App. Div.]

FIRST DEPARTMENT, APRIL TERM, 1903.

In the Matter of the Judicial Settlement of the Account of Proceedings of GEORGE E. WHIPPLE and HUGH V. CONRAD, as Surviving Executors of the Last Will and Testament of ADDISON C. RAND, Deceased.

ANNIE V. RAND, as Executrix, etc., of JASPER R. RAND, Deceased, and JASPER R. RAND, one of the Legatees Named in the Last Will and Testament of ADDISON C. RAND, Deceased, Appellants; GEORGE E. WHIPPLE and HUGH V. CONRAD, as Surviving Executors, etc., of ADDISON C. RAND, Deceased, Respondents.

Executor's commissions — not allowed on a specific legacy of stock — commissions of an executor dying pending administration, how computed.

Executors are not entitled to commissions on a specific legacy of shares of stock. In the event of the death of one of the executors of a will prior to the final accounting, his personal representative is entitled to commissions only upon such sums as were received and paid out during his lifetime.

Commissions should not be allowed upon the basis of the inventory of the estate, but only for actual services in receiving and disbursing the moneys of the

estate.

APPEAL by Annie V. Rand, as executrix, etc., of Jasper R. Rand, deceased, who was in his lifetime one of the executors of Addison C. Rand, deceased, from so much of a decree of the Surrogate's Court of the county of New York, entered in said Surrogate's Court on the 14th day of October, 1902, as awards to her the sum of $343 as commissions earned by Jasper R. Rand, deceased, as one of the executors of Addison C. Rand, deceased. Also, appeal by Jasper R. Rand, one of the legatees named in the last will and testament of Addison C. Rand, deceased, from so much of said decree as awards to the surviving executors of the estate of Addison C. Rand, deceased, each the sum of $5,421.92 as commissions upon the principal estate of said testator.

Newell Lyon, for the appellants.

George W. Van Slyck, for the respondents.

PATTERSON, J.:

The only matter necessary to be considered on this appeal relates to the allowance by the surrogate, on the settlement of the accounts

FIRST DEPARTMENT, APRIL TERM, 1903.

[Vol. 81. of the executors, of commissions to such executors. Addison C. Rand, by his last will and testament, appointed George E. Whipple, Hugh V. Conrad and Jasper R. Rand the executors of such will. Letters were issued to the three executors on April 24, 1900. Jasper R. Rand died July 18, 1900. In the settlement of the executors' account the surrogate has allowed commissions upon moneys received and paid out by the surviving executors, in accordance with the rates authorized by section 2730 of the Code of Civil Procedure. The account is a final one, and the commissions allowed to the two surviving executors are awarded in strict accordance with the statute, except that there is a slight error in calculating the amount to which they were entitled. Each of the surviving executors is allowed by the surrogate's decree the sum of $5,421.92. A close calculation 'would show that they were each entitled to $5,412.92. Each of them, therefore, has been allowed nine dollars too much. There is another error in calculating the amount of commissions to which the surviving executors were entitled, and that is, the allowance of commissions on the specific gift of shares of stock to one of the legatees. These commissions are twenty dollars to each of the surviving executors, and that amount should be deducted. The surrogate was right in allowing to the executrix of the deceased executor Jasper R. Rand commnissions only upon such sums as were received and paid out during the lifetime of Jasper R. Rand. The provision of the statute would not allow of compensation to be made upon the basis of the inventory of the estate, but only for actual service in receiving and disbursing the moneys of the estate.

The decree should be modified by reducing the amounts allowed to the surviving executors as above indicated, and as thus modified affirmed, without costs in this court.

VAN BRUNT, P. J., O'BRIEN, INGRAHAM and HATCH, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.

App. Div.]

FIRST DEPARTMENT, APRIL TERM, 1903.

ERNEST J. WILLIS, Respondent, v. ECLIPSE MANUFACTURING COMPANY,

Appellant.

Libel― charging a bicycle dealer with “cutting prices” — it is not libelous per se — the complaint must allege special damages.

A letter charging a bicycle dealer with "cutting prices" on a certain bicycle appliance and that such bicycle dealer had not only injured the writer's business, but the trade, and those jobbers who had maintained the contract price, is not susceptible of an interpretation that it was intended to lead the party to whom it was addressed and other business acquaintances of the bicycle dealer to believe that the latter had violated and repudiated his contracts and obligations and was an unsafe and unreliable business man engaged in injuring and ruining the business of the writer of the letter and also of all jobbers throughout the country and, therefore, not of good repute among business men. Such a letter contains nothing which would necessarily injure the bicycle dealer referred to therein in his business or disparage him as a business man and is, therefore, not libelous per se.

