient to authorize the conclusion.

If the evidence, therefore, which was received in this case, was proper and pertinent, and tended to fairly aid in discovering the testator’s intention, and if, upon a fair construction of it, we shall find it sufficient to justify the conclusion of the learned justice below, then, upon well established principles, we should not disturb his judgment.

Was the evidence proper %

At the time of making the will and codicil there was not, nor has there since been, any institution or society, incorporated or otherwise, whose name or title corresponded in terms exactly with the society designated by the name or title in the will. The bequest must, therefore, be declared void for uncertainty, unless the intention of the testator can be ascertained from sources other than the will itself.

Wo aid can be obtained from other parts of the will or codicil. The bequest bears no relation whatever to the other benefactions of the testator, all of which are wholly independent of each other.

But there are in the city of New York two incorporated institutions, each claiming to have been intended by the testator as his legatee. Each of these societies have practically the same object and purpose, namely, the sustenance and care of aged indigent females, and are equally -within the design of the testator, which was to benefit that class.

As between these two societies, therefore, it was not possible, without the assistance of some extrinsic evidence, to determine which was intended as the beneficiary.

It was,' therefore, very proper to let in such proof as might be furnished, and which would aid in ascertaining the probable intention of the testator, in order that one or other of these excellent charities might receive his very liberal gift, which otherwise might lapse for the want of an ascertained taker.

The propriety of this may be further illustrated by reference to a fact not alluded to at the trial, which, had it been, would, I think, have increased the difficulty of reaching the testator’s intention from the will only.

The testator, doubtless, designed to make his benefaction to some institution which afforded a home and support to aged and indigent females.

At the time and long previous to making the will and codicil, there was one other incorporated society in the city of New York, whose objects and purpose was similar to the objects and purpose of those who are now contesting for this legacy, namely, “ The Presbyterian Home for Aged Women,” which might, with some force, lay claim to the legacy, if the legatee is to be decided upon from the will alone.

But the propriety of resorting to extrinsic evidence in these cases has been so frequently and uniformly sanctioned by the courts, that a mere citation of some of the cases is all that is necessary (Hornbeck v. Am. Bible Soc., 2 Sandf. 133; Banks v. Phelan, 4 Barb. 80; N. Y. Ins. for the Blind v. How, 10 N. Y. 84 ; Button v. Am. Tract Soc., 23 Vt. 336 ; In re Gregory, 11 Jur. N. S. 634; Cromie v. Louisville, &c. Soc., 3 Bush. [Ken.] 365 ; Best v. Hammond, 55 Penn. 409).

The evidence which was received was pertinent to the question before the court, and was, in my opinion, sufficient to sustain the finding of fact of the justice below, that the testator intended to designate the plaintiff as his legatee.

It was proved that Mr. Alstyne, the testator, was a communicant of the Protestant Episcopal Church, and that the plaintiffs’ society was connected with, and managed by a board of managers consisting of twenty-one clergymen and laymen of that denomination of Christians.

Mr. Eigenbrodt, a minister of that church, testified, that he had known the testator for a number of years. That his first church connection was with St. Paul’s ; he afterwards became a parishioner of Calvary, and afterwards of the Holy Saviour. He stated that in conversations in 1867, ’8, and’9, Mr. Alstyne, alluding to a favorite object of his, the founding of an institution for the care of old men, spoke also of the desireableness of provision for aged and indigent females, when the witness spoke of St. Luke’s Home for Indigent Christian Females, and laid before him, what he seemed to be familiar with, its claims, in which the testator “ heartily acquiesced.” In one of the interviews St. Luke’s Home was spoken of as under the charge of Dr. Tuttle, and Dr. Hawks’ name was used in connection with' it. Dr. Hawks was at that time pastor of the Church of the Holy Saviour, of which Mr. Alstyne was a parishioner, and he took an active part in the origin of the Home, and was one of its earnest supporters.

It was also ascertained that in 1862, a donation of twenty-five dollars had been made by Mr. Alstyne to the St. Luke’s Home.

This evidence indicated a knowledge in the testator of the plaintiffs’ society, and was deemed sufficient to raise a presumption of a bias in its favor. Such a bias is natural. Where two benevolent societies exist at the * same time and in the same place, having the same object and purpose, one of which is independent and the other denominational, there will be a presumed leaning towards the denominational one, by all those who are of the same religious faith.

