issue presented a question of fact for the jury, and their determination must be deemed to be conclusive upon the rights of the parties, unless the exclusion of the evidence above-mentioned is error for which the judgment should be reversed. Upon the question of quantum meruit, many witnesses were examined, a large majority of whom gave evidence which clearly sustained the sum awarded the plaintiff as compensation for his labor. The question propounded to the witness Lambert, namely: "What was the custom with regard to hiring the plaintiff in your neighborhood?" was clearly irrelevant to any issue presented by the pleadings or the proof. An answer to it would not have diminished the force of the evidence establishing the contract as claimed by the plaintiff, nor would it have supported the claim made by the defendant. Both parties relied upon a special contract, but differed as to the terms of such contract. Under these circumstances what the plaintiff had received in the neighborhood, if such indeed was what was designed to bring out by the question, when working without a special contract, was wholly irrelevant, and was properly excluded by the justice.

The judgment appealed from should be affirmed, with costs.
DWIGHT, P. J., and CORLETT, J., concur.

GEORGE L KINGSTON, Assignee, App'lt, v. HARRIET N. KOCH,
Adm'rx, Resp't.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) 1. ASSIGNMENT FOR CREDITORS-DELIVERY MUST BE AUTHORIZED TO BE EFFECTIVE.

Until delivery an assignment is a nullity, and unless the assignor has, by his acts, authorized a delivery, the instrument is inoperative. 2. SAME.

Prior to the recovery of a judgment against one S., he prepared, signed and placed in the hands of his attorney a general assignment for the benefit of creditors with instructions not to deliver it on the morning of that day. No subsequent direction to deliver it was shown, but the attorney immediately on the recovery of the judgment went to his office and delivered the assignment to the assignee. Held, that the assignment never became operative as against creditors.

APPEAL from a judgment entered in Erie county clerk's office on the 29th day of May, 1889, upon the report of a referee dismissing the plaintiff's complaint upon the merits, which action was brought to recover the value of certain fixtures of a grocery store, together with goods on the shelves of such store, belonging to one Southwick, and which were levied upon by the defendant's intestate, acting as sheriff of Erie county, under an execution against the property of Southwick.

Edmond J. Plumly, for app'lt; Seward A. Simons, for resp't.

MACOMBER, J.—The plaintiff, as assignee for the benefit of the creditors of one George Southwick, brought this action to recover the value of certain property which he claimed under such assignment and which had been seized by the defendant's intestate, as sheriff of Erie county, under a judgment and execution issued against the assignor in behalf of one Houghtaling.

The action of Houghtaling was begun in the municipal court of Buffalo, November 28, 1884, and the summons therein was made returnable at ten o'clock A. M. on the 5th day of December of that year. An unverified answer was attempted to be filed by the defendant in that action, but the same was finally rejected; but such effort resulted in a delay in the proceedings of a few hours. Early in the afternoon, however, a judgment was taken, a transcript was immediately issued and filed with the clerk of Erie county, and at ten minutes past three o'clock of that day an execution was delivered to the sheriff. A levy was actually made upon the property in question on the 8th day of December,

1884.

The debtor, Southwick, had prepared and signed and placed in in the hands of his attorney prior to the entry of such judgment against him the general assignment for the benefit of creditors under which the plaintiff claims. This instrument was put into the safe of the attorney, and there remained until the judgment above mentioned was procured, when the attorney, who had been defending the case in the municipal court, went hurriedly to his office and, without any further communication with the assignor, took the assignment from the safe and gave it to the plaintiff, the assignee therein named.

We are of the opinion that this assignment never became effective as against creditors. When the assignor executed the same he had no intention of having it delivered as an effective instrument, but intended the same to be used only as a shield in case of necessity. The last positive instructions which the case shows that the assignor made to his attorney were to the effect that he should not deliver that instrument in the morning of the day above mentioned. There is no evidence of any instruction that he should deliver it at a particular time or in any particular event, though it is a fair inference that the same was designed to be delivered or withheld from delivery according to the course pursued in the action in the municipal court. There is no evidence of any subsequent direction of the assignor to the attorney to deliver the instrument to the assignee. The assignor kept within his own control, save as above mentioned, the entire matter. Southwick pursued his business as theretofore without any change and as though the instrument that he had executed was not outstanding. It was, in fact, a provisional execution of a general assignment not to become operative until further orders had been given to the attorney. There was, therefore, reserved to the assignor the right to withhold the delivery of the assignment and the right to revoke it and render it void. Until delivery, an assignment is a nullity, and unless the assignor has, by his acts, authorized a delivery, the instrument is inoperative. Reichenbach Winkhaus, 67 How. Pr., 512; Melthargy v. Chambers, 27 N. Y. State Rep., 921; Chapin v. Thompson, 89 N. Y., 270.

