ten agreement as modified by pa- J. E. Van Etten and D. M. Witt, rol. Plaintiff was in possession for respt. of a lot. It had belonged to plain- Held, That there was no considtiff's former wife and to her sister eration for the promise. Plaintiff Margaret, also deceased. Plain- did not perform and could not. tiff was tenant by the curtesy of He had undertaken to show that one-half and he also believed he the title of Margaret was in him, was entitled to the half of Marga- but he became convinced that it ret under a deed supposed to have was in Isaiah Snyder. When debeen executed, but which could not fendant learned this fact he said be found, from her to one Isaac Has- (taking plaintiff's version), in efbrouck; under whose will the title fect, that if Snyder would give would have come to plaintiff. him the title he would pay plainThis being the situation plaintiff tiff $500 just the same as if he had in 1882 deeded this lot to defend the title from plaintiff. Whether ant and at the same time the par- this was a new agreement or a ties entered into an agreement in modification of the old one, it had writing that defendant would pay no consideration whatever. plaintiff $500 if he produced the Judgment reversed. missing deed. Subsequently the Opinion by Landon, J.; parties concluded that no such

no such Learned, P.J., and Bockes, J., deed was ever executed and that

concur. Margaret's title was in her surviv. ing husband Isaiah Snyder, who

PARTNERSHIP. ASSIGNMENT. lived at Harrisburgh, and plaintiff testified that defendant said it

N. Y. SUPREME COURT. GENERAL would be satisfactory if plaintiff

TERM. THIRD DEPT. got him a deed from Snyder; that The National Bank of Granville, plaintiff became sick and could not respt., v. Jacob Cohn et al., go to Harrisburgh; that defendant applts. asked to be allowed to go and get Decided Jan., 1887. the deed and that if he got the

An assignment of firm property which title from Snyder he would pay provides for payment of the individual plaintiff $500 whether he had to debts of members of the firm is void in

toto; and the court will not separate propay Snyder anything for it or not. It seems that both parties sup

visions which might be valid standing

alone and uphold them. In such an posed Snyder would give a deed instrument the vice condemns every for very little. Instead, when de- part. fendant went to Harrisburgh, Sny- Appeal from judgment in favor der exacted $500 for the deed,

$500 for the deed, of plaintiff. which defendant paid, taking it The action was originally by direct to himself. Defendant then plaintiff against the sheriff for refused to pay plaintiff anything. levying on property of plaintiff.

Schoonmaker & Linson, for Defendants have been substituted applt.

for the sheriff. On Sep. 25, 1884,


defendants obtained an attach- | N. Y., 226. The statute conment against the firm of Baldwin demns the whole instrument if & Hull and the sheriff levied. On any part of it shows it was made Oct. 21 he sold under the judg- with the prohibited intent. 15 N. ment entered in the attachment Y., 97. Cases like 22 Wend., 483, in action. Plaintiff claims title un- which void parts have been separder an assignment by Hull made ated from valid ones, have no apSep. 13, 1884, of all the stock, etc., plication. There particular proof Baldwin & Hull, which was to visions are forbidden and consecure all the indebtedness of Bald- demned; here the prohibition is win & Hull “or either of them," directed not simply to particular and all indebtedness which might provisions but to the whole instrubecome due in favor of plaintiff ment if made with the prohibited against Baldwin & Hull “or either intent, of which these particular of them.” At the time of the provisions are conclusive evidence. assignment Hull


Judgment reversed. owed plaintiff considerable Opinion by Landon, J.; Learned, amount.

P.J., concurs.
B. F. Einstein, for applt.
R. C. Betts, for respt.

