intention of the testator to provide for three months to the order of E. J. individuals within the circle of his sis- Sherman, and was given for the sole ter's family. The title which the plain- use and benefit of Morgan L. Birdsell. tiffs offered to convey was “good and The defendant sets up in his answer sufficient” under the terms of the a counter claim of matters arisiog priir agreement.

to the giving of the note in suit. There lield also, That while it is held that was judgment for defendant, and the a title to be marketable inust be not mere- referee held and decided that the givly a good but an indubitableone, for other ing of the note in suit raised no prewise the purchaser would be buying alaw sumption that all prior dealings between snit (17 P. F. Smith, 436), the possibil- the decedent and defendar:t had been ity is too remote in a case like this to settled. raise any serious question. No rational S. N. Dada, for applt. apprehension of danger from litigation Howe & Rice, for respt. can arise. Three distinct contingencies

Leld, It is well settled in this state must arise before any interest hostile to that proof of the giving of a promissory the plaintift’s can be asserted. First, note by one person to another, nothing the death of the present wife of An- else appearing, is prima facie evidence shutz; second, his subsequent marriage; of an accounting and settlement of all and, third, his own death in the life- demands between the parties, and that time of his last wife.

the maker at the date of such note was Judgment reversed, and judgment indebted to the payee at such settlefor plaintiffs on stipulation.

ment to the amount of such note. Opinion by Woodward, J.

(Lake v. Tyme, 6 N. Y. 161; De Trent

v. Bloomingdale, 5 Denio, 304; Dutch PROMISSORY NOTE. SETTLE- er v. Potter, 63 Barb. 20.) But this is MENT.

a mere presumption which may be re. N. Y. SUPREME Court. Gen’t Teru, pelled by proof of the consideration FOURTH DEPARTMENT.

of such note, and the occasion for and Sherman, administratrix, &c., applt., the same.

circumst inces attending the giving of v. Peter D. McIntyre, respt.

The proofs given and received at the Decided April, 1876.

trial in explanation of the giving of the The giving of a promissory note by one note in question in this action, as found

person to another is presumptively a settlement of all demands between by the referee, fully repel this presumpthe parties.

tion arising from the giving of said This presumption may be repelled by note, and show that it was a mere acevidence.

commodation note, given by the defendAppeal from judgment on report of ant for the benefit of another person to referee.

whom plaintiff's intestate was not wilThis is an action brought to recover ling to lend the amount of money spea note made by defendant, payable to citied in said note without security, but plaintiff's decedent.

agreed to do so upon the defendant's The note was for $100 and interest, responsibility as endorser or otherlated October 14, 1871, payable in wise. The decision and conclusion of


the referee on this point was clearly MECHANICS' LIEN. correct.

N. Y. COURT OF APPEALS, The referee finds that the defendant

Jenks et al., respts., v. Brown, impld, established a set-off exceeding the

appit. amount of said note, the particulars of

Decided May 30, 1876. which are fully stated in his report. Of these items of set-off, the referee finds A cancellation of the contract by mu

tual consent by the parties to it canthe intestate was indebted to the detend

not affect the rights of a third party ant for the amount of a promissory note to enforce his lien for materials furn. produced, and upon which there was

ished the contractor. due at the date the sum of $70; and Where a mechanic's lien has attached,

ii cannot be affected by any arrangealso that the said intestate was indebted

ment thereafter entered into between to the defendant at the time of his

the contractor and the owner of the death in the sum of $160 for the board

buildling. and care of the said intestate and his

This action was to enforce a mechanwife, besides some other items not in ics' lien for the price of materials furndispute.

ished by plaintiffs to one P., a contractThe findings of the referee upon these or, for repairing and altering a building, items are not unwarranted by the evi

land belonging to defendant, in dence, or against the evi lence. On the Kings county. After plaintiffs had contrary, I do not see why his finding furnished the materials P. gave them an in respect to these items is not substan- order on defendant, to be paid out of tially correct, and why, in any aspect of the third payment due upon the conthe evidence, the defendant did not es-tract between him and defendant, and tablish a set-off sufficient in amount to which was accepted by defendant. Subextinguish the plaintiff's demand upon sequently, and before the third payment said note; and as the referee finds that

was due P. under the contract, it was no judgment was claimed by the defend- | cancelled. The evidence did not show ant, except the dismissal of the plain- how far the work was to be prosecuted, tiff's complaint, either in the pleadings

or when it was to be finished, or that or on the trial, and no other judgment P. was in default in the prosecution of was rendered, it would be superfluous it

