author: Parker, J.:

text:
    Michael McCormick, as Administrator, etc., of Thomas McManus, Deceased, Appellant, v. James Sullivan, Respondent.

      Claims against an intestate — set-off against debts dm the deceased— an equity insufficient in itself to found an action upon.

    A. party cannot set off against a debt due from himself, at the time of an intestate’s death, a claim against the intestate not then existing or owned by himself; nor can a cause of action be defeated by a mere equity that is not in itself sufficient to found an action upon.
    In an action brought to recover the amount of a balance of money received by the defendant from the plaintiff’s intestate, it appeared that the defendant received from plaintiff’s intestate a certificate of deposit for §500, with instructions to collect that amount, and pay out §107.50 thereof, and to return the balance to him; that the defendant collected §500 from the bank, and paid out of such sum §107.50 as directed ; that the intestate died the day the defendant received the money from the bank; that a day or so before he received the certificate from the deceased the defendant had indorsed a note as surety for him, to enable him to borrow §500 from one Black, and Black, in consideration of said note, indorsed over to the intestate the certificate in question for §600, indorsing thereon a direction to the bank to pay the intestate §500, and to place §100 thereof to the credit of the said Black.

      Prior to tlie giving of the note there was an agreement between Black and the plaintiff’s intestate made for the benefit of the defendant, by which the intestate was to obtain a release of certain of his property from the lien of a mortgage that was then upon it, and was then to execute a mortgage to Black, release the defendant and give up the note. The intestate died without having given •any mortgage to Black. When the certificate was delivered to the defendant there was no agreement that a mortgage should be given by the intestate to secure the note previously signed by the defendant to enable the intestate to obtain the certificate of deposit, and the understanding was that the defendant was not to keep the certificate of deposit.
    Upon the trial of the case judgment was directed in favor of the defendant.

      Held, that under such circumstances there was no rule, legal or equitable, giving the defendant a lien upon the proceeds of the note or authorizing him to follow it into the custody of the intestate as a security for the performance of such promise.
    Appeal by the plaintiff, Michael McCormick, as administrator of the goods, chattels and credits of Thomas McManus, deceased, from a judgment of the Supreme Court in favor of the defendant, directed by the court at the Tompkins Circuit upon the special verdict of a jury as to two specific issues, entered in the office of the clerk of the county of Tompkins on the 24th day of January, 1893, and from an. order made at said Circuit entered in the said clerk’s office on the 24th day of January, 1893, denying plaintiff’s motion for a new trial upon the first issue found by the jury, and to set aside the finding of the jury upon such first issue.

      F. M. Leary and M. F. Tompkins, for the appellant.

      Drnid M. Deem, for the respondent.
   Parker, J.:

The defendant received from the plaintiff’s intestate a certificate of deposit on the Tompkins County Bank for $500, with instructions to collect that amount; to pay to one Brice $101.50 thereof, and return the balance to him. The defendant collected from the bank the whole amount, and paid to Brice as directed. The intestate died on the very day the defendant received the money from the bank, and this plaintiff, as his administrator, after demanding the balance of sirch money from the defendant, and being refused, brings this action for its recoveiy.

Upon the trial, the following facts apjieared:

First. It was conceded that a day or so before he received the certificate from tbe deceased, tbe defendant bad indorsed a note as surety for bim, to enable bim to borrow $500 from Mr. Black, and that Black bad, in consideration of sueb note, indorsed over to tbe intestate the certificate in question. Such certificate was for $600, and Black bad indorsed on it a direction to tbe bank to pay the intestate $500, and place $100 thereof to tbe credit of Black.

Next it appeared, that prior to tbe giving of tbe note in question, there was an agreement between. Black and McManus, tbe intestate, made for tbe benefit of tbe defendant in this action, by which McManus was to obtain a release of certain of bis property from tbe lien of a mortgage that was then upon it, and then execute a mortgage to Black and release tbe defendant and give up tbe note. This last statement was determined by tbe jury to be tbe fact, in reply to a specific question left to them to be answered as a special verdict.

It was also conceded that tbe intestate died without having given any mortgage to Black. Another question was submitted to tbe jury, as follows: “ At tbe time tbe certificate of deposit' was delivered to Mr. Sulbvan to bring to Ithaca to get tbe money on, was it then agreed between Mr. McManus and Mr. Sullivan that a mortgage should be given upon a portion of Mr. McManus’ farm, to secure tbe note Mr. Sullivan bad previously signed for Mr. McManus to obtain that certificate of deposit?” Tbe jury answered “no,” to this question, and we must, therefore, assume that no such agreement was made with tbe defendant when be took tbe certificate. To this must be added another fact testified to by tbe defendant himself • — ■ that when be took tbe certificate tbe understanding was that be was not going to keep it. Nothing was said when be took tbe certificate to get tbe money on, that be was going to keep it, or bold it until tbe mortgage was' given, and be did not intend to so keep it or bold it.

Such were tbe facts and tbe only facts appearing to tbe court, and upon them a judgment was directed dismissing tbe plaintiffs complaint on tbe merits. From that judgment tins appeal is taken.

Tbe first question to be considered is whether, from these facts, any defense appears to have been shown against tbe plaintiff’s claim. It is hnportant to notice that tbe transaction in which tbe loan was made, and tbe defendant’s liability as a surety incurred, was completed a day or two before be took tbe certificate of deposit to get the money on. There is no claim made that the certificate, or the money to be received upon it, was to be held, or in any way applied, as a security to the defendant for indorsing the note. There was not, in any form, or between any of the parties, any arrangement that such certificate, or the proceeds of the loan, were to be held by anyone as security that the promised mortgage would be given. Nor is there anything to indicate that the parties understood that the contract by which the loan was made by Black, and the liability as surety incurred by the defendant, was not completely finished when the intestate delivered the note to Black with the defendant’s indorsement thereon, and received from Black the certificate in exchange therefor.

The defendant himself testified that when he received the certificate from the intestate to go and get the money on it, he had no intention of keeping it until the mortgage was given, or as security for any purpose. He was at once to return the money he received upon it to the intestate. It is plain, therefore, that the only security which the defendant had for becoming surety on the note, or which was contemplated from the time the arrangement began until it was fully completed, was the mere naked promise of the intestate made to Black, that sometime in the future he would take up the note and substitute a mortgage in its place.

Under such circumstances, I am not aware of any rule, legal or equitable, nor am I referred to any by the defendant’s counsel that gives the defendant a lien upon the proceeds of that note, or authorizes him to follow it into the custody of the intestate as a security for the performance of such promise. The evidence does not present a case where the transaction is incomplete, and something remains to be done by the principal before the surety’s obligation is to be assumed. The obligations of the borrower, the lender and the surety, had all been fully incurred, and the transaction closed up before the certificate came into the possession of the defendant.

It may be conceded that the promise made by the intestate to Black was made for the defendant’s benefit, and also, that in equity and justice it ought to be performed. Yet, I am at a loss to discover any principle that gives the defendant a specific lien or claim upon the proceeds of that note. It seems, therefore, that when the defendant undertook 'to take that certificate to the bank, get the money on it, and return such money to the intestate, he was acting unerely as an agent for the intestate, and had no other rights in the fund he was receiving than an ordinary agent would have had.

Authorities need not be cited to show that, under such circumstances, upon the death of the intestate, he was obliged to account for and pay over the proceeds to his administrator.

These considerations seem to dispose of the whole case, as defendant has not pleaded any counterclaim to the indebtedness so existing against him. But, aside from the question of pleading, the facts do not show any demand due him which he could utilize as a counterclaim in this action. Clearly no cause of action had accrued to him by reason of his having indorsed the note as surety for the intestate, because as yet the note had not become due, and he had never been compelled to pay anything on. account of it. (Frost v. Carter, 1 Johns. Cas. 74.)

Nor did he have a cause of action against the intestate because of his omission to give the mortgage promised to Black. Such promise, in legal effect, was little more than the promise ordinarily implied in every case between principal and surety, to wit, that the principal will indemnify the surety against loss on account of the debt which he, as surety, assumes to pay. No cause of action could accrue to the defendant for a Breach of the promise, until he had in some manner been damnified. ' Although the note had not been taken up, he had never been called upon to pay it. Nor does it appear that the intestate’s estate is insolvent, so that he will ultimately have to pay it. A party cannot set off against a debt due from himself, at the time of the intestate’s death, a claim against the' intestate not then existing or owned by himself. (Code, § 306; Jordan v. National Shoe & Leather Bank, 74 N. Y. 467.)

Nor should a cause of actidn be defeated by a mere equity that is not in itself sufficient to found an action upon. (Armstrong v. McKelvey, 104 N. Y. 179 ; Canaday v. Stiger, 55 id. 452.)

These considerations require that the judgment should be reversed, and render unnecessary an examination of the other questions presented by the appellant.

