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

text:
    John D. Babcock and Others, Respondents, v. William J. Kuntzsch, Appellant.
   Hardin, P. J.

Judgment and order affirmed, with costs.— Opinion by Verdict directed at the Onondaga County Court for the plaintiffs for $472.84. Motion for a new trial was made upon the minutes and denied, and judgment entered upon the verdict. Defendant appeals from the judgment and the order. Plaintiffs entered into a contract with the defendant for the sale of billiard and pool tables and their appurtenances to the defendant. An action to recover a balance upon the contract was brought in a Municipal Court, and a judgment was rendered in favor of the plaintiffs for $41.36 damages, besides costs. Plaintiffs appealed for a new trial in • the County Court of Onondaga county. At the close of the evidence the court directed a verdict in favor of the plaintiffs for $472.84. In September, 1892, the plaintiffs entered into a contract with defendant for the sale of the property mentioned, at the agreed price of $1,200. Defendant, at the time of the delivery, which occurred in October of that year, paid $125, and agreed to pay the further sum of $50 per month until the full sum should be paid. Plaintiffs also held a demand of $8.73 against the defendant. Defendant’s answer consisted of general denial; allegation of payment; ‘‘breach of contract; breach of wai’ranty; special contract executed September 17, 1892.” Upon the trial defendant asked to go to the jury “ upon the question as to whether plaintiffs and defendant by parol agreement extended the contract — the payment of the money therein mentioned — until after the commencement of this action.” Also as to whether all the payments specified in the contract “ were not extended until a week after the second day of January, after the commencement of this action.” Also, “whether the time to make the payments under the contract has not been extended.” The requests were denied and an exception taken, and a verdict directed for the plaintiffs for the amount shown to be due the plaintiffs by the evidence.—

Hardin, P. J.:

No valid extension of the time of payment was shown by the evidence to have taken place prior to the commencement of the action. In Miller v. Holbrook (1 Wend. 317) it was held that a promise to extend was not valid unless founded upon a good and sufficient consideration. Also, “ the promise of a maker to pay part of a note when due, and payment in pursuance thereof, is not such sufficient consideration.” In Gibson v. Renne (19 Vend. 889) the question of the sufficiency of a consideration to support a promise was raised, and in dealing with it Bronson, J., said: “ The debt was due; the debtor says to the creditor, you promised, in consideration that I would discharge in part an existing and present duty, that you would give further time for the satisfaction of the residue. I cannot understand how this makes a good consideration for a promise. The discharge of a legal obligation by the debtor to the creditor cannot be such an injury to the one, or benefit to the other, as will make what the law calls a sufficient consideration for an agreement.” In Parmelee v. Thompson (45 N. Y. 58) it was held, viz.: “A promise to extend the time of payment of a debt is void unless founded upon a good consideration; and a payment of a part of the debt or the interest already accrued, or an agreement to pay interest for the future, is not a sufficient consideration for such a promise; nor will the giving of a new obligation with additional security for a part of the debt be a good consideration for a promise to extend the time as to the residue. The discharge of a legal obligation by a debtor to his creditor is not a sufficient consideration for the promise of the latter.” In Manchester v. Van Brunt (19 N. Y. Supp. 687) it was said: “The promise to extend the time of payment of the note was void unless founded upon a good consideration, and the payment of $100, part of the amount due on the note, was not a good consideration for such promise.” In Graham v. Negus (55 Hun, 443) it was said: “If the promises to pay in the future had been verbal only, as there was no consideration to sustain them, the plaintiffs, after accepting them, .would have been at liberty at once to disregard the promises and commence an action for the recovery of their debt.” In Randolph on Commercial Paper (Vol. 2, § 964, p. 650) it is said: “An agreement for extension,* to have such effect, must have a new and- valid consider’ation, and without such consideration it will not discharge the surety.” In Pabodie v.. King (12 Johns. 426) a partial payment was made upon the plaintiff’s debt, and it was claimed there was an agreement in consideration thereof to “forbear to sue.” The court said: “The promise to forbear was a nudum pactum. In paying the fifty dollars, • King did no more than he was legally bound to do; and the promise on the part of Pabodie was without any benefit to him, and occasioned no loss to King.” "We think the evidence in the case in hand fails to show a valid extension of time for payment of the indebtedness due from the defendant to the plaintiffs. The amount of the indebtedness in arrear was substantially admitted during the progress of the trial. We think the County Court committed no error requiring us to interfere with the verdict and j-udgmeat.

Judgment and order affirmed, with costs. Martin and Merwin, JJ., concurred.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    Celia Salisbury and Others, Administrators, Respondents, v. Edgar E. Strong and Others, Appellants.
    The portions of the order appealed from reversed, with ten dollars costs and disbursemnts. Opinion by Hardin, P. J. Appeal from an order made june 2,1894, as amended by an order of October 23,1894. The order appealed from is the one mentioned in the appeal book in Salisbury & Others v. Binghamton Publishing Company & Others. The appellants Strong, Carlisle and Turney were judgment creditors of the Binghamton Hydraulic Power Company and recovered judgments, and also Seymour and Whitlock, composing the firm of Seymour & Whitlock, were like judgment creditors of the power company, and were restrained by the temporary inj unction, and the interlocutory decree makes that temporary injunction permanent. The interlocutory judgment makes provision for the plaintiffs’ claim ancl for the costs and disbursements, and for an additional allowance, should one thereafter be granted. It also contains provisions protecting and providing for thepayment of the other creditors, including these appellants. The interlocutory judgment that was entered upon the report of the referee, to hear and determine, appointed Hon. w. B. Edwards referee, to take proof of claims of creditors who had not already proved their claims. The referee died November 23,1893.—
   Hardin, P. J.:

Plaintiffs have appealed from that portion of the order which allows a discontinuance of the action. They also appeal from that portion which provides that, in case the money is not tendered to the plaintiffs' attorneys, an order may be entered discontinuing the action, “together with $10.00 costs of the motion, and $60.00 costs of said reference.” Inasmuch as we have in considering the questions raised in respect to the same order in the case heard at this same term between Salisbury et al. and the Binghamton Publishing Company (see ante, p. 99), and have, according to the views expressed in our opinion, reached the conclusion that the order should be reversed in that case, we think the same views should be applied to the appeal in this case, and that the portions of the order appealed from should be reversed. The portions of the order appealed from reversed, with ten dollars costs and disbursements.

Martin and Merwin, JJ., concurred.


text:
    Frank McClanathan and Another, Respondents, v. William Friedel and Another, Appellants.
   Judgment and order reversed and a new trial ordered, with costs to abide the event.


text:
    Dorah E. Grubert, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
   Judgment affirmed, with costs.


text:
    Edgar B. Owens, Respondent, v. John Cable and Others, Appellants.
   Motion for a new trial denied, with costs, and appeal from the judgment dismissed, without costs.


text:
    Emma F. Nelson, Respondent, v. The Village of Oneida, Appellant.
   Judgment and order affirmed, with costs.


text:
    Almon H. Houghton and Another, Administrators of John Senecal, Appellants, v. The Thousand Island Steamboat Company (Limited), Respondent.
   Motion for reargument denied.


text:
    Almon H. Houghton and Another, Administrators of John Senecal, Appellants, v. The Thousand Island Steamboat Company (Limited), Respondent.
   The order, so far as appealed from, reversed, with ten dollars costs and disbursements.


text:
    The German Vici Company, Appellant, v. Kilian Krause, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    David B. Cooke, Respondent, v. Lizzie M. Chase, Personally and as Executrix of the Last Will and Testament of Horace B. Stetson, Deceased, Appellant.
   Judgment affirmed, with costs, on the opinion of Parker, J., with leave to amend upon payment of costs of the demurrer and of the appeal.


text:
    Chester L. Dalrymple, Respondent, v. Albert C. Parker, Appellant.
   Judgment and order reversed, and a new trial ordered, with costs to abide the event. Held, that whether there was a warranty was a question for the jury.


text:
    Earl D. Ostrom, Appellant, v. Fred. D. Squires, Respondent.
   Motion denied.


text:
    In the Matter of the Removal of Charles O. Hoagland as Police Justice of the Village of Waverly.
   Report of referee confirmed, and application denied. Disbursements for stenographer and referee of $140.90 having been paid by the petitioner, no further costs or expenses are allowed. Papers to be filed, and order entered with the clerk of Tioga county.


text:
    In the Matter of the Judicial Settlement of the Accounts of Emily C. Shipman, Deceased, Executrix of Azariah B. Shipman, Deceased.
   Motion denied, with ten dollars costs.


text:
    George B. Robbins, Respondent, v. William Grimes, Appellant.
   Thatpai't of the judgment and order appealed from affirmed, with costs.


text:
    Edward K. Clark, Appellant, v. The City of Binghamton and The Board of Street Commissioners of the City of Binghamton, Respondents.
   Judgment reversed, and a new trial ordered, with costs to abide the event.

