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William D. McNulty, of New York City, for appellant.
Harry C. Kayser, of New York City, for respondents.

GUY, J. The action was brought to replevin a certificate of membership of the New York Mercantile Exchange that stood in the name of plaintiffs' testator, Frank Crawford. The defense was that the certificate actually belonged to and therefore passed under an assignment made by the insolvent corporation, Frank Crawford, Incorporated, to defendant, for the benefit of its creditors.

[1] On April 20, 1912, decedent executed a bill of sale to the corporation, whereby he transferred to it "all of my stock of merchandise, secret processes, trade-marks, copyrights, office furniture, fixtures, machinery and any and all other things used by me in connection with the business heretofore conducted by me at 15 Harrison street.” The trial judge decided the case in favor of the plaintiffs, holding that, under the terms of the bill of sale, the legal title to the certificate remained in Crawford; also that the testimony given by his executrix, tending to show a latent ambiguity and that the certificate belonged to the business, and not to Crawford's estate, was either incompetent or insufficient. It was proven, among other things, that after Crawford's death the business (now insolvent) paid the dues on the certificate. Plaintiff Shields, Crawford's executrix, also an officer of the Crawford Company and a partner of Crawford in his lifetime, testified that nearly all the people, whether individuals or officers of corporations, engaged, as was Crawford and his company, in the butter and eggs business, were members of the Mercantile Exchange; that in the transfer tax proceedings in Crawford's estate she had, as executrix, testified that she did not include the certificate in his assets, because it belonged to the corporation; that the inventory of Crawford's estate omitted the certificate as an asset of Crawford, because she regarded it as an asset of the corporation. The certificate was found in the corporate safe, where Crawford also kept his personal papers. It was turned over to the assignee of the corporation, who, supported by the executrix's affidavit, included the certificate in the probable corporate assets. There is latent ambiguity in the bill of sale, which parol evidence was competent to explain. Emmett v. Penoyer, 151 N. Y. 564, 567, 568, 45 N. E. 1041.

[2] Admissions of executors as such, in the course of their duty, are only prima facie evidence and only presumptively bind the estate. When made while the executors are not acting in the discharge of their duties, they do not and cannot bind the estate. Yet when executors, in the discharge of their functions, both make admissions and act on behalf of the estate, as did Miss Shields, their admissions and acts are prima facie binding on the estate. Whiton v. Snyder, 88 N. Y. 300, 307 ; Scully v. McGrath, 201 N. Y. 61, 64-66, 94 N. E. 195; Breese v. Graves, 67 App. Div. 322, 328, 329, 73 N. Y. Supp. 167.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.

SILBERT V. KATZ.

(Supreme Court, Appellate Term, First Department. February 4, 1915.)

MASTER AND SERVANT (8 65*)—BREACH OF CONTRACT BY SERVANT-DAMAGES.

Where plaintiff, employed as foreman for defendant, refused to render services under his contract, defendant, unable to obtain another foreman, except on payment of higher wages, could recover the damages sustained.

[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. $ 73; Dec. Dig. $ 65.*] Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Meyer Silbert against Philip Katz. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.

Aaron A. Feinberg, of New York City (Abraham Aronstein, of New York City, of counsel), for appellant.

Otto A. Samuels, of New York City, for respondent.

BIJUR, J. Plaintiff made a contract to work as foreman for defendant, and deposited $100 with defendant as security for faithful performance of the contract. Although the deposit is described as “liquidated damages,” the question whether it is to be treated as such or as a penalty does not arise. It is shown, without contradiction, that plaintiff refused to perform his contract by failing even to begin to render services thereunder. Thereupon the defendant employed another man in his place. Although the subject was not amplified nor thoroughly developed, the defendant gave some evidence, from which it appeared that he had made efforts to replace the plaintiff for the same wage, but was unable to obtain another foreman for less than $55 a week.