Held, Error. It is admitted DECEDENTS' ESTATES. that the provision of the assign

COSTS. ment transferring firm property N. Y. SUPREME COURT. GENERAL to pay individual debts cannot be

TERM. SECOND DEPT. supported, but it is said that the

John B. Hopkins, Jr., applt., v. portion transferring firm property

Franklin J. Lott, admr., respt. to pay firm debts can be. We think the assignment was made

Decided Dec., 1886. with intent to hinder or defraud

Where upon a reference of a disputed claim firm creditors. It was given and against an estate the claimant recovers received with intent to apply firm

only nominal damages defendant is

the prevailing party and is entitled to property to individual debts, and

costs. if that purpose is carried out it

In such proceedings costs are to be addefrauds firm creditors. The effect judged as in an action prosecuted or debeing known, the intent to accom

fended by a person in his own right. plish it is just as plain as if it had Appeal from so much of an orbeen confessed in the instrument der as denies disbursements to itself. 21 N. Y., 587; 2 id., 365 ; 3 plaintiff and grants costs, an extra Barb. Ch., 48; 2 Sandf., 594. It allowance and disbursements to can make no difference whether the defendant. assignment is to a trustee or to a Plaintiff presented

claim creditor, or is in the nature of a against the estate of Sarah E. mortgage. The law condemns it Lott, of which defendant is adminin whatever form the intent is istrator, for $1,000 damage for sought to be accomplished. 101 breach of a covenant for quiet en


joyment in a lease. The claim Code refers to actions when treatwas rejected and referred and the ing of costs, but when it is seen referee reported that plaintiff was that this particular proceeding is entitled to six cents damages. assimilated to an action in regard Plaintiff refusing to take up the re- to costs there seems to be no diffiport, defendant did so and moved culty in the question. for costs. The Special Term ren- This view is in consonance with dered judgment for plaintiff for the general purpose of the legislasix cents damages and in favor of ture in allowing costs, which is to defendant for costs and disburse- make the burthen of litigation fall ments and granted an extra allow-upon the party who causelessly ance.

invokes it. Henry A. Monfort, for applt. Order affirmed, without costs. Joseph M. Pray, for respt.

Opinion by Pratt, J.; Barnard, Held, That the order was right. P.J., concurs ; Dykman, J., not It seems to be settled that this sitting. proceeding is not an action, but is a special proceeding. 88 N. Y.,

SLANDER. 456; 81 id., 305. The Revised Statutes, under which the refer- N. Y. SUPREME COURT. GENERAL ence was had, provides that the TERM. SECOND DEPT. “court may adjudge costs as in

Thomas 'J. Bannon, applt., v. actions against executors and ad

Ellen Cleary, respt. ministrators.” Then comes the provision of the Code Civ. Pro.,

Decided Dec., 1886. $ 3246, as follows: "In an action

Defendant stated to several persons that brought by or against an executor plaintiff had robbed her, but these peror administrator in his representa

sons knew that there had been a lawsuit

between them or that there was a difficultive capacity costs must be

ty between them, and testified that they awarded as in an action by or

did not understand plaintiff to charge against a person prosecuting or de- plaintiff with a crime. Held, That there

could be no recovery. fending in his own right.” On the question of costs defendant Appeal from judgment in favor here was the prevailing party. In of defendant. this special proceeding the costs Action for slander. The trial are to be adjudged as in an action judge found, on sufficient eviprosecuted or defended by a per- dence, that in the fall of 1884, son in his own right.

while plaintiff was repairing a The Code of Civil Procedure was building defendant, said to one V. intended to provide a complete that plaintiff could afford to do it system upon the subject of costs. as he had robbed her of more than See SS 3246, 3228, 3229, 3230; 3256, $1,000; that before that V. had which seem to cover the case in heard of a lawsuit by plaintiff hand. The confusion seems to against defendant to recover some have arisen from the fact that the money, and believed and understood that said words related to his discharge he had sued her and said suit, which had been decided received by a settlement about $1,in plaintiff's favor, and not to 000, and the parties in whose charge a crime; that four or five presence the words were spoken years ago one R. was present when understood the charge to relate to these parties had a quarrel and de- the money paid in the litigation. fendant ordered plaintiff out of the The findings of fact of the judge house, and said "plaintiff had rob- below clearly bring the case withbed her,"and told plaintiff to bring in the rule laid down in the case in any good lawyer and settle her of Hayes v. Ball, 72 N. Y., 418. matters with him ; that R. did not As to the charge of taking a believe from what was said that silver plate, etc., the judge beplaintiff had robbed her or com- lieved the witness V, to be mismitted a crime; that defendant taken, and that defendant did not had told R.'s wife that plaintiff make the charge. had robbed her; that Mrs. R. Judgment affirmed, with costs. knew plaintiff and defendant had Opinion by Pratt, J.; Barnard, difficulties and did not understand P.J., and Dykman, J., concur. that defendant charged plaintiff with a crime. V. also testified

PAYMENT. EXTENSION. that defendant said that plaintiff

GENERAL had tried to break a silver plate off N. Y. SUPREME COURT. her door and to break the windows

TERM. THIRD DEPT. of the rear of the house. This

Russell Wheeler et al., respts., was denied by defendant, and the v. David M. Jones, applt. court found that the charges were Decided Jan., 1887. not made.