The evidence of Mr. Wetmore, who drafted the will and codicil, and who testified to a conversation with the testator at the time the latter was prepared, does not, in any degree, weaken the strength of the plaintiffs’ case. He says he called the testator’s attention to the different legacies, and then said, “Here is the Old Ladies’ Home, what will you do with that V' He said, “I will increase that twenty thousand dollars.” I said, “You are doing very well for the Old Ladies’ Society.” He said, “ I give that in compliment to my mother; she is a very old lady.”

It may be that Mr. Wetmore had, indeed, it is quite certain that he had, the defendants’ association in Ms mind, when speaking of the Old Ladies’ Home. He had always.heard it so called. But there is nothing in this that shows that the testator had any such understanding. Each of these institutions was familarly known as, and was called, the Old Ladies’ Home; and unless Mr. Wetmore imparted his understanding to Mr. Alstyne, which he did not, or the latter indicated in some way a corresponding intention, which he did not, there can be no presumption that they thought alike.

The light which has been cast, by the evidence, upon the question in this case, is not great. But it has disclosed facts and circumstances, which, standing as they do, uncontradicted, point, as I think, with sufficient clearness to an intention to make the plaintiffs the beneficiary of the charity.

Perhaps, if we were sitting at the trial of this action, and examining, res nova, the evidence- which has been produced, we might reach a different conclusion. But sitting, as we are, in review of the judgment of the special term, we are not at liberty to differ with the views of the justice below, except for grave and palpable error in ids conclusion of fact. Such error we do not find.

In the very recent case of Briscoe’s Trust (cited from the Law Times of February 24,1872, p. 310), the force of the kind of "evidence admitted in this case is recognized and approved. The bequest was to the “Victoria Hospital.” There was no institution strictly so called. There was the “ City of London Hospital,” in Victoria Park, and the Victoria Hospital for sick children, in Chelsea. The evidence showed that the testator had long been interested in the first named hospital, while he was almost a total stranger to the latter. From this it was decided that the testator intended to bestow his gift upon the first named hospital.

The determination of the question involved in this case in favor of one of these societies and against the other, is probably of little importance, as affecting the design of the testator. They have the same benevolent end in view, are alike and equally meritorious, and whether one or the other becomes the almoner of the rich' legacy of Mr. Alstyne, there is every assurance, that in either case it will be faithfully devoted to the object he designed and desired to foster and aid.

The judgment of the special term is affirmed.

Hote.—Since the decision in the above case, an appeal was taken to and heard by the court of appeals, and the Reporters are informed ■ that the judgment was reversed and final judgment given in favor of the defendants, on the grounds (as the Reporters have been informed), that the will itself indicated the intentions of the testator in favor of the defendants, and proof aliunde was inadmissible. As we deem it an important and interesting case; we report the same fróm this court notwithstanding the reversal. The Reporters.


author: By the Court.—Freedman, J.

text:
    JAMES McKEE, Plantiff and Appellant, v. JOHN MURPHY and JOHANNA, his wife, Defendants and Respondents.
    The assignee of a judgment, who has obtained an assignment that was intended and understood by him and Ms assignor to be given as a power of attorney, to collect the judgment in the name and for the benefit of the plaintiff and assignor, or for the purpose of enabling said assignee to collect the judgment for his assignor, has no vested rights or interest in the judgment other than that of agent or trustee of the plaintiff, his assignor.
    Although such assignee has sold real estate and obtained a sheriff’s deed thereof, he is not entitled to be made a party to an action for a foreclosure of a mortgage on said premises (as a judgment creditor or purchaser of the premises subsequent to the record of the mortgage).
    Nor can he maintain an action to redeem, &c., because he was not made a party to the foreclosure action. The plaintiff in, or assignor of the judgment is in eqMty the only party entitled to notice, or to be made a party to the foreclosure action, and if he was made a party thereto and foreclosed, his assignee, under these facts, was foreclosed also, and cannot maintain an action in equity to redeem from the foreclosure. He has no equities -in the premises for the consideration of the court.
    Before Monell, Freedman and Curtis, JJ.

