furnishing the dimension stone and block work required for the buildings and for the cutting of the same. It was claimed that the contract was abrogated by Chap. 323 of the Laws of 1874 and Chap. 264 of the Laws of 1875, the appropriation bills of those two years. The act of 1874 appropriated for "the Buffalo State Asylum for the insane, to be expended only for the completion of the buildings already commenced, the sum of $150,000." It also authorized the governor to appoint two superintending builders to take charge of certain buildings in process of construction, among which was the Buffalo Asylum, "to superintend the construction and completion thereof." The persons so appointed were vested "so far as the construction of said building is concerned, with all the duties, powers and responsibilities heretofore imposed or conferred upon the commissioners or managers heretofore appointed to take care of such buildings respectively, which said commissioners and managers are hereby superseded as to the powers and duties herein referred to. The purchasing of the materials and all things connected with the erection of said building shall be done by contract and all contracts shall be awarded to the lowest responsible bidder after being advertised as is now required by law for the advertising and letting of State work on the canals." The act of 1875 contained similar provisions as to the purchasing of materials and letting of contracts.

J. F. Parkhurst, for applt.

D. O'Brien, Atty. Genl., for respt.

Held, That the acts of 1874 and 1875 referred to future work and materials and future contracts.

Appellant's claim was presented more than six years after the passage of the act, but less than six years after breach of the contract by the officials in charge of the work. Held, That it was not barred by the statute of limitations.

Decision of Board of Claims reversed and new hearing ordered.

Opinion by Earl, J. All concur, except Danforth, J., dissenting, and Andrews and Miller, JJ., not voting.

PROMISSORY NOTE. CONSIDERATION.

N. Y. COURT OF APPEALS. Roberts, respt., v. Cobb, exr., applt.

Decided Dec. 7, 1886.

A promise to contribute a certain sum toward paying off a church debt upon the condition that the clergyman would secure the remainder by voluntary subscription, which was done, is a sufficient consideration to uphold a note given for such purpose.

This was an action upon a promissory note. It appeared that prior to May 1, 1881, certain persons had been engaged in building a church, upon which there was a mortgage on which there was due about $15.000. An effort was made to pay this up prior to dedicating the church, in which H., the pastor, was active. About the 1st of May he called upon B., defendant's testatrix, an aged lady, who was a

member of the church, and requested her to contribute. She promised to give $2,500 in cash. toward the payment of the mortgage if he would secure pledges for the remaining $12,500. H. promised to make the effort, set to work at once and secured pledges for the amount required. He then on May 31 called upon B. for the amount of her subscription, and she, finding it inconvenient to pay it in cash, executed the note in suit and delivered it to H. B. subsequently paid $500 thereon. The note was indorsed by the trustees of the church and delivered to plaintiff, who brought this action to recover the balance.

James M. Smith, for applt. Henry C. Griffin, for respt. Held, That H. must be regarded as acting for and in behalf of the church in procuring pledges to pay the mortgage. That the church having made the effort and performed the condition prescribed by B., her promise became obligatory, and the note she gave in fulfillment thereof is based upon a sufficient consideration. 1N. Y., 587; 12 id.. 18; 83 id., 14; Pars. on Con. (5th ed.), 452, and notes.

Also held, That if H. did not act as agent of the church he acted for himself in procuring the subscriptions, intending to present the money obtained to the church for the discharge of its mortgage, and there would be an adequate consideration for the note in suit. Judgment of General Term, affirming judgment for plaintiff on verdict, affirmed.

Opinion by Earl, J. All concur.

Under Chap. 248, Laws of 1879, a wife has, with the consent of her husband, absolute power to assign or surrender a policy on the life of the husband in her favor, whether there be children or not.

The joining of the husband in such assignment constitutes a consent thereto in writing.

Affirming S. C., 23 W. Dig., 118.

This was an action upon an endowment policy of insurance issued to defendant G. by the Germania Life Ins. Co. upon the life of her husband. The policy was payable May 31, 1885, or within sixty days after due notice and proof of the husband's death before that time. It also provided that if the wife died before her husband the insurance should be payable "to her children, for their use, or to their guardian, if under age; or, if she shall have no children to her executors, administrators and assigns." On February 15, 1881, the wife and her husband executed an assignment of all their right, title and interest in and to said policy to A., plaintiff's testator. testator. A. being dead when the policy matured, plaintiff brought this action against the insurance company to recover the amount of it. An order was made substituting G. as defendant, and the fund was deposited in court. G. set up in her answer that the assignment was void because she was a married woman, with children hav