Defendant being indebted to plaintiffs Plaintiff is the son-in-law of de- for goods sold, assigned to them as collatfendant, and attended to some of

eral security certain accounts not then

due nor due at the time this action was her business for her for a while.

commenced. Nothing was said in the asWilliam D. Dickey, for applt. signment as to extending the time of A. S. Cassedy, for respt.

payment of the original debt; plaintiffs Held, That the judgment dis

only agreeing to apply the accounts as

signed to the indebtedness as the same missing the complaint was right.

were collected. Held, That by accepting It is plain from the relation of the assignment the time for the payment the parties and the testimony ad- of the original debt was not extended. duced that defendant at no time Appeal from judgment for plainintended to charge plaintiff with tiffs, entered on the decision of the the commission of a crime, and court. those who were present when the Action for goods sold and it is words claimed to be slanderous admitted that plaintiffs are enwere uttered understood defend- titled to recover $778.30, unless by ant as making no such charge. accepting as collateral security the Plaintiff had been engaged by de- assignment which follows they fendant for some time, and after had extended the time of pay

ment; it being further admitted The assignment here does not that the accounts thereby assigned extend the time of payment. were not due at the time of the plaintiffs still had the original commencement of this action. promise of defendant. They did The assignment in substance states not fix a new day of payment. that whereas defendant is indebted They fixed the time when they to plaintiffs in $1,364.64 to secure would apply the proceeds of the the debt he sells and assigns to assigned claims; namely, when them various accounts against they collected them. They did not various persons amounting to agree to postpone collecting the $1,688. It proceeds, that the as-original debt until

they had signees are to collect the claims as collected the claims. they fall due and place the

Judgment affirmed. amounts to defendant's credit on Opinion by Landon, J.; Learned, his indebtedness and when paid in P.J., and Bockes, J., concur. full plaintiffs are to return those not collected, and are to account

RECEIVER. for anything received beyond their claim and the expenses of collec. N. Y. SUPREME COURT. GENERAL tion.

TERM. FIRST DEPT. Chamberlain & Hale, for applt.

John Hayes v. Catherine E. W. H. Sawyer, for respts. Rabold, respt. Held, That the judgment was

Decided Dec. 31, 1886. right. 52 N. Y., 139.

In an action brought to declare void a lease This case is to the effect that

of certain real property one M., upon his where there is no agreement to agreement to charge no fees for his serextend the time of payment of the vices, was appointed receiver to collect original debt, or no substituted

the rents of said property pending the

action and pay them over to the successagreement made respecting it, the

ful party. The action resulted in the dismere taking of a mortgage payable missal of the complaint, and after the at a future time as collateral secur

determination thereof defendant moved ity for the original debt does not

that the receiver be ordered to pay over

to her the sum of $49 rents collected by operate to extend the time of pay

him and which he refused to pay over. ment. Appellant cites Durkee v.

The possession of this sum was not denied National Bank of Fort Edward, 36 by the receiver, but in opposition to the Hun, 565. But there the original

application he relied upon an ex parte

order made in an action between the debt was past due and the debtor

same parties in another district in which at the request of the creditor gave the summons had been issued but not him a mortgage to secure its

served, directing M. to desist and refrain ment, which mortgage appointed

from paying over said $49 to defendant.

Held, That M. should be ordered to pay a future day of payment; and the

over said sum to defendant and was not creditor accepted the mortgage. By entitled to a stay pending an appeal from its express terms the original debt an order to that effect. was made payable at a future This action was brought to have day.

a lease of certain real property deVol. 25-No. 19a.


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