der which such a deed is executed will be considered upon the question whether it should be supported as a conveyance. 7 Johns. Ch., 57; 25 N. Y., 328; 32 id., 423; 35 Hun, 267.

One of the plaintiffs testified that a conversation took place between defendant, her husband and himself, and his evidence of such conversation was excluded as incompetent under § 829 of the Code of Civil Procedure.

Held, That it was error to exclude it. That although defendant's grantor took title from the deceased person, that fact does not presumptively place her within the relation to such deceased person required to give application to the inhibition in the statute referred to.

Judgment reversed and new trial granted, costs to abide event. Opinion by Bradley, J.; Smith, P.J., and Barker, J., concur.

MUTUAL INSURANCE. N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT.

John M. Mayer, respt., v. The Equitable Reserve Fund Life Association, applt.

Decided Nov., 1886.

Defendant was organized under Chap. 175, Laws of 1883. An assessment was laid

and money collected to pay plaintiff's claim. Payment was deferred and finally suit brought. Held, That the collection of the assessment for the purpose of pay

ment was not a bar to defendant proving any valid defenses which it had to the payment and that it was its duty to make

such defenses.

Chap 175, Laws of 1883. It has no capital stock and losses are paid by assessments laid "upon the occurrence of a death" of a member. Of the sum realized seventy-five per cent. goes to the claimant and twenty-five per cent. to what is called the reserve fund. The person to whom the certificate was issued died, and thereupon an assessment was levied and collected. Defendant offered various defenses, breaches of warranty, but these were excluded. Plaintiff recovered. This was the first death and no reserve fund had been formed.

Fleischman & May, for applt.
E. S. Wood, for respt.

Held, Error. The evidence was excluded upon the assumption that the money was in defendant's hands, from the assessment, to pay this claim; that thereby defendant became the agent of its members for that purpose and so had no right to contest the validity of the claim or withhold payment. This assumption is not justified. The deceased held a contract with defendant which was either valid or invalid. By its terms and by defendant's constitution and by-laws, which were a part of the contract, the validity depended upon the truth of the material allegations made by the insured in procuring it. Defendant was, in a certain sense, agent of the members, but was such with special and defined powers, and these forbade pay

ment where it could show that the certificate was procured through misrepresentation or fraudulent

N. Y. COURT OF APPEALS.

Gifford, recr., respt., v. The Father Matthew Society et al., applts.

Decided Jan. 18, 1887.

A benevolent society which had given a mortgage on its land procured an order permitting it to convey to one M. for use of the Roman Catholic Church. The

order said nothing about an assumption

of the mortgage, but the deed to M. contained the usual assumption clause. On foreclosure of the mortgage, Held, That M. was liable on his covenant of assumption; that the mortgage debt was in sub

stance the purchase money which he agreed to pay directly to the mortgagee for the relief and discharge of the mortgagor.

This action was brought to foreclose a mortgage. A judgment entered therein providing for a foreclosure and sale is appealed from by O'C., the executor of McE., so far as it directs him to pay any deficiency which may arise on the sale. It appeared that said mortgage was for $5,200, and was dated Jan. 9, 1869, and executed by five persons, trustees of the corporation defendant, to one M.; that plaintiff acquired title to said mortgage as receiver of M. The defendant corporation purchased the land covered by said mortgage. It was a benevolent association, incorporated April 15,

1868, under the act of 1848, for the incorporation of benevolent, charitable and scientific societies. On December 9, 1870, three persons claiming to be trustees of said society presented a petition to the Supreme Court asking for an order directing the petitioners to convey said property to McE. for the use of the Roman Catholic Church or people of Tuckahoe for the sum of one dollar. The petition does not state that two-thirds of the whole number of trustees were present at the meeting at which the sale was authorized and does not state that it was a trustees' meeting. An order was made the same day based on said petition authorizing the sale as asked subject only to such mortgage. Neither the petition nor order contained any reference to any proposed covenant of assumption of the mortgage. On December 15, 1870, the society executed a warranty deed to said McE., which purported to have been made in pursuance of said order. This deed contained a covenant whereby McE. assumed and agreed to pay said mortgage as part of the consideration and purchase price. McE. died before this action was commenced. His executor still retains undisturbed possession of the premises.

T. G. Barry, for applt.
Ralph E. Prime, for respt.

Held, That by the terms of the deed McE. accepted, the mortgaged debt was in substance the purchase money which he agreed to pay directly to the mortgagee for the relief and discharge of the

Charles E. Aaron, one of the contestants herein, the sum of $584.74, as costs and counsel fees of George F. Langbein, his counsel in these proceedings, the same to be paid out of the funds of this estate by such person or persons as shall hereafter be granted letters of administration or letters testamentary upon the estate of this decedent; and that there be allowed to the contestants, Fitzgerald Tisdall and Isaac A. Drake, as costs and counsel fees of Gilbert H. Crawford, their counsel, the sum of $250, to be paid in the same manner as aforesaid out of the funds of this estate."

Held further, That there is no force in the preliminary objection that Aaron, the temporary administrator, cannot appear upon this motion by his present attorneys because other attorneys appeared for him in the various other proceedings, and that no order of substitution has been granted.

Held further, That the provision of the decree sought to be vacated is improper, for the reason, first, that this court cannot properly direct a temporary administrator to pay the costs of the successful contest over the probate of the papers propounded as the last wills of the decedent. Code Civ. Pro., §§ 2672, 2674; 29 Barb., 637; 3 Red., 165; 4 id., 341; id., 492; 7 Law Bulletin, 71. Second, because the direction awarding costs directly to counsel is not warranted by law. Costs, if allowed at all, must be allowed, not to counsel, but to parties, in accordance with the provisions of 2561, Code Civ. Pro. 1 Dem., 103.

Third, for the further reason that it appears from Mr. Langbein's affidavit that the sum of $1,000 is in excess of the limitations as to costs provided by the statute. Upon a contest over the probate of a will a per diem allowance cannot be properly made for time expended in the preparation for trial. A per diem allowance for preparation for trial can only be directed under the circumstances indicated in § 2562 of the Code, and that section relates to accounting proceed: ings exclusively. These views require the amendment of the provision of the decree sought to be vacated as stated above. Opinion by Rollins, S.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

The People ex rel. the Seminary of Our Lady of Angels v. Thomas M. Barber et al., assessors.

Decided Oct., 1886.

There is by the terms of the statute no

qualification of the purposes for which the lot on which the buildings of a seminary of learning may be used, nor are the dimensions of the lot prescribed, but a reasonably necessary interpretation requires that the lot be such as will permit it to serve the purpose in view, and that it be devoted to no use other than that which is necessary or fairly incidental to the use or purposes of the institution. The liability of the lands of such an institution to assessment is one of statutory construction, and not one of the discretion of the assessors.

In entering land upon the assessment for an omitted tax of the preceding year assessors can exercise no discretion; their power is ministerial; they are not permitted to insert on the roll a greater valua