. It did not appear how much work for us to consider and discuss questions he had done before he stopped. Upon and exceptions relating to other items the cancellation of the contract it was of claim made by the defendant on the arranged that P. was to receive just the trial, inasmuch as if the referee erred amount of the third payment. Plainin his decision in respect of such items, titfs' lien was filed January 5, 1874, the plaintiff was not injured by such and notice of it was served on defenderror, and it would still be our duty to ant January 6th, and he then said that attirm said judgment. The judgment there was some arrangement “ to cancel should therefore be affirmed with costs. the contract.” The instrument of canJudgment affirmed.

cellation was dated January 1, 1974, Opinion by E. D. Smith, J.

but there was no proof that it was executed on that day. At the close of the evidence defendant's counsel moved for

a nonsuit, on the ground that the order the General Term affirning an order of never became due, as the contract was the Specal Term, reviving a special never carried out. This motion was proceeding instituted against a dischary. granted.

ed trustee, and pending at his deatil, J. Albert Wilson, for respts.

against his executors. In 1858, the Samuel Iland, for applts.

court, upon the petition of the trustee, Held, error; that the evidence show- made an order discharging him from ed that the order did become due, as the trust, and relieving his sureties, and the third payment was earned at the appointing a new trustee, it being made time of cancellation, that this being to appear that he had accounted for and so it did not matter that the contract paid over the trust fund in his hands to was not fully completed ; that the de- his successor in the trust. In 1872, the fendant could not complain of non-per- cestui que trust applied to the court for formance, the contract having been can- an order vacating the order made in celled by mutual consent, and as far as 1868, and for other relief, upon allegaappeared before there was any default tions that that order was procured by on the part of P.; that this cancellation imposition and fraud upon the court. could not affect plaintiffs' rights to en- The court ordered it to be referred to a force his lien; that even if the date of referee, to take proof of the matters statthe instrument of cancellation was any ed in the petition, and report the same evidence against plaintiff's, it was not with bis opinion thereon to the court. conclusive, and defendant's declaration The parties appeared and proceeded when the notice of lien was served tend- with the reference. Pending the proed to show that it was executed after ceedings the trustee died, and the Spethe filing and notice of lien. That cial Term made the order of revival. plaintiffs' lien having attached it could Joshua M. Van Cott, for applt. not be affected by any arrangement be Samuel Hand, for respt. tween defendant and P. thereafter en Ileld, that the order was not a final tered irito.

order, affecting a substantial right, Order of General Term, reversing made in a special proceeding within the judgment on nonsuit and granting new third subdivision of sec. 11 of the Code, trial, affirmed.

but was an intermerlia'e order, and so was Opinion by Earl, J.

not appealable to tliis court. The fourth subdivision relates to orders in actions,

not in special proceedings.

Appeal dismissed.

Opinion by Andrews, J.
In re petition of Whittlesey.
Decided June 6, 1876.

SALE. DELIVERY. In order reviving a special proeeeding N. Y. SUPREME Court. Gen't Teru. pending against a discharyed trustee

THRD DEPARTMENT. at the time of his death, against his

Dellon et al., respts. v. Stanton, aperecutors, is not a final order atfectiny a substantial right, and is not plt. ar poulable to the Court of Appeals. Decided May, 1876. This is ati appeal from an order of an action may be sustained for the

price of goods, value over $50, where TRUSTS. DEMURRER. the sale was by parol, no money paid N. Y. SUPREME Court. GEN’L TERM, at the time of sale, and the delivery

FIRST DEPARTMENT. made some time subsequent to the sale.

Newton W. Hoff, trustee, &c., reAction for goods sold.

spt. v. George B. Pentz, applt. The plaintiffs agreed to exchange

Decided May 26, 1876. furniture for lumber of defendant, who The court has authority to appoint a desired the furniture as a present to his

trustee of real estate in place of a

deceased trustee, and an allegation grand daughter W. The furniture was

that he was duly appointed by an charged to defendant. The account was order of the court is suficient. over $50. There was no written con. The money received for real property, tract, no part of the purchase money

held in irust, remains impressed

with the trust. was paid at the time, and no part delivered at the time of the bargain.

