rendered judgment for plaintiffs, and directed a reference to take and state the account with respect to the rents and profits received by defendant. De Witt C. Brown, for applt. Albert Stickney, for respts. Held, That the judgment was proper; that the fraudulent intent in the inception of the proceedings may be inferred from all the circumstances of the case, and the use which defendant has sought to make of the summary proceedings. Also held, That plaintiffs' assignor was not their agent in colluding with defendant or assenting to any act which would destroy their property. It is never assumed that extrinsic facts alleged as the foundation of an objection to evidence offered are true, and when no evidence as to them is offered, and the objection is overruled, it is because there is no foundation laid for it. The declarations of defendant's attorney and agent were competent while he was acting as such, and in the course of the proceedings as a part of the res gestæ. Judgment of General Term, affirining judgment at Circuit, affirmed. Opinion by Allen, J. All concur. the City of New York, upon the ground of payment of a prior assessment for paving the same street. Under Section 7 of Chapter 580, Laws of 1872, the relief in this case could be granted only in case such prior assessment had been paid. It appears that there was an assessment for paving this street in 1831, but there was no proof that the assessment had ever in fact been paid. A. B. Johnson, for applt. Held, That the petitioner, in order to succeed, was bound to show actual payment by competent proof, 14 N. Y., 477, 302; 9 Hun, 234; that payment would not be presumed from lapse of time. Order of General Term, affirming order of Special Term denying motion to vacate, affirmed. Opinion by Earl, J. All concur. INSOLVENT BANKS. N. Y. COURT OF APPEALS. Rosenback v. The M. & B. Bank. In re. petition of the Receiver of the German Union Savings Bank, applt., v. The Receiver of the M. & B. Bank, respt. Decided April 17, 1877. The statute in relation to insolvent banks only undertakes to secure debts due from a bank to a savings bank for money deposited in the usual course of business and subject to drafts of the depositors to an amount not éxceeding that authorized to be deposited by such statute. Loans, whether on time or on call, are not deposits within the statute. It cannot be changed into a deposit by reason of any want of authority in the managers to make the loans, or that it was made in violation of law. This was an application by appellant for an order directing respondent $40,000 was placed to the credit of the call loan of the savings bank. John E. Parsons, for applt. Osborne E. Bright, for respt. Held, That the transaction had none of the features of a deposit; that the statute under which a preference is claimed does not undertake to secure the debts of every character due from a bank to a savings bank, in preference to debts due individuals or other corporations, but only such as are due for money deposited in the usual course of business and subject to the drafts of the depositors to an amount not exceeding that authorized to be deposited by § 27 of the act. Loans, whether on time or payable on call, are not deposits within the act, and are not entitled to a preference. to pay him the balance of an alleged deposit made by the G. U. Savings Bank, in the M. & B. Bank. The application was made under § 48 of Chapter 371, Laws of 1875, which provides that the assets of an insolvent bank, after providing for the payment of its circulating notes, if it has any, shall be first applied to the payment in full of any deposits therewith by a savings corporation. It appeared that on Sept. 16, 1875, the savings bank had on deposit with the M. & B. Bank a balance of nearly $50,000; the latter was overdrawn at the Chatham Bank, in urgent want of $40,000, and applied to the savings bank for a loan on call of that amount upon securities for its repayment and for the payment of the general deposit account. The loan If the money sought to be recoverwas agreed upon, a formal agreement ed was a loan, it cannot be changed prepared, and securities delivered. into a deposit by reason of any want The president of the savings bank of authority in the managers of the borrowed $65,000, $40,000 of which savings bank to make the loan, or for was deposited in the Chatham Bank the reason that it may have been to the credit of the M. & B. Bank. made in violation of law. The Court It appeared from the books of the in- cannot make a contract which the stitutions that the loan was thus two corporations did not make or inmade, and that the $40,000 was to tend to make, which would essentialbear interest from Sept. 16th. It ap-ly vary their rights and