      Decided March 30, 1872.
    This was an action to redeem from a foreclosure sale. On November 19, 1862, the defendant, John Murphy, became the purchaser, at a sale under foreclosure, of a mortgage made to him by one Philip H. Doremus, for six hundred and fifty dollars, of a lot on Eightieth - street, in the city of New York, one hundred and eighty-one feet six inches easterly of Bloomingdale Boad.
    The plaintiff claimed that on February 5, 1861, in the district court in the seventh judicial district, in the city of New York, one John Barton recovered a judgment against Doremus for forty-two dollars and seventy-three cents and filed a transcript thereof, and that, on November 26,1861, he, the plaintiff, purchased at an execution sale upon that judgment, all Doremus’ right, title and interest in the lot, for fifty dollars ; that the sheriff’s certificate of sale was filed on December 14, 1861, and that on February 26, 1863, he received the sheriff’s deed ; that he was not made a party to the foreclosure suit, and that in consequence he had a right to redeem from the sale.
    Upon the trial at special term evidence was given by both parties, and upon the evidence thus introduced, and the pleadings, the justice who tried the cause found the following conclusions of. fact and of law:
    1. That John Barton was joined as a party defendant to the foreclosure action, admitted by the pleadings, and appeared therein by attorney.
    2. That the said foreclosure action was commenced on or about August 9, 1862, proceeded to judgment and to a sale of the premises in question, and that upon such sale the defendant, John Murphy, became the purchaser, and the premises were conveyed to him, all as admitted by the pleadings.
    3. That about August 1, 1861, the said John Barton left the city of New York, at that time being the owner of the judgment recovered by him on February 5,1861, for forty-two and seventy-three cents, in the seventh judicial district court of the city of New York, against Philip H. Dor emus, and that shortly before he left he retained the plaintiff, who was then employed in the law office of John Townshend, who appears as his attorney in this action, as his agent and attorney for him, to collect that judgment. Just before he left, at the request of the plaintiff, and on his representation that it was necessary for him to have something to show to enable him (the plaintiff) in Barton’s absence to collect the judgment, Barton executed to the plaintiff an instrument dated July 26, 1861, in form assigning to the plaintiff the judgment, for the consideration of one dollar, and containing a power of attorney to the plaintiff to collect the same.
    4. Barton did not read the assignment. The plaintiff read a few lines, told him it was not necessary to read the whole ; and thereupon he (Barton) executed it under the belief induced by the plaintiff that it merely conferred upon the plaintiff an authority to collect the judgment.

      5. That there was no agreement that plaintiff should become the purchaser of the judgment; that he paid nothing for it; that Barton was ignorant that the paper contained an assignment in terms of the judgment, and that if plaintiff intended that it should assign the judgment he misled and deceived Barton to execute it, in ignorance that it was more than a power to authorize the plaintiff to collect the judgment, which was what it was understood between the parties it should be.
    6. That Barton remained the real owner of the judgment, and that, under his employment to collect the judgment, the plaintiff for Barton procured the execution to be issued upon it, the interest of Doremus in the premises to be sold under it to himself, the sheriff’s certificate to be delivered to him, and subsequently the sheriff’s deed to be delivered to him, all as admitted by the pleadings; and that in doing so he was the agent and attorney of Barton in respect to all proceedings for the .collection of the judgment including the above. He paid nothing on the sale.
    7. That Barton had the right to all beneficial interest in the premises under the sheriff’s sale and certificate to the plaintiff; and by the foreclosure action all such interest became foreclosed in favor of the defendant, John Murphy, who was the purchaser at the foreclosure sale.
    8. That the defendant, John Murphy, entered into possession under his foreclosure purchase of the premises in question, paid the taxes and assessments, and before January, 1869, built a house upon them, they haying greatly increased in value, all to the knowledge at the time of the plaintiff, who never notified the defendant Murphy of any claim till the commencement of this action.
    9. That on or about September 17, 1869, Barton assigned to the defendant Murphy his judgment with all its incidents.
    10. That there was no evidence that Barton had ever waived his election to treat as his the said purchase at the sheriff’s sale and sheriff’s certificate; and that until he should do so the plaintiff has no estate or interest entitling him to redeem.
    His claim is dependent on the will of Barton, who alone had any such right, and his right was cut off by the foreclosure.
    11. That the plaintiff was a native of Ireland and an alien by birth, and that there was no legal evidence that he had ever taken any proceedings permitting him to acquire and hold any title under the sheriff’s deed.
    12. That the plaintiff is not the real party in interest to redeem under the said judgment, sheriff’s sale, certificate and deed. That he never made any tender such as he alleges in the complaint or otherwise.
    13. That the defendants, John Murphy, and Johanna, his wife, are entitled to judgment dismissing the plaintiff’s complaint with costs.

