tion for a reference, or by making a similar application after the order framing issues, an application to which the order framing issues would not be a bar. The order appealed from should be reversed, with $10 costs and disbursements, and motion granted, with $10 costs, without prejudice to any application that plaintiff may make to refer the action. All concur.


(Supreme Court, General Term, Second Department.


February 12, 1894.)

In an action by a servant for personal injuries, the defense that the injury was caused by an independent contractor is not available where it appears that plaintiff was in the employ of defendant, and that the contractor, being short of laborers, "borrowed" from defendant a gang of men, one of whom was plaintiff, and that plaintiff was working under the orders of defendant's foreman at the time of the injury.

Appeal from circuit court, Orange county.

Action by William Rook against the New Jersey & Pennsylvania Concentrating Works to recover $25,000 damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant in improperly constructing a building known as "Stock House No. 3," at Edison, N. J. From a judgment entered on a verdict in favor of plaintiff for $4,000, and from an order denying a motion for a new trial made on the minutes, defendant appeals. Affirmed.

Argued before DYKMAN and PRATT, JJ.

Theo. B. Steele, for appellant.

John M. Gardner, for respondent.

PRATT, J. We think the circuit judge ruled correctly on all points, and that no error of law was committed. The point made by defendant that the building was being erected by an independent contractor, and that he only should be held responsible, cannot be available upon the facts shown. The plaintiff was not in the service of the contractor, but of defendant. The contractor, being short of laborers, "borrowed" from defendant a gang of men, among whom was the plaintiff. Under the orders of defendant's foreman, he was put into a dangerous place, where he received his injuries. Upon the facts, he could recover against the contractor, and also against the defendant. His action was therefore well brought, and the verdict must stand. Judgment affirmed, with costs.

(76 Hun, 3.)


(Supreme Court, General Term, Second Department. February 12, 1894.) WITNESS-CREDIBILITY-PARTIES.

The interest of a party in the result of an action makes his credibility a question for the jury, though his testimony is uncontradicted.

Appeal from circuit court, Kings county.

Action by Holmes Van Mater against Jabez Burns, Jr., and Robert Burns, surviving partners of Jabez Burns, deceased, to recover $352, with interest, the amount claimed to be due to plaintiff by reason of an advertisement inserted for defendants in a paper called the Foreign Trade Gazette, which claim was assigned to plaintiff. From a judgment entered in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed. Argued before DYKMAN, PRATT, and CULLEN, JJ.

Ayres & Walker, (Charles J. Patterson, of counsel,) for appellants. W. K. Van Mater, for respondent.

PRATT, J. The appellants do not claim that any error of law was committed by the court below, but ask that the verdict be set aside upon the sole ground that it is contrary to the weight of evi dence. One answer to the application is that it is based entirely upon the testimony of one of the defendants, and it is well settled that, even where the testimony of a party is uncontradicted. his interest in the result makes its credibility a question for the jury. Goldsmith v. Coverly, (Sup.) reported in 27 N. Y. Supp. 116, lays down that rule, citing Honegger v. Wettstein, 94 N. Y. 261; Wohlfahrt v. Beckert, 92 N. Y. 494; Kavanagh v. Wilson, 70 N. Y. 177; Elwood v. Telegraph Co., 45 N. Y. 549; and other cases. But in the present case it cannot be said that the testimony of the party is uncontradicted. By the contemporaneous written agreement the right of the publishers to be paid in goods for the advertisement was absolute if the goods were demanded in three years. By the testimony of defendant the goods were not to be delivered except on board ship destined to a foreign port. The bill of sale executed by defendant in August, 1887, six weeks after the advertising was finished, being without condition, was also contradictory of defendant's testimony. The verdict was warranted by the evidence, if not absolutely required by it.


The point made by respondent, that the contract, being in writing, could not be contradicted by parol testimony, is also well takThis is not a case where, upon inspection, a contract is seen to be incomplete, which allows that part of the contract not reduced to writing to be proved by parol. Even in such a case the written part of the contract cannot be contradicted, as is here sought to be done. Thomas v. Scutt, 127 N. Y. 133, 27 N. E. 961.

Another answer to the motion of appellant is that the defense interposed at the trial was not pleaded, and therefore not admissible if objected to. It is not allowable to set aside a verdict in

aid of a defense not pleaded. The only defenses set up in the answer were a denial of the assignment of the claim to the plaintiff of the publication of the advertisement, and of the demand of the goods and refusal to deliver. These were all proved upon the trial, and were not then controverted. That entitled plaintiff to his verdict. Judgment and order denying new trial affirmed, with costs. All concur.

(6 Misc. Rep. 466.)


(Supreme Court, Special Term, St. Lawrence County. January, 1894.) SUPPLEMENTARY PROCEEDINGS-TRIAL OF DISPUTED TITLE.

Where a will provides that a legatee, who is also made executor, shall receive his support from the income of the estate, and that he may use the principal for that purpose, if necessary, and no accounting has been had by him as executor, and no separation made of the parts necessary for his support, supplementary proceedings will not lie to subject his interest in the estate to a judgment against him.

Motion to punish defendant for contempt. Denied.
A. Z. Squiers, for plaintiff.

John C. Keeler, for defendant.

