ance within the provisions of §§ 835, 836 of the Code.

Sessions & Palmer, for applt. Bootey, Fowler & Weeks, for respt.

Held, That the claim having been duly presented and the executor refusing to refer, plaintiff was entitled to costs as matter of course. 26 Hun, 324. The case of Field v. Field, 77 N. Y., 294, is in point, although that case was decided before the Code went into effect. The sections of the Code contain nothing new on the subject, and simply re-enacted the provisions of the Revised Statutes.

a transfer under which the debtor retains a residuary interest which remains subject to the action of creditors.

Appeal from order denying new trial on case and exceptions.

Action to recover the value of goods taken by defendants under an attachment. One Wetmore was indebted to plaintiffs in the sum of $957, for which he confessed judgment; and upon the same day he delivered to them a bill of sale of goods in consideration of $1,000; and at the same time plaintiffs delivered back to him a paper in which they agreed, in consideration of said bill of sale, after their debt was paid out of said

Opinion by Barker, J.; Smith, P.J., and Bradley, J., concur; Haight, J., not voting.

CHATTEL MORTGAGE.

TRUSTS.

N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT.

Isaac Bier et al., applts., v. Chauncey Kibbe et al., respts.

Decided Jan., 1887.

in the matter, that they would pay the balance left from the sale of the goods to Wetmore, or any person to whom he might direct payment. Defendants attached the goods while in plaintiff's possession as the creditors of Wetmore. There was no evidence tending to impeach the validity of plaintiff's claim or judgment, or

to establish actual fraud on their part. Defendants contended that said bill of sale came within the statute that "all transfers and assignments, verbal or written, of

to a creditor to pay his particular claim, reserving the surplus to the debtor, is in legal effect only a mortgage and creates but a specific lien upon the property transferred, and the residuary interest of the assignor therein may still be reached by his creditors. Such an assignment or transfer is not one made in trust for the use of the party making it, within the meaning of the statute rendering such transfer void as to creditors.

A distinction exists between a trust where the whole title vests in the trustee, and

for the use of the person making the same shall be void as against the creditors, existing or subsequent, of such person." 2 R. S., 135, § 1.

Horace McGuire, for applts.
J. J. Inman, for respts.

Held, That such bill of sale was not made in violation of said statute, and was not fraudulent as to

creditors of the party making the

same.

In Leitch v. Hollister, 4 N. Y., 211, it was held that the statute did not apply where the assignment was to a creditor or creditors themselves for the purpose of securing their particular demands; that such an assignment was in legal effect only a mortgage and creates but a specific lien upon the property assigned; and that the residuary interest of the assignor may be reached by legal process or bill in equity, according to the nature of the interests of the property.

In Dunham v. Whitehead, 21 N. Y., 137, held, that an assignment by a debtor to a creditor of all his personal property, etc., for the payment of a debt, with a provision for the return of the surplus, is in effect a mortgage, and is not void under said statute, as being for the use of the person making it. That a distinction exists between a trust where the whole title vests in a trustee, and a transfer under which the debtor retains a residuary interest which remains subject to the action of creditors. See also 4 Abb. App. Dec., 457; 2 Keyes, 119; 36 Barb., 622; 5 Abb., N. S., 250; 31 N. Y., 542; 96 id., 75.

It thus appears that the bill of sale in question is not fraudulent and void upon its face, but, on the contrary, was a good and valid instrument creating a lien in favor of plaintiffs to the extent of their claim. That whilst defendants had the right to follow the surplus, they did not have the right to take from plaintiffs that which was

necessary to satisfy their judg

ment.

Order reversed and new trial granted.

Opinion by Haight, J.; Bradley, J., concurs; Lewis, J., not sitting.

CONTRACT. GIFT.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Laura A. Knowles v. William J. Erwin.

Decided Jan., 1887.

Where a parent conveyed land to his son, and the latter, in consideration thereof, agreed to pay his sister a certain sum of money, Held, That she could maintain an action to recover the same.

Where the parent delivered the written agreement to the daughter, or to a third party for her benefit, Held, That it became an executed gift, and neither the parent nor the son, nor both together, could alter or rescind the contract to her prejudice.

Motion for a new trial by defendant upon case and exceptions ordered by the court to be heard in the first instance at General Term. Action to recover money upon a contract.

In Feb., 1866, Jared Erwin, the father of plaintiff and defendant, executed to the latter a deed of his farm and a bill of sale of all his personal property in consideration of $1 and natural love, etc. Defendant thereupon executed to Jared a contract, in which he agreed to pay plaintiff $500 in five equal annual payments, commencing Nov., 1879, which contract Jared delivered to H. for safe keeping, and subsequently the same

was delivered to plaintiff. The answer set up a subsequent agreement between Jared and defendant rescinding said contract. The court held that the answer did not set up a defense to the action and directed a verdict for plaintiff. The questions were, first, whether plaintiff could maintain an action upon such a contract; second, whether the subsequent rescission thereof is available as a defense. Noyes & Noyes, for plff. F. C. Peck, for deft.

HAIGHT, J.-It is contended, in the first place, that there was no privity of contract between plaintiff and defendant; that the relation of creditor and debtor did not exist between Jared and plaintiff; that he owed her no legal duty, and that, consequently, she could not maintain an action upon this contract. True, the relation of creditor and debtor did not exist, but that of parent and child did, and it is quite evident from the papers executed that it was the purpose of the father to make a distribution of his estate between his children. And where such relationship exists, it has always been held to present a sufficient consideration to support the promise. 1 Ventris, 318.