Upon the record, defendant's counterclaim for damages was proved, and he should have had judgment therefor.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

RUKEYSER V. INSELMANN et al.

(Supreme Court, Appellate Term, First Department. February 4, 1915.)

1. BILLS AND NOTES (S 518*)-ACTIONS-SUFFICIENCY OF EVIDENCE--INDORSE

MENT AS ACCOMMODATION.

In an action on a note, evidence held insufficient to sustain an indorser's defense that he indorsed the note merely as an accommodation for the benefit of the plaintiff.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. $$ 1816– 1820; Dec. Dig. 8 518.*]

*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. BILLS AND NOTES (8 501*)-ACTIONS-ADMISSIBILITY OF EVIDENCE-IN

DORSEMENT FOR ACCOMMODATION.

Where an indorser of a note claimed, in an action by his indorsee, that he indorsed it as an accommodation, to enable the plaintiff to discount it for the benefit of a corporation, in which they were both interested, testimony by plaintiff that he had advanced to the corporation more than his share, and that the indorser, when asked to advance his share, stated that he had no cash, but that he would indorse the note to plaintiff, who could have it discounted, and turn the proceeds over to the company, had a direct bearing on the defense, and it was error to strike it.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. $8 17191727; Dec. Dig. & 504.*]

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Lawrence Rukeyser against Henry Inselmann, Otto Hoppe, and another. Judgment for the defendants, and plaintiff appeals. Reversed, and judgment directed for plaintiff.

Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.

Manton Marks, of New York City, for appellant.

Herzfeld & Sweedler, of Brooklyn (Max Herzfeld, of Brooklyn, of counsel), for respondents.

GUY, J. The action is against the defendants respondents as indorsers on a promissory note for $200, made by the defendant Inselmann, who was not served in the action, which note was given in part renewal of a note for $300, made by the same maker and indorsed by the defendants respondents. Upon said original note a payment of $100 was made at the time of the giving of the note in suit, and said amount retained by the plaintiff.

[1] The answer, as a separate defense, alleges that the note in suit was delivered by the defendant Hoppe to the plaintiff for the purpose of enabling the plaintiff to borrow money thereon, but for no value whatsoever; that it was agreed between said Hoppe and the plaintiff that, after the note was paid by the maker, the moneys collected thereon were to be returned to the said Hoppe by the plaintiff; and that the plaintiff, as original owner and holder of said note, converted it to his own use, depriving the defendant thereof. On the trial, defendant Hoppe testified that the original note, of which the note in suit was a part renewal, was given to plaintiff for the purpose of having it discounted by plaintiff and the proceeds turned over to a corporation in which plaintiff and he were both interested, and of which they were respectively president and treasurer, the corporation being financed by them; but that it was agreed between the plaintiff and defendant Hoppe, at the time the note was turned over to plaintiff, that, when the note was paid by the maker, the corporation should pay back the proceeds thereof to defendant Hoppe. Hoppe admitted, however, that, when the original note in suit was delivered to plaintiff, there was also paid to him at the same time $100 on account of the original note, with the full knowledge of the defendant Hoppe, and that plaintiff re

•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

tained said $100, and defendant Hoppe made no demand upon plaintiff therefor at any time.