HaediN, P. J., and MerwiN, J., concurred.

Judgment and order reversed and a new trial "ordered, with costs to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    Denny Carleton, Respondent, v. Charles M. Packard, Appellant, Impleaded with Agnes C. Packard.

      Mortgage foreclosure — conflict of evidence — when the referee’s conclusions will not be disturbed.

    In an action brought for the foreclosure of a mortgage executed by the defendants to the plaintiff, the only defense litigated upon the trial was one to the effect that the note, and the mortgage given to secure it, were put in the hands of a third person to be delivered to the plaintiff when he should purchase and surrender three notes outstanding against the defendant, together with a quitclaim deed to defendant from his wife, a receipt that she had received from the plaintiff §1,060 and a bond executed by the plaintiff to indemnify the defendant against the future support and acts of his wife. The person intrusted with such mortgage received all of such instruments so to -be surrendered except the bond, and delivered the note and mortgage to the plaintiff.
    The controversy between the parties on the trial was whether there was any agreement that plaintiff should give such bond or any condition that the note and mortgage should not be delivered until such bond was given, as to which the referee before whom the case was tried found that there was no such agreement or condition.
    Evidence was given tending to show that all the defendant Packard required was an agreement from his wife not to come upon him for support in the future, and that at the time he put the mortgage in the hands of the third person he did not understand the full necessity for the bond, nor appreciate the remarks his attorneys made on the subject.
    The defendant testified that he instructed the third person not to deliver the mortgage until the plaintiff had executed and delivered the bond of indemnity, and a witness testified that he understood such a bond was to be given. This evidence was, however, contradicted by the plaintiff and the third person, the latter of whom appeared to have taken a careful memorandum of his instructions. All the papers necessary to carry out the agreement were drawn by the defendant or his attorneys, but no such bond was'prepared.
    A letter was written by the defendant to such third person in which he said his lawyer understood the plaintiff was to give a bond, and that rather than discuss the matter further, he would take the chances of his wife’s ever returning upon him. Such letter also substantially directed the third person to go on without the bond and to take care only that he had three witnesses to the mental ability of defendant’s wife to execute the paper prepared for her.

      Held, that there was no such strong preponderance of evidence in favor of the defendants as would warrant an interference with the referee’s conclusions.
    Appeal by tlie defendant, Charles M. Packard, from a judgment of the Supreme Court, rendered at the Broome County Special Term in favor of the plaintiff and entered in the office of the clerk of said county on the 6th day of April, 1892, upon the report of a referee fixing the amount due on a mortgage and directing the sale of the premises therein described.
    The third person to whom the note and mortgage referred to in the opinion were intrusted was one J. M. Taleott.

      Alex. At A. W. Gwmmvng, for the appellant.

      Jerome De Witt, for the respondent.
   Parker, J.:

This action is brought to foreclose a mortgage executed by the defendants to the plaintiff. The defendant, Charles M. Packard, alone answers. The only defense which was litigated upon the trial is to the effect that the note, and mortgage given to secure it, were put into the hands of a third person, to be delivered to the plaintiff when he should produce and surrender three certain notes ■outstanding against the defendant; also a quit-claim deed from the defendant’s wife to himself, duly executed and acknowledged by her, and a receipt that she had received from the plaintiff the sum of $1,060, and a bond executed by the plaintiff to indemnify the defendant against the future support and acts of his wife.

The person so intrusted with the mortgage received from the plaintiff all of such articles, except the bond, and delivered the note and mortgage to the plaintiff. The controversy between the parties is whether there was any agreement that plaintiff should give such bond on any condition that the note and mortgage should not be delivered to the plaintiff until su'ch bond was given.

Such question is purely one of fact, and the referee before whom the case was tried has found that there was no such agreement or condition. The question presented to this court is, whether it should reverse that finding.

A careful examination of the evidence shows a very decided conflict upon that question, and we are by no means able to say that there is such a strong preponderance in favor of the defendant as would warrant us in interfering with the referee’s conclusions.

There is very much in the evidence to indicate that all the defendant Packard required was an agreement from his wife not to come upon, him for support in tlie future. It looks as if at tbe time be put tbe mortgage into Talcott’s bands, be did not understand tbe full necessity for a bond from the plaintiff, nor appreciate tbe remarks bis attorneys made on that subject. Although he swears that be instructed Talcott not to deliver tbe mortgage until tbe plaintiff executed and delivered a bond of indemnity in exchange, and although Bloomer testified that be understood such a bond was to be given, tbe evidence is squarely contradicted by both tbe plaintiff and Talcott, and the latter seems to have been very careful to take a memorandum of bis instructions.

It is also a significant fact that, although all tbe papers necessary to carry out tbe agreement were drawn up by Packard or bis attorney, no such bond was prepared. If tbe plaintiff was to execute such a bond one would naturally expect that it would have been prepared and executed in this State, where it was to be used, and also where it could be inspected by Packard, rather than be left to be drawn and executed in a foreign State, and accepted by Talcott without opportunity for Packard to approve it.

But most significant of all is tbe letter written by tbe defendant to Talcott, and evidently sent soon after be left Binghamton. In that tbe defendant says bis lawyer understood the plaintiff was to give a bond. He does not claim that be himself so understood and bad provided for it. He further says that, rather than discuss tbe matter any more, be would take tbe chances of bis wife’s ever returning upon him, clearly indicating that be did not understand that a bond was already provided for, and no further discussion was necessary. The letter also substantially directs Talcott to go on without a bond, and only take care that be bad three witnesses to tbe mental ability of bis wife to execute the paper prepared for her.

In view of such facts, clearly tbe finding of tbe referee should not be disturbed by this court. (Baird v. Mayor, etc., of City of N. Y., 96 N. Y. 567.)

We have also examined tbe rulings of which tbe appellant complains, and do not find in them any error for which a new trial should be granted.

Tbe defendant, therefore, has not shown any defense against tbe mortgage. It was given upon an abundant consideration, to wit, to pay bis debts and to furnish a fund for tbe support of bis wife. That fund the plaintiff seems to have fully advanced, and to have in all respects performed the conditions upon'which he was to receive- the mortgage from Talcott. - The judgment, therefore, is correct, and should be affirmed, with costs.

HardiN, P. J., and Merwih, J-., concurred.

Judgment affirmed, with costs.


text:
    Theodore D. Fowler, Respondent, v. John E. Van Natta, Appellant.

      Beferee’s conclusions as to the mine of services rendered, — when not disturbed on appeal — the talcing of defendants property by the plaintiff” at the completion of the employment, no ba/r — admission of utterly immaterial evidence disrega/rded.

    In an action brought to recover the value of services rendered, the plaintiff claimed that between April 1, 1885, and April 1, 1888, at the request of the defendant, during certain winters, he lived at the summer resort of defendant and cared for the same, and during certain summers he rendered services in various capacities when the place was open for business; but that no price was ever agreed upon between them as to what he should be paid. The defendant conceded that the services were rendered at his request, but claimed that they were rendered at a price agreed upon when the hiring commenced, and that such price had been fully paid.
    Upon the trial before a referee, one Mack,- an apparently disinterested witness, testified that in the fall of 1884. he made the bargain for the defendant with the plaintiff, whose wages were to he the same as one Dann’s, whose place he took.
    Plaintiff positively denied that anything was said by Mack about wages, and it appeared that the services rendered by the plaintiff were much more responsible than those rendered by Dann. The referee found in favor of the plaintiff for the full amount claimed.

      Held, that the evidence did not present a case in which an appellate court should interfere with the conclusion of the referee, though on paper the weight of evidence appeared to be favorable to the defendant;
    That even if it were proved in such an action that the plaintiff, when he moved out of-defendant’s premises, took with him a large quantity of baskets belonging to the defendant and other persons, which, he had no right to remove, it would not be an act such as would bar his action for the recovery of wages due him.
    Upon the trial of the case, the plaintiff was allowed to prove, under the defendant’s objection, that his work was worth as much as his board.

      Held, that such evidence was so utterly immaterial that no possible effect prejudicial to the defendant’s case could have been given to it.

      Appeal by defendant, John E. Van Natta, from a judgment of tbe Supreme Court, confirming tbe report of a referee in favor of tbe plaintiff, entered in tbe office of the clerk of tbe county of Tompkins on tbe 2d day of February, 1-892.
    Tbe defendant on tbe trial requested the referee ■ to find, among other things, that when tbe plaintiff moved out of tbe defendant’s summer resort, he took with him a large quantity of baskets belonging to tbe defendant and to other persons, which be bad no right to remove. This tbe referee refused to find.
    TJpon tbe trial, tbe plaintiff offered to prove that bis work was worth as much as bis board. This was objected to by tbe defendant. Tbe objection was overruled and tbe defendant excepted. Tbe answer was, “ I earned my board. I received no compensation for what I did.” Which answer tbe defend ant’s counsel moved to strike out on tbe ground that tbe witness was incompetent. Tbe motion was denied and tbe defendant excepted.

