Plaintiff is the owner of a mortgage upon lands in Livingston County, and defendant is the owner of a prior mortgage upon the same premises; and this action was brought in Yates County to compel defendant to assign to plaintiff his mortgage upon payment to him of the amount thereby secured. Defendant claimed that the action must be tried in the county where the land is situated, as provided by $982 of the Code. Wm. T. Morris, for respt. J. A. Vanderlip, for applt. HAIGHT, J. It has been held that an action brought to restrain the erection of a bridge over a public highway, to connect buildings on opposite sides of such highway, on the ground that such erection will injure property, is local-not transitory. 42 N. Y., 547. That an action brought to set aside an assignment for the benefit of creditors on the ground of fraud, where the assigned property consists in part of real estate, is within the provisions of this section. 96 N. Y., 383; 25 W. Dig., 281. That an action to recover a penalty of an agent of a foreign insurance company who effects or procures an insurance against fire within the limits of a city or incorporated village, without having first given a bond to the treasurer of the fire department of the municipality conditioned for. the payment to such treasurer of a percentage on premiums received, in accordance with the statute, is also within the provisions of this section. 99 N. Y., 429. So also of an action to have a deed of land declared a mortgage and for the re-conveyance thereof. 11 Abb., N. S., 27. And also an action by a receiver to set aside a conveyance or assignment of real property made to defraud creditors. 66 How, 391. An action of trespass to real estate is also local. 19 W. Dig., 552. But it will be observed that none of these authorities cover the question under consideration. A mortgage undoubtedly creates a lien upon real estate, and the question is whether this action is brought to procure a judgment "affecting" such lien. The relief sought is not to change the mortgage or the amount that it was given to secure, for that remains the same even though plaintiff should recover in this action. The action is simply to have the lien created by the mortgage transferred from defendant to plaintiff. In the hands of the latter it would remain the same lien and for the same amount. The lien upon the real estate would not be affected by the action. 22 Hun, 506. We are consequently of the opinion that it is not within the provisions of said section a local action, and that the motion was properly disposed of by the Special Term. Order affirmed. Opinion by Bradley, P.J.; Angle and Childs, JJ., concur. BANKS. DRAFTS. After said draft had been mailed N. Y. SUPREME COURT. GENERAL by defendant C., hearing of the TERM. FIRST DEPT. The Corn Exchange Exchange Bank, Bank, applt., v. The Farmers' National Bank of Lancaster, Pa., respt. Decided Dec. 31, 1886. The property in business paper received for collection by one engaged in the business of banking and collections, and forwarded by him to his correspondent in the usual course of business, without any express agreement in reference thereto, does not become vested in the correspondent, although he may have remitted upon general account in anticipation of collections. It is only where by express contract or well established course of dealing the correspondent becomes responsible for the collection and cannot seek reimbursement of advances in case of non-payment that he can retain the draft or the proceeds of the collections as against the real owner. One C., who was the owner and holder of a check on defendant drawn by one M., deposited this check for collection with H., a banker in Indianapolis. H. indorsed said check to plaintiff's order and transmitted it to plaintiff, by whom it was received and H.'s account credited with its amount, and upon the credit of this check and others plaintiffs paid and certified several checks drawn on it by H. Soon after H. failed, being indebted to plaintiff in a large amount. After having received said check from H. plaintiff indorsed it and sent it to defendant for payment and thereupon defendant drew a draft to plaintiff's order upon the First National Bank of N. Y. for the amount of said check and mailed same to plaintiff. Vol. 25-No. 24. failure of H., requested defendant through M. to stop payment of the check and thereupon defendant telegraphed the First National Bank to refuse payment of the draft. Upon presentation of said draft it was dishonored and duly protested and thereupon this action was brought to recover its amount. The case was tried at Circuit without a jury and from the judgment in favor of defendant plaintiff appealed. John M. Bowers, for applt. Held, That C. delivered the check to H. for collection, and it was transmitted by H. to plaintiff also for collection. That therefore C. did not part with his title to the check or to its proceeds, and he could, as owner, if the draft had been paid, have demanded payment of the money directly from plaintiff and forbid their paying it to H. 5 Wend., 600; 35 Supr. Ct., 14; 6 Mass., 430; 47 N. Y., 439. That the property in business paper received for collection by one engaged in the business of banking and collections and forwarded by him to his correspondent in the usual course of such business without any express agreement in reference thereto does not become vested in the correspondent although he may have remitted upon general account in anticipation of collections. That it is only where by express contract or well established course of dealing the correspondent be comes responsible for the collection and cannot seek reimbursement of advances in case of nonpayment that he can retain the draft or the proceeds of the collections as against the real owner, 47 N. Y., 439, and that there was no evidence bringing this case within this exception to the general rule. Bank of New Haven v. Perkins, 29 N. Y., 554, and Metropolitan National Bank v. Lloyd, 90 N. Y., 530, distinguished. Judgment affirmed. trust to collect the rents, issues and profits thereof and pay them over to specified beneficiaries, among whom was defendant Wilmer S. Wood. Plaintiff was a judgment creditor of said Wilmer S. Wood and brought this action to have it determined how much of the income of the trust estate was necessary for the suitable support and maintenance of the beneficiary, and to have the surplus over that amount applied to the payment of his judgment. It appeared upon the trial that said Opinion by Brady, J.; Davis, Wood was in receipt of an income P.J., concurs. TRUSTS. CESTUI QUE TRUST. TERM. FIRST