ten agreement between the parties, which, in [ whether there is in point of fact an assignment the absence of fraud, which is not alleged, of the debt or security or not. For if, upon must have expressed the intent and under- equitable principles, the surety is entitled to it, standing of the parties at the time. Such a court of equity will consider that as done verbal evidence is certainly far from being such as would make it clearly and fully ap pear that it would produce a different result. That it must have this effect, see Meldon v. Cox, 60 Ind. App. 403, 110 N. E. 1008; Hines v. Driver, 100 Ind. 315; Davis v. Davis, 145 Ind. 4, 43 N. E. 935. [3] Appellant next argues that, as the judgments were fully paid, there was no necessity for the receiver to collect the damages adjudged for conversion; that there was no one to whom the money might be paid if collected; and that therefore there should be a review of the judgment because of changed conditions since the rendition of the judgment. But appellant failed in its complaint to mention the fact that the judgments were paid by the sureties until required to do so by the court on motion of appellees, and now fails in its brief to mention such fact except as it appears by the pleadings. As it appears by the evidence in the original proceeding, which is pleaded, after the sale of the real estate by the sheriff to the First National Bank of Rensselaer, for the amount of its judgment only, and within the year for redemption, the sureties paid, not only the bank's judgment, but the White heirs' judgment as well, and then took a quitclaim deed from Schlink for the real estate. Having paid the debts of their principal, they certainly had a right to be subrogated, to all the rights of the creditors whom they had paid, which included their right to the judgment for damages for the conversion of a part of the property which had been primary security for the judgments which they had paid. The rule that controls is thus well stated in Manford v. Firth, 68 Ind. 83, on page 85: "The general principle, that a surety who pays the debt of his principal has the right to be subrogated to all the rights of the creditor as they existed before the debt was paid, is well established. The substitution of the surety is not for the creditor as he stands related to the principal after the payment, but as he stood related to him before the payment. He is subrogated to such rights as the creditor then had against the principal. The debt may be assigned to the surety by the creditor, and the assignment will carry with it all securities or rights of the creditor. It is quite immaterial which ought to have been done; and, if necessary for the protection of the surety, will decree an assignment to be made." NICHOLS, J. The only point, which appellant undertakes to present, is error of the court in admitting certain evidence. The only cause for a new trial by which he undertakes to present this point is "for errors in admitting evidence to which defendant then and there excepted." Such an assignment presents no question. Causes for a new trial must be clear and specific, so that the court will not need to search the record to find the alleged errors. Bayless v. Glenn, 72 Ind. 5, 11; Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990; Rees v. Blackwell, 6 Ind. App. 508, 33 N. E. 988. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes N. Y.) (147 N.E.) 2 DAIRYMEN'S LEAGUE CO-OPERATIVE Harry SCHNELL et al., Copartners under the ASSOCIATION, Inc., Appellant, v. Merle HOLMES et al., Respondents, Impleaded with Another. (Court of Appeals of New York. 1924.) Sept. 30, Appeal from a judgment entered February they had ever executed the contract and that 1922, and the amount paid defendants and Reargument denied 239 N. Y. 596, 147 N. E. 210. Seward A. Miller, of New York City, and P. C. J. De Angelis and Bradley Fuller, both of Utica, for appellant. (Court of Appeals of New York. Sept. 30, 1924.) PER CURIAM. Motion for reargument and to amend the remittitur denied, with $10 costs and necessary printing disbursements. See 238 N. Y. 362, 144 N. E. 641. 