      FrcmTi M. Leat/ry and M. W. Tomplcms, for tbe appellant.

      diaries II. Everts, for tbe respondent.
   Parker, J.:

This action is brought to recover for services rendered by the plaintiff for tbe defendant from April 1,1885, to tbe 1st day of April, 1888. The defendant was the owner of a summer resort on Cayuga lake, and tbe plaintiff lived upon tbe premises and cared for the same during tbe winters, and rendered services in various capacities during summers when tbe place was open for business.

Tbe plaintiff claims that be wént there and rendered tbe services at the request of the defendant, but that no price was ever agreed upon between them as to wliat be should be paid.

Tbe defendant concedes that tbe services were rendered at his request, but claims that they were rendered at a price agreed upon between them at tbe time tbe hiring commenced, and that such price has been fully paid. Tbe action was tried before a referee, who found for tbe plaintiff to tbe full amount of bis claim, and from tbe judgment entered on tbe report the defendant brings this appeal.

Tbe main question presented to us is whether the evidence sustains the referee’s finding that no agreement for price was ever made between the parties, and that, therefore, the plaintiff was entitled to recover what the services rendered were fairly worth.

Such question is purely one of fact. • There is a decided conflict in the direct evidence" upon it. Mack testifies that he made the bargain for the defendant with the plaintiff, and that his wages were to be the same as Dann’s, whose place he took. Yet, plaintiff as positively denies that anything was said by Mack about wages. It may be that the fact that Mack was apparently disinterested, and that the evidence of one or two other witnesses as to the plaintiff’s admissions, make what appears on paper to give the weight of evidence to the defendant, yet, if we had heard the witnesses, and had an opportunity to judge of the credit to be given to each, by seeing them on the witness stand, we might very easily see why the referee has given credit to the plaintiff, rather than to Mack.

The talk with Mack was in the fall of 1884, and may well be claimed to have been for no longer than the following spring. The services rendered as superintendent were much more responsible than those rendered by Dann, and the évidence shows were worth considerably more.

Upon all the evidence, we cannot say that it is a case where, within the rules laid down by the decisions, an appellate court should interfere with the conclusions of the referee. (Westerlo v. De Witt, 36 N. Y. 340, 345 ; Baird v. Mayor, etc., of City of N. Y., 96 id. 567; Devlin v. Greenwich Savings Bank, 125 id. 756; Beckwith v. N. Y. C. R. R. Co., 64 Barb. 308 ; Roosa v. Smith, 17 Hun, 138; Thompson v. Vrooman, 21 N. Y. Supp. 180.)

Nor do we think there was any error in the refusal of the referee to find the facts requested by the .defendant, or in his rulings upon the admission of evidence, that warrants the granting of a new trial.

As to the request concerning the oats, the evidence does not wai'rant the concluskm that the plaintiff mixed them with his own with the fraudulent purpose of using them, or that he fed them to his horses in fraud of the defendant. As to the baskets, if he did take them when he left the defendant’s 'employment, we do not think it would be such an act as would bar his action for the recovery of wages due him. It was an act done after his employment ceased. As to the evidence admitted at folio 62, under defendant’s objection, it seems to be so utterly immaterial that no possible effect could have been given it prejudicial to the defendant’s case.

We conclude, therefore, that the judgment must be affirmed, with costs.

HardiN, P. J., and MerwiN, J., concurred.

Judgment affirmed, with costs.


text:
    In the Matter of the Final Judicial Settlement of the Accounts of Charles T. Redfield, as Administrator of the Estate of Anna Maria Redfield, Deceased. Louis Marshall, Appellant, v. William A. Beach, Respondent.

      Power of a surrogate to decree payment of the share of a distributee to one claiming such share as a creditor of such distributee.

    A surrogate has no jurisdiction to determine the question whether a share in an estate, confessedly belonging to one of the distributees, should be paid over to him (or his assignee), or to one claiming it as a creditor of such distributee; nor does a surrogate obtain jurisdiction by assuming it without objection on the part of any of the parties before him.
    Appeal by Louis Marshall, an alleged creditor of Lewis II. Red-field, a person entitled to a distributive share in the estate of Anna Maria Redfield, from so much of the decree of the Surrogate’s Court of Onondaga county, entered in the office of said surrogate on the 1st day of December, 1891, as directs the administrator of that estate to pay to the assignee of Lewis II. Redfield the amount of his distributive share in the personal property of the estate.

      Louis Marshall, for the appellant.

      H. A. Manjnard and Willimn A. Beach, for the respondent.
   Parker, J.:

This is an appeal from the decree of the surrogate of the county of Onondaga, made upon the final judicial settlement of the accounts of Charles T. Redfield, as the administrator of the estate of Anna Maria Redfield, deceased.

Lewis H. Redfield is one of tlie children and a next of kin of the deceased, and as such was entitled to a distributive share of her estate. The amount of such share is fixed by such decree at the sum of $420.83, and' the administrator holds such amount ready to pay to whomsoever it belongs.

"William A. Beach, the respondent on this appeal, appeared before the surrogate on such final settlement,, and claimed the distributive share of Lewis JEL Redfield, by virtue of a written assignment thereof from Lewis to his wife, Jessie A. Redfield, dated July 13,1888, and acknowledged December 9, 1889, and from Jessie A. Redfield to himself, by written assignment dated November 5,1890. No contest was made by any party over the genuineness of such assignments, nor as to their validity as between the parties thereto. Upon such settlement, Louis Marshall, the appellant 'herein, also appeared, and claimed such distributive share by virtue of an equitable lien thereon, arising through a mortgage which Lewis H. Redfield and wife had executed to him upon the premises from which the estate about to be distributed had been derived by the enforcement of an annuity, charged thereon for the benefit of the deceased, Anna Maria Red-field, during her life.

The surrogate tried the issue thus raised between Marshall and Beach, and determined that Marshall had no lien or claim to such distributive share, and in his decree directed the payment of such share to the claimant Beach. From such decision and decree the claimant Marshall appeals to this court.

On the threshold of this inquiry the question presents itself whether the surrogate had jurisdiction to try the issue thus raised, or to make any decree whatever on the subject. A Surrogate’s Court has such jurisdiction only as is conferred upon it by statute, or is necessarily implied from the powers so conferred. (Matter of Underhill, 117 N. Y. 471.) The only statute under which it can be claimed that -power was given sufficient to warrant the decree in this case, is section 2743 of the Code of Civil Procedure. Such section does not in terms grant any powers, but it imposes upon the Surrogate’s Court certain duties, and the powers necessary to fully perform those duties áre by implication -also conferred. Thus, the surrogate - under such section has power to construe the provisions of a will so far as it is necessary to determine to whom a legacy belongs, ‘ because be is thereby required to distribute by his final decree that portion of the estate remaining after the executor has settled his. accounts, among “the creditors, legatees, next of kin, husband or wife of the decedent, or their assigns * * * according to their respective rights.” (In the Matter, etc., of Verplanck, 91 N. Y. 439.)

The precise question upon which the surrogate in this case vras called upon to pass, and which he has, by the decree appealed from, determined, was, whether a share of the estate confessedly belonging to one of the distributees, should be paid over to him (or his assignee), or to one claiming it as a creditor of such distributee. That is, he was to inquire into the relations existing between a dis-tributee and an alleged creditor of his, and to determine, not only whether the debt claimed actually existed, but whether the creditor had secured an equitable lien upon the share to be distributed.

It seems very clear that no such power is conferred upon the Surrogate’s Court by the section referred to, nor. is any duty imposed upon it which requires the exercise of any such power. The final decree is to distribute to “ the creditors,” but that means creditors of the deceased only (Matter of Underhill, 117 N. Y. 471), and nowhere is there any provision that a surrogate distribute the estate to' persons other than in that section specified. The decz’ee of distribution may order payment to a creditor of the deceased, or to an assignee of such creditor, or to a legatee, or to the next of kin, or to an assignee of either, because each of those is specified in the section ; but to a creditor of a creditor, or to the creditor of one of the next of kin, the surrogate is not required to decree payment, and, hence, there is neither necessity nor authority for his inquiring into the merits of such a claim.

I have not been able to find any decision upon this precise question, except one by the surrogate of Westchester county in Matter of Estate of Elsie A. Heelas (5 Redf. 440), and the facts therein appearing will illustrate the impropriety of allowing to the Surrogate’s Court the jurisdiction which, in the case before us, has been assumed.

