damages for the injury." Several requests to charge were made and refused, embodying a contrary proposition, and relating to state ments made as to specific portions of the property sold, and also to the effect that when the property is seen and examined by a person negotiating for the purchase or exchange, he must rely upon his own judgment and opinion as to the value and worth, and has no right to rely upon the statement of the person offering the same for sale or exchange. The charge as made and refusals to charge were severally excepted to. Rufus W. Peckham, for applt. Held, That the charge as made and refusals to charge were erroneous. If the statements made were mere matters of opinion and belief no liability is created by them. 53 N. Y. 299. When, however, such statements are known to the utterer to be untrue, if made with the intention of misleading the vendee, if he relies upon them and is misled to his injury, they avoid the contract. 4 Mason, 414-423. Where they are fraudulently made of particulars in relation to the estate which the vendee has not equal means of knowing, and where he is induced to forbear inquiries which he would otherwise have made, and damage ensues, the party guilty of the fraud will be liable for the damages sustained. A false statement of the value of property by the vendor, made for the purpose of obtaining a higher price than he knew it was worth, will not sustain an action for fraud by the purchaser who contracts relying upon such statement. Upon the question of value, the purchaser must rely on his own judgment, but in regard to any extrinsic fact affecting the quality or value of the subject of the contract, he may rely upon the assurances of the vendor, and if he does so rely and those assurances are fraudulently made, to induce him to make the contract, he may maintain an action for the injury sustained. 56 N. Y., S3. A naked assertion by a vendor of the value of property offered for sale, even although untrue of itself, and known to be such by him, unless there is a want of knowledge by the vendee, and the sale is made in entire reliance upon the representations made, or unless some artifice is employed to prevent inquiry or the obtaining of knowledge by the vendee, will not render the vendor responsible to the vendee for damages sustained by him. Judgment of General Term, af firming judgment on verdict for plaintiff, reversed and new trial granted. Opinion by Miller, J. cur. MORTGAGE. All con TAXES. N. Y. COURT OF APPEALS. Sidenberg, respt., v. Ely et al., applts. Decided Oct. 24, 1882. When the owner of mortgaged property refuses or neglects to pay taxes and assessments imposed upon it, the mortgagee may pay the same in order to protect his security, and the amount so paid may be added to and becomes part of the mortgage debt, which may be enforced upon the foreclosure of the mortgage. This is so though there be no tax clause in the mortgage. It is not necessary that the property should be sold for the tax or assessment before the mortgagee is authorized to pay the same and add the amount paid to his mortgage. Though, as between the life tenant and the remainder men, it be the duty of the former to pay the taxes, still the equities between them cannot destroy this right of the mortgagee to pay taxes and add the amount paid to his mortgage. Semble, That after payment of the mortgage by a sale, the interest of the life tenant might be burdened with the charge. This was an action for the foreclosure of a mortgage. It appeared that the mortgage did not contain any tax clause, and that the assignee paid certain taxes and water rates upon the mortgaged premises, the owner of the premises having refused or neglected to pay them, and certain sums to redeem the premises from tax sales, amounting, together, to $1,640. Subsequently plaintiff, to whom the mortgage had been assigned, paid certain taxes and assessments amounting to $925, which, with the amount paid by his assignor, plaintiff claimed should be allowed. The defendant E. is the widow and executrix of the mortgagor, and under his will he devised a life estate to her in the mortgaged premises, with remainder over in fee to the children of his brother J., who are also defendants in this action. The court allowed the taxes and assessments so paid by adding them to the mortgage. VOL. 15.-No. 17b. Wm. Rockwell and J. Loder, for applts. William Strauss, for respt. Held, That the taxes and assessments paid by plaintiff and his assignor were properly allowed and added to the mortgage. Willard's Eq. Jur., 446, 448; Thomas on Mortgages, 86, 276; Jones on Mortgages, $$77, 1134; 2 Edw. Ch., 631; 3 Wend., 412; 7 How., 398; 414; Hopk. Ch., 283; 78 N. Y., 25 id., 320; 31 id., 414. It is not necessary that the premises should be sold prior to the payment of the taxes and assessments, before the mortgagee is authorized to pay the same, and add the amount paid by him to the mortgage. Edw. Ch., 631; 31 N. Y., 414. The remaindermen having permitted the mortgagee to pay the taxes and assessments, are in no position to object that it operates as a hardship upon them. They would have had a right to apply for the appointment of a receiver to collect the rents and apply them in payment of the taxes and assessments. 3 Edw. Ch., 313; Washburn on Real Property, 97. Any equity which might have existed between the life tenant and the remaindermen cannot destroy or take away the right of the mortgagee to pay and apply the taxes. The rights of the remaindermen and their interests are subject to the right of the mortgagee, which was a prior and superior right, given by the mortgage. Equity could not grant relief to the remaindermen for the reason alone that the lien had been changed from that of a tax lien to that of a mortgage lien. It seems, that after payment of the mortgage by a sale, the interest of the life tenant might be burdened with the charge. After the trial had been had and the findings prepared and ready to be signed by the judge, the defendants were not entitled to have the answer amended to conform to the proof. Judgment of General Term, affirming judgment of foreclosure and sale, affirmed. against the creditors of the said firm, a mortgage, executed by P., on real estate, which was his individual property, to secure advances made to him by one G. to enable him to pay his individual debts. It was alleged that P. executed the mortgage, being himself insolvent, and knowing that the limited partnership of which he was a member was also insolvent, and with intent to give preference to his individual creditors whom he Opinion by Miller, J. All con- paid out of the money received on That statute does not operate to vitiate a mortgage given by a special partner to secure actual advances, even though the money advanced was intended to be and was used to pay his individual debts, thus practically giving preference to such debts; and this is so, although he knew at the time of executing the mortgage that he was insolvent, and that the firm of which he was a member was also insolvent. Appeal from judgment of the Special Term, dismissing the complaint. This action was brought by judgment creditors of a firm, of which one P. was a special partner, to set aside as fraudulent, as this mortgage, and the plaintiffs B. F. Blair, for applt. Henry De Forest, F. P. Forster and Geo. H. Forster, for respt. Held, That at common law a member of a copartnership, whether special or general, was not prohibited from applying his individual property to the payment of his individual debts, even if the copartnership as such was insolvent. 