obligations. peared in the cash book of the sav ings bank, on that day, as a "deposit." It was not entered in the journal until Oct. 4th, and it was then entered as a call loan from Sept. 16th, and $5,000 paid that day is entered on account of the loan. In all entries, 80 far as appeared, after the first entry in the cash book, it was designated as "the call loan" or "call loan of Sept. 16th." The officers of the savings bank were, on Sept. 16th, unwilling to increase their deposits. In the books of the M. & B. Bank, the If officers of savings banks violate the laws of the State or the corporation, and are guilty of a breach of trust, the remedy is against them and not in the substitution of a contract which would have been legal if made for an illegal contract actually made. Order of General Term, affirming order of Special Term denying motion, affirmed. Opinion by Allen, J. All concur. EVIDENCE. N. Y. COURT OF APPEALS. Steele et al., respts., v. Lord, applt. Parol evidence as to the acceptance and pay- Affirming S. C., 2 W. Dig., 225. voluntarily and intentionally destroyed the missing vouchers, and therefore should not be permitted to give secondary evidence of their con tents. Francis Kernan, for applt. Held, That the evidence was properly received. Blade v. Noland, 12 Wend., 173, distinguished. Judgment of General Term, affirming judgment for plaintiffs, affirmed. Opinion by Rapallo, J. All concur. Allen, J., absent. EXAMINATION OF BEFORE TRIAL. PARTY N. Y. COMMON PLEAS. SPECIAL Term. Decided September 22, 1877. This action was brought to recover a balance of account arising from advances made by plaintiffs to defendant. The advances were made principally by means of drafts drawn by defendant upon plaintiffs, and accepted by them, and paid through their bankers. The only point made by defendant upon the trial as to the amount of the advances was that several drafts were not produced. Plaintiffs were allowed to give evidence of the acceptance and payment of these drafts without producing them upon proof that they had been destroyed. This proof consisted of the testimony of the plaintiff S. that he had-destroyed them, as he did all other vouchers from the bank; that his rule was to destroy the vouchers The defendants, being the sisters of returned by the bank as soon as one Wm. R. Hymes, deceased, obhe found the bank account satisfac-tained an order for the examination tory; that he always destroyed the vouchers, whatever their character, on settlement with the bank; that he had no particular object in destroying them, only that it was his custom; that at the time these were destroyed plaintiffs had regular entries on their books of the drafts and payments, and that no question or variance had at that time occurred between plaintiffs and defendant, and he did not suppose there would be any. Defendant objected that plaintiffs had of the plaintiff, Mary C. Hymes, who claims to be the widow of said Hymes, under 88 870, 872, and 873 of the New Code of Civil Procedure, having substantially complied with the requirements of said sections, and upon the return day a motion was made to set it aside as not stating sufficient facts to warrant such order, the allegations being that the plaintiff claimed to be the widow of the said. Hymes, and that there were many facts, occurrences, and circumstances where all the grounds stated involve questions of fact upon which there is sufficient evidence to justify a submission to the jury. within the knowledge of said plaintiff which, in the nature of things, the defendants could not have any knowl- Evidence of private transactions and declara edge of, and which were necessary and material for the defendants to inquire into for the purpose of properly preparing the defense; many of them facts which they can learn from no other source. The plaintiffs, in moving to vacate, rely upon the allegations in their affidavit that the only real issue is, whether the plaintiff is the widow of Hymes or not, and that a commission has already been issued to England to inquire as to such issue. John S. Brower, for plff. J. F. DALY, J.