not to file lien did not apply, and did not restrain the contractor after the owner had failed to perform the stipulations to pay for the work and labor at the time mentioned in the contract, cannot be recognized as sound; for the covenant is an independent one, continuous and unconditional. It is manifest that in this case the owner exacted this covenant that he might be able to sell all or either one of the houses before they were completed, and give the purchaser title exempt from a mechanic's lien. It will be observed that the covenant was specific that the contractor would not, for himself, put a lien upon the buildings, which he has sought to do in violation of his promise. As to the defendant Pardee, the plaintiff's complaint is dismissed upon the merits, with costs and disbursements the same as are allowed in civil actions in this court. As against the defendant Young, who made default, the plaintiff is at liberty to proceed and enter up such judgment against him as he is advised he may be entitled to. See section 15, c. 342, Laws 1885. Ordered accordingly. (4 App. Div. 509.) WARSAW WATERWORKS CO. v. VILLAGE OF WARSAW et al. (Supreme Court, Appellate Division, Fourth Department. April, 1896.) INJUNCTION WHEN CONTINUED PENDENTE Lite. An injunction will not be continued pendente lite where all the equities of the complaint are denied in the answer, and plaintiff's right to the ultimate relief sought is not established. Appeal from special term, Erie county. Action by the Warsaw Waterworks Company against the village of Warsaw and others to enjoin defendants from removing hydrants from mains of plaintiff, a corporation organized under Laws 1869, c. 394, for the purpose of supplying water to defendant village. Defendants claim to be authorized to do the acts complained of by Laws 1875, c. 181, entitled "An act to authorize villages of the state of New York to furnish pure and wholesome water to the inhabitants thereof." From an order vacating a temporary injunction, plaintiff appeals. Affirmed. Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ. Eugene M. Bartlett, for appellant. I. Sam Johnson and Adelbert Moot, for respondents. FOLLETT, J. On the 17th of November, 1895, a temporary injunction was granted by a justice of this court restraining the defendant "from removing any hydrants from plaintiff's mains, threatening any of its customers with discriminating taxes, or soliciting any of its patrons to disconnect their service pipes from this plaintiff's mains, or disconnecting any such service pipes, or in any manner interfering with this plaintiff's exercise or enjoyment of its rights, privileges, and franchises." Upon a motion made at special term in December, 1895, this injunction was vacated, and the plaintiff appeals to this court. The questions involved in this action cannot be satisfactorily decided until the issues of fact have been tried and determined, and we ought not and will not attempt to define and settle the ultimate rights of the litigants on affidavits, and, without expressing any opinion upon the questions involved, further than to say that the rights asserted by the plaintiff as the foundation for the relief sought are not so clearly established in the affidavits as to authorize this court to restore and continue the injunction pendente lite. It is conceded that the hydrants which were purchased by the defendants and attached to the plaintiff's line of water pipes have been removed by the defendants, and, it not being clearly established that the defendants have threatened or now threaten to do any of the things restrained by the original injunction order, it should not be restored. Besides, all of the equities of the complaint are denied in the answer, and in such a case an injunction pendente lite will not be continued where the plaintiff's right to the ultimate relief sought is not clearly established. The order is affirmed, with $10 costs and printing disbursements. All concur, except WARD, J., not voting. (16 Misc. Rep. 537.) MAHRO v. GREENWICH SAV. BANK. (Supreme Court, Appellate Term, First Department. April, 1896.) SAVINGS BANKS-CONFLICTING CLAIMS TO DEPOSIT-INTERPLEADER. An application under Laws 1892, c. 689, § 115, providing that in all ac-tions against any savings bank to recover moneys on deposit, if any persons not parties to the action claim the same fund the court may, on petition of the bank, make such claimants parties defendant, is not an appli cation for an interpleader. Appeal from city court of New York, general term. Action by Amelia Mahro, by guardian, against the Greenwich Savings Bank, to recover the amount of a deposit made in plaintiff's name. From an order of the city court (38 N. Y. Supp. 126) affirming an order denying a motion to interplead another party, defendant appeals. Reversed. Argued before DALY, P. J., and MCADAM and BISCHOFF, JJ. PER CURIAM. We must reverse the order appealed from, and grant the defendant's motion for leave to bring in the party named in the petition. The order of the general term and special term are reversed. It appears from the record that this application was disposed of by the general term, and by the special term of the city court, on the theory that it was an application for interpleader; whereas, it was a motion