A husband was entitled to a distributive share of an estate, and he assigned such claim to his wife. Certain persons claiming to be creditors of the husband, and also claiming that such assignment was in fraud of their debts, had secured an attachment against the distributive share in the hands of the executor, and they applied to be brought into the Surrogate’s Court upon the final accounting, to the end that they might secure a stay in the payment of the distributive share until their claims could be properly adjudicated upon. The surrogate denied the application on the ground that they were not proper parties in his court, and decreed the payment to the assignee. This case suggests the extent to which the surrogate’s jurisdiction would be forced, if a creditor of a distributee is entitled for any reason short of an assignment, to a decree directing the payment to himself of the share ;to be distributed. Questions of fraud, and all the complicated and infinite variety of questions that are now the basis for sustaining a creditor’s bill to reach a particular fund, and possibly more, attacking the very existence of the debt under which the creditor claims, would be presented to the surrogate, and require an investigation and judicial determination before he could make a decree settling the estate.

Several cases akin to this question may be cited as tending to show the views of the courts upon it. In the case of Sanders v. Soutter (126 N. Y. 193, 200), a person entitled to a distributive share of an estate had released to the executors all her claim. It was held that the validity of such release could not be inquired into at the suit of one who claimed to be an assignee of the share released, and that such release was in fraud of his rights as such assignee.

Prior to the enactment of section 2743 of the Code, the statute did not include the word “ assigns ” in providing to whom distribution should be made, and it was held under such act that a surrogate could .not inquire into the validity of, or even recognize the undisputed existence of, an assignment, nor direct payment to be made to an assigneee. (Hitchcock v. Marshall, 2 Redf. 174; Leviness v. Cassebeer, 3 id. 491.)

This same section 2743 also provides that when the validity of a debt, claim or distributive share is not disputed, or has been established, the decree must determine to whom it is payable, etc., etc. Under this provision, it has been steadily held that the surrogate, cannot try the validity of á debt or claim made against the estate. (Matter of Will of Walker, 136 N. Y. 20, 27.)

Also, when a legatee asks for an accounting against the executor, and he replies that he has been fully released from all claims thereunder by such legatee, the validity of such release, if disputed by the legatee, cannot be tried in the Surrogate’s Court. (Matter of Wagner, 119 N. Y. 29, 36.)

Also, it has been held that even now, under section 2743, the validity of an assignment of a legacy, as between the legatee and his assignee, cannot be tried in a Surrogate’s Court (Matter of Cook, 68 Hun, 280; In re Brown, 3 Civ. Proc. Rep. 39, 55), although the contrary of this has been held in McCabe's Estate (18 N. Y. Supp. 715).

Tbe line of reasoning in all these cases is to the effect that a surrogate has no authority, except what is expressly conferred by statute or necessarily implied from the powers conferred, and that such implied powers are not to be stretched beyond what is plainly neces.sary to enable him to perform the specific duties imposed. So the policy of the statute itself is plainly against giving to such court jurisdiction to adjudicate genei’ally upon the contested rights of litigants. It is prohibited from trying the validity of a debt, even though it is one claimed against the estate itself, and the final settlement of the estate is delayed .until the question of its validity is determined. Surely every conceivable reason for withholding from it jurisdiction to try such claims would apply with greater force against giving it authority to adjudicate upon the conflicting claims of a distributee and his creditors.

We conclude, therefore, that the surrogate had no jurisdiction to try the question which was presented to him by this appellant, and make an adjudication upon it. Nor did the surrogate obtain jurisdiction by assuming it, without objection on the part of any of the parties before him. (Bevan v. Cooper, 72 N. Y. 318, 329 ; Matter of Underhill, 117 id. 479; Matter of Will of Walker, 136 id. 21.) That being the case, we cannot sustain that part of the decree which adjudges that Louis Marshall has no lien upon, or claim to, the distributive share of Lewis H. Redfield. Upon that question, the sur-' rogate was utterly without jurisdiction to make any decision, but as to all other of its provisions, the surrogate’s decree must be affirmed.

Whatever may be the merits of Marshall’s claim to a lien uj>on the distributive share in controversy, he had no standing in the Surrogate’s Court to enforce it. Instead of entertaining his objection and adjudicating upon his rights, the surrogate should have ignored his claim, and proceeded to distribute the estate among those persons specified in section 2743, as their respective rights appeared. TJnder that section, be was authorized to distribute the share of' Lewis H. Redfield to his assignee, no objection being made by the assignor to the validity of such assignment. That distribution the decree has ordered, and inasmuch as Marshall had no standing in the Surrogate’s Court to complain of any decree the surrogate might, make with reference thereto, he has no standing to bring this appeal, or to ask that such decree be reversed by this court.

Hence, we do not consider the merits of the appellant’s claim to a lien upon the fund in question. Nor do we reverse any provision, of the decree, except the one that was plainly beyond the jurisdiction of the surrogate to make.

HabdiN, P. J., and MebwiN, J., concurred.

Part of the decree appealed from reversed so far as it assumes to’ adjudicate upon the rights of Marshall to the fund, in other respects affirmed, without costs.


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    George W. Draper, Respondent, v. Horace S. Draper and Mary, his Wife, Appellants.

      Action for an accounting — a deed, when a mortgage — relief not demcmded by the complaint, granted.

    A. deed of certain, premises, absolute on its face, subject to $6,000 of incum-brances, was given by tbe owner thereof to bis brother for the expressed consideration of $600, though nothing was in fact paid therefor, and the grantee, upon receiving such conveyance, gave to the grantor a paper signed hy him agreeing that whenever the grantor paid to him the amount of the claims against the property transferred, that he would transfer the same back to the grantor without further cost to him.

      Held, that the conveyance and the paper taken back should be construed together; that they constituted a mortgage, and that the grantee stood to the grantor in the relation of a mortgagee in possession of the premises, and was liable to account as such, and bound to reconvey the premises upon being paid the amount due him.
    Where an answer is served to a complaint; and a trial had, any relief may be granted that is consistent with the averments of the complaint.
    Appeal by defendants, Horace S. Draper and Mary Draper, from an interlocutory judgment, a decree and an order, made at the Onondaga Special Term, and entered in the clerk’s office of the county of Onondaga on tbe 23d day of February, 1893, adjudging that a certain deed and contract alleged 'to be a deed in trust was a mortgage, and- ordering an accounting.
    The plaintiff in his complaint demanded judgment that the defendant Horace S. Draper be required to account to the plaintiff, and to declare and show the amount and dates of payments of principal and interest which he has made upon certain mortgages, and upon any valid liens or claims against the mortgaged premises since the date of said conveyance and upon each separately, and any other payments, if any, to or for which he is entitled to or claims any credit. And that he account for all income received in any way from said premises, showing the dates and items thereof; and that the true and proper amount be ascertained upon payment of which the plaintiff should be entitled to have and receive a reconveyance of said property ; that it be adjudged that upon payment of the amount thus ascertained the defendants, Horace S. Draper and Mary, his wife, execute, acknowledge and deliver a good and sufficient deed of conveyance of said land and premises to the plaintiff; and that upon payment of the amount so ascertained to said defendant, or to some depositary to be named by the court for his use, the title to said land and premises be adjudged to be In and belong to the plaintiff, free and discharged of and from any and all rights, claims and demands or interests of the said defendants, Horace S. Draper and Mary Draper, his wife; and also for such other, further or different relief in the premises as to the court should seem just.
    On March 12, 1879, the plaintiff conveyed certain premises to his brother, the defendant, Horace S. Draper, by a deed, absolute on its face, and for the expressed consideration of $500. Such premises were subject to about $6,000 of incumbrances thereon, and nothing was in fact paid by the defendant for such conveyance. On receiving such conveyance he gave back to the plaintiff the following written agreement:
    “ I hereby agree that whenever, after this date, Geo. W. Draper pays to me the amount of claims (principal and interest) against the place transferred this day by him to me, that I will transfer the same back to him without further cost to him.
    “ Geddes, Ma/rch 12th, 1879.
    “(Signed) HORACE S. DRAPER.”

      This action is brought for an accounting by the defendant of the amounts paid by him upon the incumbrances against the premises, and of the rents and profits received by him therefrom, and for a reconveyance upon payment to him of the balance so found to be due him.
    Upon the trial at Special Term, the court held that the conveyance and paper taken back should be construed together and constituted a mortgage ; that the defendant stood in relation to the plaintiff as a mortgagee in possession of the premises, and was liable to account as such, and to reconvey the premises upon being paid the amount due him as such, and ordered an interlocutory judgment to that effect. From the judgment entered on that decision the defendants bring this appeal.

      Homer Weston, for the appellants.

      Stone, Ocmnon <& Pettit, for the respondent. ^
   Parker, J.:

The appellant contends that the deed executed to the defendant and the written agreement taken back by the plaintiff should not be construed as a mortgage, because at the time the relation of debtor and creditor did not exist betwen the parties, and the defendant did not assume any obligation to pay or advance anything for the plaintiff. That for such reason he was not in a situation to require any security from the plaintiff, and, therefore, the idea that the deed was intended as a mortgage is effectually rebutted. His claim seems to be that the transaction was a voluntary gift of the premises to the defendant, with the privilege of repurchasing them upon paying the amount of the liens then existing against them.

