ADMINISTRATION. SUR ROGATES. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. In re estate of Lydia C. Libbey. John Libbey, applt., v. Emma J. Mason, respt. Decided Dec., 1886. Under $2662 of the Code it is not incumbent upon the surrogate, on an application for letters of administration, to issue citations to non-residents, but he may issue letters immediately on presentation of the petition if the petitioner is otherwise qualified. The failure to issue letters before the nonresident petitions does not divest the surrogate of his discretion. Appeal from decree of surrogate, granting letters of adminis tration. Lydia C. Libbey resided in Brooklyn and died there intestate, leaving Emma J. Mason, her only child, who resides in New York City, and John Libbey, her husband, who resides in the State of Maine. Emma J. Mason presented a petition to the surrogate of Kings Co. praying for letters of administration. A few days subsequently John Libbey also presented a similar petition to the surrogate, who thereupon decided that letters should issue to the daughter. C. B. Ripley, for applt. Held, No error. Section 2662, Code Civ. Pro., is this: "Every person being a resident of the State who has a right to administer prior or equal to that of the petitioner, and who has not renounced, must be cited upon a petition for Vol. 25-No. 20. letters of administration. The surrogate may, in his discretion, issue a citation to non-residents or those who have renounced, or to any or all persons interested in the estate whom he thinks proper to cite. When it is not necessary to cite any person, a decree granting to the petitioners letters may be made upon presentation of the petition." Under this law it was not incumbent upon the surrogate to issue a citation to the husband, and it was entirely within his competence and discretion to issue letters to the daughter immediately upon the presentation of her petition. The failure to issue letters to the daughter previous to the presentation of the petition of the husband did not divest the surrogate of his discretion, and he could exercise the same thereafter as well as theretofore. We do not find that the discretion of the surrogate was improperly exercised. Decree affirmed, with costs to be paid by appellant personally. Opinion by Dykman, J.; Barnard, P.J., and Pratt, J., concur. SUPPLEMENTARY PRO- N. Y. SUPREME COURT. GENERAL Decided Dec. 31, 1886. T., a judgment creditor of D., instituted supplementary proceedings, and, after examining D. several days, no further action was taken therein for a year or more. Subsequently T., upon hearing that D. had acquired some property, notified him to appear and submit to a continuation of his examination, and, upon his doing so, procured the appointment of one G. receiver of D.'s property. No inquiry was made in T.'s proceedings as required by $2465 of the Code Civ. Pro. as to whether any other proceedings of the same character were pending at the time of the appointment of G. as receiver, and no notice of the application for the appointment of a receiver was given to any one. Such other proceed ings were in fact pending at that time, and the judgment creditor therein subsequently moved to vacate the appointment of G. upon affidavits charging that T. and his attorney were cognizant of the existence of the other supplementary proceedings. Held, That the appointment of G. as receiver should be vacated. Plaintiff procured a judgment against defendant and commenced supplementary proceedings thereon, and began the examination of the judgment debtor. This examination was adjourned from time to time, and, after several adjournments, no further action was taken in the matter for a ings were pending against defendant at the time of G.'s appointment, and the judgment creditor therein moved in this action to vacate the appointment of G. as receiver of defendant's property upon affidavits setting forth the above facts, and charging plaintiff and his attorney with cognizance of the pendency of the proceedings of the mover at the time of the application for G.'s appointment. From the order granting this motion plaintiff appealed. Geo. W. Lord, for applt. Held, That a consideration of all the facts and circumstances bearing upon the subject showed that the court below was quite justified in vacating the order appointing G. receiver. Fraser v. Hunt, Daily Reg., Dec. 19, 1882. Order affirmed. year or more, when plaintiff, hear- N. Y. SUPREME COURT. GENERAL ing that defendant had acquired some property, notified the latter to appear and submit to a continuation of his examination, and, upon his doing so, procured the appointment of G. as receiver of his property. No inquiry was made in plaintiff's proceedings, as required by $2465, Code Civ. Pro., as to whether any other proceedings of a similar character were pending, and no notice was given to anyone of the application for G.'s appointment as receiver. Other supplementary proceed TERM. SECOND DEPT. In re application of Nicholas Cooper v. The Registrar of Arrears of the City of Brooklyn. Decided Dec., 1886. Whatever may be the strict legal right of the registrar in respect to a specific arrears in order to compel him to act under the city charter, if he does answer the general demand for all arrears of taxes and assessments he is bound to do so correctly. Appeal from order of Special Term denying motion for a writ of mandamus to the registrar of arrears to receive a sum of money alleged to be due for taxes and liens on certain realty, and to cancel said taxes, liens and a certain tax sale of realty. Appellant set forth in his petition that he went to the office of the registrar of arrears and said to the clerk stationed at the window or opening marked "Bill Clerk," that he wished to pay all arrears on certain lots and requested to be furnished with bills of the same. That said person in charge thereupon prepared such bills and handed them to the petitioner. Each bill had several items of arrears on it, which were paid by the petitioner, supposing he was paying all the arrears on said lots. The lots were sold a short time thereafter by the registrar, one item of arrears upon each of the three lots having been left off. After learning of such sale the petitioner tendered the registrar the full amount of said three items with all percentages due thereon and demanded that said tax sales be canceled, which was refused. The petitioner then moved for a peremptory writ of mandamus to compel said registrar to accept the same and cancel and mark same as paid on his books. Respondent's opposing affidavits state that the relator was informed that there were other arrears, and he, the relator, said he knew of that fact, and that there was no demand made for the particular arrear for which the property was afterward sold. Wm. J. Gaynor, for applt. Held, That whatever may have been the strict legal right of the registrar in respect to a specific arrears in order to compel him to act under the city charter, if he does answer the general demand he is bound to do so correctly. The registrar was bound