      Opinion at Special Term.

    Barbour, C. J. I am satisfied, by the evidence in this case, that the written assignment given by Barton to Mr. McKee was intended and understood by the former to be a mere power of attorney, enabling McKee to collect the judgment in the name and for the benefit of the plaintiff therein, and not an assignment and transfer of the judgment itself, coupled with the customary power of attorney, such as the instrument, in form, purports to be ; and that the paper in question was executed by Barton without consideration, solely for the purpose of enabling McKee to collect the judgment for him.
    In the view I take of the matter it is not necessary to determine whether McKee, who does not appear to have been a lawyer at that time, really supposed when the paper was executed, that it was a mere power of attorney to collect the judgment, such as then he represented it to be, or not; for, if that was not his belief, it is clear that the execution of the instrument was procured by his false and fraudulent- representations to Barton in that regard.
    In either case, whether the paper was intended and understood by both parties to be a power of attorney, merely, or was obtained by the fraudulent representations of McKee, Barton must be considered, in equity, as between himself and McKee, the real owner of the judgment and of the lands purchased by means thereof at the sheriff’s sale, notwithstanding the technical assignment contained in the instrument executed by him, while McKee can, at best, be considered but a mere agent and trustee for the purposes of the purchase and conveyance.
    If I am aright in this conclusion, it follows that the plaintiff in this action is not entitled to recover. For, under the code, an action can be brought and maintained only by the real party in interest, unless the plaintiff sues as an executor, administrator, or trustee of an express trust, or under the authority of some statute (Code, §§ 111, 113), and granting the premises, there can be no doubt that Barton, and not McKee, is the real party in interest, inasmuch as a judgment in favor of the plaintiff would necessarily be for the sole benefit of the former as the real owner of the- land. I may add, it is not sufficient now, whatever it may have been formerly, for the plaintiff to prove a legal title in himself in a suit of this -character. If the pleadings and proofs establish the fact that he is not the real party in interest, or, in other words, the party who is to be benefited by a judgment nominally in his favor, he cannot recover, unless within the exceptions above referred to.
    There is another point which appears to me also to preclude a recovery by the plaintiff, to wit: Upon his examination as a witness he admitted that he was a native of Ireland, and then testified, subject to the defendant’s objection, “ I am a naturalized citizen ; have been since 1862.” This evidence is incompetent and insufficient to prove the fact that he was legally naturalized, even if oral testimony was admissible at all, without showing that the production of record or written instrument was impracticable. It is merely a legal opinion or conclusion, and not a statement of anything that was done by or before a court. The alienage of the plaintiff was therefore established upon the trial, and he failed to prove by legal and sufficient evidence, that he had ever been naturalized, or had made and filed the deposition or affirmation required by section 24 of the statute respecting persons who may hold lands (1 Rev. Stat., as amended in 1834).

      By the terms of section 26 of the same statute, therefore, he was, when the deed under which he claims title was executed to him, and, for aught that appears, still remains incapable of taking or holding the lands described therein, and it follows that he is not entitled to redeem such lands by virtue of any ownership thereof.
    The defendant is entitled to a judgment dismissing the complaint with costs.
    Judgment of dismissal and for costs was thereupon duly entered, and the plaintiff appealed from such judgment.

      John Townshend, counsel for appellant.

      John E. Parsons, counsel for respondents.
   By the Court.—Freedman, J.

As the findings of fact made by the learned chief justice, who tried the case, are fully supported by the evidence given upon the trial, and consequently will not be disturbed, I am of the opinion that the conclusions of law based thereon, and especially the final conclusion that the defendants are entitled to judgment dismissing the complaint with costs, should also be upheld.

The redemption of real property from the lien of a mortgage is an ancient branch of the equitable jurisdiction of the court of chancery. In Miner v. Beekman, 11 Abb. 147; S. C., 42 How. 33, I had occasion to briefly point out the origin and growth of the system of the filing of a bill by the owner of the equity of redemption for the redemption of mortgaged premises, and, on the other hand, the filing of a bill by the mortgagee to foreclose and cut off this right of redemption. I then showed that even under the Code, which abolished the forms of former actions and conferred law and equity jurisdiction upon the same tribunals, an action for such redemption still remains an action for purely equitable relief, and as such must be brought upon the. equity side of the court.