under chapter 689 of the Laws of 1892, providing (section 115) that in all actions against any savings bank to recover for moneys on deposit therewith, if there be any person or persons, not parties to the action, who claim the same fund, the court in which the action is pending may, on the petition of such savings bank, make an order amending the proceedings in the action by making such claimants parties defendant thereto. It appears that the person named in the petition of the bank claimed the fund in suit, and the motion should be granted, with $10 costs and disbursements of this appeal. Order reversed, and motion granted, with $10 costs and disbursements. (5 App. Div. 39.) TRACY et al. v. G. H. HAMMOND CO. et al. (Supreme Court, Appellate Division, Fourth Department. April, 1896.) ASSIGNMENT-RIGHTS OF ASSIGNEE. A debtor assigned his property to defendants as collateral security for any indebtedness he might owe them, the balance to revert to the assignor. On the next day he assigned the same property to plaintiffs as collateral security for his indebtedness to them. Afterwards the same property was levied on under an attachment in favor of another creditor. Held that, though the first assignment, which was void as to the assignor's creditors, was valid as between the parties, the assignor still had an interest in the property, which passed under the second assignment to plaintiffs. Appeal from circuit court, Onondaga county. Action by Osgood V. Tracy and Charles S. Tracy against the G. H. Hammond Company, of Syracuse, N. Y., and John A. Hoxsie, sheriff of Onondaga county. Judgment was rendered in favor of plaintiffs, and defendants appeal. Affirmed. The opinion of Mr. Justice VANN at special term is as follows: On the 16th day of August, 1893, the defendant Theresa M. Christian assigned to the defendants Thomas Lane and Frank Moore her book accounts and bills receivable "as collateral security to secure them for any indebtedness due or owing them from me, with full authority to sue and collect the same, in my name, or otherwise, and when such indebtedness shall be fully paid, then this assignment shall be null and void, and the balance of said accounts shall revert to myself, my heirs and assigns." On the 17th of August, 1893, said Christian assigned to the plaintiffs "all book accounts and bills receivable owing to me, of every name and nature, subject to a prior assignment thereof to Thomas Lane and Frank Moore, made as collateral security for my indebtedness to them; and when the claim of said Lane & Moore is satisfied, I authorize the said O. V. Tracy & Co. to sue and collect the said accounts, in my name or otherwise, and apply the proceeds thereof upon my indebtedness to said O. V. Tracy & Co., and, when the same shall be paid, this assignment shall be void." On August 19, 1893, the defendant, the G. H. Hammond Company, obtained an attachment against the property of Mrs. Christian, and the same was duly levied upon the accounts in question, which are of the face value of about $1,500, and of the actual value of about $800. Subsequently the G. H. Hammond Company, through an action brought in this court in the nature of a creditors' bill, caused said assignment to Lane & Moore to be set aside as fraudulent and void, and the lien of its attachment on said accounts to be adjudged superior to their rights. The object of this action is to procure a judgment declaring the rights of the plaintiffs to be superior to those of the Hammond Company. The first question arising for decision is whether the assignment to the plaintiff's was executed and delivered to them prior to the levy of said attachment. This presents a question of fact which I have decided in favor of the plaintiffs, as the weight of evidence in my opinion tends strongly in that direction. The appellants, however, contend that, as the first assignment was valid as between the parties, it was equally binding upon their assigns, and that Mrs. Christian could not, by a voluntary act of hers, transfer to the plaintiffs a right which she did not possess herself. Brownell v. Curtis, 10 Paige, 210, 219; Storm v. Davenport, 1 Sandf. Ch. 135, 137; Bynum v. Miller, 86 N. C. 559. If the assignment to Lane & Moore had been absolute, so that the plaintiffs would be compelled to procure it to be set aside as fraudulent, in order to establish a prior right to the accounts, the position of the appellants would not be without force under the authorities cited. But the assignment was only as collateral security, not for a debt specified or described, but "for any indebtedness due or owing from" the assignor to the assignee. The instrument of transfer does not assert, except by implication, that any debt existed, as, in fact, none did exist; for, by mistaken conception of right, rather than with actual fraudulent intent, the debt intended to be secured was, not that of the assignor, but of her husband. Obviously, Mrs. Christian had something to assign, to wit, what remained after the debts owing by her to Lane & Moore were paid. That interest belongs to the plaintiffs, and they can ask the court to protect it without attacking the first assignment, but standing on it, and acting, not in hostility, but in subordination to it. They had a right to an accounting