Held, that the plaintiff’s qualified assent to the paper signed by the other property owners on Front street did not operate as a dedication of the plaintiff’s property that was within the lines of the proposed addition to such street.


text:
    In the Matter of the Probate of the Last Will and Testament of Abram Tompkins, Deceased. George M. Tompkins, Executor, etc., Appellant; Charles W. Tompkins and Another, Respondents.
   Decree of the Surrogate's Court affirmed, with costs to the respondents payable our of the estate.


text:
    Joseph Rudd, Jr., as Receiver, etc., Respondent, v. William Vail, Appellant, Impleaded, etc.
   Interlocutory judgment affirmed, with costs, with leave to answer upon payment of the demurrer and of this appeal.


text:
    Anna Osman and Another, Appellants, v. Henry J. Teeter, Respondent.
   Judgment and order reversed and a new trial ordered, with costs to abide the event. Held, that the evidence shows a sufficient consideration for the note.


text:
    U. H. Wheeler, Respondent, v. L. M. Peters, Appellant.
   Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. Onondaga County Savings Bank and the County of Onondaga, Appellants, v. James Butler, Respondent.
   Judgment affirmed, with costs.


text:
    Julia T. Munroe, Appellant, v. Jacob Crouse and Others, Respondents.
   Order reversed, with ten dollars costs and disbursements. Exceptions to the report of the referee overruled, and report of referee confirmed, with ten dollars costs and disbursements, and final judgment ordered in accordance with, the report of the referee, with costs, with leave to plaintiff to apply at Special Term for an extra allowance before entry of final judgment. Judgment to be settled before Hardin, P. J.


author: Mem. Per Curiam:

text:
    Samuel Branaugh, Appellant, v. Theodore Basselin, Respondent.
    Interlocutory judgment reversed, without costs of appeal to either party, and demurrer overruled, with costs, with leave to defendant to answer on payment of costs of the demurrer. Appeal from an interlocutory judgment sustaining a demurrer to the complaint. The ground of the demurrer was that the complaint did not state facts sufficient to constitute a cause of action. —
   Mem. Per Curiam:

We are of the opinion that the twelfth clause of the contract between the parties should be construed to mean that if, excluding the 1,000 cords therein reserved, there should not be as much as three cords per acre, then the defendant agreed to pay to the plaintiff one dollar per cord for the said 1,000 cords, to the extent only that the said lands failed to produce the said three cords per acre, and that, therefore, the liability of the defendant under said clause would not in any event exceed the sum of $1,000. We are, also, of the opinion that the complaint states a cause of action. The contract is a part of the complaint. It is alleged that, excluding the 1,000 cords that were reserved by the defendant, the land embraced in the contract actually produced 992)^3 less than three cords per acre; that the plaintiff has made payments on the contract and, relying on its pz*ovisions, has overpaid the defendant for all liability existing under the contract from the plaintiff to the defendant-the sum of. $992.50; that in consequence of such overpayment the defendant is liable to repay the same to plaintiff and the plaintiff has, before suit, demanded the same, and no part thereof has been paid; that the plaintiff 1ms fully performed all of the provisions of the contract to be performed by him. It is suggested on the part of the defendant that he has already paid $1 per cord for the 1,000 cords reserved, and that this action is to recover for a deficiency beyond that. This, however, does not appear from the complaint. It follows that the demurrer is not well taken and that the judgment must be reversed. Interlocutory judgment reversed, without costs of appeal to either party, aud demurrer overruled, with costs, with leave to the defendant to answer on payment of the costs of the demurrer.

Present — Hardin, P. J., Martin and Merwin, JJ.


text:
    The Soldiers' Orphan Home of St. Louis, Appellant, v. Russell Sage and Others, Respondents.
   Order vacating order for examination affirmed, with ten dollars costs and disbursements, with leave to renew upon proper affidavits upon payment of the motion costs below and ten dollars costs and disbursements of this appeal. No opinion.


text:
    The Soldiers’ Orphan Home, etc., Appellant, v. Russell Sage and Others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Mercy A. Townsend, Appellant, v. Daniel Kent, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York, Respondent, v. John Garvey, Appellant.
   Judgment reversed, new trial ordered. No opinion.


text:
    The Exchange Fire Insurance Company of the City of New York, Respondent, v. John G. Norris, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. No opinion.


text:
    In the Matter of John P. M. Brewster.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    August Wuensch, Respondent, v. Albert Pulitzer, Prest., Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


author: Per Curiam :

text:
    In the Matter of Warren H. Dixon.
    Order reversed as to Stratton and Brooks and affirmed as to Brady and Meyer as stated in opinion, without costs.—
   Per Curiam :

Those only could be adjudged guilty of contempt who interfered with the possession of the receiver; and, upon the affidavits presented, we think that no case was made out as against Stratton and Brooks. The money which in the alternative was to be paid unless the goods were returned, if paid, should be held by the receiver until the title of the receiver to the property can be determined in an appropidate proceeding; and if it can then be shown that some or all of this property belonged to Brady, and that under the chattel mortgage it was legally sold to Snider, then Brady would be entitled to receive the amount which by the order is directed to be paid. The order is accordingly reversed as to Stratton and Brooks, and, subject to the suggestion about the manner in which the money should he paid, affirmed as to Brady and Meyer, without costs.

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


author: Van Brunt, P. J.:

text:
    Thomas Nolan, Respondent, v. The Rockaway Park Improvement Company (Limited), Appellant.
    Judgment affirmed, with costs.
   Van Brunt, P. J.:

A different question seems to be presented upon this appeal from that which was presented when the case was previously before this court. It is claimed upon the part of the plaintiff that he was upon the beach in question under a permission given by the defendant’s superintendent, in good faith, intending to serve a process, and that the defendant’s servant ejected him while the license remained unrevoked.• It was claimed upon the part of the defendant, however, that this claim of permission and of attempting to serve process was a fiction, and that the plaintiff went upon the premises in question simply for the purpose of vindicating his rights as a citizen of this State so to do. The jury found by their verdict that the plaintiff’s claim was correct and gave him damages accordingly. We do not see that we can interfere with the finding of the jury, there being competent evidence upon which it was found. It is further claimed that the learned court erred in the commencement of its charge to the jury, whez’ein it stated that the first question for the jury to determine was: “Had the defendant company actually appropriated and applied the beach as a bathing place in connection with this upland? If it had, then the plaintiff, under the opinion .of the appellate branch of this court, had no right to trespass upon the beach. ” Upon the attention of the court being called to this proposition, the court withdrew it from the consideration of the jury, construing the opinion of the court upon the previous appeal and charging the propositions of the defendant in respect to its title and right of exclusive possession and right to exclude the plaintiff.It is difficult to see how the learned judge could have been more explicit in withdrawing the question objected to fz*om the consideration of the jury. They were expressly instructed that, unless the plaintiff had permission to go upon the beach and intended in good faith to serve the process, the defendant had the right to eject him. "We think the judgment must be affirmed, with costs. O’Brien and Follett, JJ., concurred.


text:
    Joseph L. Woodbridge and Another, Respondents, v. John S. Wise and Another, Appellants.
   Judgment affirmed, with costs, on opinion of referee.


author: Parker, J.:

text:
    The People of the State of New York ex rel. Patrick T. Morris v. James J. Martin and Others, Commissioners, etc.
    Writ dismissed, with costs.—
   Parker, J.:

The captain of the second precinct, about October 23, 1389, chaz’ged Patrolman Morris, this relator, before the board of police commissioners, with neglect of duty and conduct unbecoming an officer, the specification being: “Said Patrolman Patrick T. Morris did, during his tour of patrol duty on the evening of October 2lst, 1889, at 10.30 o’clock, leave his post and enter the liquor store of John Campbell, corner of Albany and West streets, and engage in an altercation with William F. Campbell, barkeeper, and drew a pistol on said Campbell and discharged the same, not in self-defense.” A hearing was had, in the course of which Morris testified in his own behalf, and it resulted in a finding that the charges were true, and Morris was dismissed from the force. This court is asked on this proceeding to reverse the decision of the police commissioners. Whether the specifications wire in all respects true may possibly be open to debate. But there was one incident of that occasion, about which there is no controversy whatever, which could have been added to the specifications without in any way weakening the force of the charge, namely, that William F. Campbell was killed by the discharge of the pistol by Morris. Patrick Rice, a bartender in the employ of John Campbell of No. 86 West street, testified that on the evening of October twenty-first, William F. Campbell, the dead man, was in-(he store; that about twenty minutes past ten, Officer Morris came into the store and asked witness for a whisk broom, which he used upon his coat, and went out: a few minutes later, he opened the door and beckoned him to come out, and he inquired: “‘Who is that tall young man standing in front of the bar, with a white coat on? ’ -I says: ‘That is the boss’brother.’ He says: ‘Helias got a revolver in his pocket.’ * * * Officer Moody says to Morris: * He has got a permit to carry it.’ He (Morris) said: ‘I don’t care whether he has or not; I am going to take it off him.’ And walking to Mr. Campbell he says: * Young man, you got a revolver in your pocket.’ He (Campbell) says: ‘Ihave not.’ ‘What did you do with it? ’ he says, running his hand in his overcoat pocket. Campbell says: ‘ It is behind the bar.’ So Mr. Campbell walks around behind the bar and took off his overcoat and undercoat and hat and picked’up the revolver and held it behind his back, like this, and says: ‘I am in my place, and I don’t give a damn for you, although you are an officer. ’ Morris put his hand to his hip pocket and pulled out his revolver, and he says: ‘You are not the only man that’s got a revolver, and if you don’t leave that down on the bar, I will shoot you dead. ’ He (Campbell) did leave the revolver down, and he (defendant) says: ‘If you don’t leave that there till I go around and take you out, I will shoot you dead,’ walking around behind the bar. Mr. Campbell picked up his revolver and walked with it behind lus back towards Morris. He (defendant) says: ‘You leave that revolver down again; if you don’t, I will shoot you dead.’ Mr. Campbell left it back on the bar. He (defendant) ran and grabbed hold of Mr. Campbell with his right hand; he had the strings of his club around his hand, like this, and the club in his hand, and he told him again he would shoot him dead. Leaving him stand at the end of the bar, ho walked in behind the bar. I picked up the revolver and laid it under the cigar case, where he first took it from. Morris went to end of the bar. where he left him in charge of Officer Moody, and he says: ‘Where is that revolver?’ Campbell made no answer. He walked behind the bar again, walked 24 or 25 feet behind the bar, picking up the revolver where I left it down, and walking to Mr. Campbell; and about three feet from Campbell he raised it in his hand, like that, and fired at him. Q. He said nothing at the time he fired the revolver? A. I could not say he said anything. Q. He held his hand up like that? A. He held his hand up like that; pointing the revolver down.” The relator’s version of the transaction is somewhat different; he said: “I says to Moody: ‘You stay there and I will get the pistol away from him.’ I entered the liquor store and I says to Campt^ll: ‘ You better leave that pistol behind the bar, or give it to the bartender; you are not fit to carry a pistol.’ He says: ‘I have a permit to carry it.’ I says: ‘ If you have a permit you should not abuse it as you did down street a few minutes ago.’ He rushed behind the bar and took his two coats and hat off and took the pistol out of his overcoat pocket and put lus hand on the bar and says: ‘ You get out,’ pointing ,the pistol at me. Isays: TDon’t point that pistol at me; you put that revolver down or Iwill shoot you.’ Q. You said that? A. Yes. Then he put the revolver behind the bar and he came out from behind the bar and he took hold of my stick and tried to get it away from me. Moody seen him and me together and he jumped in. ‘ Officer Moody,’ I says to Moody, ‘ You take hold and keep him there and I will get the pistol.’ I walked behind the bar and took the pistol, and took it in that manner (holding hand out]), and came out from the bar; I lifted the pistol in that manner; it was a self-cocking pistol, double-action pistol; and as I did, it struck on the bar and the pistol went off. Moody threw up his hands and I said: ‘My God, Moody, it is an accident.’ I thought Moody was shot. Then I see the man drop.” Other witnesses gave their recollection of the occurrence, vv hile they differ as to certain details, there was evidence adduced in support of every material allegation of the specifications. Indeed, there is no controversy about any of the allegations save one, for he did leave his post of duty; entered the liquor store of Campbell; engaged in an altercation with William F. Campbell; discharged a pistol, and did not do it in self-defense, for Campbell was at the moment under arrest by Officer Moody. The dispute arises over the specification that he drew the pistol on Campbell. Morris says that its discharge was an accident. It is not unlikely that that may have been so, but that he pointed it towards him, and intended to do so, there is no reasonable chance for doubt. His purpose may have been to impress the residents of this, to him, new precinct that he was a dangerous officer to-trifle with. Whatever the purpose, the finding of the commissioners that he drew the pistol on Campbell, has sufficient evidence to support it. within the rule of People ex rel. McAleer v. French (119 N. Y. 502), and People ex rel. Masterson v. French (110 id. 494), the action of the police commissioners must be sustained. The writ should be dismissed, with costs to the respondents. O’Brien, J., concurred.

Van Brunt, P. J.: I concur. It looks as though the relator was guilty of murder.


text:
    Lewis C. King, Respondent, v. John Townshend, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Tyndale Palmer, Respondent, v. Chicago Herald Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements on opinion in Palmer v. Chicago Evening Post Company. (See ante, p. 403.)


text:
    Gerard Beekman and Another, as Trustees, etc., Appellants, v. Susan Van Dolsen, as Executrix, etc., Respondent.
   Judgment affirmed, with costs on. opinion on previous appeal.


text:
    Christian Jackle, Respondent, v. The Manhattan Railway Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    David Dusie, Jr., v. Aura H. Russell.
   Motion granted, with ten dollars costs.


text:
    John W. de Peyster, Respondent, v. The Metropolitan Elevated Railway Company, Appelant
    Judgment reversed, new trial ordered costs to to abide event.
   Per Curiam :

It is manifest upon examining the testimony contained in this record that the awards made upon the trial are largely excessive and not warranted by the proof. We have endeavored to ascertain if there could not be found some basis upon which a reduction of the amount awarded might be made and the judgment affirmed for that amount. But the evidence is of so unsatisfactory a character that we think the-only method by which a satisfactory conclusion can be arrived at is the granting of a new trial. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

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


text:
    Matter of Ashbel P. Fitch.
   Order affirmed, • with ten dollars costs and disbursements. No opinion.


author: Parker, J.: Van Brunt, P. J.

text:
    Hattie E. Bucki, Respondent, v. Charles L. Bucki, Appellant.
    Judgment affirmed, with costs.
   Parker, J.:

The trial court reached the conclusion that the substantial facts alleged in the complaint were proved on the trial. On a former appeal this court held that the allegations in the complaint, if supported by evidence on the trial, would entitle plaintiff bo the judgment prayed for (70 Hun, 598). The question on this appeal, therefore, relates to the finding of fact made. Bearing that subject of inquiry in mind, we have attentively examined the evidence, with the result that we are persuaded that under the rules which should ‘govern this court in reviewing determinations of fact the decision of the trial court must stand. The judgment should he affirmed, with costs.

Follett, J., concurred.

Van Brunt, P. J.

(dissenting): I cannot concur in the affirmance of the judgment in this action. It is apparent that much of the evidence in this case was made under the advice of counsel, and that acts of violence were eagerly looked for under such advice and gleefully welcomed. Even under these circumstances only one act of violence could be established, or was claimed, and many of the quarrels which were constantly taking place between these parties were the outcome of legal advice to the plaintiff. It is undoubtedly true that the defendant acted in many instances with great meanness, and many of his acts were of a despicable character. But the plaintiff is very far from having been free from endeavoring to incite such performances upon the part of the defendant. Unless we are to add another ground of divorce to those contained in the statute, namely, that of incompatibility of temper, I can find no ground for a separation in the case at bar. Simply because two people will lead a cat and dog life together that fact does not seem to be recognized by the statutes as a ground for separation. Having made their bed they must lie upon it. I do not think it is the province of the court to indulge in judicial legislation to the extent which would he required by the granting of a decree in this case in order to enable the plaintiff to live at the expense of the defendant without the performance of any of those duties upon which his obligation to support her now depends. The judgment should be reversed and a new trial ordered.


text:
    Anna T. Kelly, Respondent, v. The Manhattan Railway Company, Appellant.
   Judgment affirmed, with costs. No opinion,


author: Per Curiam:

text:
    George Ropes v. William Arnold.
    Motion denied, with ten dollars costs.
   Per Curiam:

A motion of a precisely similar character to the one now presented was made to the General Term when the case came up for argument in its regular order upon the calendar, and this court then held that it could not with propriety insert exceptions in a case upon its coming before it for argument, but that the case must be settled by the judge who tried the same and be by him ordered on file, and that this function, which by the General Rules of Practice was confided to the judge who tried the case, ought not to he performed by the General Term. No request to postpone was made by the appellant in order that he might make an application to the judge who tried the case,"out the appeal was argued, and after its decision by the General Term this application is renewed. We think it is apparent that for the reason stated upon the previous application, it must now he denied. Motion denied, with ten dollars costs.

Present— Van Brunt, P. J., Follett and Parker, JJ.


text:
    Charlotte E. Courtney, Appellant, v. Charles J. Buchanan and Another, Respondents.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Solomon Bachrach and Others, Appellants, v. Rachel Levy, Impleaded, Respondent.
   Order affirmed, with ten dollars costs and disbursements, and with leave to answer application as matter of favor, to be relieved from judgment as inadvertently entered. No opinion.


text:
    George F. Britton, Appellant, v. Kate C. Henderson, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    In the Matter of the Petition of Michael Baiseley to have the Election for the Incorporation of a Certain Territory in the Town of Jamaica as a Village Declared Illegal, etc.
   Order affirmed on the opinion of the county judge.

Brown, P. J., and Dykman, J., concurred; Cullen, J., not sitting.


text:
    In the Matter of the Estate of Salome Huber, Deceased.
   Order affirmed, with ten dollars costs and disbursements. No opinion.

All concurred.


text:
    Leo Pranger and Kate Bunyan v. John R. Kuhn.
   Order affirmed, with ten dollars costs and disbursements. No opinion.

All concurred.


author: Dykman, J.:

text:
    Henry B. Jenkins and Another v. Gilbert Hall and Others.
    Order affirmed, with ten dollars costs and disbursements.
   Dykman, J.:

This is an appeal from an order of the City Court of Mount Vernon allowing an amendment to the complaint in this action by alleging the defendant Gilbert Hall to be in the city of Blount Vernon. The amendment was in the interest of justice and the order should be affirmed, with ten dollars costs and disbursements.