The referee has found as a fact that the assignment was made. for the purpose of defrauding creditors, and particularly creditor Hough.aling, and is therefore void. This conclusion is abunN. Y. STATE REP., VOL. XXXII.

4

dantly sustained by the evidence, and is fortified by the following authorities, which show that it is not the intent of the assignee, but rather the intent of the assignor, before the delivery of the assignment, which is to govern. Cuyler v. McCartney, 40 N. Y., 221; Talcott v. Hess, 31 Hun, 282.

The judgment should be affirmed, with costs.
DWIGHT, P. J., and CORLETT, J., concur.

LOUISA CARR, App'lt, v. DAVID C. HUFF et al., Resp'ts.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) INFANTS-BOUND BY ACTION BROUGHT FOR ITS BENEFIT BY TESTAMENTARY GUARDIAN.

While the better practice is to bring an action designed for the protection or recovery of an infant's property in the name of the infant represented by a guardian ad litem, yet an action brought by the general guardian, where it is apparent by the title and averments of the complaint that it is solely in behalf of the infant, and where the recovery is for his benefit, is, in the absence of fraud or collusion, binding upon the infant.

APPEAL from a judgment entered upon the decision of the special term held in Monroe county December 2, 1889, dismissing the plaintiff's complaint upon the merits.

George D. Forsyth, for app'lt D. B. Beach and Arthur E. Sutherland, for resp'ts.

MACOMBER, J.-The plaintiff having attained her majority on the 23d day of April, 1889, brought this action to charge certain lands, particularly described in the complaint, with the payment of a legacy of $2,000 given to her by the will of her fatlier, William G. Huff, who died in the town of Gates, Monroe county, N. Y., January 14, 1879, leaving a last will and testament bearing date three days before his death, and which was subsequently duly probated in the surrogate's court of Monroe county.

By this will the plaintiff was bequeathed the sum of $2,000, and the defendant David C. Huff was appointed not only the executor thereof but also the testamentary guardian of the plaintiff. The testator died seized in fee of three acres of land in Gates; an undivided ninth part of fifty-four acres, an undivided one-half of three and one-half acres, and an undivided one-half of a six acre parcel in the town of Chili.

In the month of January, 1880, the defendant, David C. Huff, brought an action in this court individually and as executor, and also as testamentary guardian of this plaintiff, for the purpose, among other things, of charging the lien of the plaintiff's legacy upon the real estate of the testator, and procuring a sale of the lands owned by him at the time of his death. This resulted in a judgment in December, of that year, adjudging that this plaintiff had a lien upon the real estate for the payment of such legacy, and directing a sale thereof, upon which sale, which was thereafter had, the net sum of $1,023.51 was realized, applicable to the payment of such legacy, and was put into a mortgage of the purchaser of a portion of the premises, with directions by the court

that it be deposited with the surrogate of Monroe county to await the coming of age of this plaintiff.

The case is silent as to what has been done with the income of this security from 1880 until the beginning of this action. There is nothing, however, to show that the plaintiff has, since she attained her majority, estopped herself from making the claim now set up by her in this action by having received the proceeds of such sale so procured in the action of David C. Huff. Unless, therefore, she is bound by the judgment procured in the suit of David C. Huff, instituted in her behalf, by him, as testamentary guardian, her right to recover in whole or in part in this action is indisputable.

Very little need be said touching the three acres of land in the town of Gates, above mentioned, because whatever claim the plaintiff may have had therein was entirely extinguished by the foreclosure of the Crittenden mortgage, in which action this plaintiff was made a party, and was properly represented therein by a guardian ad litem duly appointed.

In respect to the other lands mentioned in the complaint, the plaintiff's rights have not been foreclosed, except as above mentioned by the action of David C. Huff..