It is to be governed, therefore, by all the principles and rules which prevail in courts of equity and the trial of equity suits.

ISTow, the rule that the action must be prosecuted in the name of the real party in interest, was always the rule in equitable actions, as distinguished from actions at common law, the latter being required to be brought by the party to the contract, even though he had parted with his entire interest in it by assignment. -Chancery not only recognized the right of the assignee to bring the suit, but absolutely required him to do so. And so strict was the rule, that whenever it appeared, on the other hand, that the assignee himself was but ar nominal owner, it was held that he could not sue, but that the suit should ■ be brought by the real party in interest (Rogers v. Traders’ Ins. Co., 6 Paige, 597; Field v. Magee, 5 Paige, 539), unless indeed such assignee held such nominal interest as trustee, &c. (Story Eq. Pl. 152, note); and this is precisely the rule adopted by the Code, which, requiring the action to be brought by the real party in interest, excepts executors and administrators, trustees of an express trust as are therein defined, and persons expressly authorized by statute, who may sue alone without joining the person for whose benefit the action is prosecuted.

The defendants in this case defended upon the express ground, among others, that the plaintiff was not the real party in interest, and to be able, therefore, to maintain the action, it was necessary for' the plaintiff either to prove himself to be the bona fide legal owner of the equity of redemption, or to bring himself within one of the exceptions authorized by the code. He failed to do either.

Without descending to particulars, I think I may safely say that plaintiffs’ application to a court of equity for affirmative relief in Ms own favor and for Ms own benefit, appears, upon the whole case, to be so destitute of merits as not to commend itself to the favorable consideration of the court.

The judgment should be affirmed, with costs.


author: By the Court. — Sedgwick, J.

text:
    CYNTHIA J. STAFFORD, Administratrix and Respondent, v. JEREMIAH LEAMY, Appellant.
    Witness.—Trial.
    I. Impeachment of witness out of his own mouth.

    1. Is not necessarily by contradiction coming from witnesses opposed'to the one whose credibility is questioned.
    3. It may be by the witness contradicting himself, or by giving vague or conflicting statements, or by exhibiting such a want of intelligence or of memory as to incapacitate him from representing a past event so that reliance could be placed on his statement, or by giving testimony not credible on its face.

      a. Although witnesses are presumed to testify correctly, unless something appears in the case as a basis of a judgment to the contrary, yet if there appears in the case, even if it be in his own testimony only, anything which tends to the impeachment of their credibility, the finding of the jury or referee on that fact will not be disturbed any more than a finding in regard to any other fact.
    1. This is the effect of the cases of Somer v. Meeker, 35 N. T., 363; Siebert ®. Erie R. R., 49 Barb. 587; Conrad n. Williams, 6 Bill, 447.
    II. Believing part.—Rejecting part.

    A jury or referee may believe part of a witness’s testimony while rejecting the rest.

      Before McCunn and Sedgwick, JJ.

      Decided March 30, 1872.
    Appeal from a judgment entered upon the report of a referee.
    The facts and points in the case appear from the opinion of the referee.

      Otis F. Hall, for appellant.

      Geo. H. Yeaman, of counsel.

      Roe & Macklin, for respondents.
   By the Court. — Sedgwick, J.

The complaint alleged that the intestate, at the request of defendant, rendered services as attorney and counsellor to him of the value of eight hundred and eighty-six dollars and sixty-five cents, from July 1, 1861, to April 15, 1867, and that the defendant had paid on account of said services the sum of one hundred and ten dollars, leaving due seven hundred and seventy-six dollars and sixty-five cents. The answer put in issue the value of the services, and set up that from July 1, 1861, to November 29, 1864, the defendant paid to the intestate “ divers sums of money as the same were demanded by said William It. Stafford, amounting in all to the entire amount of the indebtedness of defendant to him, which was, as defendant believes, more than the sum of six hundred dollars.” The answer further alleges, that about November 29, 1864, an account was stated between the intestate and the defendant, and that in such statement twenty dollars was found due to the intestate, which the defendant paid to him, and was received by him in full settlement of all his claims and demands whatsoever against the defendant.

It is not necessary to determine what were the issues made by their answer, for the reason that the referee, relying on the testimony for the plaintiff, found substantially, that the allegations of the complaint were sustained by the evidence, and that the allegations of the answer were not.

