Iclared void and for other relief. A motion was made for a receiver of the rents, etc., pending the action, and upon the stipulation of M., one of the attorneys for plaintiff, that he would charge no fees for his services if a bond was not required, he was appointed such receiver to collect such rent and pay it over to the successful party in the action. The action resulted in a dismissal of the complaint, and upon M.'s refusal to pay over to defendant the sum of $49 rent collected by him as receiver a motion was made for an order directing him to do so. M. admitted the possession of said sum, but in opposition to the motion produced an ex parte injunction order, made in an action in Kings County between the same parties, in which the summons had been issued but not served, which restrained defendant from enforcing the judgment recovered by her in this action upon the ground that she Held, That under the order appointing M. receiver it was his duty to have paid over the money to defendant on the final disposition of the action in which he had been appointed. That the court had the right to treat the order obtained in Kings County, in an action not in fact commenced, as no protection to the receiver. That the effect of the order made on the motion was to vacate that order, and appellant was in no danger of being punished for contempt in obeying the order to pay over the money. That the stay of proceedings was discretionary, and the court evidently regarded the application as without merit and not made for a proper purpose. Both orders affirmed. Opinion by Davis, P.J.; Brady and Daniels, JJ., concur. CONTRACT. FRAUD. TERM. Johanna Bernhard, respt., v. Mary S. McMasters et al., exrs., applts. Decided Dec. 17, 1886. was about to do an act tending to N. Y. SUPERIOR COURT. GENERAL render a judgment in the Kings County action ineffectual and which also directed the receiver to desist and refrain from paying over to defendant the rent collected by him. The application of defendant was granted and an order made directing the payment by the receiver of the rents collected by him. From this order the receiver appealed and moved for a stay pending said appeal. This motion was denied and the receiver appealed from the order denying it. Samuel J. Crook, for applt. A false statement as to the value of property, inducing a contract for the purchase thereof, is not of itself a defense to an obligation arising out of the contract, in a controversy between parties bearing no other relation to each other than such as arose from the contract. Appeal from judgment in favor of plaintiff. Action upon bond given to secure part of the purchase money of land in Virginia. Defendants set up a counterclaim for fraud, claiming damages in the sum of $20,000. Appellants submitted no evidence, but relied solely on the findings of the referee, which showed: 1, that there was no proof that plaintiff made to David McMaster, before he purchased her property in Virginia, any representation which she believed to be untrue; 2, that there was no proof that plaintiff made to David McMaster, before he purchased her property in Virginia, any representations with the intent to defraud him; 3, that there was no proof that any artifice was employed by plaintiff before David McMaster agreed to buy said land to prevent inquiry by him concerning said land; and 4, that there was no proof that David McMaster did, on account of his reliance upon any representations made by plaintiff, forebear from inspecting said land before he purchased the same. Alexander Thain, for applts. Held, That the only grievance left to appellants consisted of a false statement as to the value of the land, and that such a statement has never yet been held to constitute a defense to an obligation arising out of a contract thus entered into in a controversy between parties bearing no other relation to each other than such as arose from the contract, and as long as the controversy is between such parties it makes no difference that the false statement as to value may have induced, or did induce, the contract. So mere inadequacy of consideration of itself is never proof of fraud in such a case. Opinion per curiam; Sedgwick, Ch. J., Freedman and Ingraham, JJ., sitting. WILLS. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Elias H. Thomas et al., by guardian, applts., v. Jane E. Snyder et al., respts. Decided Jan., 1887. Testator by will gave his wife the use of two farms and the personal property thereon and the income of his bank stock during her natural life and the right to dispose of "the same by will except the bank stock." Held, That under this provision it was competent for the widow to dispose of the farms by will. Appeal from judgment entered upon decision at Special Term, dismissing complaint. By Action for partition. One T., who was the owner of the premises in question, made his will in 1875 and died in 1880. his will he devised and bequeathed to his wife "the use of the farm on which I now reside, together with the one now occupied by F., and all the personal property on the said farms and the income of my bank stock during her natural life, and the right to dispose of the same by will except the bank stock, and if the income from the above mentioned property shall be insufficient for her maintenance the deficiency shall be made up from the income of the farm now occupied by J. H., and known as Held, That the complaint was properly dismissed. From the general tenor and scope of testator's will it is inferable that he did not intend to die intestate as to any portion of his estate. A construction which does not leave the testator intestate as to any portion of his estate is preferable and more reasonable of the will in question than a construction which would leave him dying intestate as to two of the several farms of which he was the owner at the time of making and publishing his will, as well as at the time of his death. 53 N. Y., 361. While it was within the power of the testator owning thirteen farms to so dispose of eleven as to satisfy his intention, and to leave the other two undisposed of, except as to the use thereof during the life of his widow, it does not seem reasonable to impute such an intention to a testator upon doubtful and equivocal language. The testator limited the gift and devise to his wife "during her 'during her natural life." The use and devise is clearly unlike that considered in Campbell v. Beaumont, 91 N. Y., 464, which was absolute, and the widow took the whole estate with power of disposition. 