76 N. Y., 506. That the operation of the statute must be restricted to cases clearly within its reasonable scope, and that it was not intended to prevent special partners from applying their private property to the payment of individual debts whenever equity and good faith permits or demands it. That the statute does not operate to vitiate a mortgage given by a special partner to secure actual advances, even though the money advanced was intended to be used, and was used, to pay individual debts, thus practically giving such debts preference. utes of the proceedings was made in the presence of defendant Hilton's attorney, to which he assented, and the plaintiff was thereupon sent for and rendered the services in question, defendant's attorneys not objecting thereto. Defendant Hilton was not person That the fact that P. knew that he was insolvent, and that the firm of which he was a special partner was insolvent, would not operate to vitiate the mortgage. Judgment affirmed. Opinion by Davis, P. J.; Brady, ally present. J., concurs. Where a stenographer is employed in the progress of an executor's accounting before an auditor under a suggestion which is acceded to by the counsel for a creditor appearing as a party in interest upon such accounting, such creditor is thereby bound for the payment of the stenographer's fees. irrespective of the question whether he filed objections or instituted the proceeding. Appeal from judgment of District Court in favor of plaintiff. The action was brought for services rendered to defendants by plaintiff as a stenographer. Defendant Hilton, as administrator of a creditor estate, and defendant Barker as executor of a certain other estate, were the only parties to a proceeding before an auditor to whom the surrogate had referred said executor's account, and both were represented therein by counsel. Upon a hearing before the auditor a suggestion that a stenographer be employed to take min Charles W. Seymour, for applt. Frank P. Slade, for respt. Held, That an attorney binds his client for the payment of the fees of a stenographer employed during the progress of a proceeding under a suggestion to which the attorney accedes. It is immaterial in this case whether the defendant instituted the proceedings or filed objections to the account. It is enough that he was attending the accounting by his attorney as a party in interest. An attorney has the right to bind his client for any service which may be necessary and proper not only for the preparation of the case for trial, but for the convenient conduct of said trial and the proceedings thereafter taken, 14 Hun, 254, and the right of the attorney in such ways to make agreements which enhance the burden and cost of litigation is directly recognized in 77 N. Y., 478. Judgment affirmed. Opinion by Van Brunt, J.; J. F. Daly, J., concurs. PARTIES. JUDGMENT. N.Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Elijah B. Smith et al., plffs., v. John T. Rathbun et al., defts. Decided Sept., 1882. The plaintiff, E. B. Smith, a stockholder of the First National Bank of Elmira, began an action against two directors of the bank for damages alleged to have been sustained by him through their negligence and misconduct. Upon demurrer to the complaint for defect of parties the court compelled the bank to be made a party and also all stockholders who should choose to come in. When a neglect to withdraw a second demurrer to the complaint and answer over occurred, so as to entitle plaintiffs, under "the re an order of the court, to recover lief prayed for in the complaint" or "final judgment," an order for final judgment was obtained authorizing a recovery by the bank against the defendants for all the damage which the bank, as a corporation, had suffered. Held, Error. Motion by the plaintiffs for reargument of appeal from order of Special Term, directing final judgment for the plaintiffs and assessment of damages. The action was originally begun by Elijah B. Smith, a stockholder of the bank, against two directors of the bank for damages alleged to have been sustained by him through their negligence and misconduct. Upon demurrer to the complaint for defect of parties the court compelled the bank to be made a party and also all stockholders who should choose to come in. The complaint was then amended so that other stockholders might join with Smith and include their damages also in any recovery that might be had against the two directors. Afterwards, and upon the trial, an amendment was allowed to be made by plaintiff's of the complaint and a demurrer was again interposed to such amended complaint. The de murrer was overruled with leave to withdraw the demurrer and answer within twenty days on payment of costs. The various orders and interlocutory judgments entered provide in case of overruling a demurrer or neglect to pay costs and answer that plaintiffs shall recover the relief "prayed for in the complaint" or "final judgment." When a neglect to withdraw the demurrer and answer over occurred, so as to entitle plaintiffs to final judgment, an order for final judg ment was obtained which authorized a recovery by the bank against defendants for all the damages which the bank, as a corporation, had suffered. Reynolds & Collin, for plffs. Held, That plaintiff Smith could not maintain this action without making the bank a party, because the funds lost belonged primarily to the bank and the bank must be made a party so as to be estopped by the judgment which Smith might recover. 66 Barb., 402. The court compelled the bank to be made a party; not that the bank might recover its damages, for then there would have remained no need of Smith or the other stockholders as parties, but that the bank might be bound by the judgment. The order obtained for final judgment ignores the origin and purpose of the action as originally brought, ignores Elijah B. Smith, who sues for his individual damages, ignores the relief demanded in the original and all amended complaints, and authorizes a recovery by the First Na |