defendants in this, as plaintiffs, against the plaintiff in this action and others, as defendants, to restrain them from the use of a certain name and trade-mark, and from doing business under that name, or collecting moneys thereunder, and for an accounting for the moneys theretofore collected under that name, and for no other relief; and the judgment in that action was for that relief and that only. The allegation in the complaint in the action in the supreme court, in regard to what the compensation to the plaintiff in this action should be, was substantially as alleged by the plaintiff in his complaint in this action; and the plaintiff's answer in the supreme court action admitted that allegation. There was, therefore, no issue of fact to be tried upon that question in that action; and the terms of that agreement in respect to compensation were only alleged in the complaint in the supreme court action as one of the links in the chain upon which the right to an injunction was founded. Notwithstanding this, the plaintiffs in the supreme court action procured from the judge who tried it, the following finding of fact:

"Eleventh. That these plaintiffs and the said James Mitchell, as well as these plaintiffs, agreed to employ and did employ the said John H. Springer, for which he was to receive ten per cent. as aforesaid, which said commission should be paid to him as long as he remained in the employ of the defendants and the said James Mitchell prior to December 11, 1888, and with these plaintiffs since that time."

The eighth finding of fact in that action contains a similar finding. Obviously this finding was not a material matter within the issue which was expressly litigated and determined in that action, as no judgment could have been rendered in favor of the defendant in that action for his claim in this.

The only question to be determined in that action was whether the defendants in it had wrongfully used the name and trade-mark then in controversy, and whether they should be enjoined from the further use of them.

Campbell v. Consalus, 25 N. Y., 613, was an action brought to foreclose a mortgage. The defense set up payment. On the trial the plaintiffs claimed that prior to the commencement of that action an action had been begun by the defendant therein against the plaintiff's assignor, to cancel the mortgage on the ground that it had been paid, and that in such action the referee to whom it was referred found that the mortgage had not been paid and that there was due thereon the sum of $2,754.88, and that the complaint in that action had been dismissed, with costs. The referee in the action to foreclose the mortgage held that the prior judgment was binding to the extent that it found that the mortgage had been paid, but that the finding of the referee in the prior action, that there was due on the mortgage the sum above mentioned, being an immaterial finding and not embraced within the issues, was no evidence whatever of the amount due and was not res adjudicata upon that point. The referee's report was confirmed, and on appeal affirmed by the general term and the court of appeals.

The court of appeals said: "Inasmuch as the findings of the

referree in the prior action as to the amount due was an immaterial finding and upon a matter not raised in the pleadings, it was not res adjudicata between the parties;" that the pleadings in that action "did not directly or necessarily require the referee to find or report how much was due on the mortgage." But the evidence as to the amount due was merely incidental or collateral to the issue whether anything was due. And it would appear from the case above cited that the principle of res adjudicata does not apply to matters raised only incidentally or collaterally. See, also, People v. Johnson, 38 N. Y., 63.

Hence the learned judge who tried the case committed no error in finding as he did in respect to the findings of fact and of law presented to him bearing upon the subject.

Appellants also contend that inasmuch as in the forty-first sec tion of the answer they alleged the agreement in the complaint stated by its terms was not to be performed within one year from the making thereof, and that there was no note or memorandum in writing of the agreement, and inasmuch as there was no reply to this allegation, that therefore the defense was admitted and this action should not be maintained by reason thereof.

The first answer to this contention is that § 514 of the Code only requires replies to answers where a counterclaim is set up. This was not a counterclaim, but a defense requiring no answer. New matter in an answer not stating a counterclaim is deemed controverted and may be traversed or avoided in any way. Arthur v. Homestead Fire Ins. Co., 78 N. Y., 462.

But even if this were not so, from the time of the passage of the statute of frauds to the present day, no case can be found which adjudicates a party may not recover for work actually done or services rendered under a contract obnoxious to such statute, and this action is to recover for money earned and not for future or prospective damages arising from a breach of contract.

None of the exceptions to the admission or exclusion of evidence were argued on this appeal, either orally or in the briefs of counsel, and they therefore do not require any examination.

