ten agreement as modified by parol. Plaintiff was in possession of a lot. It had belonged to plaintiff's former wife and to her sister Margaret, also deceased. Plaintiff was tenant by the curtesy of one-half and he also believed he was entitled to the half of Margaret under a deed supposed to have been executed, but which could not be found, from her to one Isaac Hasbrouck; under whose will the title would have come to plaintiff. This being the situation plaintiff in 1882 deeded this lot to defendant and at the same time the parties entered into an agreement in writing that defendant would pay plaintiff $500 if he produced the missing deed. Subsequently the parties concluded that no such deed was ever executed and that Margaret's title was in her surviving husband Isaiah Snyder, who lived at Harrisburgh, and plaintiff testified that defendant said it would be satisfactory if plaintiff got him a deed from Snyder; that plaintiff became sick and could not go to Harrisburgh; that defendant asked to be allowed to go and get the deed and that if he got the title from Snyder he would pay plaintiff $500 whether he had to pay Snyder anything for it or not. It seems that both parties supposed Snyder would give a deed for very little. Instead, when defendant went to Harrisburgh, Snyder exacted $500 for the deed, which defendant paid, taking it direct to himself. Defendant then refused to pay plaintiff anything.

Schoonmaker & Linson, for

applt.

J. E. Van Etten and D. M. Witt, for respt.

Held, That there was no consideration for the promise. Plaintiff did not perform and could not. He had undertaken to show that the title of Margaret was in him, but he became convinced that it was in Isaiah Snyder. When defendant learned this fact he said (taking plaintiff's version), in effect, that if Snyder would give him the title he would pay plaintiff $500 just the same as if he had the title from plaintiff. Whether this was a new agreement or a modification of the old one, it had no consideration whatever.

Judgment reversed.

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

concur.

PARTNERSHIP. ASSIGNMENT. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. The National Bank of Granville, respt., v. Jacob Cohn et al., applts.

Decided Jan., 1887.

An assignment of firm property which provides for payment of the individual debts of members of the firm is void in toto; and the court will not separate provisions which might be valid standing alone and uphold them. In such an instrument the vice condemns every part.

Appeal from judgment in favor of plaintiff.

The action was originally by plaintiff against the sheriff for levying on property of plaintiff. Defendants have been substituted for the sheriff. On Sep. 25, 1884,

defendants obtained an attachment against the firm of Baldwin & Hull and the sheriff levied. On Oct. 21 he sold under the judgment entered in the attachment action. Plaintiff claims title under an assignment by Hull made Sep. 13, 1884, of all the stock, etc., of Baldwin & Hull, which was to secure all the indebtedness of Baldwin & Hull "or either of them," and all indebtedness which might become due in favor of plaintiff against Baldwin & Hull "or either of them." At the time of the assignment Hull individually owed plaintiff a considerable amount.

B. F. Einstein, for applt.

R. C. Betts, for respt.

Held, Error. It is admitted

that the provision of the assign

N. Y., 226. The statute condemns the whole instrument if any part of it shows it was made with the prohibited intent. 15 N. Y., 97. Cases like 22 Wend., 483, in which void parts have been separated from valid ones, have no application. There particular provisions are forbidden and condemned; here the prohibition is directed not simply to particular provisions but to the whole instrument if made with the prohibited intent, of which these particular provisions are conclusive evidence. Judgment reversed.

Opinion by Landon, J.; Learned, P.J., concurs.

DECEDENTS' ESTATES.

COSTS.

We

to pay individual debts cannot be supported, but it is said that the portion transferring firm property to pay firm debts can be. think the assignment was made with intent to hinder or defraud firm creditors. It was given and received with intent to apply firm property to individual debts, and if that purpose is carried out it defrauds firm creditors. The effect being known, the intent to accomplish it is just as plain as if it had been confessed in the instrument itself. 21 N. Y., 587; 2 id., 365; 3 Barb. Ch., 48; 2 Sandf., 594. It can make no difference whether the assignment is to a trustee or to a creditor, or is in the nature of a mortgage. The law condemns it in whatever form the intent is sought to be accomplished. 101

TERM. SECOND DEPT. John B. Hopkins, Jr., applt., v. Franklin J. Lott, admr., respt.

Decided Dec., 1886.

Where upon a reference of a disputed claim against an estate the claimant recovers only nominal damages defendant is the prevailing party and is entitled to costs.

In such proceedings costs are to be adjudged as in an action prosecuted or defended by a person in his own right.

Appeal from so much of an order as denies disbursements to plaintiff and grants costs, an extra allowance and disbursements to defendant.

