vided for in the agreement. Notwithstanding this omission, equity regards such promise as creating an equitable lien which will be enforced as against the party promising to give the lien and those claiming under him who are not ignorant purchasers. 3 Pom. Judgment reversed, new trial granted, costs to abide event. Opinion by Barker, J.; Smith, P.J., Haight and Bradley, JJ., concur. ASSAULT. DAMAGES. TERM. SECOND DEPT. Bernard Kane, respt., v. The Manhattan Railway Co., applt. Decided July, 1886. Eq., SS 1235, 1237; 75 N. Y., 251; N. Y. SUPREME COURT. GENERAL 49 id., 626; 21 id., 581; 2 Summer, 286; 2 Allen, 115; 36 Ill., 38; 69 id., 119. As to the other property, the intent of the parties was to give the vendors a lien thereon to secure the unpaid purchase money, and the clause providing that such property should remain on the premises as part and parcel thereof until all payments should be made was inserted to secure that end. Pom. Eq., § 1237, and cases cited in notes. The fact that K. had abandoned the premises and plaintiffs had regained possession and are operating the wells is no bar to an action to foreclose their lien, and is an additional reason why they should institute foreclosure proceedings and render an account of the avails of the property so that the amount of unpaid purchase money may be ascertained. Defendant Reid being the general assignee of K. is a proper party defendant. The complaint avers that the other defendants have or claim some interest in the property subsequent and subordinate to plaintiffs' lien, and in their answers they set up a lien on the property and claim that plaintiffs' debt had been paid. Those defendants also are proper parties defendant. 23 Hun, 198; 64 N. Y., 76. In an action to recover damages for an assault and battery it is error, for which a judgment in favor of plaintiff will be reversed, for the court to charge the jury that they may allow plaintiff damages for loss of time consequent upon the injuries inflicted upon him by reason of the assault, unless there is some evidence in the case of the value of his time. Appeal from judgment entered upon verdict in favor of plaintiff. Action for damages caused by an assault and battery. It appeared that plaintiff left defendant's cars, in which he had been a passenger, at the depot at the Battery, and, in attempting to leave the station, passed down a stairway which was not in use and was closed by a barrier at the bottom. Upon arriving at said barrier plaintiff's efforts to effect an exit attracted the attention of some of defendant's employees, who thereupon committed an assault and battery upon him. It appeared that plaintiff was prevented from attending to his business for some weeks by reason of the injuries inflicted upon him, but no evidence was given of the value of his time. The court in charging the jury instructed them that they could allow plaintiff for loss of time consequent on the assault. E. S. Rapallo and Howard Townsend, for applt. Anthony Barrett, for respt. Held, That, as there was no evidence in the case as to the value of plaintiff's time, the charge in this respect was erroneous. 90 N. Y., 26. That, though the error was doubtless a mere inadvertence, it could not be said that it did not prejudice defendant. Judgment reversed and new trial ordered. McCrillis against D. B. McCrillis, for $2,581, in Nov., 1877. Under this the sheriff had levied and had moneys in his hands when a dispute arose between that plaintiff and his attorney. Ball claimed that A. E. McCrillis had assigned the judgment to him by assignment lost or mislaid, as security for a liability undertaken for benefit of McCrillis and for legal services. McCrillis denied this. The matter was brought before the Special Term in March, 1878, when an order was made that the money be paid McCrillis on his giving to Ball an undertaking in $1,200 with two sureties Opinion by Cullen, J.; Pratt conditioned, among other things, to and Dykman, JJ., concur. SURETYSHIP. UNDERTAK ING. N. Y. SUPREME COURT. GENERAL Decided Nov., 1886. B. recovered a judgment for M. as attorney and claimed to be entitled to some of the moneys made on execution thereupon. The court ordered the moneys paid to M. on his giving an undertaking to B. to pay him any sum which he might finally establish against these moneys. It also appointed a referee to hear the matters in dispute. B. and M. came to an agreement, the reference was declared at an end and the court fixed a sum as due B. from M. No appeal was taken from this order. In an action against the sureties upon the undertaking. Held, That the amount of their liability was fixed by said order. Appeal from judgment against the sureties on a bond. Marcus Ball recovered a judgment for A. E. pay Ball any sum that he might finally establish against the goods sold by the sheriff; the