-I regard the decisions of this Court in Schessmoes v. Bousson, 1 Abb. N. C., 481, and in Phenix v. Dupuy, Daily Register, June 8, 1877; 4 W. Dig., 418, applicable to the provisions of the New Code as to the examination of adverse parties to the action before the trial. The provisions of the former Code on that subject were fully as broad and sweeping as the enactments now in force. No intention is evinced in the statnte ($$ 870, 872, 873, 828) to make its provisions applicable to other cases and circumstances than those to which the enactments of the former Code were held to be confined. Motion granted with $10 costs. PRACTICE. EVIDENCE. tions between a defendant and a third person is inadmissible as against the plaintiff, where plaintiff is not a party thereto or to be affected thereby. Where by reason of defendant's death plaintiff could not prove by his own oath that he bought certain railroad stock, relying upon the representations of the deceased, it was proper to prove that he had no knowledge of the company's stock and finances from other persons than the deceased and his sonin-law. Where plaintiff claims that he bought the stock of defendant relying upon misrepresentations made by defendant as to the amount of land owned by the company, evidence of the market value of the stock, at the time of sale, is immaterial and incompetent. This action was brought against Jay Cady, the testator of defendants. It is alleged that a contract was made between the parties by which Cady agreed to sell plaintiff 50 shares of the stock of the St. Croix and Lake Superior RR. Co. for $5,000; that for the purpose of inducing plaintiff to make the purchase, Cady made certain false representations as to the lands and property of the company, and among others that the company had a grant of 2,000,000 acres of land, and that whether the road was built or not, such lands would greatly enhance the value of the stock; that plaintiff paid the $5,000, and received a transfer of 25 shares of the stock, leaving 25 shares to be afterwards transferred, but which, in fact, never were transferred, and that upon discovering the falsity of the representations plaintiff rescinded the contract, tendered back the 25 shares received, and demanded the return of the $5,000, A motion for a nonsuit is properly denied which was refused. Defendant de nies that he made any false representations, and asserts that he made the sale as agent for one Morse, his sonin-law, accounted to him therefor, and paid him the money received, by direction of the plaintiff. A verdict was rendered in favor of plaintiff for $5,000 and interest. Defendants appeal from the judgment entered thereon, and also from an order denying a motion for a new trial on the min utes. S. W. Jackson, for applts. Held, That on the evidence it was a question of fact for the jury to say whether plaintiff's contract was made with Cady or not. The jury has found that it was made with him and not with Morse, and the finding is conclusive upon us. There was also sufficient evidence to justify the jury in finding that Cady represented to plaintiff that the company had 2,000,000 acres of land with which to build the road, and that whether the road was built or not, such lands would be available to give value to the stock and bonds, and that such representations were false. The nonsuit was therefore properly denied upon all the grounds stated, and the questions were properly submitted to the jury. Held also, That evidence of private transactions and declarations between Cady and Morse was properly rejected. Plaintiff was not a party thereto and was not to be affected thereby. His right of action depended upon his transaction with Cady and not upon Cady's secret agreement with Morse. Pipin v. Lachmeyer, 45 N. Y., 27; McGrath v. Bell, 42 How. Pr., 182. Held also, That plaintiff could not show by his own oath that he bought the stock relying upon the representations of the deceased Cady. But I think it was proper to show that he had no knowledge from other persons than Cady and Morse about the company's stock and finances. That did not tend to prove that he had any knowledge from or transaction with either of them. It was not a personal transaction within § 399 of the Code. Held also, That the market value of the stock at the time of the sale was not material to the issue. It does not tend to overcome the proof of misrepresentation as to the amount of lands or the nature of the title. Nor was it competent upon the question of damages. Hubbel v. Meigs, 50 N. Y., 491, 492; Baker v. Lever, 3 W. Dig., 594. Nor did it show that Cady was acting in good faith. Judgment and order affirmed. Opinion by Boardman, J.; Learn ed, P. J., and Bockes, J., concur. NEGOTIABLE INSTRUMENTS. al. to order and indorsed in blank, is prima facie evidence of title, and the holder need not prove that he gave value therefor, until it is shown that it was fraudulent in its inception, or that its consideration was illegal, or that it was lost or stolen before coming to his possession. In order to defeat the rights of a bona fide holder of a promissory note, which it is claimed was procured by fraud, notice of such infirmity must be brought home to him; proof of such facts and circumstances as would have put a reasonable man on his guard are not sufficient. Where fraud or illegality in the inception of the note are alleged and proved, the onus |