Plaintiff presented a claim against the estate of Sarah E. Lott, of which defendant is administrator, for $1,000 damage for breach of a covenant for quiet en

joyment in a lease. The claim was rejected and referred and the referee reported that plaintiff was entitled to six cents damages. Plaintiff refusing to take up the report, defendant did so and moved for costs. The Special Term rendered judgment for plaintiff for six cents damages and in favor of defendant for costs and disbursements and granted an extra allow

ance.

Henry A. Monfort, for applt. Joseph M. Pray, for respt. Held, That the order was right. It seems to be settled that this proceeding is not an action, but is a special proceeding. 88 N. Y., 456; 81 id., 305. The Revised Statutes, under which the reference was had, provides that the "court may adjudge costs as in actions against executors and administrators." Then comes the provision of the Code Civ. Pro., $3246, as follows: "In an action brought by or against an executor or administrator in his representative capacity costs must be awarded as in an action by or against a person prosecuting or defending in his own right." On the question of costs defendant here was the prevailing party. In this special proceeding the costs are to be adjudged as in an action prosecuted or defended by a person in his own right.

The Code of Civil Procedure was intended to provide a complete system upon the subject of costs. See §§ 3246, 3228, 3229, 3230; 3256, which seem to cover the case in hand. The confusion seems to have arisen from the fact that the

Code refers to actions when treating of costs, but when it is seen that this particular proceeding is assimilated to an action in regard to costs there seems to be no difficulty in the question.

This view is in consonance with the general purpose of the legislature in allowing costs, which is to make the burthen of litigation fall upon the party who causelessly invokes it.

Order affirmed, without costs. Opinion by Pratt, J.; Barnard, P.J., concurs; Dykman, J., not sitting.

SLANDER.

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

Thomas J. Bannon, applt., v. Ellen Cleary, respt.

Decided Dec., 1886.

Defendant stated to several persons that plaintiff had robbed her, but these persons knew that there had been a lawsuit between them or that there was a difficulty between them, and testified that they did not understand plaintiff to charge plaintiff with a crime. Held, That there could be no recovery.

Appeal from judgment in favor of defendant.

Action for slander. The trial judge found, on sufficient evidence, that in the fall of 1884, while plaintiff was repairing a building defendant, said to one V. that plaintiff could afford to do it as he had robbed her of more than $1,000; that before that V. had heard of a lawsuit by plaintiff against defendant to recover some money, and believed and under

ment; it being further admitted that the accounts thereby assigned were not due at the time of the commencement of this action. The assignment in substance states that whereas defendant is indebted to plaintiffs in $1,364.64 to secure the debt he sells and assigns to them various accounts against various persons amounting to $1,688. It proceeds, that the assignees are to collect the claims as they fall due and place the amounts to defendant's credit on his indebtedness and when paid in full plaintiffs are to return those not collected, and are to account for anything received beyond their

The assignment here does not extend the time of payment. Plaintiffs still had the original promise of defendant. They did not fix a new day of payment. They fixed the time when they would apply the proceeds of the assigned claims; namely, when they collected them. They did not agree to postpone collecting the original debt until they had

collected the claims.

Judgment affirmed.

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

RECEIVER.

tion.

Chamberlain & Hale, for applt. W. H. Sawyer, for respts. Held, That the judgment was right. 52 N. Y., 139.

This case is to the effect that where there is no agreement to extend the time of payment of the original debt, or no substituted agreement made respecting it, the mere taking of a mortgage payable at a future time as collateral security for the original debt does not operate to extend the time of payment. Appellant cites Durkee v. National Bank of Fort Edward, 36 Hun, 565. But there the original debt was past due and the debtor at the request of the creditor gave him a mortgage to secure its payment, which mortgage appointed a future day of payment; and the creditor accepted the mortgage. By its express terms the original debt was made payable at a future day.

Vol. 25-No. 19a.

TERM. FIRST DEPT. John Hayes v. Catherine E. Rabold, respt.

Decided Dec. 31, 1886.

In an action brought to declare void a lease of certain real property one M., upon his agreement to charge no fees for his services, was appointed receiver to collect the rents of said property pending the action and pay them over to the successful party. The action resulted in the dismissal of the complaint, and after the determination thereof defendant moved that the receiver be ordered to pay over to her the sum of $49 rents collected by him and which he refused to pay over. The possession of this sum was not denied by the receiver, but in opposition to the application he relied upon an ex parte order made in an action between the same parties in another district in which the summons had been issued but not served, directing M. to desist and refrain from paying over said $49 to defendant. Held, That M. should be ordered to pay over said sum to defendant and was not entitled to a stay pending an appeal from an order to that effect.

This action was brought to have a lease of certain real property de