DEPT. Nicholas Kilroy, applt., v. Wilmer S. Wood, individually and as trustee, respt. Decided Dec. 31, 1886. Where a trust provides for the payment of the income of the trust fund to the bene ficiary, a judgment creditor of the latter is entitled to the appropriation to the payment of his judgment of the surplus of said income beyond what is necessary for the suitable support and maintenance of the cestui que trust and those dependent on him; and the judgment creditor may maintain an action in equity to reach and appropriate such surplus; but, in order to succeed in such an action, he must prove that such a surplus exists, and in determining what is a proper amount to be allowed for the expenditures of the beneficiary it is proper to consider the manner in which he has been brought up, the habits acquired by him, and his ability to take care of his property. Silas Wood by his will left certain property to his executors in of about $3,500 per annum; that he was unmarried; that he was without any business, trade, or profession; that he was a member of several clubs and his associations were chiefly with men of leisure, and it was claimed in his behalf that his income was not more than sufficient to maintain his position according to his education, habits and associations. The complaint was dismissed at Special Term and plaintiff appealed from the judgment. P. & D. Mitchell, for applt. F. B. Candler and M. L. Erlanger, for respt. Held, That plaintiff was entitled to the appropriation to the payment of his judgment of the income of the trust estate beyond what was necessary for the suitable support and maintenance of the cestui que trust and those dependent on him, Code Civ. Pro., $$ 1871, 1879; 70 N. Y., 270; 31id., 9; 2 Edw. Ch., 376, 554; 99 N. Y., 616; 2 Barb. Ch., 79; and in determining what was a proper amount to be allowed for his expenditures it was proper to consider the manner in which he had been brought up, the habits acquired by him, and his ability to take care of his property. That in this case there was no evidence on the part of plaintiff tending to show what would be a proper amount to allow the beneficiary for his support. That it was the duty of plaintiff to show, in order to succeed, that there was a surplus of income, and, having failed to do so, the judgment should be affirmed. Ordered accordingly. junction pendente lite, and from the order denying said motion plaintiff appealed. At the time said judgment was recovered the Marine Court was not a court of record, but it was made so by Chap. 629, Laws of 1872. It was conceded that when the judgment was recovered the period limited for the commencement of an action upon it by § 90, Code of Procedure, which was then in force, was twenty years, but it was claimed by appellant that the Code Civ. Pro., enacted in 1876, by § 382 supplanted § 90 of the old Code and shortened the period of Opinion by Brady, J.; Davis, twenty to six years. P.J., concurs. N. J. Waterbury, Jr., for applt. Henry F. Lippold, for respt. Held, That the Marine Court, at the time of the passage of the Code Civ. Pro., had been declared to be a court of record, and subd. 7 of § considered with reference to any 382 of said Code must therefore be and all provisions in said Code bearing upon that subject. That, therefore, & 382 should be taken in Code, in which the Marine Court is enumerated as one of the courts of record of the State, and thus the period of limitations within which the judgments of that court lived for the purposes of an action was continued and preserved by express terms the same as before its passage. The period of twenty years limited by the conjunction with § 2 of the same. Code of Procedure for the commencement of an action upon a judgment of the Marine Court of the city of N. Y., rendered while said court was not a court of record, has not been reduced to six years by subd. 7 of § 382, Code Civ. Pro. Defendant recovered a judgment against plaintiff's intestate in the Marine Court of the city of N. Y. in 1868, and this action was brought to obtain an injunction restraining defendant from enforcing or collecting said judgment upon the ground that it had been outlawed by the statute of limitations. That this question was not affected in any way, therefore, by the omission in the statute of 1872, supra, of language showing an intention to give it a retroactive efA motion was made for an in- fect or of express words constitut ing the Marine Court a court of record as to judgments then existing, inasmuch as the Code Civ. Pro. was passed when the court was not only a court of record but recognized therein. That the legislature had the right to change or continue the statute of limitations relating to judgments of the said court if necessary or expedient. That such a procedure affects the remedy but does not impair the obligation of contracts. 81 N. Y., 143. Order affirmed. Opinion by Brady, J.; Davis, P.J., and Daniels, J., concur. INJUNCTION. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. ant's president, and these denials M. M. Waters, for applts. Held, No error. When a plaintiff is not entitled to an injunction as a matter of law, and all the allegations in the complaint are positively denied in the answer, the general rule is that an injunction pending the litigation will not be granted, or if granted will not be continued. 25 Hun, 268; 52 How., 218. There was no necessity for sustaining the injunction upon the Abel C. Benedict et al., applts., ground that the construction and v. The Seventh Ward RR. Co. of Syracuse, respt. Decided Jan., 1887. When a plaintiff is not entitled to an injunction on the pleadings as matter of law, and all the allegations in the complaint are positively denied in the answer, an injunction pendente lite will not be granted, or if granted will not be continued. Appeal from order vacating injunction. The injunction was granted pendente lite to restrain defendant from constructing and operating a street railroad in front of plaintiffs' premises. The complaint was verified and its allegations supported by two affidavits made by plaintiff Abel. The material allegations are denied positively by the answer, which is verified by defend operation of the road would inflict irreparable injuries upon plaintiffs' property or rights, or because the injuries complained of could not be fully compensated by damages in case plaintiffs maintained this action. Order affirmed, with $10 costs and disbursements. Opinion by Follett, J.; Hardin, P.J., and Boardman, J., concur. PRACTICE. COMPLAINT. Decided Jan., 1887. Causes of action are distinguished by the |