[2] Plaintiff testified that, prior to the giving of the original note, he and defendant Hoppe, who had been financing the corporation, had each agreed to advance certain moneys to the corporation; that he had advanced more than his share thereof; that defendant Hoppe had failed to advance the amount he had agreed to advance; that plaintiff asked defendant Hoppe, for the purpose of obtaining money for the use of the corporation, for a payment on account of the amount said Hoppe had agreed to advance to the corporation; that Hoppe said he had no cash, but would give him the original note signed by Inselmann; and that he could have it discounted and the proceeds turned over to the company. This evidence, which had a direct bearing on the separate defense set up in the answer, and was entirely relevant and material thereto, was stricken out by the court, under objection and exception of plaintiff. The exclusion of this evidence was error highly prejudicial to plaintiff. But, even with such evidence excluded, the defendants respondents do not appear to have established by sufficient proof their separate defense, which was in effect that their indorsement of the note was an accommodation indorsement for the benefit of plaintiff. The defendant Hoppe, on the trial, testified that the original note was indorsed and delivered to the plaintiff as a loan to the company, with the understanding that, when the corporation collected the amount of the note from the maker, the corporation, not the plaintiff, should pay the proceeds over to the defendant Hoppe. This testimony, taken in connection with the undisputed fact that defendant, without making any claim therefor, permitted plaintiff to retain the $100 paid on account of the original note, established a clear preponderance of evidence in favor of the plaintiff as to the matters set up in the separate defense of the answer.

The judgment must be reversed, with costs, and judgment directed in favor of the plaintiff for the full amount of the note, with interest and costs. All concur.

OSTROW v. LESSER.

(Supreme Court, Appellate Term, First Department. February 4, 1915.)

COVENANTS (8 96*)-ACTIONS FOR BREACII-COVENANT AGAINST INCUMBRANCE.

A grantee under a deed containing a covenant against incumbrance cannot recover against the grantor the amount of a judgment, which was a lien upon the property by showing that he paid the amount there sf to his purchaser, without also showing that the purchaser took title subject to the incumbrance, or that the payment removed the incumbrance.

[Ed. Note.-For other cases, see Covenants, Cent. Dig. $8 111-129; Dec. Dig. $ 96.*]

Appeal from Municipal Court, Borough of Bronx, Second District.

Action by Daniel Ostrow against Albert D. Lesser. Judgment for the plaintiff, and defendant appeals. Reversed, and new trial granted. *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.

Tobias A. Keppler, of New York City (Sidney V. Hirsh, of New York City, of counsel), for appellant.

Locker & Locker, of New York City (Benjamin Locker, of New York City, of counsel), for respondent.

BIJUR, J. Plaintiff's claim ultimately resolved itself into a demand for the amount of an incumbrance based on a breach of warranty of title. Plaintiff was defendant's grantee under a deed containing a warranty against incumbrance. When plaintiff conveyed to one Jans, it was discovered that there existed a lien on the property in the form of a judgment against defendant's grantor. Thereupon plaintiff claims to have paid to Jans the amount of this judgment, with interest to date. It was not shown that Jans took title subject to the incumbrance, nor that the incumbrance was removed by payment of the judgment. Under the circumstances, plaintiff cannot recover. See Delavergne v. Norris, 7 Johns. 358, 5 Am. Dec. 281.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

GULICK V, INVESTORS' ESTATES CORPORATION. (Supreme Court, Appellate Term, First Department. February 4, 1915.) BROKERS (8 86*)-ACTION FOR COMPENSATION—EVIDENCE-AGENCY FOR Both

PARTIES-GOOD FAITH.

In an action for a commission for procuring a lease brought by one employed by the lessor to procure the lease against the lessee, evidence held not to show the utmost good faith necessary to enable the plaintiff to recover compensation from both parties.

[Ed. Note. For other cases, see Brokers, Cent. Dig. $8 116–120; Dec. Dig. § 86.*]

Appeal from City Court of New York, Trial Term.

Action by Herbert Gulick against the Investors' Estates Corporation. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.

Robert Kelly Prentice, of New York City, for appellant.

Lehmaier & Pellet, of New York City (James S. Lehmaier and William W. Pellet, both of New York City, of counsel), for respondent.

GAVEGAN, J. The action was to recover broker's commissions. Previous to April

, 1914, plaintiff was in the employ of one Hickson, and while so employed the building in which Hickson's place of business was located was the subject of a foreclosure action, as a result of which the corporation owning the property was with the other tenants dispossessed of the premises. It became necessary, therefore, for *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

151 N.Y.S.-33

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