All concurred.


text:
    In the Matter of the Application to Punish Gilbert Hall for Contempt of Court.
    Order affirmed, with ten dollars costs and disbursements.—
   Dykman, J.:

This is an appeal from an order of the City Court of Blount Vernon punishing Gilbert Hall for contempt of court. The contempt consisted in an interposition of a false answer in an action in that court in favor of Henry B. Jenkins and John Carmody against Gilbert Hall and Wright Hall. The answer was false, and all the facts and circumstances show that Gilbert Hall knew it to be so. The order should he affirmed, with ten dollars costs and disbursements.


text:
    Caleb G. Collins, Respondent, v. Horace F. Burroughs, Appellant.
    Order affirmed, with ten dollars costs and disbursements.
   Dykman, J.:

This is an appeal from an order denying a motion of the defendant for an order of reference appointing a referee to hear and determine the action. It is not a case for a compulsory reference, and the appeal is destitute of merit. The order should be affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the Nassau Electric Railroad Company.
    Order affirmed, with costs.
   Dykman, J.:

This is a motion to confirm the report of commissioners appointed by the General Term of this court to determine whether the railroad of the petitioner should be constructed and operated. The action of the commissioners is to stand in lieu of the consent of the property owners. The Nassau Electric Railroad Company is a corporation organized for the purpose of constructing and operating a street surface railroad in the city of Brooklyn and the adjoining towns. Having failed to obtain the requisite consents of landowners upon certain streets through which the railroad was projected, an application was made to the General Term of the Supreme Court for the appointment of commissioners pursuant to the Railroad Law, as amended by chapter 670 of the Laws of 1892. The commissioners were appointed, and they have performed their duties and made their report. Aside from some general objections to the location and operation of this railroad along South Fifth street and South Eighth street, which this court cannot obviate, because the Legisature has conferred the right to so locate the road, the opponents to confirmation based, their opposition here upon errors committed by-the commissioners in excluding testimony offered upon the hearing before them. We have examined with care all the questions presented by the» exceptions of the o ppo nents, and. we deem it sufficient to saythat they present no errors of Jaw. The report should be confirmed, with costs.

All concurred.


author: Dwight, P. J.:

text:
    Caroline Wasmuth, Respondent, v. Edward H. Butler, Appellant.

      Negligence — learning a horse untied in a city street —personal injuries caused thereby — a question for the jury — motion for a new trial.

    On the trial of an action brought to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant, it is proper for the court to submit to the jury the question whether the act of the defendant’s servant in leaving a horse untied and without supervision in the street of a city was negligent, but if the verdict of the jury answers the question in the negative, it probably presents a question for the court, on the motion for a new trial, whether the verdict is not so manifestly opposed to the experience and judgment of mankind as to necessitate the granting of the motion.
    It is not necessary under such circumstances for the plaintiff to show that the horse was of a vicious nature or accustomed to kick or injure mankind.
    Appeal by the defendant, Edward II. Butler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of May, 1894, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 14th day of June, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      D. N. MoWcmghton, for the appellant.

      William Armstrong, for the respondent.
   Dwight, P. J.:

Tbe action was to recover damages for a bodily injury sustained by the plaintiff by means or in consequence of alleged negligence of the defendant’s servant in the management and control of a horse of -the defendant while used and employed in the business of the latter.

The evidence plainly demonstrated the negligence complained of. The horse, which was driven to a light cart in delivering newspapers, was left by the driver standing in the street, unfastened and not watched, while the driver went inside a neighboring building and shut the door behind him. "While thus left alone the horse became frightened and ran away in the direction in which the plaintiff was driving on the street, overtook her from behind, collided with her wagon and threw her out, and in the fall she sustained the somewhat serious injury of which she complains.

The court at the Circuit properly submitted to the jury the question whether the act of the defendant’s servant in leaving the horse untied and without supervision on the street of a city was negligence; but if the verdict of the jury had answered that question in the negative it would, probably, have been a question for the court, on a motion for a new trial, whether the verdict was not so manifestly opposed to the experience and judgment of mankind as to necessitate the granting of the motion. Certainly, the verdict in the affirmative on the question of negligence was justified by the facts. It has become almost proverbial that no horse is safe to leave untied on the street.

The contention of the defendant, that it was necessary, in order to the maintenance of the plaintiff’s action, to show that the horse was of a vicious nature, is sufficiently answered by the suggestion that the complaint is not of the fault of the horse but of the fault of the driver. Precisely the same principle was involved in the case of Dickson v. McCoy (39 N. Y. 400) where the horse was set loose on the street to go, as he was accustomed to do, from one stable to another, and in his passage playfully kicked over the plaintiff, a little child. It was held there as here, that it was not required to show that the horse was of a vicious nature, or accustomed to kick or injure mankind ; that the fault upon which the action was based was not that of a horse, but that of the owner in suffering the horse to go at large on the street.

In that case the horse was purposely, in this case negligently, suffered to go at large, with the result in each case of an injury to another who was without blame.

The judgment and order appealed from must be affirmed.

Lewis and Beadley, JJ., concurred.

Judgment and order affirmed.


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    John B. Howe, Appellant, v. The City of Rochester, Respondent.

      Election Load in 1892 — inspectors! power to appoint poll clerks.

    In one of the election districts of the city of Eochester, two inspectors of election were elected and one appointed, under the provisions of chapter 7 of the Laws of 1891, at the charter election in March, 1892. At their first meeting in October of the same year, they appointed the plaintiff one of the poll clerks of this district, to serve, and he did serve as such at the general election held in the following November.

      Held, that under the provisions of section 12 of “The Election Law” (Ohap. 680 of the Laws of 1892), and section 14 of “ The Public Officers’ Law ” (Chap. 681 of the same year), the poll clerk in question was duly appointed, and was entitled to recover his compensation as such.
    Appeal by the plaintiff, John B. Howe, from a judgment of the Monroe County Court, entered in the office of the clerk of Monroe county on the 3d day of October, 1894, reversing a judgment of the Municipal Court of the city of Rochester.
    The plaintiff was appointed poll clerk of the second distinct of the twelfth ward of the city of Rochester by the inspectors thereof in October, 1892, to serve and he did serve as such at the general election held in November of that year.

      Wm. T. Plvmb, for the appellant.

      A. J. Podenbeck, for the respondent.
   Dwight, P. J.:

The action was to recover compensation for services rendered by the plaintiff as poll clerk of the second district of the twelfth ward of the city of Rochester at the general election held on the 8th day of November, 1802.

That plaintiff acted as such poll clerk and that his services were reasonably worth the amount claimed therefor was admitted in behalf of the defendant; the question mooted was of the validity of his appointment. It was alleged in the complaint and admitted by the answer that ho was appointed by the inspectors of election of the district above named, and the averment of the answer was that such appointment was illegal, null and void,' for the reason that ihc law required that poll clerks for the several election districts of the city of Rochester should be appointed by the common council.

Here then was the issue and the only issue presented by the pleadings in respect to the validity of the plaintiff’s appointment, viz., whether it should have been made by the inspectors of election or by the common council of the city. In the opinion of the learned county judge and in the brief of counsel for the respondent here, the question is discussed of the validity of the election or appointment of one or more of the inspectors of election by whom the appointment of the plaintiff was made. But — aside from the consideration that the inspectors of election were de faeto, the incumbents of the office and their acts valid so far as they concerned the public or the rights of third parties (People v. Cook, 14 Barb. 259; S. C., 8 N. Y. 67) — that question is effectually excluded from this case by the state of the pleadings above noted. By the allegations of both complaint and answer, it is established for all the purposes of this action that the appointment of the plaintiff was made by the inspectors of election, and no question is made but that the inspectors held and exercised their office in all respects de jure as well as defacto. It was too late on either appeal to raise an issue upon which the parties were concluded by the ¡headings.

The sole question in this case, therefore, as we regard it, is between common council and inspectors of election, viz., to which office did the appointment of poll clerks pertain at the time of the appointment of the plaintiff %

He was appointed in October, 1892, at the first meeting of the inspectors of election, two of whom were elected and one appointed at the charter election in their district, in March of that year. At that time, it is conceded, the provisions of chapter 7 of the Laws of 1891 were in force, which provided for such election and appointment of three inspectors of election who should act as such at all general and special elections held in their district during the ensuing year. The term of office of these inspectors, therefore, embraced the general election of November, 1892.

Rut in the revision of the general laws of the State the Legislature of 1892 enacted chapter 680 of the Laws of that year, constituting chapter 6 of the General Laws, and to be known by the short title of The Election Law.” It was approved by the Governor on the eighteenth day of May. This statute expressly repealed chapter 7 of the Laws of 1891, as well as chapter 130 of the Laws of 1842, of which the act of 1891 was an amendment, and contained the provision that, unless otherwise provided, the inspectors of elections in cities should be appointed by the common council. (§ 11.) It was also provided, in effect, by section 12 of the same statute that where the inspectors were appointed by the common council, the same authority should appoint the poll and ballot clerks; but where inspectors were elected, they should appoint the clerks.

At the same session of the Legislature was enacted, and on the same day, May eighteenth, was approved by the Governor, chapter 7 of the revision (Chap. 681 of the Laws of 1892), to be known by the short title of “ The Public Officers’ Law.” By section 14 of that statute it was provided that If an office be continued by the general laws constituting the revision of which this chapter is a part, the person now lawfully holding such office shall, subject to the provisions of such general laws, continue therein for the term for which he was chosen, or, if holding over after the expiration of his term, until his successor shall be chosen and shall have qualified.”

There can be no doubt but this provision covers the case of inspectors of election in cities who had been elected and appointed under the act of 1891. They were, therefore, continued in office until the charter election of March, 1893; and having taken office under a statute which provided for the election of inspectors, they were by force of section 12 of the Election Law (supra) authorized to appoint the poll and ballot clerks.

This we regard as the proper solution of the problem presented by the several statutes hearing upon the questions here involved, and this view results in the reversal of the judgment of the County Court and the affirmance of that of the Municipal, Court of Rochester.

Lewis and Bradley, JJ., concurred.