It is utterly incredible that the plaintiff ever agreed to give the property to his brother and purchase it back for something over S6,000, still covered with the incumbrance upon it. From the whole evidence it is manifest that the defendant was to advance the amount due upon the incumbrances, or at least so much of it as was necessary to keep the creditors quiet and prevent a sale of the property, and hold the title as a security for the advances so made. In this case there was no sale from the plaintiff to the defendant.

There is nothing in the writing taken back that indicates that a resale was intended, bnt everything indicates that security for advances to be made was intended. It does not require the citation of authorities to show that under such circumstances the relation of mortgagee and mortgagor must exist between the parties. (Rogers v. New York & Texas Land Co., 134 N. Y. 197; Simon v. Schmidt, 41 Hun, 318.) None of the authorities to which we are referred by the appellants’ counsel contradict such a conclusion. Assuming that the defendant is a mere mortgagee in possession of the plaintiffs property, there will be no dispute but that he is liable to account, and to reconvey upon being paid his debt. (Horn v. Keteltas, 46 N. Y. 607; Simon v. Schmidt, supra.)

It is further contended that the complaint is not sufficient to warrant the judgment ordered by the Special Term. Every fact necessary to establish the relation found to exist between these parties is averred in the complaint. "When an answer is served, and a' trial had, any relief may be granted that is consistent with such averments. (Rogers v. New York & Texas Land Co., 134 N. Y. 219.)

We do not discover any error in the rulings made upon the trial, and on the whole case conclude that the judgment should be affirmed, with costs.

Hardin, P. J., and MeewiN, J., concurred.

Judgment affirmed, with costs.


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    James W. Eager, Respondent, v. The Fireman’s Fund Insurance Company, Appellant.

      Insurance — increase of hazard within the knowledge of the insured — “ ordinaA'y mercantile risk” —not conclusive as to contemplated use — evidence to sustain the finding of the referee.

    In an action brought on a policy of insurance, which contained a provision that the same should be void if the hazard was increased by any means within the control or knowledge of the insured, a defense was interposed that such hazard had been increased by the insurer’s leasing a part of the insured building to a shoe factory, another part to a paper-box factory, and a third part to a manu-factory of electrical instruments, which leasing was done subsequent to the issuing of the policy and without the consent of the insurance company.

      The only contest on the trial was as to whether such leases increased, the hazard. It there appeared that the policy insured a four-story brick building, and contained no allusion to the kind of business that was to be carried on within it. At the time the contract of insurance was made the building was used for several different purposes, and it was manifest that the rest of it would thereafter be occupied by other employments, the building having been constructed for such purpose, and the defendant’s agent was so informed when he issued the policy. The premium charged for the insurance was for “ an ordinary mercantile risk.”
    At the time of the issuing of the policy the plaintiff used the first floor and basement of .the building for a wholesale hardware business. The second floor was. used in part for the manufacture of a kind of wood filler, and the balance of that floor was used to store furniture. The upper stories'were vacant. The referee found that the hazard existing when the policy was issued was not in any manner increased.

      Held, that there was no such preponderance of evidence against the conclusion of the referee as would warrant a reversal of the judgment;
    That under the circumstances the provision as to the increased hazard should be interpreted to mean that if the hazard should be increased by the use of the building, or otherwise, beyond that existing or contemplated by both parties when the contract was made, the policy should become void;
    That in the absence of any evidence showing that the plaintiff when he made the contract knew anything about an “ ordinary mercantile risk,” it could not be assumed that he contracted with reference to a particular use of the building included within that term.
    Appeals by tbe defendant, tbe Fireman’s Fund Insurance Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of tbe county of Onondaga on tbe 21st day of February, 1893, confirming tbe report of a referee, and awarding to the plaintiff $5,429.12 damages and for costs, and from a second judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of tbe county of Onondaga on tbe 21st day of February, 1893, confirming tbe report of a referee and awarding to tbe plaintiff $108.15 damages and for costs.

      I. JV. Ames, for the appellant.

      Ooodelle dh Nottwigham, for tbe respondent.
   Parker, J.:

This action is brought upon a policy of insurance issued by tbe defendant upon a brick building owned by tbe plaintiff in tbe city of Syracuse. It contained tbe following provision :

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, if the hazard be increased by any means within the control or knowledge of the insured.”

The defense set up is that such hazard was increased by the act of the insured himself, that is, by leasing a part of the building to a shoe factory, another part thereof to a paper-box factory, and still another part to a manufactory of electrical implements, all of which was done subsequently to the-issuing of the policy and without the consent of the company. Upon the trial there was no dispute over the fact that such subsequent leases had been made, but the contest was over the question whether they increased the hazard.

The referee found that the hazard existing when said policy was issued, delivered and assumed thereby was not in any manner increased. Upon his report in favor of the plaintiff, judgment was entered against the defendant for the full amount of the plaintiff’s claim. From such judgment, the defendant has brought this appeal.

The main contention on the part of the appellant is, that the evidence does not sustain the above-mentioned finding of the referee, and we are asked to review such finding of fact, and reverse the judgment on that ground.

The policy insures a four-story brick building, describing it, and contains no allusion whatever to the kind of business that was to be carried on within it. The provision, therefore, that the policy shall become void if the hazard be increased, etc., is not entirely a clear one. If it is to be construed entirely from the provisions that are •found within itself, the contract could only mean that if any change is made in the thing insured, that is, any alteration of tlio building which would increase the hazard, the policy should be void. But neither party claims such to be the construction, and it is hardly reasonable to suppose that such was the intent of the parties to it. We have to look, therefore, outside of the terms of the instrument to determine the meaning of that provision.

At the time the contract was made, part of the building insured was being used for several different purposes, and it was manifest that the rest of it would also be thereafter occupied by other employments. The building was built for the purpose of being rented for different employments. That appeared from an inspection of the building, and also tbe defendant’s agent'wbo made tbe contract was so informed wlien be issued tbe policy.

Under sucb circumstances, tbe provision in question may fairly be interpreted to mean that if tbe hazard is increased by use of the building, or otherwise, beyond that existing or contemplated by both parties when the contract is made, the policy should become void. (Whitney v. Black River Insurance Co., 72 N. Y. 118, 122.)

The defendant claims that the premium charged was for what is known as ordinary mercantile risk, and that such fact is conclusive as to what the parties intended. But there is no evidence showing that the plaintiff, when he made the contract, knew anything about such a risk, and, therefore, it cannot be assumed that he contracted with reference to a particular use of the building, included within that term.

At the time of the contract, the plaintiff was using the first floor and the basement for a wholesale hardware business. A portion of the second story w.as used for the manufacture of protine, a name given to a kind of wood filler made from wood alcohol and other ingredients. The rest of that floor was used to store furniture. The upper stones were vacant. Assuming the contract to have been as above stated, it is evident that the question before the referee was, whether the employments that subsequently came into the building, rendered the risk more hazardous than its use for the purposes above stated.

On the trial the evidence of most of the defendant’s witnesses was directed to a different question. They were inquired of whether the addition of a shoe factory and a box factory in the building would* render it more hazardous than would its use as a hardware store, and they were unanimous that it would. But upon the question whether such an addition would render it more hazardous than its use at the time the policy was issued, most of them gave no ' evidence at all. Hence, the great weight of the defendant’s expert evidence was not given upon the real question to be decided.

The question whether the hazard was really increased, was a clear question of fact, to be determined by the referee. (Wood on Fire Insurance, § 248; Cornish v. Farm Buildings Fire Insurance Co., 74 N. Y. 295.) We cannot say that there was such a preponderance of evidence against his conclusion as will warrant our reversing it. (Baird v. Mayor, etc., of City of N. Y., 96 N. Y. 567; Lowery v. Erskine, 113 id. 52.)

We have examined tbe exceptions taken by tbe defendant, and do not discover any error in tbe rulings that lias worked to its prejudice, or require that a new trial should be granted.

Tbe judgment should be affirmed, with costs.

Hardin, P. «T., and Merwin, J., concurred.

Judgment affirmed, with costs.


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    Frances T. Brown, Appellant, v. Alonzo Blackman and Alonzo Blackman, as Executor of the Last Will, etc., of Lester Blackman, Deceased, Respondent.

      Cwcumstances that will establish a gift by a testator in his lifetime.