3 Marion L. ROBINSON, as Administratrix of PER CURIAM. Motion for reargument denied, with $10 costs and necessary printing disbursements. See 238 N. Y. 271, 144 N. E. 579. PHILIPPINE NATIONAL BANK, Respond- W. R. Pratt and Frederic C. Barns, both preme Court in the First Judicial Department of Utica, for respondents. PER CURIAM. Judgment affirmed, with costs. Held, that the contract in respect of loans which the plaintiff may enforce from the defendants is so incomplete and indefinite in its application to nonmembers as to invalidate the contract. HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. (209 App. Div. 822, 204 N. Y. S. 940), entered John W. Hannon, of New York City, for the motion. Carroll G. Walter, of New York City, opposed. *Writ of error dismissed 45 S. Ct. 635, 69 L. Ed. - PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion. Certiorari denied 45 S. Ct. 228, 69 L. Ed. 1 PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion. 3 TRADERS' NATIONAL BANK of Rochester, Respondent, v. Jacob LASKIN et al., Doing Business under the Firm Name of J. Laskin & Sons, Appellants. (Court of Appeals of New York. Oct. 7, 1924.) In the Matter of the Application of the CITY ents. (Court of Appeals of New York. Oct. 7, 1924.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (209 App. Div. 828, 204 N. Y. S. 898), entered May 9, 1924, which affirmed an order of Special Term dismissing the claim of the appel lant herein. The motion was made upon the ground that no constitutional question was involved. See, also, 237 N. Y. 275, 142 N. E. 662. A. S. Gilbert and Royal E. T. Riggs, both of New York City, for motion. Benjamin Catchings and Merle I. St. John, both of New York City, opposed. PER CURIAM. Motion denied, without prejudice to right to renew on argument of appeal. 2 In the Matter of the Probate of the WILL of Emily A. WATSON, Deceased. Pauline A. de la Mettrie et al. Appellants; Henry R. Barrett et al., as Temporary Administrators of Emily A. Watson, Deceased, et al., Respondents. (Court of Appeals of New York. Oct. 7, 1924.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (209 App. Div. 876, 205 N. Y. S. 382), entered June 16, 1924, which affirmed an order of the Westchester County Surrogate's Court appointing temporary administrators of the estate of Emily A. Watson, deceased. The motion was made upon the ground that the order was interlocutory and that permission to appeal had not been obtained. F. P. Close, of White Plains, and Thomas B. Gilchrist, of New York City, for the motion. J. Noble Hayes, of New York City, opposed. 144 N. E. 784. 4 UNITED STATES of America ex rel. Lemuel S. MATTHEWS, Respondent, v. MASSACHUSETTS BONDING & INSURANCE COMPANY et al., Appellants. (Court of Appeals of New York. Oct. 7, 1924.) PER CURIAM. Motion for reargument denied, with $10 costs and necessary printing disbursements. See 238 N. Y. 334, 144 N. E. 631. 5 HENDERSON TIRE & RUBBER COMPANY, Inc., Appellant, v. P. K. WILSON & SON, Inc., et al., Respondents. (Court of Appeals of New York. Oct. 7, 1924.) PER CURIAM. Motion for reargument denied, with $10 costs and necessary printing disbursements. See 238 N. Y. 576, 144 N. E. 898. 6 Charles WARNER et al., Appellants, v. NEW Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (209 App. Div. 211, 204 N. Y. S. 607), entered May 12, 1924, upon an order which unanimously reversed an order of the court at a Trial Term setting aside a verdict and granting a new trial and reinstated said verdict. The motion was made upon the ground that permission to appeal had not been obtained. Charles J. Yorkey, of Central Square, for the motion. Charles R. Coville, of Oneida, opposed. (147 N.E.) PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion. Luella G. TUELL, as Administratrix of the Estate of William M. Tue:l, Deceased, Appellant, v. Lehigh valléY RAILROAD COMPANY, Respondent. (Court of Appeals of New York. Oct. 7, 1924.) PER CURIAM. Motion for reargument denied, with $10 costs and necessary printing disbursements. See 237 N. Y. 586, 143 N. E. 753. 2 CRENSHAW ENGINEERING & CON. STRUCTION CO., Inc., Appellant, v. NEW YORK MUNICIPAL RAILWAY CORPORATION et al., Respondents, and Ætna Casualty Insurance Company et al., Appellants, Impleaded with Another. (Court of Appeals of New York. Oct. 7, 1924.) Motion to dismiss the appeal of the plaintiff from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (209 App. Div. 893, 205 N. Y. S. 919), entered June 27, 1924, modifying and affirming, as modified, a judgment entered upon a verdict directed by the court. The motion was made upon the ground that permission to appeal had not been obtained and that no constitutional question was involved. Trabue Carswell, of Brooklyn, for the motion. Paul Bonynge, of New York City, opposed. PER CURIAM. Motion denied, with $10 costs. 