Judgment of the County Court reversed and that of the Municipal Court of Rochester affirmed, with costs in the County Court and in this court.


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    George B. Miller, Respondent, v. The Union Central Life Insurance Company, Appellant.

      Money had and received — void policy of insurance.

    Upon tlie trial of an action brought to recover a premium paid for life insurance, on the ground that the payment was procured by the fraud of the company’s agents, it appeared that in answer to the printed question, “Are you engaged in any way in the sale or manufacture of alcoholic, malt or vinous liquors?” the medical examiner of the company wrote “ Kb,” although the insured kept a restaurant and bar to the knowledge of the soliciting agent, and the medical examination took place in a small room separated from the bar only by a lattice work partition. The plaintiff testified that the question was not read to him, and that he told both the agent and physician that he owned the bar and sometimes acted as bartender.

      Meld, that the fact that under these circumstances the defendant would have no defense to an action upon the policy when it should become due upon the death of the insured was no answer to an action for moneys had and received; that it was not the duty of the plaintiff to make any further payment upon such a policy. 4
    Appeal by the defendant, The Union Central Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the Ith day of June, 1894, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the Yth day of June, 1894, denying its motion for a new trial made upon the minutes.

      Willis H. Meads, for the appellant.

      J%. G. Mansfield and Fred W. Ely, for the respondent.
   Dwight, P. J.:

Tbe action was to recover a premium paid by tbe plaintiff on tbe . issuance to bim of a life policy by tbe defendant, on tbe ground snob payment was procured by tbe fraudulent conduct and representations of tbe defendant’s agents. Several specifications of fraud were made by tbe complaint, all but one of wbicb, however, were withheld by tbe court from the consideration of tbe jury. That one was submitted in tbe following language of tbe charge : It is tbe claim of tbe plaintiff that Wright (tbe general agent of defendant) and the doctor associated with bim produced and sent to tbe company a record which purported to be tbe medical examination of tbe plaintiff, wbicb was inaccurate and fraudulent; that in it they bad recorded an answer that was not given by tbe plaintiff, and which was known to these parties as not to have been given bim, wbicb answer, if made, would make tbe policy issued to plaintiff void.”

The plaintiff was a restaurant keeper and kept a bar in bis restaurant. Wright, the agent who took bis application, was in tbe habit of taking lunch there, and knew very well the business in wbicb be was engaged. lie took the application in tbe restaurant and in plain sight of tbe bar; be afterwards brought in tbe examining physician and introduced him to tbe plaintiff, and tbe medical examination was taken and reduced to writing in a little room separated from the bar only by a lattice work partition. In that examination occurred tbe printed question : Are yon engaged in any way in tbe sale or manufacture of alcoholic, malt or vinous liquors % ” and to this question tbe physician wrote tbe answer “ No.”

In respect to this question and answer, tbe plaintiff testified that neither tbe agent nor tbe medical examiner read that question to bim; that they asked bim if be owned tbe bar and be told them be did; that they asked bim if be ever tended tbe bar and be told them be did once in a while when tbe barkeeper was out. He testified that be did not read tbe examination after it was filled out, nor was it read to bim, but that be signed it, as be was told to do, on tbe statement that it was all right, and ignorant of tbe fact that it contained tbe question and answer above stated. Tbe agent testifies that be was not present at tbe taking of tbe examination; and tbe medical examiner that be read to tbe plaintiff tbe question in dispute and that he answered it in the negative. This made the single issue of fact which was submitted to the jury, and they found thereon in favor of the plaintiff. The court charged the jury that, if the fact was as testified to by the plaintiff, that he informed the agent and medical examiner that he owned and kept the bar, and sometimes attended upon it himself, and the examiner inserted the negative'answer to the question quoted and took the plaintiff’s signature to the examination without reading it to him, then the fraud complained of was established; that there was no room for the theory of mistake, and that the jury might assume it was done for some ulterior purpose. There was no exception to this instruction nor to any portion of the charge.

In his complaint the plaintiff alleged that when he discovered, after the payment of the first premium on his policy, that he was recorded as having made the false answer to the question concerning his engagement in the liquor traffic, he requested the defendant through its said general agent to waive the provision in his policy which prohibited such occupation on his part, and that the defendant refused so to do. This allegation is supported by the testimony of the plaintiff to the effect that he did make such request, and that the only proposition made to him in response was, that if he would amend his answer in question so as to state that he was the proprietor of the bar, but that he had a bartender, and did not attend to the bar himself, the company would give him the waiver, but that the plaintiff refused to make the answer in that form for the reason that it would still have been a false answer to the question, and, as the court instructed the jury, on this point there was substantially no controversy.

On the trial the plaintiff produced the policy and offered then and there to cancel and surrender the same.

This, then, is the case which went to the jury and was determined by a verdict for the plaintiff, and that verdict was, no doubt, sufficiently supported by the evidence.

It is upon its exception to the denial of its motion for a nonsuit and for the direction of a verdict that the defendant depends for an argument in support of this appeal, and that-upon the ground that upon the facts testified to by the plaintiff the defendant would have had no defense to an action on the policy. This may very well be conceded, but the proposition is not to be entertained that — such being the facts- — -it was the duty of the plaintiff to go on through his lifetime paying the premiums on a policy which, on the face of the paper on which it had been procured by him, was void, and at his death leave to the beneficiary named therein the legacy of a lawsuit without even the benefit of his testimony to prove the fraud which had been perpetrated upon him.

We have no doubt, upon the facts established by the verdict in this case, that the plaintiff’s-action was well brought and the judgment properly rendered in his favor.

The judgment and order appealed from should be affirmed.

Lewis and Bradley, JJ., concurred.

Judgment and order affirmed.


author: Ward, J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of John C. Spooner, Administrator with the Will Annexed of Dan E. Spooner, Deceased. John C. Spooner, Administrator with the Will Annexed of Dan E. Spooner, Deceased, Appellant; Cornelia Spooner, Respondent.

      Expenditures of an administrator for counsel fees — allowance only for disbursements actually paid.

    The expenses to be allowed by the surrogate to an administrator for the charges and disbursements made and incurred by him for counsel must be reasonable and necessary, of which the surrogate must necessarily be to a great extent the judge, he being familiar with the services rendered, their character and the necessity for them.
    In no event can an allowance be made to an administrator for his expenses, such as counsel fees, until such expenses have been paid by him, except the allowances made under sections 2561 and 2562 of the Code of Civil Procedure,
    Appeal by John C. Spooner, administrator with the will annexed of Dan E. Spooner, deceased, from a decree of the Surrogate’s Court of the county of Steuben, entered in the Steuben County Surrogate’s Court on the 3d day of May, 1894, disallowing certain items of the appellant’s accounts upon the judicial settlement of his accounts as administrator with the will annexed of Dan E. Spooner, deceased.

      J. Fosecrcms, for the appellant.

      J. F. FarJchurst, for the respondent.
   Ward, J.:

Dan E. Spooner died about the 23d of July, 1871, leaving a last will and testament. John McDougall, of ITornellsville, was appointed executor of said will and qualified as such, and discharged his duties until his death, which occun-ed the 12th of November, 1888. Jane McDougall and Shirley E. Brown were appointed his administrators. Spooner left Mm surviving his mother, a brother, who is the present administrator, and Cornelia Spooner, a widow, who is the respondent here. They were all legatees under the will. The executor paid the legacies to the mother and brother, and the interest on the legacy of the widow down to the time of his death. The widow by the will was given the interest on $6,000, the fund to go to appellant upon the death of the widow. The administrators of McDougall paid the interest to the widow until November 11, 1890, when the appellant was appointed administrator with the will annexed. He then resided at Auburn, in this State. He retained counsel there in the matter (Mr. Rosecrans). The administrators of McDougall and the appellant adjusted the matter of the legacy and agreed that $6,000 belonged to the estate of Dan E. Spooner. The appellant claimed the custody of the fund and that it should be paid over to him, and he pay the widow the interest. The widow refused and the matter was submitted to the Surrogate’s Court of Steuben county, and that court held that the appellant was not entitled to the custody of the fund. From that decision the appellant appealed to the General Term where the surrogate was sustained. The appellant further appealed to the Court of Appeals where the decision of surrogate and the General Term was reversed, with costs in favor of the appellant (Matter of McDougall, 141 N. Y. 21), and the Court of Appeals directed the surrogate that “ if the administrator has made amy disbursements or incurred any obligations for which the estate is properly chargeable, he should have the opportunity of proving that fact and having a decree made for their payment out of the estate.” Rosecrans was the attorney who conducted the appeals for John C. Spooner. After the entry of the Court of Appeals judgment, Mr. Rosecrans rendered a bill against the administrator, commencing with November 14,. 1890,, and ending with. February 20, 1894, amounting to $1,023,35, $291.68 of which was-for taxable costs and disbursements of the General Term and Court-of Appeals, $150 of which was denominated “ counsel fee at. General Term and Court of Appeals.” There was charged in this-account for ten trips going from Auburn to Bath and once to Hornellsville; for twenty-two days’ service, at $15 per day, amounting to $330 ; $20 is charged for making brief on settlement; $30 is charged for “making brief on accounting;” $50 is charged for “counsel;” $76.67 is charged for expenses of this attorney in. these various trips. There does not seem to have been any serious-controversy until the question arose before the surrogate as to who-was entitled to the fund of $6,000. That controversy, as before said,, went through to the Court of Appeals, for which the said attorney collected the taxable costs, he being successful. What the $150 counsel fee, or the $50 counsel fee was for, does not distinctly appear, except, generally, that Mr. Roseerans claimed them, and they were-allowed to him. After the decision of the Court of Appeals, evidence was taken before the surrogate as to these claims. The appellanb,and his attorney were sworn as witnesses. I cannot find from a-close examination of the papers that the administrator had paid any of those claims to his attorney. The surrogate, after a careful examination of the claims, allowed $35 for going to Bath and Hornellsville on the first occasion, where the attorney had charged $60, and allowed $60 for the services of the attorney upon the accounting. And also allowed the $150 counsel fee, which should also cover certain items in the charge. Allowed the $76.67 expenses, that the attorney claimed he had incurred. A former decree of the Surrogate’s Court had allowed Roseerans $50, which covered some of the services charged in the bill, so that altogether the attorney had received besides his expenses of $76.67, and besides the costs on the appeal, $291.68, making a total of $586.68, besides expenses.