The plaintiff proved the services and their value to an amount greater than that stated in the complaint. The defendant sought to prove by two witnesses, sons of the defendant, that in January. 1865, or 1866, or 1867, or the middle of February, 1865 (all these dates being testified to this point by these witnesses), the intestate had said to the defendant that only twenty dollars were due for all services for law, and that this had been paid.

The plaintiff’s witnesses may have been correct in all their testimony, and it was not inconsistent with the testimony for the defendant, that at a certain time the intestate admitted that a payment of twenty dollars would be in full of all that was due for legal services. If, from all the facts of the case, it might be inferred that this was after the performance of all the services set out in the complaint, then a further inference would be, that the intestate had been paid for all services, except to the amount of twenty dollars. The position of the defendant is, that the defense did not conflict with the facts stated by the plaintiff’s witnesses, and so, being uncontradicted, should have been found by the referee to be true.

And it seems clear, that if testimony for a plaintiff, being unimpeaehed is to be believed, that testimony for the defendant, which does not conflict with the plaintiff’s testimony and is also unimpeached, must be equally believed. This is stated in Somer v. Meeker, 25 N. Y. 363. “The witness ‘who testified for the defense ’ was not impeached or contradicted. His testimony is positive and direct and not incredible upon its face. It was the duty of the court and jury to give credit to his testimony. The positive testimony of an unimpeached uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously.” (Siebert v. Erie R. R. Co., 49 Barb. 587.) This does not take from the jury, or judge acting as a jury, the province of determining in all cases if witnesses are credible, but it implies that witnesses presumptively testify correctly, and unless something appears in the case as a basis of a judgment to the contrary, it is the duty of the tribunal to find that the witness is credible. If there appears in the case any thing, which tends .to the impeachment of the witness in credibility, the finding of the jury or referee will not be disturbed as to that fact, any more than a finding in regard to any other fact-in the case. For instance, in Somer v. Meeker, the opinion of the court states that' the witness was not contradicted, and that the story that he told was not incredible upon its face, and that the evidence was clear. In Conrad v. Williams, 6 Hill, 447, Judge Bronson, as to the part of that case which rested on the testimony of one uncontradicted witness, says the credibility of that witness was a question for the jury ; meaning, that although the jury discredit her, if they had discredited her, the finding would have been sustained. There is no reason to say that impeachment or contradiction must come from witnesses opposed to the witness whose credibility is in question. An important office of cross-examination is to show that the witness contradicts or impeaches himself, or that he gives testimony not credible upon its face (Somer v. Meeker, supra). Therefore, if in the testimony of the defendant’s witnesses in this case, there was anything which tended to impeachment of their credibility, the referee must be supported in disregarding their testimony.

And there were circumstances upon which the referee had to pass in that regard. The witnesses were sons of the defendant, testifying to an interview with a deceased man. One of these sons gave in his first examination two different years as the year in which the interview took place, and said no one was present with the deceased but the witness and his father, the defendant ; on being recalled by the defendant he named another year as the right one, and said his brother and another yonng man were present besides his father and himself, and said that since his last examination he had looked over different memoranda, not in writing, but memoranda in his mind ; this brother testified that the two brothers, another young man, and defendant, there being no reason given for such a cloud of spectators, went to the interview, and as to what was said in the interview ; both these witnesses give vague and conflicting statements. These and other matters of detail that appear in the case, were facts upon which the referee properly reflected, in determining whether these witnesses were to be relied on, and his conclusion upon them should not be disturbed. It was not necessary to conclude that these witnesses had testified falsely. A want of intelligence or of memory on their part, that incapacitates them from representing a past event, so that reliance could be placed upon them, would lead to the same result.

Moreover, it does not appear from the printed case that the settlement said to be made was after the performance of the services in controversy, as testified to by plaintiff.

The complaint stated that the defendant had paid on account of services one hundred and ten dollars, and the plaintiff gives no testimony as to the payment of more. The defendant proved no payment, excepting of the twenty dollars, when it was said by these two ■witnesses there bad been a settlement in full. The referee, however, found that the defendant had paid on account one hundred and thirty dollars, and the appellant’s counsel urges that as nothing in the case accounts for the referee adding twenty dollars to the payment admitted by complaint, except the testimony given by the two witnesses, he must have credited them as to the fact of the paying the twenty dollars, and he should, therefore, have believed all of the testimony as he believed that part of it. This is not a correct conclusion. He had the fight to believe part and reject part. He may have thought that they could have been relied on as to the bare fact of the payment of twenty dollars, when they could not be relied on to á satisfactory account of a conversation which lasted from one-half of an hour to an hour, but which they condensed to one or two short sentences.