3 Arthur L. WEISS, Appellant, v. Harry GOLDBERGER et al., Respondents, Impleaded with Others. Wilfred J. CURRY, Respondent, v. James M. MACKENZIE, Appellant. (Court of Appeals of New York. Oct. 7, 1924.) Motion to dismiss an appeal from a judgment entered April 5, 1924, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department (208 App. Div. 849, 204 N. Y. S. 901), which reversed an order of Special Term granting a motion for summary judgment and granted said motion. The motion was made upon the ground of failure to file the required undertaking. William B. Hall, of New York City, for the motion. James E. Woods, of New York City, opposed. PER CURIAM. Motion denied, on payment of $10 costs by appellant within 10 days; otherwise granted, and appeal dismissed, with costs and $10 costs of motion. 6 (Court of Appeals of New York. Oct. 7, 1924.) PEOPLE of the State of New York, RespondMotion to dismiss an appeal from an orent, v. Frank FEVROLA, Appellant. der of the Appellate Division of the Supreme (Court of Appeals of New York. Oct. 7, 1924.) Court in the First Judicial Department (209 App. Div. 615, 205 N. Y. S. 1), entered June PER CURIAM. Motion for reargument 6, 1924, which reversed an order of Special denied. See 235 N. Y. 536, 139 N. E. 724. 1 PEOPLE of the State of New York, Respondent, v. George L. FORD, Appellant. (Court of Appeals of New York. Oct. 7, 1924.) § 557, from order granting committee an allowance for legal services, when those directly concerned have been given notice of filing of committee's account and application for judicial settlement thereof. Cardozo and Lehman, JJ., dissenting. Appeal from Supreme Court, Appellate Division, First Department. Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (208 App. Div. 794, 203 N. Y. S. 945), entered March 7, 1924, which affirmed a judgment, rendered at a Trial Term for the county of New York, upon a verdict convicting defendant of the crime of grand larceny.sion (208 App. Div. 844, 204 N. Y. S. 914), The motion was made upon the ground of failure to file the return. In the matter of the accounting of James Hart, as committee of the person and property of Annie Huggins, an incompetent person. From an order of the Appellate Divi modifying and affirming as modified an order of the Special Term, granting the committee an allowance for legal services, trustees under the will of the incompetent's deceased husband appeal. Reversed, and appeal from order of Special Term dismissed. Arthur F. Driscoll and Joseph Walker Magrauth, both of New York City, for appellants. Francis B. Chedsey, of New York City, for respondent. PER CURIAM. "A party aggrieved may Civil appeal in a case provided by law." Practice Act, § 557. The trustees under the (Court of Appeals of New York. Oct. 7, 1924.) Motion to dismiss an appeal from a judg-will of the incompetent's deceased husband ment of the Appellate Division of the Supreme Court in the First Judicial Department (208 App. Div. 835, 203 N. Y. S. 945), entered April 4, 1924, which affirmed a judgment of the Court of Special Sessions of the City of New York convicting the defendant of a violation of section 1293-c of the Penal Law. The motion was made upon the ground of failure to file the return. had no legal interest sufficient to authorize an appeal from the order herein when those directly concerned in the determination of the question of the allowance and amount of counsel fees had been given notice of the filing of the account of the committee and of an application for the judicial settlement thereof. An incident to such application would be the allowance of counsel fees. Joab H. Banton, Dist. Atty., of New York Matter of Maxwell, 218 N. Y. 88, 112 N. E. City, for the motion. PER CURIAM. peal dismissed. 575. Respondents were under no duty to proMotion granted, and ap- tect the rights of the incompetent or the 3 In re HART. (Court of Appeals of New York. Oct. 14, 1924.) Appeal and error 151 (3)-Trustees under will of incompetent's deceased husband cannot appeal from order granting committee allowance for legal services. Trustees under will of incompetent's deceased husband had no legal interest sufficient to authorize appeal under Civil Practice Act, other beneficiaries under the will by taking and appeal from order of the Special Term to the Appellate Division. Isham v. New York Ass'n for Improving the Condition of the Poor, 177 N. Y. 218, 222, 69 N. E. 367. The order should be reversed, with costs, and appeal from order of the Special Term to the Appellate Division dismissed, with costs. HISCOCK, C. J., and POUND, MCLAUGHLIN, CRANE, and ANDREWS, JJ., concur. CARDOZO and LEHMAN, JJ., dissent. Order reversed, etc. |