The surrogate deemed this a sufficient compensation for all the services and expenses of thé attorney, and rejected the rest of the claim. The surrogate also allowed the traveling fees and expenses of the administrator himself of fifty-nine dollars and three cents in and about this business.

The expenditures to be allowed in such cases by the surrogate must be reasonable and necessary, of which the surrogate must necessarily be, to a great extent, the judge. He is familiar with the services rendered, their character, and the necessity for them. The rule is well settled that in no event can an allowance be made to a representative for an administrator’s expenses, e. g., counsel fees, until they are actually paid. (Redf. Surr. 454; In the Matter of the Estate of Bailey, 47 Hun, 477; Shields v. Sullivan, 3 Dem. 296.)

Only the allowance that the surrogate makes under sections 2561 and 2562 of the Code of Civil Procedure can be allowed the administrator until he has actually paid the expenses for which he claims. It will be seen, therefore, that all of this account except that upon judicial settlement, must have been paid by the administrator before he is entitled to be reimbursed; but, waiving this question, we think upon the proof before us, that the surrogate allowed all that was reasonable and just upon this bill.

The decree of the surrogate of Steuben county is affirmed, with costs to the respondent to be taken out of the corpus of the fund owned by the administrator and appellant.

Dwight, P. J., Lewis and Beadley, JJ., concurred.

Decree affirmed, with costs payable out of the corpus of the fund.


author: Lewis, J.:

text:
    The Town of Corning, Respondent, v. Charles Head, Appellant.

      Highway, obstruction —recovery of the penalty provided by section 104 of chapter 568 of 1890 — notice of the obstruction, unnecessary.

    ■Where premises have been dedicated as a highway and used as such by the public for more than twenty years, and have been accepted and worked by the authorities as a highway, they become a legal highway, and a person obstructing the same is liable for the penalty provided by section 104 of chapter 568 of the Laws of 1890.
    In order to maintain an action brought to recover the penalty provided for by section 104 of such act, it is not necessary to give the person obstructing such premises, notice of the obstruction, specifying the extent and location thereof, and to direct him to remove the same within sixty days, as is provided by section 105 of such act.

      Appeal by the defendant, Charles Head, from a judgment of the County Court of Steuben county in favor of the plaintiff, rendered on the 2d day of January, 1894, upon the verdict of a jury and entered in the office of the clerk of the county of Steuben.

      Q-eorge T. Spencer, for the appellant.

      E. O. English, for the respondent.
   Lewis, J.:

■ This action was originally brought in a Justice’s Court, under section 104 of the Highway Law of 1890 (Chap. 568) to recover of the defendant a penalty of five dollars for obstructing a highway in the village of Gibson, Steuben county.

The defendant interposed a plea of title and the action was thereafter brought in the County Court, and the trial resulted in a verdict for the plaintiff for a penalty of five dollars, and from the judgment entered thereon an appeal was taken to this court.

The plaintiff gave evidence tending to show that at an early day the owners of the land now comprising the village of Gibson and including the premises in question caused to be made a map, on which the premises in dispute were laid out as a street. The undisputed evidence tended to show that thereafter for thirty or forty years the public used the street thus laid down On said map as a highway.

Said street extended from Main street in said village westerly to and across Park street; the highway authorities, while said way was so used, indicated an acceptance thereof as a highway by working and repairing the same from time to time. After it had been so used and occupied, the defendant purchased a lot, the boundaries of which included the premises in dispute, and thereupon he erected a fence across the entire width of said way at the point where it intersected Main street, which prevented the public from using the street as they had been accustomed to do, and it was for this obstruction that the action was brought.

It was conceded upon the trial that proceedings had never been taken by the highway authorities to lay out this street as a highway; neither had it ever been ascertained, described and entered of record as a highway in the records of the town; neither was there any proof of any direct, .actual notice to the defendant of the existence ■.of the highway or requiring him to remove the obstruction.

The premises in -dispute having been dedicated as a highway, .and used as such by -the public for more than twenty years, and having been accepted and worked by the authorities as a highway, ■became a legal highway. (Speir v. Town of New Utrecht, 121 N. Y. 420; City of Cohoes v. D. & H. C. Co., 134 id. 397.)

The defendant having obstructed it became liable to the penalty provided by section 104 of the Highway Law, which provides that M whoever shall obstruct or encroach upon any highway * * * .shall forfeit for every such offense the sum of five dollars.”

It was not necessary to give the defendant notice of the obstruction specifying the extent and location thereof, and direct him to ■remove the same within sixty days, as is provided by section 105 of the Highway Law. The latter section provides for a penalty" of ■twenty-five dollars for not removing an encroachment. This action was not brought under that section, but under section 104, as stated, and the authorities to which-our attention is called by the appellant’s ■counsel holding that the statutory penalties for encroachments are not applicable to highways, except such as have been laid out, or have been ascertained, described of record and entered in the town clerk’s office, have no application to cases arising under section 104.

The testimony of David Kimball, to the effect that he had heard Butler S. Wolcott -state that there was a road through there and that it must not be occupied with lumber, was not competent evidence, for Wolcott was not shown to have had title to the premises at the time of making the declaration, but was simply occupying adjoining premises. The error, however, was not of sufficient importancé to justify our granting a new trial.

The existence of the highway was so clearly established by other competent evidence, which was not in any way contradicted, that Wolcott’s declarations cannot, with any propriety, be claimed to have had any effect upon the verdict. We see no reason for disturbing \the judgment. It should be affirmed, with costs.

Dwight, P. J\, and Beadley, J., .concurred.

■Judgment of the County-Oonrt .affirmed, with costs.


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    The Flour City National Bank of Rochester, N. Y., Appellant, v. George McKay, Respondent.

      Action on a promissory note — acceptance of other security and agreement to surrender the note — accommodation maker, released.

    If it is shown, upon the trial of an action brought against the accommodation maker of a promissory note, that the plaintiff, in consideration of the conveyance to it by the maker and indorser of the note, of other security for the indebtedness to which such note was collateral, agreed with the indorser, for whose benefit the note was made, to surrender the note (of which agreement, the accommodation maker had knowledge) but failed to do so, the action is not maintainable against the accommodation maker.
    Appeal by the plaintiff, The Flour City National Bank of Rochester, N. Y., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 2d day of June, 1894, upon the verdict of a jury rendered after a trial at the Monroe Circuit dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 18th day of May, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      George F. Yeoman and Joseph W. Taylor, for the appellant.

      Walter 8. Ilubbell, for the respondent.
   Lewis, J.:

This action was brought to recover a balance claimed to be due on a promissory note for $1,500 made by the defendant on the 5th day of December, 1888, payable to the order of James J. Guthrie aud by him delivered to the plaintiff. The making and delivery of the note were admitted by the answer. The defense relied upon appears in the testimony of defendant and Mr. Guthrie.

The sole question presented by this appeal is whether the verdict was so far against the weight of evidence that it should for that reason be set aside. Guthrie’s testimony, if true, made out a defense. He testified that the note in suit was made by the defendant for his, Guthrie’s, accommodation solely; that he delivered it to the plaintiff bank; it was credited to hi§ account at the bank upon a past indebtedness ; that after his failure, by request, he met Mr. MeNaughton, the attorney of the bank, and Mr. Hathaway, its president; that they requested him to confess a judgment for the amount of his indebtedness to the bank and to assign certain securities belonging to him, including a mortgage for $5,000, and also to transfer to the bank about 2,000 bushels of malt belonging to him and the defendant as co-partners ; that he told them that he would give them an assignment of the malt and of the $5,000 mortgage upon condition that the bank would surrender certain notes which it held as collateral security for his indebtedness to the bank; that he called attention particularly to the note in question and insisted as a condition of making the transfer that it should be surrendered. The subject of McKay’s financial standing was discussed, and it was stated that about all he had was the interest in his malt, and it was agreed that the mortgage and the malt should be transferred to the plaintiff and in consideration thereof they would surrender the note of defendant; that he did thereupon assign the mortgage, and thereafter the defendant, in whose name the title to the malt stood, transferred the malt to the plaintiff.

McKay testified that he had learned from Guthrie, before executing the transfer of the malt, of the arrangement he had made with the bank in regard to surrendering the notes. The testimony tended to show that Guthrie had advanced most of the money for the purchase of the barley from which thé malt was made. McKay, however, had put into it the sum of $474.68. The malting business had been done in his name. The plaintiff, after obtaining the mortgage and malt, refused to surrender the notes. The president of the bank and the attorney testified that they had no recollection of having agreed to surrender the McKay note; that no such agreement was made.