The defendants in their answer set up a counterclaim. On the trial no evidence was given in regard to it, nor indeed had the time arrived to give such evidence. But the plaintiff But the plaintiff at the close of the case moved to dismiss the issue made by the answer as far as the counterclaim was concerned. The court very properly denied the motion. Manifestly through some inadvertence, the learned judge who tried the case signed the fourth conclusion of law presented by the plaintiff, as follows: "The plaintiff is entitled to have judgment against the defendants dismissing the counterclaim set forth in the answer and the supplemental answer herein." And the judgment contains the following: "And it is further adjudged that the counterclaim set forth in the answer and the supplemental answer of the defendant herein, be and the same is hereby dismissed." This clause should be stricken from the judgment so as to allow the defendants to litigate their counterclaim upon the accounting if so advised. As thus modified the

N. Y. STATE REP., VOL. XXXII.

9

judgment should be affirmed, but under the circumstances without costs of this appeal to either party as against the other. DALY, J., concurs.

THOMAS COFFEY, Resp't, v. JEREMIAH C. LYONS, App'lt.

(New York Common Pleas, General Term, Filed June 2, 1890.)

1. EVIDENCE-MEMORANDA.

In an action for goods sold and work done the answer denied that they were done and furnished at the time alleged, set up the Statute of Limitations and plead payment. Plaintiff on the trial was unable to prove the items of his claim without looking at a bill which had been presented to defendant years before and which he testified was made within a month of the transaction, and was allowed to refer to it and then to testify to the items. Held, no error.

2. SAME LIMITATION.

Plaintiff testified that the bill was made out about a month after the work was finished and that it was delivered to defendant; but he did not testify to its correctness; nor that it was a true copy from his books; nor that he could not remember the items after refreshing his memory by looking at it. Held, that the bill was competent evidence for the purpose of establishing the date when the work was done as bearing on the Statute of Limitations, and for that purpose only.

APPEAL from a judgment of the general term of the city court, affirming a judgment entered on the verdict of a jury in favor of plaintiff.

Doherty, Durnin & Hendrick, for app'lt; Anson Beebe Stewart, for resp't.

BOOKSTAVER, J.-The general term of the city court having passed upon the questions of fact, they are not reviewable by this court. Bell v. Bartholomew, 12 Wk. Dig., 33.

The complaint was for materials sold and delivered to defendant and for work done for him between January and February 23, 1884. The answer denies that the materials were furnished or the work done at the time alleged in the complaint, and also sets up the statute of limitations and pleads payment, thus admitting the sale and delivery of the goods and their value as well as the value of the services rendered.

Notwithstanding these admissions the plaintiff, on the trial, undertook to prove the items of his claim, but could not without looking at a bill which he presented to the defendant years before. This was objected to by defendant on the ground that the paper was not the best evidence, not being a copy from the books as he claimed. But plaintiff testified that it had been made within a month of the transaction. After looking at the paper, the witness testified to the items, apparently from recollection; at least the defendant did not object to the answer because he read from it. We think the case falls within the rules laid down in this court in Howard v. McDonough, 8 Daly, 365, affirmed by the court of appeals, 77 N. Y., 592. But even if it did not, it could not have injured the defendant by any possibility, because the facts thus sought to be established had been already admitted by the defendant in his answer.

Subsequently the witness testified that the bill was in his

handwriting, and had been made about a month after the work had been finished, and that it was delivered to the defendant. But he did not testify as to its correctness, nor that it was a true copy from his books; nor did he testify that he could not remember the items after refreshing his memory by looking at it. It was subsequently offered and received in evidence, under the general objection made by the defendant that it was incompetent, immaterial and irrelevant. This objection would have been good had the items contained in the bill been disputed, but as before shown, they were not, and the only value of the paper as proof was the date which it bore. Plaintiff had sworn that the identical paper had been delivered to defendant years before, and it was certainly material as bearing on the statute of limi tations to establish the date when the work was done, and we think was competent for that purpose, and that only. There was, therefore, no error in admitting it in evidence in this case.

These being the only questions of law presented to us either by the brief or oral agument of counsel, the judgment should be affirmed, with costs.

LARREMORE, Ch. J., concurs.

WILLIAM T. SHACKELFORD, Resp't, v. ANN ELIZA MITCHILL et al., Ex'rs, App'lts.

(New York Common Pleas, General Term, Filed June 2, 1890.)