A complaint in an action of libel based upon an article not libelous per se is demurrable unless it alleges special damages.

APPEAL by the defendant, Eclipse Manufacturing Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of October, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant's demurrer to the plaintiff's complaint.

John S. Sheppard, Jr., for the appellant.

George E. Miner, for the respondent.

PATTERSON, J.:

This is an appeal from an interlocutory judgment overruling a demurrer to the complaint. The action is for a libel alleged to be contained in a letter written by the defendant to one of its correspondents, and inclosing a copy of a letter which the defendant. wrote to the plaintiff who seems to have carried on business, not in his individual name, but under the name of the "Willis Park Row Bicycle Company," of New York. In the letter first above referred to the plaintiff is charged with "cutting prices," on the "Morrow Coaster Brake," which seems to be a bicycle appliance. The letter complained of by the plaintiff states that by the action of Mr. Willis

FIRST DEPARTMENT, APRIL TERM, 1903.

[Vol. 81. he not only injured the defendant's business, but the trade and those jobbers who have maintained the contract price. The plaintiff contends that it is charged in the letter that he cut the contract price of this article, being bound to maintain that price, and it is alleged that that accusation is false, and by way of innuendo in the complaint it is charged that the defendant meant and intended to lead the party to whom the letter was addressed and other business acquaintances of the plaintiff, to believe that the plaintiff had violated and repudiated his contracts and obligations, and was an unsafe and unreliable business man engaged in injuring and ruining the business of the defendant and also of all jobbers throughout the country, and, therefore, not of good repute, etc., among business men.

It is evident from a reading of the letter complained of that the innuendo expands the meaning of what is charged in that letter far beyond any reasonable intendment that can be drawn from it. There is nothing whatever in the letter to charge that the plaintiff was bound by any contract not to cut prices, or that connected him with any contract to maintain prices. He is not even charged with the violation of a contract; nor is there anything in the letter from which it can be inferred that he was bound by any contract, or that the writer of the letter intended so to represent.

We are, therefore, not able to perceive that anything contained in this letter is libelous per se, for there is nothing in it which would necessarily injure the plaintiff in his business or disparage him as a business man. Inasmuch as the matter is not libelous per se, the complaint is defective in that it does not allege special damage; and for this reason we think the judgment of the court below was wrong and that the demurrer should have been allowed.

The interlocutory judgment must, therefore, be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend his complaint within twenty days on payment of costs in this court and in the court below.

VAN BRUNT, P. J., O'BRIEN, INGRAHAM and HATCH, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend complaint within twenty days on payment of costs in this court and in the court below.

App. Div.]

FIRST DEPARTMENT, APRIL TERM, 1903.

NATIONAL CITIZENS' BANK OF THE CITY OF NEW YORK, Respondent, v. EMMA IDA TOPLITZ, Appellant.

Accommodation note—an extension of the time of payment thereof without the consent of the accommodation maker does not discharge him from liability thereon.

Where a promissory ncte, made by the maker for the accommodation of the payee with the intent that the payee should raise money thereon, is discounted by a bank for the benefit of the payee, with knowledge of its accommodation character, the action of the bank in extending, after the maturity of the note, the time of payment thereof, without the knowledge or consent of the accom modation maker, does not operate to discharge the accommodation maker. In such a case the accommodation maker is primarily liable upon the note and the relation of principal and surety does not arise.

The rights of the accommodation maker are not impaired by the extension of the time of payment, as she cannot maintain an action against the payee on the note itself.

APPEAL by the defendant, Emma Ida Toplitz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of October, 1902, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Richard L. Sweezy, for the appellant.

Charles Blandy, for the respondent.

PATTERSON, J.:

On the 26th of December, 1899, the defendant made her promissory note by which she promised, five months after date, to pay to the order of L. Toplitz, Son & Co., $5,000 at the Chemical National Bank, New York, for value received. The note was indorsed by L. Toplitz, Son & Co. and was discounted by the Ninth National Bank, to the rights of which bank the plaintiff has succeeded by consolidation of the two corporations.

This was an accommodation note, and when it was discounted by the Ninth National Bank that bank had full notice that it was an accommodation note. It was not paid at maturity, and at the APP. DIV.-VOL. LXXXI. 38