Other facts appeared in evidence, which tended in some degree to corroborate the testimony of Guthrie and McKay.

The trial justice who saw the witnesses and heard their testimony ivas of the opinion that the verdict was not against the weight of evidence.

After an examination of the case we incline to the same opinion. It follows that the judgment- and order appealed from should be-, affirmed.

Dwight, P. J., and Bradley, J., concurred.

Judgment and order affirmed.


author: Lewis,' J.:

text:
    Nellie M. Spaulding, Respondent, v. Leonard Fierle and Another, Appellants.

      Contract to purchase real estate, with a view to its resale —■ when time is of the essence thereof — when a tender is unnecessary.

    Whore a person contracts to purchase land with the purpose of selling it again, if she loses an opportunity to resell the land because of a defect in the seller’s title thereto, by reason of which defect the seller is unable to give the buyer title to the premises at the time agreed upon between them, time will be held to be of the essence of the contract, and the buyer will not be bound to take the title to the premises more than a month after the time fixed by the contract for the delivery of the deed thereof.
    Where the person contracting to sell real estate is concededly not in a condition to give title therefor, the buyer will not. be required to go through the useless ceremony of making a tender.
    Appeal by the defendants, Leonard Fierle and anotlier, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 20th day of July, 1894, upon the decision of the court rendered after a trial at the Erie Special Term, and also from the decision of said justice filed in said clerk’s office on the 20th day of July, 1894.

      George G. Miller, for the appellants.

      Willis M. Sjpaulding, for the respondent.
   Lewis,' J.:

On the 24th day of December, 1S92, an agreement in writing was made, by the terms of which the defendants agreed to sell and convey to the plaintiff by warranty deed a piece of land of about ten acres, situated in the town of Hamburg, Erie county, for the consideration of $3,500. The plaintiff paid,"at the time of theexecution of the contract, $490, and agreed to pay, six months from the date thereof, the further sum of $1,000, and secure the balance of the purchase price by her bond and a mortgage on the premises as security for the payment thereof. The defendants were, upon the performance of the agreement by the plaintiff, to convey to her said premises, and to furnish to plaintiff, within ten days from the date of the agreement, full tax and title searches showing a marketable title in the defendants, each party to pay one-half of the cost thereof. Plaintiff’s husband was a lawyer and resided in the city of Buffalo, and by an arrangement with the defendants he was to look after the ordering of searches. The defendants had theretofore purchased a piece of land in the town of Hamburg, and as they imposed entered into possession of the land thus bought, which they supposed was the land they agreed to convey to the plaintiff. But when the title search came to be made it was disclosed that the land they contracted to sell the plaintiff was not described in tlieir title deed, but another piece of land in the same town by mistake had been conveyed to them. The defendants at once set about to ■correct the error and obtained a deed of the land which they had purchased. Their grantor was at the time in Europe, and was seriously ill and died without executing a deed to correct the error mentioned. The defendants finally obtained title to the land they had contracted to sell plaintiff from their grantor’s executor, but not until the 4th or 5th of August, 1893, more than a month after the time they had agreed to convey to plaintiff. Defendants never furnished the tax or title search. After the time fixed in the contract for the conveyance of the property to the plaintiff, and before the defendants were in a situation to convey the property, the plaintiff gave notice that she elected to cancel the contract and demanded the return of the $490 which she paid at the time of making the contract. The defendants refused to pay and this action was brought.

At the time the contract was made there was an active boom in real estate in the vicinity of and including the land contracted to be sold to the plaintiff. Speculators had purchased large quantities of land in the immediate vicinity of the land in question, and it was rumored that there was about to be established near this land a factory for the manufacture of Gatling guns, and the market value of lands in that neighborhood had very largely increased. The marketable value of land remained high until the early part of the summer of 1893, when prices suddenly collapsed and receded to their normal state as farming lands. The plaintiff purchased the land for speculative purposes. She was anxious while the boom continued to obtain title, but when tbe collapse came she did not wisb tbe land, but wanted tbe $190 she bad paid to tbe defendants.

Tbe defendants had contracted to sell to the plaintiff land which they at tbe time had no title to, and were not, therefore, in a situation to perform their agreement. This was not through any fault of theirs but was their misfortune. The plaintiff having purchased the land to sell again, and having, as her husband testified, lost an opportunity to sell it because of the defect in defendants’ title, it must, we think, be held that time was of the essence of the contract, and that the plaintiff was not bound to take title in the month of August, more than a month after the time fixed by the contract for the delivery of the deed. (Merchants’ Bank v. Thomson, 55 N. Y. 7; Schmidt v. Reed, 132 id. 116.) Had the title search when furnished shown good title in the defendants, the plaintiff might have been in a situation to dispose of the property even before the time fixed for the delivery of the deed had arrived.

Notwithstanding the contract provided that the plaintiff should pay the further sum of $1,000 six months from the date of the contract, and secure the balance by her bond and mortgage as a condition of the conveyance of the property to her, the defendants concededly -were not in a condition to give her title, and she was not required to go through the useless ceremony of making a tender. The evidence was sufficient'to justify the conclusions of the trial court, that time was of the essence of the contract, and that the defendants were in default in not furnishing and delivering searches and deeds of the property, and, therefore, the plaintiff was entitled to recover the money she paid at the time of the making of the contract.

The judgment appealed from should be affirmed.

Dwight, P. J., and Beadley, J., concurred.

Judgment affirmed, with costs.


author: Bradley, J.:

text:
    Buffalo Press Club, Appellant, v. James W. Greene, Respondent.

      An agreement to compound a felony vitiates a contract made in consideration thereof — sureties to such contract discharged thereby.

    An agreement to compound, stifle or suppress a criminal prosecution for a felony cannot constitute a valid consideration for a contract, and the taint of such a consideration infects the whole transaction.
    Where one, who has taken moneys belonging to a club to the amount of $900 and is under indictment therefor, secures immunity from further prosecution upon his promise of repayment secured by a bond executed by sureties who are not informed of the corrupt agreement, the fact that such agreement is in aid of the illegal transaction will prevent a recovery upon the bond'.
    Appeal by tlie plaintiff, tlie Buffalo Press Club, from a judgment of tlie Superior Court of Buffalo in favor of tlie defendant, entered in the office of the clerk of the Superior Court of Buffalo on the 24th day of January, 1894, upon the decision of the court dismissing the plaintiff’s complaint rendered after a trial by the court without a jury.

      Simon Fleischmann, for the appellant.

      Frank O. laxtghlin, for the respondent.
   Bradley, J.:

The'action is upon an instrument under seal, executed by the defendant and others, by which they guaranteed and became sureties severally in limited amounts for the payment of an indebtedness to the amount of $900 of Charles L. Lancaster to the plaintiff.

The consideration expressed in the agreement was one dollar and the forbearance of proceeding by civil action to collect from Lancaster for two years.

The defendant alleges that the consideration was tlie promise of the plaintiff to delay and stifle the criminal prosecution before then instituted against Lancaster by indictment for grand larceny, founded upon the charge of appropriating to his own use the money of the plaintiff of which lie was treasurer. And the trial court found that such was the consideration.

This finding was supported by the evidence in so far that Lancaster’s proposition to pay a specified sum of such indebtedness and procure such undertaking of guaranty was accepted by the plaintiff with the understanding that he should be released from custody, in which he then was, and the prosecution upon the ■ indictment suspended. The preliminary payment was made and the agreement of the defendant and others executed and delivered. Lancaster was thereupon released from custody upon his own recognizance. This was done at the instance of the plaintiff, through some of its members representing it in that behalf, to enable Lancaster to seek service and obtain the means of making payment to the plaintiff as contemplated. The plaintiff was at liberty to accept the obligation of sureties for the payment of the amount of the liability of Lancaster for the deficit, notwithstanding the pendency of the criminal prosecution, and it would be effectual unless rendered invalid' by an agreement on the part of the plaintiff to seek to delay or stifle the prosecution. (City of Cohoes v. Cropsey, 55 N. Y. 685; Barrett v. Weber, 125 id. 18.)

It is a rule of the common law that an agreement to compound, ■stifle or suppress a criminal prosecution for a felony cannot' constitute a valid consideration, and that a contract based upon such a consideration is void. It is deemed a matter of public policy involving the welfare of society that persons should not, by motives of pecuniary interest, be permitted to interfere with, impede or prevent prosecutions for felony and other offenses of a public nature. (Steuben County Bank v. Mathewson, 5 Hill, 249 ; Conderman v. Trenchard, 58 Barb. 165; Conderman v. Hicks, 3 Lans. 108.)

It is urged that this doctrine is not applicable to the contract made by the defendant and others, because it does not appear that there was any consideration for their undertaking other than that expressed in it, which was a valid one.

It is true that it does not appear that any agreement on the part of the plaintiff, or any one in its behalf, to use any means or effort to relieve Lancaster from criminal prosecution, or to delay or suspend it, was communicated to the defendant, or to those who with him executed the agreement. But that agreement was obtained by Lancaster to carry out his proposition accepted by the plaintiff. And the consideration upon which it was procured by him and delivered to the plaintiff was that before mentioned as found by the trial court. The contract was infected with the taint of the consideration upon wliich, as between the plaintiff and Lancaster, it was obtained by him or in his behalf and delivered to and accepted by the plaintiff.

And, therefore, the defendant’s undertaking was not disconnected with the illegal purpose, nor was it founded upon a new or independent consideration.