RUSSELL, J. This is a motion to punish the defendant for contempt in disposing of $400 in cash, which came to his hands as the proceeds of a public ball given by him in an hotel at Russell, derived from the use of the ball room, and the refreshments more or less inseparable from such occasions. It is claimed that the money was used by him in the payment of debts incurred by him in running the hotel and the purchase of supplies. The defendant contends that the money was not his, but belonged to the estate of his deceased wife. He is executor of that estate, and also receives, by the will of his wife, his support from the rents, profits, and income of the estate, and, if necessary for the purposes indicated, has the right to use the principal. The hotel is a part of the estate. No accounting has been had, and no separation made of the parts necessary for his support, and the heirs, legatees, or devisees of the deceased wife do not seem to care to bring the executor to account. Whatever, therefore, should rightfully flow from the estate by way of income is mixed and mingled with whatever accrues by virtue of his using the property of the estate for business purposes, on the plea that thus alone can the property be preserved intact and its wasting away prevented; for, aside from the amount necessary for his own support, there are fixed charges to be met, such as the interest on $2,500 of mortgages, taxes, insurance, and repairs, aside from any possible debts owing by the estate. The extreme process of attachment for contempt should not, of course, lie, unless the court, upon the evidence, would make an order requiring the defendant to pay over the money, if in his hands, to the satisfaction of the judgment upon which the supplementary proceedings are based. Supplementary proceedings are not given for the purv.27—40

pose of trying disputed questions of title, or of ousting the common-law and equity courts of jurisdiction to settle such questions by the familiar methods of trial, giving in such cases, as should be given the right to jury trials. These proceedings are designed as in the nature of summary proceedings, to ascertain from the debtor, under oath, what property he may have, and afford a short proceeding for the application of his property to the payment of judgments in cases of clear right. This is in accordance with the general principles of the administration of justice, and is not intended to derogate from the ordinary jurisdiction of the courts, where there is a substantial conflict upon the question of ownership. In such cases the ordinary forms of courts must be invoked. Williams v. Thorn, 70 N. Y. 270; Code Civ. Proc. § 2463; Rodman v. Henry, 17 N. Y. 484. In the case at bar the executor may be called upon to account for the use of the property, and, if he has derived benefit from it in transacting business, the rule may pos sibly follow him that he shall put in all of the proceeds for the benefit of the estate over and above what is necessary for his support. At all events, until there is a clear separation of the amounts necessary for his support from the gross sums received, I cannot see how a judge, under the statutory authority conferred upon him with reference to supplementary proceedings, may order any portion to be applied to the payment of the personal debts of the defendant. If he engages in business with the property of the estate rightfully, then a proceeding might lie in the form of an action to separate and determine the amount which should go to his individual creditors. If he engages in business wrongfully with the property, the cestui que trust may claim that it is all for the benefit of the estate, giving him allowance only for the sums he is entitled to for his support. Such a serious question of title, therefore, arises in the attempt to determine what interest he has in the usufruct of the estate of his deceased wife; that the courts ought not to determine it by orders made in supplementary proceedings. In so determining, for the purposes of this motion, I do not overlook the legal reasons which maintain that where an executor or administrator uses the property of an estate in business, and thereby converts it into other property, or derives other personal property from the use of that belonging to the estate, strictly speaking, the legal title is in the person, and not in the executor. The estate could not maintain an action of trover or trespass against a person dealing with the apparent proprietor of the business; but that conclusion does not make decisive the rights of the estate against the executor to possibly require the surrender of all of the property which he thus acquires, as in equity belonging to the estate itself. For the reasons given in the foregoing opinion, the motion is denied. Motion denied.

(6 Misc. Rep. 584.)

KINYON et al. v. KINYON.

(Supreme Court, Special Term, Niagara County.


February, 1894.)

A father conveyed to his son pursuant to a written agreement reciting that the son thereby released all his right to his father's estate. Held, that the deed and the agreement were parts of the same transaction, and the son could not retain the land conveyed, and repudiate the release of his interest in the estate.

Action by Charles Kinyon individually and Charles Kinyon as administrator of John J. Kinyon, deceased, John Kinyon, Jr., and George Kinyon, against Albert Kinyon, to enforce an agreement of defendant releasing all claim to the property of decedent, who was his father. Judgment for plaintiffs.

For former report, see 25 N. Y. Supp. 225.

C. W. Laskey, (David Miller, of counsel,) for plaintiffs.
George D. Judson, for defendant.

WARD, J. On and prior to the 4th day of April, 1885, John Kinyon, a farmer in Niagara county, and owning several farms, conveyed to his four sons, the parties to this action, all of his real estate, a portion to each son. He conveyed to his son Albert Kinyon (the defendant) what was known as the "Home Farm," situate in the town of Ridgeway, Orleans county, consisting of about 91 acres of land. This conveyance was made at the house of John Kinyon, Jr., where the father and all the parties to this action had assembled; and the father stated to the defendant, in the presence of the others, that Albert had had $2,000 more than any of the other children, and that, if he deeded him this farm, he should require of him an agreement not to make any claim to the other property of the father, and to release all claims to such property. This the defendant agreed to do, and then and there, and before the delivery of the deed to him, executed and acknowledged an instrument in writing, dated on the 4th day of April, 1885, which, after reciting the deed from his father, and describing briefly the property conveyed, concluded with this statement:

"Now, therefore, in consideration of such conveyance being made and given to me as aforesaid, I do hereby renounce, release, give up, and set over unto my said father all my right, title, claim, interest, and demand whatsoever in and to all and every part, parcel, or share in and to his real and personal estate which I may or will have at or upon his death in expectancy, by reason of being a devisee or legatee under any will he has made, or may hereafter make, or by reason of being one of his next of kin; accepting the land hereinabove referred to as conveyed to me by him, this day."

Thereupon the deed was duly delivered by the father to the defendant, and this instrument in writing delivered by the defendant to the father, and the defendant had the benefit of the use of the real estate thus conveyed until February 18, 1888, when the defendant and his wife conveyed the premises to their son Lewis. The deed to the defendant was recorded in Niagara county clerk's office. On the 19th day of December, 1886, the father, John Kinyon,

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