order also appointed a referee to hear and decide on the claims of Ball, the amount of which when so fixed and confirmed by the court should be a claim on the sureties. While the reference was pending McCrillis re-assigned and confirmed to Ball the former assignment of the judgment. The reference was then declared at an end by the court and it was declared that the amount due the administratrix of Ball, who had died, was $1,399.68. Plaintiff is assignee of the administratrix and brings this action against the sureties on the undertaking for the above amount. He recovered. R. A. Parmenter, for applt. C. E. Patterson, for respt. Held, That the judgment was right. Defendants say the matter should have been determined before the referee. The undertaking says nothing of a reference. The controversy was one which the court might decide on a motion. The reference was made to relieve the court. The undertaking was made in view of the motion; it did not entitle the sureties to a common law trial of the matters in dispute between Ball and McCrillis. The dispute was between them and when they agreed it was idle to prolong the reference. We have no reason to think that the Special Term erred in fixing the sum of $1,399.68. If it did there should have been an appeal from that order. That fixed the liability of the sureties; it fixed the sum "finally established against the goods sold by the sheriff." Judgment affirmed, with costs. Opinion by Learned, P.J.; Bockes and Landon, JJ., concur. EXECUTORS. ACCOUNTING. N. Y. SURROGATES COURT. In re estate of John A. Brooks, deceased. Decided Dec. 10, 1886. To the account filed by the administratrix, upon this accounting proceeding, the objection was interposed by children of the decedent interested in the estate to the charge against her of but one-half of a That the exception to such finding must be overruled. That if the referee erred at all, it was in favor of the contestants, the courts having held that a deposit of moneys in the joint name of husband and wife with the privity of the husband must be taken as prima facie a gift of such money to the wife, and that when such deposit had been left undisturbed by the husband the money became on his decease the property of the wife. Moneys paid under the by-laws of charitable associations to the "widow" or "family" of a deceased member by virtue of the membership of the decedent in such associations are to be controlled in their disposition by the by-laws of such associations, and do not become assets of the estate of the decedent. The administratrix of the estate, however, is not entitled to reimbursement out of the estate for moneys paid as funeral expenses where for such expenses she had been reimbursed by moneys received by her for "funeral expenses " from such benevolent associations. To the account filed by this administratrix in December, 1885, certain objections were interposed by three adult children of the decedent and by the special guardian of two infants interested in his estate. The issues thus raised were submitted to a referee whose report brought before the surrogate the following questions: First, whether the referee erred in charging the administratrix with but onehalf, instead of the whole of a deposit of $1,929.04 in the Hudson City deposit of $1,929.04, which deposit Savings Institution at decedent's death, such deposit having been made in the lifetime of the decedent to the joint account of the administratrix (his widow) and himself, the objectors claiming the whole deposit should be charged against the administratrix in her account. The referee found that the administratrix was chargeable with but one-half of the deposit in the absence of any evidence of the respective proportions of each. Held, was made in the Hudson City Savings Institution and was there at the decedent's death to the joint credit of himself and his wife, now widow and administratrix of his estate. James P. Nieman, for exrx. Wager & Acker, for contestants. Held, That if the referee erred at all he erred in favor of the contestants. It was held in 2 Brad., 37, that a deposit of moneys in the joint name of husband and wife, with the privity of the husband, must be taken as prima facie a gift of such moneys to the wife in the event of her surviving her husband, and that where such deposit has been left undisturbed by the husband the moneys become on his decease the property of his wife. It was held by the Court of Appeals in 58 N. Y., 72, that where a husband had loaned money, the taking by him of a promissory note for its repayment to the order of himself and his wife imported a gift to his wife in case she should survive him. See also 92 N. Y., 152; 45 id., 723; 1 State Rep., 494. The first exception must be overruled. The second question presented is whether various sums of money received from