The argument of counsel for the appellant is, that the action of David C. Huff, although he was the testamentary guardian of this plaintiff, was not a bar to the maintenance of this action, for the reason that the plaintiff herein was not represented in such action. by a guardian ad litem, or otherwise than by David C. Huff, the testamentary guardian.

Inasmuch as the action of David C. Huff, which resulted in the above mentioned judgment was, in reality, for the benefit of this plaintiff, the objection so made by the counsel for the appellant is technical, and therefore unavailing, unless there is some positive statute which renders the judgment so taken in the year 1880 nugatory. The title of that action was as follows: "David C. Huff, and David C. Huff as executor of the last will and testament of William G. Huff, deceased, and as testamentary guardian of Louisa Huff, a minor, plaintiff against Ferdinand Huff, and others." The recovery therein was solely for the benefit of this plaintiff.

The general rule now is, undoubtedly, that where an infant has a right of action he is entitled to maintain suit thereon immediately, without delay on account of infancy, and that before such action is brought a competent and responsible person must be appointed and appear as guardian for the purposes of the action of such infant. Sections 468, 469 and 1686 of the Code of Civ. Pro. In the case of Perkins v. Stimmel, 114 N. Y., 359; 23 N. Y. State Rep., 657, while it is stated that the theory of the Code is that all actions for an infant should be brought in his own name by a guardian ad litem, yet such had not been a fixed and unalterable rule so as to render null actions brought by a testamentary guardian designed solely for the benefit of the infant, and where it was apparent that the same was brought directly in the interest of such infant. In the same case, at general term, 42 Hun, 520; 4 N. Y. State Rep., 459, it was held that the action

was properly brought, but permission was given to change the same so as to make it distinctly in the name of the infant. In the case of Coakley v. Mahar, 36 Hun, 157, it was held that an action brought by the plaintiff as general guardian of one Sarah Mahar to recover one-half of the rent of the premises owned by the infant and the defendant in that action, as tenants in common, was authorized and properly brought in the name of the general guardian of the infant. The same principle is, in a negative way, recognized by the case of Segelken v. Meyer, 14 Hun, 593, and in the same case on appeal, 94 N. Y., 473, where it was held that an action to recover money or personal property belonging to an infant may be brought in the name of the infant by his guardian ad litem, although he has a general guardian.

On the whole, while we agree that the better practice is at present to bring an action designed for the protection or the recovery of an infant's property in the name of the infant, represented by a guardian appointed for the purposes of the action in hand, yet an action brought by the general guardian, where by the title and the averments in the complaint it is plain to see that the same is solely in behalf of. the infant, and where the recovery is for his benefit, is, in the absence of fraud or collusion, binding upon the infant. By the statute, 2 R. S., 150, § 3, the guardian is required to take the custody and management of the personal estate of the minor, together with the profits of his real estate, and is authorized to bring such action in relation thereto as guardian in socage might by law. We perceive in the provisions of the Code no language which works a repeal of this statute, and consequently the same must be deemed in force, although, as above stated, under the general scope and purpose of the Code of Civil Procedure, an infant should be represented by a person specially designated by the court or judge to take care of his interests in each particular action.

The judgment appealed from should be affirmed, with costs.
DWIGHT, P. J., and CORLETT, J., concur.

FRANK M. HAYES, Receiver of the First National Bank of Auburn, N. Y., Pl'ff, v. MARY E. HOOD, Def't.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.)

1. GUARANTY-CONSIDERATION.

Defendant executed to the bank, of which plaintiff is receiver, an instrument by which for value received she guaranteed the payment to it of all liability to it, then or thereafter, of her husband or his firm. In an action on the guaranty, the defense was that it was executed without consideration, and defendant's husband testified that his firm did not have any notes discounted or receive any money or notes from the bank on the day the guaranty was executed. Held, that this was not sufficient to overcome the presumption of consideration arising from the words of the guaranty "for value received;" that it was necessary for defendant to show that there was no consideration at the time of its execution, or prior or subsequent thereto, which would support the promise.

2. SAME.

A promise by a bank that notes held by it should be renewed as they fall due is amply sufficient to support such a guaranty, provided the same was carried into effect.