1. ASSIGNMENT OF POLICY OF INSURANCE AS COLLATERAL-TITLE TO,

AFTER SETTLEMENT.

One V. in 1846, assigned a life insurance policy to defendant's testator to secure future indebtedness in dealings between them; it being agreed that the proceeds should be applied to the liquidation of such liabilities and the balance paid to V.'s legal representatives. In 1851 a settlement was had, testator making an abatement of one-half the amount due and taking acceptances of third parties for the balance. Nothing was specified as to the disposition to be made of the policy.on which the testator continued to pay premiums until it became self supporting. In an action by V.'s assignee for an accounting and recovery of the proceeds of the policy, Held, that the legal title to the policy remained with defendant's testator subject to the provisions of the agreement as to the disposition of the proceeds; that V. retained an interest in the policy and his assignee was entitled to an accounting.

2. SAME—INTEREST.

The mutual business accounts having been settled in 1851, the reason for the custom of the parties in allowing compound interest on balances ceased to exist and defendants were only entitled to simple interest on the premiums paid.

APPEAL from judgment in favor of plaintiff for $3,493.36 entered on decision of Judge Daly at equity term.

The opinion below was as follows:

DALY, J.-On October 5, 1846, Adrian H. Van Bokkelen assigned to Samuel L. Mitchill a life policy for $5,000, issued on that day by the Mutual Life Insurance Company of New York on the life of said Van Bokkelen, such assignment being to secure any indebtedness from Van Bokkelen to Mitchill that might arise in the course of dealings between them which began at that time, Van Bokkelen being a shipper of naval stores from Newburn,

N. C., and Mitchill being his consignee in New York. Mitchill, by writing of the same date, agreed with Van Bokkelen as follows: "The proceeds of said policy, when collected, to be applied to the liquidation of any liabilities that may be due from him to me, and any balance remaining after such liabilities are discharged to be paid over to his legal representatives."

The transactions between the parties then commenced continued down to August 1, 1851, at which date an account was rendered by Mitchill to Van Bokkelen showing a balance due from the latter of $25,342.76. The account was then settled by Mitchill making an abatement of one-half (excepting two sums of $124.50 and $334.60) and accepting, in payment of the balance ($12,909.10) and in full discharge of all demands, acceptances of third parties for the last-mentioned sum, maturing at various times up to twelve months, which were subsequently paid.

This settlement is evidenced by writing; nothing appears in it, nor in any other paper, concerning the disposition to be made of the policy of insurance which was then held by Mitchill, and which has been kept in force by his payment of the premiums thereon, $124.50 per annum, which premiums were regularly charged in his account with Van Bokkelen.

The $124.50 upon which no abatement was allowed in the final account of August 1, 1851, was probably the annual premium for 1850 paid in the previous November, and charged in the prior account. After the settlement Mitchill kept the policy alive by regularly paying the annual premiums up to the day of his death, May 11, 1873, and his executors, the defendants, paid the premiums next falling due in October, 1873. After the latter date the policy became self-supporting, and the premiums were defrayed from the earnings until August 13, 1888, when Van Bokkelen died, and the amount of the policy, which together with additions was $11,000, was paid by the company to Mitchill's executors on December 18, 1888.

Nothing is shown to have been done by Van Bokkelen concerning the policy up to the death of Mitchill nearly twenty-one years after the settlement of the accounts between them.

After Mitchill's death in the year 1877, his executor, Mr. Sturgis, wrote to Van Bokkelen, stating that the estate held a policy in his favor, assigned to Mr. Mitchill; that the original amount was $5,000, and now with accumulations amounts to $10,580; that it has become self-supporting, the yearly dividends not only paying the premiums, but in addition leaving something to be added to the policy every year, and under these circumstances it was thought he might desire to purchase the policy from the

estate.

No reply having been received, Mr. Sturgis wrote again in 1878, enclosing a copy of the first letter.

In 1883 or 1884 Mr. Van Bokkelen came to the city of New York and saw Mr. Sturgis; the policy, which was kept with the Safe Deposit Company, was shown him, and he was asked to purchase it (according to Mr. Sturgis' testimony), or to pay the premiums or his indebtedness on the policy, and take it and care for