Sept. 9 defendant's account was overdrawn; that during this time the $690 check had not been charged up; that he knew the condition of his account; that on Sept. 9 the receiver had the $690 check charged to him; that judgment was recovered against him for the balance due; that this was paid, and that the $690 check was returned to him with other vouchers. In all this there is no evidence that defendant wrongfully obtained the money. It must be shown that he obtained the money. This is capable of proof. The teller could show the payment; or if the cashier, defendant, took the money himself, the cash on that day would show it. It is true that possession of the check by the bank would prima facie show a credit in favor of the bank on an accounting between it and defendant. But on a criminal charge proof must be made. Defendant on July 25 might have owed the bank and given it this check as a voucher. This would not show that he obtained money by it from the bank. A check is a direction to pay money and charge the drawer with it. This payment in a criminal proceeding must be proved. Even if the bank once had possession of the check (which is denied) it is not presumptive evidence that defendant has had the money, and the burden is not on him to disprove this.

We also think that to make out an offense under this section it must appear that the money, etc., was obtained wrongfully. The statute does not mean that any obtain

Vol. 25-No. 8b.

ing of money of the bank by a bank officer whose account is overdrawn is a misdemeanor. Banks are established to lend money, and it is not illegal, under certain limitations, to lend money to officers. Money loaned on a note is no better secured than money paid on a check. Both are loans evidenced by the obligation of the borrower. A bank officer might be rich and the money lent him be entirely secure. It is the wrongful obtaining which makes the offense. The word "wrongful" implies more than the mere want of funds in the bank, because such want of funds is previously expressed in the statute by the word "overdrawn."

Judgment and conviction reversed and new trial granted.

Opinion by Learned, P.J.; Bockes and Landon, JJ., concur.

PRACTICE. ORDER OF

PROOF.

N. Y. COURT OF APPEALS. Conselyea et al., exrs., respts., v. Swift, applt.

Decided Dec. 7, 1886.

In an action on a promissory note the answer denied none of the allegations of the complaint, but set up affirmatively that defendant was an accommodation endorser; that the note was in fact paid out of moneys in the holder's hands applicable thereto, and, on information, that plaintiffs were not the lawful owners. Held, That defendant held the affirmative and had the right to open and close. The complaint in this action contained seven causes of action. As to the first six no question arises. The seventh makes out a perfect case upon a promissory

note against defendant as endorser, and the answer denied none of plaintiffs allegations, but set up affirmatively that defendant was an accommodation endorser, and that the note was in fact paid out of moneys in the hands of plaintiffs, testator applicable thereto. Defendant adds upon information

firming judgment on verdict for plaintiff, reversed, and new trial granted.

Opinion by Danforth, J. All concur, except Ruger, Ch. J., and Finch, J., not voting.

LEASE. TRESPASS.

"that the said plaintiffs are not the lawful owners and holders of said note, and that he is not indebted to them thereupon in any sum whatever." Defendant claimed the right to open and close the case. This was denied. The note was received in evidence under the objection of defendant. Plaintiffs' counsel was then sworn on behalf of plaintiffs and proved the amount of interest due. This was also objected to by defendant. Plaintiffs' counsel then declared his case closed; and defendant being called upon to proceed with his defense declined to proceed with the trial or to offer evidence because the affirmative of the issue had been awarded to plaintiffs. A verdict was thereupon directed in favor of plaintiffs.

James Troy, for applt.

J. Stewart Ross, for respts. Held, Error; that no allegation of the complaint was denied by the answer, as none of the facts controverted therein were alleged in the complaint; it was therefore for defendant to establish the defense set up and he thus held the affirmative and had the right to open and close the evidence. Code Civ. Pro., § 522.

Judgment of General Term, af

TERM. FIFTH DEPT. Adelbert C. Merritt, applt., v. Olive C. Merritt et al., respts.

Decided Oct., 1886.

Assuming (without deciding) that a tenancy from year to year was created between the parties, and not merely a contract to work upon shares, which had been yearly renewed, yet as the tenant had notified the lessor, prior to the commencement of another year, that he was going West and would work the farm no longer, and the latter thereupon entered into a contract with another person to work the farm on shares, the former was precluded from insisting that he was entitled to notice to quit and maintain an action of trespass against the lessor and such third party. Appeal from judgment entered upon report of a referee.

Action to recover damages for trespass upon lands. Defendant Merritt was the owner of the lands. and on the first of April, 1880, entered into a written agreement with plaintiff to let or lease to him said lands for one year, to work upon shares, each party to furnish one-half of the seeds for sowing and planting, to pay one-half of the taxes, and to have one-half of the proceeds. Plaintiff continued to work the farm upon shares until about April 1st, 1884, when defendant M. entered into an agreement with defendant Sutton to work the