to furnish the bills by title 8, § 16 of the charter. If he failed to give the bills no title could be sold. 36 N. Y., 150. The section in respect to official searches was designed for a different purpose. It was to be evidence of the lien or freedom from liens by arrears of taxes, and the registrar was responsible for the accuracy of his search and was entitled to a fee. Upon relator's affidavit there is a strong case for relief against the sale. If the facts are doubtful an alternative writ should furnish the means for the trial of the issue. Under the affidavit of the clerk an issue was made upon the facts. Order reversed and an alternative writ of mandamus ordered. Opinion by Barnard, P.J.; Pratt, J., concurs. EVIDENCE. N. Y. COURT OF APPEALS. Nearpass et al., admrs., applts., v. Gilman, respt. Decided March 1, 1887. The disqualifying interest under § 829 must be not merely in the question involved, but in the event of the particular action pending; such that the witness will gain or lose by the direct legal effect and operation of the judgment, or that the record will be legal evidence for or against him in some other action. A general agent of the maker of a note is not precluded by § 829 from testifying that the note has been paid, nor is an indorser who is not a party precluded from testifying on behalf of defendant where it is not claimed that the note had been protested. This action was brought to recover the amount claimed to be due upon two checks and two notes claimed to have been executed by defendant through his general agent, G. The latter was called as a witness on behalf of defendant to prove payment, and his evidence, which involved personal transactions and communications with B., plaintiff's intestate, was objected to for that reason, but admitted under an exception by plaintiffs. It was urged that G. was "a person interested in the event" of the action under § 829 of the Code. It was argued that if the defense failed the agent would be liable to his principal for a misappropriation of funds, or negligence in permitting the evidence of payment. John W. Lyon, for applts. Lewis E. Carr, for respt. Held, Untenable; that assuming a possible liability of the witness upon one or the other of the grounds urged might exist, it would find its origin in facts gaining no effect or potency from the event of the action or the judgment for plaintiffs in which it might terminate. That judgment could not bind him directly by its own force nor indirectly as evidence against him. It might prove to be the occasion or cause of a suit against him by his principal, but in defending that suit he would be utterly unaffected by the judgment against his principal and entirely at liberty to show a payment in fact made by him with his principal's funds and explain the failure to take up the notes and checks. The disqualifying interest must be not merely in the question involved, but in the event of the particular action pending, such that the witness will either gain or lose by the direct legal effect and operation of the judgment, or that the record will be legal evidence for or against him in some other action. 62 N. Y., 80; 78 id., 283. One of the notes in suit was drawn to the order of F. and was indorsed by him. He was not a party to the action. He was offered as a witness in behalf of the maker of the note. At the date of the trial the note was long past due. He swore he received no notice of protest. It was not proved that a claim of protest and notice existed. F. was offered as a witness on behalf of the maker of the note. It was claimed that he was examined in his own behalf and had an interest in the event of the action by reason of his position as indorser. Held, Untenable; that F. did not stand in the attitude of one interested in the event of the action and examined in his own behalf. Whoever would close the mouth of a witness must place him within the boundaries of the exception. Judgment of General Term, affirming judgment for defendant on report of referee, affirmed. Opinion by Finch, J. All con cur. USURY. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Francis J. Byrnes v. Maria L. Labagh. Decided Dec. 31, 1886. When a person employs an agent to procure for him a loan upon bond and mortgage, and agrees to pay such agent a specified sum "to pay expenses, etc., therefor," and the agent applies to a third person to lend the money and informs the lender that he (the agent) is to be paid a sum of money for procuring such loan and agrees with the lender to divide such sum with him, and, upon that understanding, the loan is made, and the lender, besides receiving a bond and mortgage securing the payment of the entire sum loaned with legal interest, also receives from the agent half the sum of money paid the latter, the transaction is usurious, for the bonus paid by the agent for the loan to the borrower is in legal effect paid by the principal as a bonus in excess of legal interest. Appeal from order of Special Term confirming report of referee in proceedings to ascertain the right to surplus money arising upon the sale of certain real estate in partition. The respondent, P., held two mortgages upon separate parcels of land sold in the partition suit, and claimed payment of the principal thereof and interest thereon. out of the surplus moneys. The loans were made and the mortgages were made payable in New Jersey, and the mortgagors claimed that they were usurious under a statute of that State prohibiting any larger rate of interest than six per cent., and declaring that, in the case of a usurious loan, the lender could recover nothing more than the sum loaned without in terest or costs, and they therefore resisted the payment of interest to P. It appeared that L. & M., the mortgagors, had applied to C. & H., a firm of lawyers, to procure for them a loan upon their property, and had agreed in writing to pay said C. & H. the sum of $1,500, "to pay expenses, etc., therefor." C. & H. then applied to P. to lend. the money, and informed P. that they were to be paid $1,500 for procuring the loan, and agreed with him to give him half of said sum, less their expenses, if he would make the loan. Under this understanding P. made the loan, and received bonds and mortgages securing the payment of the entire sum loaned with interest, and also received from C. & H. $695 as his share, under the agreement, of the $1,500 paid them. John Henry Hull, for applt. Stimson & Williams, for respt. Held, That C. & H. were the agents of the mortgagors. They were employed by them to procure a loan under an agreement which provided that they should be paid $1,500, "to pay expenses, etc." Their employment was to procure a loan, and the "etc." was to include the cost, whatever it might be, of procuring such loan. They made known to P. the fact of their employment, and offered him, as a bonus, half the $1,500, less certain actual expenses. P. knew that they were acting as agents of the borrowers for the purpose of procuring the loan, and must be held to have known that what the authorized agent does in the busi |