Appeal from an order overruling a

demurrer. The referee found that the defendant authorized W. to accept and receive

The complaint alleges that plaintii the furniture at any time she chose to was, by an order of the court, duly apget it. That w. did accept and re- pointed to fill a vacancy caused by the

the death of one Baker, in the position ceive it on the 30th of January, and the 6th of February, l'eing about six weeks of trustee of the estate of John Pentz, after the bargain, and that the defend- deceased. The complaint also all, yed ant knew of the delivery in January that lie had duly qualified.

It further alleged that the estate o before the delivery in February had taken place. That the defendant had Pentz consisted of land in the city or repudiated his contract to pay in lum-New York, a portion of which had

been taken by the city for street purher.

poses, and the amount awarded thereA. P. Smith, for applt.

for paid to the defendant who had beer Waters & Eggleston, for respts.

employed by Baker as an attorney to lield, That although the value of conduct the business; and that he had the goods was more than $50 and the failed to pay over a large portion of the contract by parol, yet the referee hav- money.

Defendant demurred ing found that the defendant author

three ized W to accept and receive the goods, grounds: and that she did accept and receive

1. Want of legal capacity to sue. them, the action is sustained.

2. Several cases of action improperly Besides, the defendant knew of the joined.

3. Insufficient state inent of facts to delivery while it was going on, and did

constitute a cause of action. not notify the plaintiff's of any objection.

James A. Deering, for applt. Judgment affirmed, with costs.

George IIill, for respt Opinion by Learned, P. J.; Bockes, Held, That the allegations of apand Boardman, J.J., concurring. pointment were sufficient under & 161

of the Code.

The complaint sufficiently alleged


that the real estate was held by Baker them. It was found that a portion as a trustee, and it was not necessary to was omitted in the deed, and that the set out the provisions of the will under plaintiff claimed to own that. On the which it was so held.

trial the jury found that the plaintiff The court had anthority to appoint and her husband understood they were a trustee in place of the one deceased, buying the whole, and that the defen :and the real estate vested in him. 3 R. ant knew this, and that the portion S., 5 Ed., 22 $ 87.

omitted was through fraud by the deThe money received came directly fendant. ont of, and was a substitute for, a part R. L. Iland, for applt. of the trust property, and was impress Ilale, Smith O Nale, for respt. ed with the trust existing in the prop

Ileld, That the jury were justified in erty out of which it issued.

finding fraud. It is ground for relief The order appealed froin should be that the defendant agreed to sell the attirmed, and as the defendant does not farm and executed a deed which he appear to have any legal or equitable knew did not, and which he knew that right to the money, it should not be ac. the plaintiff and her husband believed companied with leave to answer over did, convey the whole of the farm. The

Opinion by Daniels, J.; Davis, P. verbal negotiation was not within the J. and Brads; J., concurring.

statutu of frauds. Glass v. Hulbert,

102 Mass. 24, disapproved. The plainDEED. FRAUD IN DESCRIP- tiff las paid the full price and taken TION.

possession. The evidence of the agent N. Y. SUPREME Court. GENERAL Teru. was not in conflict with the written THIRD DEPARTMENT.

contract. He might take a contract in

lais own name for his wife's benefit. Beardsley v. Duntley.

Evidence of what the defendant told Decided May, 1876.

other persons after execution of the Where the vendor agrees to sell land deed was competent as showing fraud and erecute a deed, which he knows in inserting a description conveying less does not, and which he knows the vendee believes docs convey the whole than he agreed to convey. of the land, the vendor will be re Judgment affirmed. creed to convey the residue.

Opinion by Learned, P. J.; BoardAdmissions of the vendor made subse man, J., concurring.

quent to the execution of the deed are competent to show fraud in the description.


REAL ESTATE. This action was brought to compel the execution of a deed. The plaintiff


FOURTH DEPARTMENT. by her husband, entered into oral nerotiations for the purchase of a farm. Knapp, respt., v. Hungerford et al., Sabsequently the defendant executed a applts. contract with the husband, and next Decided April, 1876. day a deed of the premises to the plain- A parol agreement between an ancestor tiff. The plaintiff went into possession and a third person by which, for a of all the premises, and cultivated

consideration, the former agrees to

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