In the opinion of the trial court, delivered by Judge Titus, the reasons for the conclusion there reached are so well and fully stated as to render any addition to them quite unnecessary on this review.

The judgment should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment affirmed, without costs of tliis appeal to either party.


text:
    Joseph Schlitz Brewing Company, Appellant, v. Henry J. Ester, and Another, Respondents.

      Business conducted by husband and wife — presumption as to the wife’s services — foreign stock corporation— certificate of authority to do business in this State, not required in a creditor’s suit •— extent of a new trial after a reversal in part.

    When a husband and wife live and work together the presumption is that the services of the wife are performed in her relation of wife, and that the business is that of the husband. The wife may, however, engage in a business separate from that of her husband, and conduct such business on her own account and have the benefit of it.
    The provisions of section 15 of the General Corporation Law (Chap. 687 of the Laws of 1898), enacting that no foreign stock corporation doing business in this State shall maintain any action in this State upon any contract made by it in this State, until it shall have procured from the Secretary of State a certificate that it has complied with all the requirements of law to authorize it to do business in this State, and that the business of the corporation to be carried on in this State is such as may be lawfully carried on by a corporation incorporated under the laws of this State for the same or similar business, apply to actions on contract only and have no application to a judgment creditor’s action brought to set aside alleged fraudulent transfers and conveyances.
    Where in such an action the fraudulent transactions are set forth separately as constituting distinct causes of action, and upon appeal the judgment is reversed in part and affirmed in part, the appellate court will confine the new trial to the issues reversed upon appeal.

      Appeal by the plaintiff, the Joseph Schlitz Brewing Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of Monroe county on the 1st day of August, 1894, upon the decision of the court rendered after a trial at the Monroe Equity Term dismissing the complaint upon the merits.'
    The complaint alleged that the plaintiff was a foreign corporation duly organized and existing under the laws of Wisconsin.
    The plaintiff, a judgment creditor of the defendant Henry J. Ester, charges that a conveyance by him through a third party to the other defendant, his wife, of certain premises known as lot No. Ill in “ Beachwood tract,” in the city of Rochester, was made in fraud of creditors; also, that a chattel mortgage and a bill of sale made by him to her of certain personal property were fraudulent as against his creditors, and that the wife obtained and appropriated to her own use the sum of $600 belonging to her husband in fraud of his creditors.
    The relief sought was that such conveyance, transfer and appropriation be adjudged fraudulent and void as against the plaintiff, etc.

      Henry M. Hill, for the appellant.

      Abraham Benedict, for the respondents.
   Bradley, J.:

The defendants became husband and wife upwards of twenty years ago. The deed of the lot in the Beachwood tract was made to both of them. There is evidence tending to prove, and the court found, that Mrs. Ester was then the sole beneficial owner of the premises, and that her husband was made a grantee in the deed without her consent or knowledge. It was made by the Beachwood Homestead Association, of which she was, and her husband was not, a member. The trial court found that the purpose of conveyance through the third person to her was made to correct the mistake in the first deed. This finding of the court has the support of evidence.

The defendant Henry J. Ester was for some years the proprietor of a saloon and hotel, grocery and meat market, and on the same premises persons were entertained as boarders. The wife claims that the latter was lier separate business. In August, 1890, Mr. Ester went abroad and ivas absent about two months. During that time his wife had charge of his business and received from the proceeds of it $600, more or less, which sum the plaintiff alleges she retained and has not accounted for to the other defendant. While there is some confusion in the proof upon the subject, the evidence warranted the conclusion that whatever amount Mrs. Ester did receive from the business of her husband during his absence, was paid to and received by him from her after his return.

The more substantial charge of fraudulent infirmity has relation to a chattel mortgage of date April Y, 1892, made by Mr. Ester to his wife, and the bill of sale of the same personal property made by him to her on April 25, 1892. The indebtedness upon which the plaintiff’s judgment was recovered arose in 1889, and was against the defendant Henry J. Ester and Charles F. Schroeder, in the name oí Charles F. Schroeder & Co. The action was commenced against them in 1890. The defendant Ester appeared and answered the complaint. The other defendant, Schroeder, did not appear therein. The action was reached upon the calendar in October, 1892. The defendant did not appear, and judgment was then directed and entered for the plaintiff; execution thereon against the property of both of the defendants was returned unsatisfied. The apparent title to all of the personal property was then in Mrs. Ester by reason of the bill of sale. The evidence tends to prove that at the time of the marriage of the defendants the wife had $1,300 or $1,100, and that she let her husband have a portion of the money; that afterwards two lots on Anderson avenue,in the city of Rochester were purchased and the deed was taken in the name of both of them as grantees, a building was erected upon the lots, and there were the meat market, grocery, saloon and hotel and boarding house before mentioned. In 1881, through a third person, Mr. Ester made conveyance of his interest in those premises to his wife, which was made to and taken by her in satisfaction of all claims she then had against him. Thereafter, the husband carried on the business of the grocery, meat market, saloon and hotel until the bill of sale of April 25, 1892, was made. Since then the entire business has been conducted in the name of the wife. While, for many years prior, and up to that time, the defendants assert by their testimony that the boarding was the separate business of the wife, supplies for the table came from the meat market and grocery as freely as required, and no account whatever between them was made or kept of such supplies, and the husband participated in the. service of entertaining the boarders by waiting upon the table, etc. They severally had bank accounts, and by the consent of the wife her husband’s name was inserted in the books of the bank so as to enable him to also draw against her account, which he did more or less. In fact, they seem to have been working together in harmony, and their business transactions appear, as between them, to have been in common. They did not deem it necessary to have entries or memorandum made of any accounts between them. This was the situation until in April, 1892, when the chattel mortgage and bill of sale in question were made by which Mr. Ester transferred to his wife a quantity of property consisting of cows, horses, -wagons, furniture, tools, implements, liquors, and other personal property in and about the premises. About the same time he assigned to her a real estate mortgage held by him, and transferred to his two sons of minor age certain certificates of stock in brewing companies. When those sales and transfers were made he was left without title in his name to any property, as he testifies, nor had he any money. The testimony of the defendants was to the effect that the real estate mortgage to Mr. Ester was the product, to considerable extent, of the money of the wife; that it was with her money that the brewing company stock was obtained by him, and that all the furniture included in the chattel mortgage and bill of sale was her property. When a husband and -wife live and work together, the presumption is that her services are performed in her relation of wife, and that the business is that of the husband. (Reynolds v. Robinson, 64 N. Y. 589 ; Coleman v. Burr, 93 id. 17; Porter v. Dunn, 131 id. 314.) She may, however, engage in a business separate from that of her husband, conduct it on her own account, and have the benefit of it. This, it is claimed, she did in keeping boarders, and it may be that she was permitted to treat it as her separate business. But the facts fairly derivable and which may be inferred from the evidence, are, that notwithstanding the supplies for that business were largely furnished by him, and the debts contracted in that behalf were mainly treated as his, the defendants seek to treat the proceeds derived from it as her money. This is well enough as between themselves, but it is hardly consistent with the rights of his creditors to thus permit the appropriation of his property and services by his wife to their exclusion. The trial court found that a portion only of the property included in the chattel mortgage and bill of sale belonged to the husband, and that the transfer of it to his wife “ was made in consideration of her agreement to pay all of his indebtedness existing at that time.” If the debt in question of Charles F. Schroeder & Co. to the plaintiff came within such indebtedness, it may be that the consideration would make the sale effectual and valid as against liis creditors, as she must be deemed responsible and able to pay. (Therasson v. McSpedon, 2 Hilt. 1; Barker v. Bucklin, 2 Den. 45 ; Seaman v. Hasbrouck, 35 Barb. 151.)

But it may be that such expression of indebtedness would be construed to embrace only the individual debts of the defendant Henry J. Ester, and not to include the partnership debt due to the plaintiff. At all events Mrs. Ester has so far as appears indicated no purpose to pay it. It is suggested that some of the property embraced in the bill of sale was exempt from levy and sale on execution. As to. such property the sale is not fraudulent because it would not have been available to the plaintiff if it had not been -transferred by the-defendant. If, as the court found, the title of Mrs. Ester to the-property of that character was not dependent upon the bill of sale, no question as to its exemption will arise.

In view of all the circumstances, as represented by the weight of the evidence, the conclusion is fairly required that the chattel mortgage and bill of sale were made and taken by the defendants with the intent to hinder and delay the plaintiff in the collection of its. debt.

The charge made against the validity as against the creditors of Mr. Ester of the deed from him through another to "Mrs. Ester of the lot in the Beacliwood tract, and the charge that the money received by her from his business during his absence was retained by her in fraud of his creditors are not sustained by the evidence.. They are alleged in the complaint as causes of action distinct from, that relating to the chattel mortgage and bill of sale, and as this is. an equity action, no reason appears why a new trial may not be confined to the latter cause of action alone.

The statute requiring tlie production by a foreign corporation of a certificate is applicable only to actions upon contract. (Laws 1892, chap. 687, § 15.) This is not such an action.

The judgment, so far as it relates to the issue arising out of the alleged cause of action, founded upon the charge that the chattel mortgage and bill of sale of the same property were made in fraud of the creditors of defendant Henry J. Ester, should be reversed and a new trial granted, costs to abide the final award of costs, and in other respects the judgment should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment, so far as relates to the issue arising upon the allegations that the chattel mortgage and bill of sale were in fraud of creditors, reversed and a new trial of that issue granted, costs to abide the final award of costs; in other respects, judgment affirmed.