to ascertain the amount of the indebtedness of Mrs. Christian to Lane & Moore, and to have the remainder of the fund awarded to them. It so happens that there was no indebtedness between the parties named in the first assignment, and hence the plaintiffs are entitled to the whole of the proceeds of the accounts, not exceeding the amount of their debt. They took title subject to the title of Lane & Moore. If the latter had a debt against their assignor, the plaintiffs, on extinguishing it by payment, would have had absolute title to the extent of their debt. The same result follows from the fact that Lane & Moore had no debt to be secured. They took nothing, and the plaintiffs stand next in order, without raising the question of fraud in the first transfer, but simply claiming that it was ineffectual, because, although a collateral assignment, it had no debt to rest upon. Recognizing it as a valid instrument, as distinguished from one fraudulent and void, they say to Lane & Moore, in substance: "Take out your debt and give us the balance." But the answer must be "We have no debt." "Then," the plaintiffs say, "We are entitled to the whole." And I see no answer to the position, for the plaintiffs make no claim with reference to the first assignment that Mrs. Christian might not lawfully have made herself. While this may not be consistent with the theory of the complaint, it is a logical and necessary result from the conceded facts. There must be judgment accordingly, but as Hammond & Co. shook the bush, while the plaintiffs get the bird, with costs payable out of the fund only. Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ. Benjamin Stolz and Wm. S. Jenney, for appellants. William G. Tracy, for respondents. PER CURIAM. Judgment affirmed, with costs, on the opinion of VANN, J., delivered at special term. (17 Misc. Rep. 639.) COHEN v. WALDRON. (Supreme Court, Special Term, New York County. July, 1896.) USURY EVIDENCE. Plaintiff, at the request of defendant, to avert foreclosure of a mortgage on defendant's property, paid the mortgage debt, less 10 per cent., and took an assignment of the mortgage, and defendant, with plaintiff's knowledge, paid the 10 per cent. to the mortgagee. Plaintiff then extended the mortgage for another year. In an action to foreclose it was shown that plaintiff contemplated a purchase of the mortgage from the beginning of the negotiation with defendant, and defendant in his original answer alleged that he "did request the plaintiff to purchase the aforesaid mortgage, and take an assignment thereof." Held, that the evidence was not sufficient to establish a defense of usury. Action by Bernard Cohen against William B. Waldron to foreclose a mortgage. Judgment for plaintiff. John Frankenheimer, for plaintiff. PRYOR, J. To avert a threatened foreclosure of a mortgage on his property, defendant had this transaction with the plaintiff: Upon payment of the mortgage debt, less 10 per cent. discount, plaintiff took an assignment of the mortgage. With the knowl. edge of plaintiff, defendant paid the mortgagee the 10 per cent. balance, whereupon plaintiff extended the mortgage for another year. In the action to foreclose, defendant pleads usury. Upon its face the transaction is clear of usury. In form, it is a purchase of a valid, subsisting security; and by all authorities, such a purchase, at any discount, may be made with impunity. Dunham v. Cudlipp, 94 N. Y. 129; Saving Inst. v. Wilmot, Id. 221. In every circumstance the case is identical with Siewert v. Hamel, 91 N. Y. 199, and unless it appear that the ostensible sale of the mortgage was "a mere contrivance to evade the statute of usury, and was in fact a loan by the plaintiff to" Waldron (page 201), no defense to the action was developed. It is not enough that "the plaintiff entered into the transaction for the purpose of securing more than the legal rate of interest on his capital" (page 201), but "a loan of money by the plaintiff to the defendant, with the bond and mortgage as collateral under the guise and color of a purchase and sale of a chose in action" (page 201), must be shown. by "clear and satisfactory evidence." White v. Benjamin, 138 N. Y. 623, 33 N. E. 1037. In Siewert v. Hamel, supra, a test of the illegal character of the transaction, as propounded by Andrews, C. J., is that "it originated in an agreement for a loan"; but here the fact is not clear upon the proofs. By the testimony of Hirsch-the only witness not open to suspicion of bias-it appears that the plaintiff contemplated a purchase from the beginning of the negotiation with the defendant. The defendant himself, in his original answer, alleged that he "did request the plaintiff to purchase the aforesaid mortgage, and take an assignment thereof." Notwithstanding the explanatory evidence introduced to extenuate the ef fect of this admission, I cannot but regard it as credible and cogent proof of the intended transaction. Assuming, however, that the parties originally contemplated a loan by plaintiff and a new mortgage to him for security, the proof is quite conclusive that they abandoned the project, and substituted instead a purchase and assignment of the mortgage. "No doubt the plaintiff wanted to get more for his money than simple interest. But he knew the |