    In an equitable action brought to establish plaintiff’s title to a bond and mortgage in the custody of the defendant, it appeared that the father of both the plaintiff and defendant devised his farm to his son, the defendant, the executor named in the will, charged with a legacy of 52,000, to be paid by the defendant to his daughter, the plaintiff. The will further provided that the defendant should take the legacy of $2,000, as trustee, for the use and benefit of the plaintiff,
    ■ and pay it to her in his discretion, the trust to continue during her life, and in case she should die childless, such legacy, or so much thereof as remained in the trustee’s hands, should then pass into the residuum of the estate, which, was devised absolutely to the defendant.
    About a year and a half after the execution of the will, the testator purchased a $2,000 bond and mortgage, and caused the assignment thereof to be made to the plaintiff. Prior to making the purchase he arranged with the mortgagor that the mortgage should be allowed to stand for a time at four per cent interest, and then stated to him that he wanted to take it up and have it run a spell for the plaintiff; that his sons had something, and that he wanted the plaintiff to have something. The testator put the assignment upon record, and at that time he placed the bond and mortgage and the assignment in the custody of the defendant to keep them under the trust created by his will, and directed that after his death the plaintiff was to have the interest.
    Thereafter, at the request of the testator, the plaintiff executed and delivered to him a writing as follows : “Received of Lester Blackman the sum of $2,000 (two thousand dollars), in full of a legacy and bequest to me in his last will and testament of that amount, and in consideration of the receipt of such money all claims to such legac3r and bequest is hereby released. Dated October 13th, 1883, Prances Blackman.”

      The "bond, mortgage and assignment remained under the control of the defendant from the time they were placed there until the time of the trial. On October 29, 1883, a year’s interest on the mortgage was paid to plaintiff, for which, she gave her receipt, and annually thereafter, until her father’s death, in January, 1887, interest was paid to and receipted for by her.
    It also appeared that the testator, after therecording of the assignment, told the plaintiff that she would not have the mortgage unless she had children, but it did not appear when this statement was made.
    On appeal from a judgment dismissing the plaintiff’s complaint,

      Held, whatever the testator’s intentions were when he took the assignment and had it recorded, that at the time he took the receipt the testator agreed with the plaintiff that thenceforth the bond and mortgage standing in her name on the records should be deemed absolutely hers.
    Appeal bj the plaintiff, Frances T. Brown, from a judgment of the Supreme Court in favor of the defendants, rendered at the Che-nango Special Term dismissing the plaintiff’s complaint, and entered in the office of the clerk of the county of Chenango on the 3d day of July, 1891.
    This action was brought in equity to establish plaintiff’s title to a certain bond and mortgage now in the custody of the defendant, and for a decree requiring him to deliver it to the plaintiff, and account to her for such sums as he had received thereon.
    The defendant claimed to hold the same as a trustee for the benefit of the plaintiff under a trust created by the last will and testament ■ of Lester Blackman, deceased. The Special Term rendered a judgment dismissing the plaintiff’s complaint with costs, and from such judgment this appeal is taken.

      John W. Church, for the appellant.

      James H. Throop, for the respondent.
   Parker, J.:

Lester Blackman devised his farm to his son, Alonzo Blackman, charged with a legacy of $2,000 to be paid by Alonzo Blackman to the testator’s daughter Frances, who is the plaintiff in this action. Such will further provided that Alonzo should take the legacy of $2,000 as a trustee for the use and benefit of the plaintiff, and pay it to her in his discretion, the trust to continue during her life. Another clause of the will provided that in case she should die childless, such legacy, or so much thereof as remained in the trustee’s bands, should then pass into the residuum of his estate, which by the residuary clause of the will was given to Alonzo absolutely.

About a year and one-half after the execution of such will, the testator purchased from the owner thereof a $2,000 bond and mortgage against NoahWightman and others, and caused the assignment thereof to be made to his daughter Frances, and in her name as the assignee thereof. Prior to making the purchase, he arranged with the mortgagor Wightman that the mortgage should be allowed to stand for a time at four per cent interest, and then stated to him that he wanted to take it up and have it run a spell for his daughter Frances; that his boys had something, and he wanted Frances to have something.

Upon the assignment of such mortgage being executed, which was November 11, 1882, he directed it to be put on record in the county clerk’s office where the mortgage was recorded. Thus the mortgage stood upon the record as apparently the property of the daughter Frances. At the time of putting it upon record, however, he placed the bond and mortgage, and also the assignment, in the custody of his son Alonzo, to keep them under the trust created by his will, and at the same time he directed that after he was dead, his daughter Frances was to have the interest.

Subsequently the daughter Frances, at the request of the testator, executed and delivered to him a writing, of which the following is a copy :

“ Received of Lester Blackman the sum of $2,000, two thousand dollars, in full of a legacy and bequest to me in his last will and testament of that amount, and in consideration of the receipt of such money all claim to such legacy and bequest is hereby released.
“ Dated October 13th, 1883.
“FRANCES BLACKMAN.”

There can be no doubt but that the $2,000 referred to in this receipt was the bond and mortgage in question, and inasinuch as there is no evidence to the contrary, it is just to assume that the paper was executed and delivered at the time it bears date.

The bond, mortgage and assignment remained constantly in the custody or control of Alonzo Blackman, from the time they were placed there, as above stated, to the time of the trial, but a change was made by the testator in regard to paying the interest therefrom to the daughter Frances. On October 29, 1883, a year’s interest was paid to her, for which she gave her receipt, and annually thereafter until her father’s death interest was paid thereon and receipted for by her.

The testator died in January, 1887, and Alonzo was duly appointed and is acting as the executor of his will.

The foregoing facts are not disputed by the defendant, and are substantially found by the court at Special Term. Upon them the question is presented whether the plaintiff does not own, and have absolute title to, the bond and mortgage so purchased by the testator, and which stands upon the record as assigned to her.

The defendant contends that such bond and mortgage was never given from the testator to this plaintiff, for the reason that the necessary elements to constitute a gift are wanting; that there was neither a delivery by the testator nor an acceptance by the plaintiff. He conceded that the causing it to be assigned to her personally, and directing that such assignment be put on record, would be a sufficient delivery, if it had been done with the intent to vest her with the absolute ownership; but when it appears that the father’s intent was that she should have such an interest only as was given her by the trust contained in his will, and that his pirrpose in having it so assigned and recorded was but to provide foT carrying out that trust, lie claims such acts do not amount to a delivery, and that no absolute gift can be predicated upon them.

It may be conceded that upon such a state of facts a gift could not be established, and if we consider only the transaction as it occurred prior to October 13, 1883, it may be that the facts established thereby would not warrant the conclusion that a gift or absolute delivery was intended. But, when we take in connection therewith the transaction attending the receipt of that date, a very clear purpose to vest her with the absolute ownership of such bond and mortgage becomes apparent. By its very terms it appears that the testator had then made up his mind to substitute a present gift of $2,000 for the legacy which he, had given her in the will. Evidently the trust by the will created was to be no longer operative. That plan was abandoned, and the bounty which she was to receive from her father was given her directly, instead of through the medium of his will. Whatever she then received she took in lieu of “ the legacy and bequest,” and such receipt in the hands of his executor was by its terms a complete bar to any claim that she might make that the trust be executed for her benefit. (1 Pom. Eq. Juris. § 564; Hine v. Hine, 39 Barb. 507; Langdon v. Astor's Executors, 16 N. Y. 33.)

Such being the case, it certainly ought to be considered strong proof that the $2,000 therein referred to had been delivered to and accepted by her as her own property absolutely. I gather from the case that there is no serious dispute but that the $2,000 referred to in the receipt is the bond and mortgage in question ; at least, all the facts in the case ¡joint that way, and on the evidence it should be so assumed. The conclusion is, therefore, irresistible that whatever may have been his intentions at the time he took the assignment and had it recorded, he, at the time he took this receipt, agreed with her that henceforth the bond and mortgage then standing in her name on the record, should be deemed absolutely hers, and the receipt given by her should be used as proof that the legacy and trust created for her in the will was satisfied. No meaning or intelligent purpose can be given for his taking such receipt other than that, and no evidence was given on the trial tending to give a different explanation.

Such an arrangement has in itself all the elements necessary to constitute a valid gift. The thing given, being at that time in the absolute control and at the disposal of the donee, the donor recognizes and affirms her control and ownership of it by taking the receipt from her, whereby she surrenders her interest under his will for the property she thus acquires. Such an arrangement amounts to a delivery by him, and an acceptance by her. It is true he might have given the papers over into her possession, and such an act would have been a further evidence of his transfer to her. But the assignment and its record as effectually vested her with the legal title to the mortgage, and deprived him of all control over it, as if he had placed the papers in her hands. His plain recognition of her absolute ownership over it declares his intent as to the effect of recording it as effectually as if he had put the papers into her custody. The donee was given the absolute and full title and control of the bond and mortgage, and nothing more was necessary to complete a valid gift. (Matter of Crawford, 113 N. Y. 560.)