The child is a proper subject of the parent's bounty, and he is under a moral duty to provide for it in making a final distribution of his estate. This doctrine is recognized by Comstock, J., in his dissenting opinion in Lawrence v. Fox, 20 N. Y., 279. The consideration being one recognized by the courts, the case presents the

simple question of a promise from one person to another to pay a debt to a third person. The right of the third person to recover of the promisor for such debt is unquestioned. 1 John., 138; 10 Paige, 465; 20 N. Y., 268; 24 id., 178; 88 id., 234.

We are aware that Lawrence v. Fox has been distinguished and limited; as, for instance, it has been held that the person for whose benefit the promise was made cannot maintain an action to enforce the promise when the promise is void as between the promisor and the promisee, because of want of consideration or of fraud. 85 N. Y., 30; 95 id., 423.

But in all the cases to which our attention has been called not one has attempted to overrule or disapprove of the principle involved in and decided by that case.

Wheat v. Rice, 97 N. Y., 296, is not in conflict with Lawrence v. Fox.

Upon the second question, we have seen that the contract was delivered by Jared to H. Jared had other daughters to whom money was to be paid under the contract. contract. The proper inference is that it was delivered to H. for their benefit, and at that time it must be considered as an executed gift. If, as we have stated, the consideration was valid and sufficient to support the promise, then the rights of these daughters became fixed on the delivery of the instrument, and neither Jared or defendant, nor both together, could change the same without their consent.

Motion for new trial denied, and judgment ordered for plaintiff on the verdict.

Bradley, J., concurs; Angle, J., not sitting.

INTERPLEADER.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

The Bowery Nat. Bank, respt., v. The Mayor, etc., of N. Y., applt.

Decided Dec. 31, 1886.

The right of a defendant to an order of interpleader has not been restricted by §

820, Code Civ. Pro., to a case in which the claim made in conflict with that of plaintiff to the same debt or property may probably be successful. If the rights of the rival claimants cannot be ascertained without a trial, and defendant has no interest in that trial, and claims no part of the fund in controversy, and is not in collusion with either of the claimants, he is entitled to an order of interpleader.

Defendant was indebted to one D. as sheriff of the city and county of N. Y. for services performed by him in his official capacity. D. had assigned his claim against defendant to plaintiff, who demanded payment thereof, which the city refused to make because certain creditors of D. claimed the right to have said claim paid to them, and had served attachments upon the finance department of the city in suits brought by them against D. After the commencement of this action defendant moved for an order of interpleader, which was denied.

Arthur H. Masten, for applt.
Jas. R. Marvin, for respt.

Held, That while it might be probable that the various claimants in conflict with plaintiff could not maintain their claims as they had been made, that probability was not so clear as to require the application to be denied, even under the rule and authorities referred to in 60 How., 67.

That by § 820, Code Civ. Pro., the right of defendant to succeed in an application of this description has not been restricted to demands which may probably be made successfully against the subject of the controversy; but what the legislature has required is, that where a person, not a party to the action, makes a demand for the same debt, without collusion with defendant, the latter may apply to the court upon notice of the claimant and the adverse party, for an order of interpleader. That that is all which the law has required to be proven to authorize the order, and that was proven in support of this application. Hun, 236.

27

That the right to the order was not excluded by the fact that the apparent right to the money may have been transferred to plaintiff, for the other claimants were entitled to contest the legality of the transfer upon a trial before it could be determined that they should receive no part of this fund; and that it did not follow, because plaintiff had received a formal assignment of the fund, that it would be able to succeed in maintaining its right against these adverse claims. That that was a matter which could only be ascer

tained after a trial should have taken place, and, as defendant had no interest in that trial, and claimed no part of the fund itself, it should not be required to contest with each of these different individuals the priority or right to this sum of money.

Baltimore &c. RR. Co. v. Arthur, 90 N. Y., 234, distinguished. Order reversed and order of interpleader entered.

Opinion by Daniels, J.; Davis, P.J., and Brady, J., concur.

SPECIFIC PERFORMANCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Edward A. Morrison, respt., v. Moritz Bauer, applt.

Decided Dec. 31, 1886.

If, at the time fixed for the complete execution of a contract for the purchase of land, the purchaser refuses to accept the deed without the removal of certain defects in the seller's title, but does not rescind the contract, an action for its specific performance can afterward be maintained upon it, and the purchaser, if he elects to take the property with its in

firmities, will be entitled to receive it with a corresponding abatement or deduction from the purchase price sufficient

to meet or obviate the incumbrances or defects of title.

If, in such an action, the court awards specific performance to the purchaser with an abatement of the purchase price for certain incumbrances, together with the rents and profits of the property from the time that the deed should have been de

livered to the time of the entry of judg

ment, and, at the same time decides that one of the objections to the title made by the purchaser, without the remedying of

which he refused to take the deed, is of no validity, it should also award to the seller legal interest upon the purchase

price for the period during which the rents were given to the purchaser.

Plaintiff entered into a contract with defendant to purchase of the latter certain real property in the city of N. Y. Upon the day fixed for the completion of the purchase plaintiff refused to accept the deed tendered upon the ground that the property was encumbered by two mortgages, which were due and capable of being satisfied, and certain unpaid water rents and taxes, and also by a party wall agreement; and that he had not agreed to take the property subject to such encumbrances. Plaintiff, however, did not refuse to take the property if said encumbrances were removed. Defendant, however, failed to remove said encumbrances, and this action was subsequently brought to compel the specific performance of the contract.

By the judgment rendered in the court below, plaintiff was awarded specific performance, and defendant was ordered to discharge the said encumbrances with the exception of the party-wall agreement, which was described to be a personal contract between the parties thereto, not running with the land. It was also adjudged that defendant pay to plaintiff the net rents of the property which had accrued between the time when the deed should have been delivered under the contract and the time of the entry of judgment, while defendant, for the same time, was only allowed one per cent. interest upon the purchase price, that being the amount paid.