benevolent associations and lodges of which the decedent was a member should be charged against the administratrix of the estate. She has charged herself with none of these moneys and the referee has held that she is not liable to account for them in this proceeding. From Chelsea Division No. 12 of the Sons of Temperance she received $50. By the constitution and by-laws of that society it is provided that in case of the death of a member the sum of $50 shall be appropriated as a funeral benefit" and shall be paid "to the family of the deceased." From the Mamre Encampment, I. O. O. F., Mrs. Brooks received Vol. 25-No. 5a. $40, the sum which under its constitution was payable upon her husband's death as a "funeral benefit" and "to assist in defraying the expenses of burial." Eureka Encampment No. 177, I. O. O. F., paid her $100, that being the amount which in accordance with its constitution and bylaws was payable "to the widow of a deceased member." Mrs. Brooks, administratrix, received from the Fidelity Temple of Honor and Temperance the sum of $50. The by-laws of that association provide that a sum no less than this shall be appropriated for the funeral expenses of a deceased member and paid to the wife or immediate relatives, or expended by an auditor of the society in paying such bills as shall be contracted for a funeral. The Chelsea Mutual Benefit Association paid Mrs. Brooks $81 pursuant to one of its by-laws which provides that in the event of a death of a member, "the sum of $1 for each and every member shall be paid to the family of the deceased." Held, That the administratrix is not here accountable for any of these payments. It is well settled by numerous decisions that the disposition of moneys paid at a decedent's death by benefit associations or lodges whereof he was a member must be determined entirely by the constitution and bylaws of such associations, and that such moneys are not assets of such decedent's estate. 23 Hun, 478; 33 id., 263; 3 Dem., 129; 94 N. Y., 580. The referee has found that the administratrix is entitled to credit on account of sums paid out by her as funeral expenses. The testimony shows that within six months after the decedent's death, his widow received from the four associations first above named, as funeral benefits and funeral expenses, a sum for which in this account she claims credit. It is true that at the time these moneys were received the funeral expenses had been fully satisfied, but I think, nevertheless, that their reception must be considered as a re-imbursement to the administratrix of any sums previously expended by her in connection with her husband's funeral. 5 Redf., 267. Report of referee confirmed, with the modifications above indicated. Opinion by Rollins, S. A failure to revive a foreclosure suit in which there was no defense, plaintiff having died after the report of the referee to compute and before the entry of final judgment, does not affect the title of the purchaser at a sale under a decree in plaintiff's favor, such purchaser being the mortgagor and a defendant and having no notice of plaintiff's death. Controversy submitted without action. The first question is whether, in an action for the foreclosure of a mortgage, where all the defendants, except infants, have made default and the latter have interposed the usual general answer by guardian ad litem, the report of a referee appointed "to compute the amount due to plaintiff for principal and interest upon the bond and mortgage set forth in plaintiff's complaint and also to take proof of the facts and circumstances stated in the complaint, and to examine plaintiff or his agent on oath as to any payments which have been made" is a report within § 763, Code Civ. Pro. Plaintiff died after the filing of the report and before the entry of final judgment, and final judgment was en Joseph Finley Smith v. Robert tered upon the motion of plaintiff's A. Joyce. Decided Dec. 6, 1886. The title of a purchaser upon a judicial sale is not affected by defects in the proceedings which rendered the judgment irregular and in consequence of which it might be set aside. The report of a referee appointed to compute, etc., in a foreclosure suit is not the report meant by § 763 of the Code, which contemplates a decision of the referee determining the rights of the parties as they would be determined by a verdict, decision of a judge, or interlocutory judg ment. attorney of record. The second question is whether the sale of the premises under such judgment was valid without a revivor by the personal representatives of the deceased plaintiff: and the whole controversy is whether the title of the purchaser at such sale (who was the mortgagor and a defendant in the action, and who had no notice of the death of plaintiff) is affected by the omission to revive the action either be |