Considerable stress is laid by tbe defendant upon tbe fact that tbe testator, after tbe recording of tbe assignment, told tbe plaintiff that she would not have tbe mortgage unless she bad children. It does not appear when this statement was made. I judge from tbe evidence that it was before tbe receipt of October 13, 1883, was taken. If it was before, it has no bearing whatever against tbe conclusion that a change of purpose was had, and tbe gift was made in exchange for tbe receipt. An analysis of tbe other evidence in tbe case is not needed. None of it is inconsistent with tbe view above taken, and much of it tends to sustain it, particularly tbe fact that tbe defendant procured a discharge of tbe lien of tbe legacy upon his farm, from tbe plaintiff, upon tbe theory that such legacy bad been satisfied and adeemed by the testator in his lifetime.

It is sufficient to say that it appears from the written evidence in the case that such satisfaction of tbe legacy was made, and that tbe trust under which be claims to bold this mortgage no longer exists. On tbe whole evidence there can be no doubt but that this bond and mortgage was tbe fund with which tbe legacy was to be satisfied, and, therefore, the title and ownership thereof at tbe time of tbe testator’s death was in this plaintiff.

The judgment of tbe Special Term was, therefore, erroneous, and should be reversed.

Hardin, P. J., and Merwin, J., concurred.

Judgment reversed on the law and facts and a new trial ordered, with costs to abide the event.


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    Luther J. Burditt, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Injunction — when the damages resulting from a trespass arre recoverable to the date of the trial.

    In an action brought to enjoin a railroad company from operating and maintaining a switch upon and across a portion of the plaintiff’s premises, included within a public avenue in a city, the loss of the use of the premises up to the time of the trial may be included in the damages allowed.

      Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, rendered at the Onondaga Special Term, and entered in the office of the clerk of the county of Onondaga on the 11th day of May, 1892.
    The plaintiff owned to the center of Teall avenue, in the city of Syracuse. The defendant had laid down, and, at the time of the commencement of this action, was maintaining and operating a switch upon and across a portion of the premises of the plaintiff, included within said avenue, without the permission of the plaintiff, and without having obtained any right so to do, either by agreement or proceedings to condemn.
    This action was brought to enjoin the defendant from operating such switch upon the premises, and to recover the damages sustained by reason of its having been so used.
    The court at Special Term granted the injunction asked for, and fixed the damages sustained at the sum of $151.75. From the judgment entered upon such decision the defendant appealed to this court.

      M. M. Waters and Ashbel Green, for the appellant.

      G. II. Wilson, for the respondent.
   Parker, J.:

There seems to be no doubt but that the defendant, in building and maintaining this switch in Teall avenue, has been guilty of a continuing trespass upon the plaintiff’s land, and that the judgment enjoining him from using such switch was properly rendered in this action. Indeed, the appellant makes no complaint before us of any error upon that question. The real question presented is, whether the court at Special Term has imposed too heavy damages against the defendant by fixing the plaintiff’s loss of rents, sustained in consequence of the use of the switch from the time it was laid, at the sum of $151.75.

It is not claimed that in fixing this amount the court adopted any erroneous rule of law, but simply that such amount cannot be sustained by the evidence in the case.

An examination of the evidence convinces us that there is no occasion for interfering with the decision of the trial court upon that question. It being .an action in equity, and equitable relief having been granted, the loss of the use of the premises up to the time of the trial might very well have been included in the damages allowed, and a larger sum even have been awarded. (Barrick v. Schifferdecker, 48 Hun, 356; 123 N. Y. 52 ; Henderson v. N. Y. C. R. R. Co., 78 id. 423.)

The objection that evidence offered by the defendant was improperly excluded is not well taken. The questions ask for the opinion of the witness as to the effect of the construction of the switch upon the plaintiff’s property. That was the precise question upon which the court was to decide, and such opinion within the rule laid down in the Roberts Case (128 N. Y. 455) is not proper evidence. (See discussion of that question at page 471 of such case.)

The deféndant’s ninth and tenth requests to find assume that only that part of plaintiff’s land over which, the switch actually passed was injuriously affected by it. Such an assumption is not sustained by the evidence, and the requests were, for that reason, properly denied.

On the whole case we think the judgment is correct, and should be affirmed, with costs.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


author: Parker, J.: Hardin, P. J.:

text:
    Emily Locke, Appellant, v. Hiram B. Locke, Respondent.

      Claim f07' alimony — a judgment against the wife cannot be set off by the husband against it.

    Or an application for leave to issue execution upon a- judgment directing that alimony he paid to the plaintiff by the defendant, the liability of the plaintiff on a judgment recovered against her, upon a promissory note made by her to the order of the adopted son of the plaintiff and defendant, and indorsed by the defendant for the accommodation of their adopted son, which judgment was wholly paid by the defendant and was assigned to him, cannot be set off against the plaintiff’s claim for such alimony.

      Appeal by tbe plaintiff, Emily Locke, from an order of the Supreme Court, made at the Chemung County Special Term, and entered in the office of the clerk of the county of Chemung on the 3d day of April, 1893, denying plaintiff’s motion to issue execution on a judgment for a limited divorce, awarding her alimony, and directing that so much of the judgment held by the defendant against the plaintiff as was necessary to offset the claim which the plaintiff had in her judgment for alimony against the defendant at that time, be deemed an offset and payment thereof.

      Reynolds, 8tcmohfield <& Gollim,, for the appellant.

      Babcock, Baxter c& Gibson, for the respondent.
   Parker, J.:

In July, 1876, in an action for separation upon the ground of .cruel and inhuman treatment, the plaintiff recovered a decree against her husband, Hiram B. Locke, awarding her as alimony the sum of $500 annually, and payable semi-annually in sums of $250 each on the twenty-seventh day of January and July, in each year, and further awarding to the plaintiff execution for the collection of such installments as they became due. Default being made in the payment of the $250 that bepame due January 27, 1893, and no execution having ever been issued on such judgment, the plaintiff applied at Special Term for leave to issue execution against the defendant for that amount. The defendant opposed the issuing of such execution on the following grounds:

On the 22d day of April, 1892, the plaintiff made her promissory note for $1,000 payable to the order of John B. Locke in three months from date at the Chemung Canal Bank, Elmira, N. Y. Such note was indorsed by the payee, John B. Locke, and under him by the defendant, Hiram B. Locke. It was discounted by the bank, and the payee, John B. Locke, had all the avails thereof. John B. Locke was the adopted son of the plaintiff and defendant, and they both became parties to such note, at the request of John B. Locke, and solely for his accommodation, neither of them having any benefit from the note or its proceeds.

Default was made in the payment of the note at its maturity. The bank sued all the parties thereon, and recovered a judgment against them all for the amount of the note and costs. Such judgment was paid in full by this defendant, and the assignment thereof was taken to him. The plaintiff and John B. Locke were insolvent and nothing could be collected from them on the judgment.

Upon such facts the defendant claims that the plaintiff is indebted to him in the amount of such judgment and costs, that is, $1,036.43, and he asked from the court an order setting off against the plaintiff’s claim for alimony due Jankary, 1893, so much of his judgment as is necessary to satisfy it.

The court denied the plaintiff’s motion for leave to issue execution, and granted the defendant an order setting off his judgment against her claim as above stated. From such orders, the plaintiff appeals to this court.

The case of Stevenson v. Stevenson (34 Hun, 157), decided by this court in October, 1884, holds that such a claim for alimony, fixed by judgment in favor of the wife against the husband, may be reached and appropriated by the creditors of the wife by bill in equity, or upon proceedings supplementary to execution, and it places this decision upon the theory that such a claim is a debt, and that, inasmuch as there is no statute exempting it from liability for her debts, it may be taken to satisfy'them as any other chose in action could be taken. It does not appear from the report of that case whether the claim against the wife was for necessaries or not, but the line of argument treats the alimony simply as a debt against the husband. The reasoning of that case fully sustains the decision in this.

In Romaine v. Chauncey (129 N. Y. 566), the Court of Appeals has since decided that alimony awarded to a wife may not be taken for the satisfaction of a debt contracted by her, and actually subsisting prior to the date of the decree. In the case before us, the debt which the husband claims to set off was not contracted until long after her right to the alimony was decreed, but such debt was not one contracted for necessaries, or for any benefit accruing to herself. It was an obligation incurred solely as a surety for her son John, and the husband has none of the equities which a creditor would have, who had furnished her with such necessaries and means of support as the allowance of alimony is designed to provide her with.

Applied to these circumstances, the reasoning of the latter case exempts this alimony from a liability to pay the debt which the husband seeks to set off against it. In that case it is said that, Alimony is not strictly a debt due to the wife, but rather a general duty of support made specific, and measured by the court,” and the line of argument goes to the extent of holding that, while the alimony might be held liable to satisfy a debt contracted for her support with a creditor who had naturally relied upon it as a means of payment, it cannot be appropriated for the payment of debts contracted by her under such circumstances, and of such a nature that her husband would never have been liable to pay them; that the object of the decree awarding alimony was but to continue the husband’s liability for support of his wife after the divorce, and not to compel him to provide a fund for the payment of debts not otherwise chargeable against him. Nor should the means so provided for the support of the wife be diverted to an entirely different purpose.