Plaintiff ’ s witnesses gave testimony after looking at certain books, some of which were and some of which were not in his handwriting, and which he testified “refreshed his memory.” Defendant’s counsel moved to strike out this testimony. The referee was correct in denying this mption. The testimony thus given was from witness’s memory, and like other legal testimony in that respect.

Jndgment should be affirmed, with costs.


text:
    WILLIAM H. BALDWIN, and others, Plaintiffs and Appellants, v. ELIZABETH EAZLER, and others, Defendants and Respondents.
    In the exercise of its jurisdiction in respect to receivers and receiver-ships, the rights of all parties in interest are committed to the guardianship and protection of the court, whose duty must ever be to watch all the proceedings, even those involving small amounts, lest some one might suffer injustice.
    A receiver is simply an officer, and the court has authority to determine his compensation, and is not limited by that fixed by statute to executors, &c., or to that fixed by the Code at section 344, subd. 4 (Gardner v. Tyler, 8 Keyes, 505).

      Before Monell, Freedman and Curtis , JJ.

      Decided March 30, 1872.
    Appeal from an order approving the account of a receiver.

      Mr. M. S. Thompson, for appellant.

      Mr. Wm. Edelsten, for respondent.
   By the Court.—Curtis, J.

By a judgment in this action, dated May 27, 1870, William M. Tweed, Junior, was appointed the receiver of certain real estate, which the defendant was directed to convey to him to be converted into money, and the net proceeds paid to the plaintiff.

No property passed into the receiver’s possession under this judgment, and no copy of it was served on the defendant. The plaintiff subsequently sold the real estate under execution, and also caused a mortgage upon it to bé foreclosed. Under proceedings supplementary to the execution, William M. Tweed, Junior, was, August 8, 1870, appointed receiver, and under this last receivership collected rents, after deducting agent’s commissions of five per cent, for collecting and repairs, amounting to three hundred and eighty-eight dollars and seventy-four cents. «

The receiver asks to be discharged, and to be allowed charges amounting to three hundred and eighty-five dollars and fifty cents. The appeal is from an order discharging him and approving his account.

The charge by the receiver for a “ counsel fee and extra services, paid to H. M. Collyer, one hundred dollars,” appears to be for matters relating to the first receivership, and no reason is shown for paying it from the sum collected under the receivership in proceedings supplementary to execution.

The charge by the receiver for 6 6 costs and counsel fee in foreclosure suit of Kruse v. Eazler, paid to W. Edelstein,” should not be allowed. He was probably made a party defendant in consequence of the first ref ceivership, nominally, and with no personal claim made against him, and with no defense, and no occasion to appear in the action. If he had. any claim, he should have applied for an allowance in the foreclosure suit in which he was a party.

The charge by receiver for “receiver’s fees, one hundred and thirty-two dollars,” is too large an amount to be allowed an officer of this court for receiving three hundred and eighty-eight dollars and .seventy-four cents of rents from an agent who has collected them. In the exercise of its jurisdiction in respect to receivers and receiverships, the rights of all parties in interest •are committed to the guardianship and protection of the court, whose duty it must ever be to jealously watsh all proceedings, even those involving, like the present one, comparatively small amounts, lest some one might suffer injustice.

A receiver is simply an officer of court, and as such, in the absence of legislation, the court has the authority to determine his compensation, and is not limited to that fixed by statute for executors and guardians, or that fixed by the Code at section 244, subd. 4 (Gardiner v. Tyler, 3 Keyes, 505).

A reasonable [compensation to the receiver in this instance, considering the simple and limited character of his duties and liabilities, and the nature of. the proceeding, and being governed somewhat by analogy to the provision made by statute in other cases, would be the sum of twenty-five dollars. The disbursements of the receiver for car and steamboat fares, three dollars and fifty cents, should be allowed.

The order appealed from should be reversed. The account of the receiver should be restated in which he should be allowed the above item of three dollars and fifty cents for disbursements, and twenty-five dollars for his compensation, unless he can show, by additional proof, that the personal services actually rendered by him are of a greater value than now appears, in which case he may have an opportunity, at special term, to submit such additional proof. AH other items in his account are disallowed.