66 Following the limitation to and during the widow's natural life," which confessedly applies to the real and personal property given to her, are the words "and the right to dispose of the same by will, except the bank stock." Apparently the intent in the use of the latter words was to make them co-extensive with the prior words used to give her the use of the property, of both classes, "during her natural life." Besides the exception of the bank stock out of the before named personal property, it is suggestive of an intent to include, in the "right to dispose," the two classes of property entirely save the portion thereof known as the bank stock. The original will, handed up on the argument, gives the language continuously, without any use of punctuation or capitals to indicate an intent to separate the personal from the real in the application of the words "and the right to dispose of the same by will." 3 Den., 458; 5 Barb., 110. It was competent for the widow to dispose of the property by will, and having done so the property passed under her will to defendants. 86 N. Y., 540; 92 id., 295. It is found that the widow executed a will, which, with a codicil, was probated, and that it gave the property in question to defendants. The general language of the will was adequate as an execution of the power conferred upon her to dispose of the property in question by will. 92 N. Y., 539; id., 295. It follows that plaintiffs had no title, interest or estate in the lands in question; and that their attempt to partition the same was properly defeated at the trial. Judgment affirmed, with costs. Opinion by Hardin, P.J.; Boardman and Follett, JJ., con cur. NEW TRIAL. MORTGAGE. N. Y. SUPREME COURT. GENERAL Charles Fincke et al., exrs., respts., v. The City of Buffalo, applt. Decided Oct., 1886. Where the evidence in an action is such as to permit the trial judge to fairly conclude that a fact necessary to support the verdict is not satisfactorily proved and that injustice may have been done by the verdict upon the evidence it is not an abuse of discretion for such judge to grant a new trial. Under the charter of the city of Buffalo, where the city in the exercise of its right of eminent domain has instituted proper proceedings to condemn a portion of lands which are subject to a mortgage, and awards have been made to the mortgagee for his damages in diminishing his security, although the awards had not in fact been paid by the city to the mortgagee, the right of such mortgagee to payment of such awards is not affected by the foreclosure and sale of the premises described in the mortgage. The rights acquired by the city by means of its right of eminent domain are paramount to the lien of the mortgage. This action is brought to recover the amount of the awards made by defendant to plaintiff by way of compensation to them for lands taken by the city for a public avenue, pursuant to Laws of 1873, Chap. 540. Requisite proceedings were had by the city to acquire title. Plaintiffs were mortgagees of some lands so taken and awards were made to them in Oct., 1873. In July, 1874, five awards were paid to one Bork and others prior to that time, which plaintiffs claim were paid without authority. Bork was a member of the firm of Lyon & Co. and was also the city treasurer. The city comptroller testified that the warrants were indorsed and delivered by him to Bork in pursuance of authority given by plaintiffs in a letter, which was not produced on the trial, written by Fincke to Lyon & Co. or James Lyon, in July, 1874, and Bork took the warrants and retained the letter; that he read only part of the letter and was unacquainted with Fincke's handwriting, and was unable to state the contents. Bork testified he got the warrants of the comptroller, and that his impression was that he got them on a letter from Fincke to Lyon, "directing deliv"that he could not state the ery, contents of the letter, that he could not state the part of it relating to the awards, and could not state its contents generally; and on being asked if he could state the substance of the letter answered, "only generally as I Appeal from order of Erie Cir- stated it," and then being asked to state the substance, answered, cuit, granting a new trial. "I couldn't say anything more, I don't think I could give a word of it." Lyon testified he never received any authority from plaintiffs or Fincke to draw the awards, and Fincke testified that he never authorized any one to get the awards and never wrote any letter to Lyon or Bork or to any body else to get the awards or any of them. The circumstance that so great time had elapsed since the making of the awards was urged by defendant as a circumstance which supported their contention that Bork had authority to receive the awards and obtain payment of them. The jury found for defendant and on motion the court granted a new trial. ited the money within the mean- Held, That whatever interest the city had acquired by means of its right of eminent domain was paramount to the lien of the mortgages, and would not be affected by the judgment in the foreclosure action and the sale thereunder, and assuming that it has not paid the awards to any party having authority to receive payment such foreclosure and sale affords no reason why these awards should not be paid to the parties entitled thereto.. Order affirmed, with costs. Opinion by Bradley, J.; Smith, P.J., Barker and Haight, JJ., con Hermann Henniy, for applt. Frank C. Ferguson, for respt. Held, That the evidence so far as it directly bears upon the import of the letter in respect to any authority or direction contained in it to obtain from the comptroller the awards to plaintiffs is very vague, and the inference that it did contain such authority derivable N. Y. SUPREME COURT. GENERAL from the circumstances was so weak as to permit the trial judge to fairly conclude that the fact was not satisfactorily proved and that injustice had been done by the verdict upon the evidence. There was no abuse of discretion by the judge in granting a new trial. Plaintiffs' mortgages were foreclosed and it was contended that this foreclosure and the sale thereunder cut off the rights of the city to the lands on the ground that the city had neither paid nor depos cur. RAILROADS. RECEIVER. TERM. SECOND DEPT. In re Powers v. James Jourdan, recr. Decided Dec., 1886. A receiver of a railroad cannot use the earnings to pay claims for permanent improvements to property owned by the company in preference to the claims of lienors by judgment or mortgage. Such use would be a diversion of the t ds which a court of equity could nanetion. Appeal from order directing defendant to pay a claim of plaintiff. |