Had no decree ever been granted against the defendant, he would not, as husband, have been liable to pay the note which she signed for their son John, and, hence, within the decision above cited, such note was not a debt that could be collected from her alimony. If the bank could not have so collected it, there is no reason why the husband should be allowed to do so.

Upon the authority of the case last cited, therefore, the order appealed from must be reversed, with costs.

Merwin, J., concurred.

Hardin, P. J.:

Although I joined in the decision of Stevenson v. Stevenson (34 Hun, 157), I feel constrained to concur in the foregoing opinion upon the reasoning and authority found in Romaine v. Chauncey (21 Civ. Proc. Rep. 76), and the same case in 129 N. Y. 566.

I, therefore, join Parker, J., in reversing the order in this case.

Order reversed, with ten dollars costs and disbursements.


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    Augustus Hartman, Respondent, v. Tully Pipe Line Company, Appellant.

      Trespass in laying a pipe in a, highway — measure of damages.

    In an action brought to recover the damages resulting from injuries done to plaintiff’s property by reason of the laying of a pipe (through which a streaml of salt water was forced) in the highway opposite his land which extended,! subject to the public easement, to the middle of the highway, the difference between the value of the property prior to the laying of the pipe and its value as affected by the pipe line and the leakage therefrom at the time of the commencement of the action is not the proper measure of damages.
    Appeal by the defendant, the Tully Pipe Line Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 22d day of March, 1892, after a trial at the Onondaga Circuit, and from an order denying defendant’s motion for a new trial, entered in said clerk’s office on the 15th day of March, 1892.

      William G. Tracy, for the appellant.

      George II. /Sears, for the respondent.
   Parker, J.:

The defendant laid a line of pipe in the highway opposite plaintiff’s lands, through which it forced a stream of salt water. The plaintiff owned the fee of the land to the middle of the highway, and such pipe was laid underground and upon his premises. It had been maintained and used for some two years before the commencement of this action, and was so laid without permission or right on defendant’s part. During such two years, it had leaked more or less, and discharged salt water or brine through the earth over plaintiff’s premises, thereby injuring his shade trees, his’shrubbery, and the annual products of his garden.

This action is brought to recover damages for the trespass so committed by the defendant. So far as the questions presented by this appeal are concerned, it is conceded that the defendant is a trespasser, but it is claimed that an erroneous measure of damages was adopted by the trial court, and for that reason a reversal of the judgment is asked.

The plaintiff was allowed to testify, first, as to what was the value of the premises at the time the pipe was laid. After giving that value at $4,000 to $5,000, he was asked : “ What were they worth at the time of the commencement of this action ? ” Such question evidently calls for their value with the pipe line as it then was, and the premises subjected to the constant leakage flowing therefrom. This evidence was allowed, under an objection and exception duly taken by the defendant. Evidently the court adopted an erroneous measure of damages. It proceeded upon the theory that such pipe line, and the constant leakage resulting therefrom* are to continue forever, and that, therefore, the plaintiff is to recover in this one action the total and permanent depreciation which it caused to the market value of his lands.

But such is not the condition of affairs. Notwithstanding his recovery in this action, he might bring others for injuries subsequently suffered. So he might enjoin the defendant from using such line to his injury, and, therefore, it is plain that only such injuries as he had suffered at the time this action was commenced, should be allowed in this action. The difference in the value of his premises, with and without the pipe line in use upon them, gives him much more than that, and clearly is greatly in excess of what his actual injury is. This question is thoroughly examined and settled in Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98), and a further citation of authorities is unnecessary.

We do not mean to decide that the loss in the rental value of the premises, prior to the commencement of this action, is the only damage for which the plaintiff can recover in this action. Thus, if the salt water actually destroyed trees, shrubbery, or anything else upon the premises, or so injured them that the plaintiff has suffered a permanent loss thereby, he may recover for the loss he had so suffered at the time of the commencement of this action, as well as for the injury sustained by the depreciation in its annual use. But, for the erroneous ruling above referred to, a new trial must be granted.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order reversed on the exceptions and a new trial . granted, with costs to abide the event.


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    Edward H. Foley and John Costello, Respondents, v. Farragut Fire Insurance Company, Appellant.

      Insurance — right of the insurer to recover the value of property burned in course of construction although he xvas not bound to pay for it, and the contractor was bound to restore it.

    Where property is insured by its owner during the course of its erection by a contractor, and is destroyed by Are, such owner can recover the full amount of damage done to the property up to the amount of the policy, although the insurer was under no obligation to pay for the property at the time it was destroyed, and notwithstanding the fact that the contractor was bound to rebuild the property before he could demand his pay for the same.
    Appeal by tlie defendant, Farragut Fire Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered after a trial at the Onondaga Circuit in the office of the clerk of the county of Onondaga on the 2d day of March, 1893, for the sum of $773.33 damages.
    Hiscock, Doheny & Hiscock, for the appellant.

      Riegel & Walker and W P. Goodelle, for the respondents.
   Parker, J.:

The question presented upon this appeal, briefly stated, is as follows:

Plaintiffs insured with defendant three wooden houses in process of construction, by a contractor, upon their premises, and upon stone foundations built by themselves. Under the terms of the contract the builder was to furnish hll materials and do all the work, and he was to be paid within ten days after the completion of the houses. The amount of the insurance was “ Four hundred' dollars upon each of their three, two-story, frame, shingle-roofed buildings and extensions thereto,” etc., and was not to exceed in all $1,200.

Soon after the insurance, and before either building was completed or accepted, a fire totally destroyed two of them and injured another to the extent of $100. At the time of the fire the plaintiffs had paid only $250 upon their contract. Under such circumstances are the plaintiffs entitled, in an action upon the policy, to recover as their damages the actual value of the property burned, or must they be confined to the value of the foundations built by themselves ?

Upon the trial, the court held that the loss was to be ascertained from the actual value of the property destroyed, and as there was no dispute over that ainount, a verdict was directed in favor of tlie plaintiffs. From the judgment entered upon such verdict this appeal is brought.

The defendant claims that inasmuch as the contractor must furnish new materials and rebuild the houses entirely before he can claim any compensation whatever, the plaintiffs suffer no damage by the destruction of that part under contract, and hence that they can recover nothing for it.

Unless the contract indicates that it was the intention of the assured to effect the insurance for himself and any other person who, during the continuance of the policy, should have an interest in the property insured (as was the case in Waring v. Indemnity Fire Co., 45 N. Y. 606), a policy of insurance is deemed a personal contract of indemnity, and the insured cannot recover beyond the extent of his interest in the subject insured. (Wood on Fire Insurance, § 473 ; Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y. 391, 392 ; Shotwell v. Jefferson Ins. Co., 5 Bosw. 247 ; Murdock v. Chenango Co. Mut. Ins. Co., 2 N. Y. 210 ; Cross v. National Fire Ins. Co., 132 id. 133.)

But the application of that rule to the case before us does not sustain the position taken by the defendant’s counsel. The plaintiffs in this action were the owners and in possession of the premises and foundations upon which these houses were erected. Although they were not yet completed, and the plaintiffs were under no obligation to pay for them at the time they were burned, they were, nevertheless, the property of the plaintiffs. They were annexed to their freehold, and added to its value. Their destruction diminished its value by just the value of the houses as they stood there, and, hence, the plaintiffs had an interest in them to just that amount.

The plaintiffs’ interest in the houses was none the less an insurable one because they had not been paid for. (Excelsior F. Ins. Co. v. R. Ins. Co. of Liverpool, 55 N. Y. 343.) Nor were they any the less their property because the contractor was bound to rebuild them before he could demand his pay. Suppose the contractor refused to rebuild and abandoned his contract, in that event, very dearly, tbe plaintiffs would lose the benefit of such houses to their premises. True they might recover damages against him for a breach of his contract, but that would not be for the full value of the houses, and no adequate compensation for their loss.

We think there can be no doubt but that the plaintiffs had an interest in the preservation of those houses upon their premises, to the extent of their value, and, hence, they had the right to insure such interest. (Cone v. Niagara Fire Ins. Co., 60 N. Y., 619; Figgs v. Commercial Mutual Ins. Co., 125 id. 7.) They could do so for the very purpose of obtaining a better security against their loss than the personal obligation of the contractor. (Hancox v. Fishing Ins. Co., 3 Sumn. [U. S.] 132.)

The defendant has contracted with them as if they had such interest, and the policy itself fixes the manner in which the loss or damage shall be ascertained —that is, it shall be ascertained or estimated according to the actual cash value of the property insured. There is no claim that there was any misrepresentation or misconception of what the defendant’s interest was, and, therefore, no reason is shown why the defendant should be allowed to lessen the recovery against it below the amount fixed by its contract.

The judgment is correct and should be affirmed, with costs.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.