Second Department, November, 1909. [Vol. 134. NATIONAL FERTILIZER COMPANY, Appellant, v. WILLIAM G. FOSTER, Respondent. Second Department, November 24, 1909. Sale - defense- former judgment— evidence. Where in an action to recover for certain fertilizers sold, the plaintiff proved the sale and delivery, but the defendant contended that the item was included in a judgment confessed after the date of the alleged sale and subsequently satis fied, and to sustain his contention relied on a statement rendered to him by plaintiff long after the judgment was confessed and which had no relation thereto, a judgment in defendant's favor will be reversed. APPEAL by the plaintiff, the National Fertilizer Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, rendered on the 31st day of March, 1909. R. W. Kellogg, for the appellant. David H. Meldon, for the respondent. JENKS, J.: In 1903 and 1904 the plaintiff sold fertilizer to the defendant who, in October of the latter year, confessed judgment to the plaintiff for $349.45 and $18.35 costs. The defendant satisfied this judgment. This action was begun in 1908 to recover $77.50 on a sale made on July 13, 1904. The defendant makes general denial and pleads as a separate defense that the account which included this item was settled by the discharge of the said confessed judgment. It was established that the sale and delivery of this item was made. The sole question litigated was whether the item was embraced in the sum of the confessed and satisfied judgment. The contention of the plaintiff is that the item was overlooked. The defendant admitted that he did not know how the statement of that sum was made up, but he read in evidence a statement which he said he had received from the plaintiff at or about the time of the confession, which he insists sustains his contention. The statement is headed "Wm. G. Foster Account." It contains the items of two sales made in 1903 and the details of the payments App. Div.] Second Department, November, 1909. thereon by cash and by notes, which extended into 1904. It also contains under the head of 1904 account, 4 items of merchandise, March 16, $186; March 16, $48; June 1, $31; July 13, $77.50; with the total of these items of $342.50. Plaintiff's witness Stratton testifies that this statement was not given to the defendant in 1904 but in 1906, when it was handed to an attorney who then represented him, in explanation of the indebtedness represented by an outstanding note. I think that the statement itself shows clearly that the defendant is in error, and indicates that the plaintiff is right. I find in the statement the item of a note at one month, dated September 16, 1904, for $81.08, not paid, and with the interest thereon cast from September 16, 1904, until May 31, 1906. If the statement were rendered in 1904, why would it contain the interest on a note given in 1904 for one month up to May 31, 1906? On the other hand such an item is entirely consistent with the plaintiff's explanation. The statement in itself does not indicate that this item of $77.50 was included in the sum represented by the confessed judgment, but only that such a sale was made in 1904. The plaintiff gave evidence to show that the sun of the said judgment, $349.45, was made up of certain specified items which excluded the said $77.50, and consequently that if that item had been included the indebtedness of the defendant at that time would have been $426.90. The defendant does not challenge directly any of these figures or any of the items of the sales to him. ment. The peculiarity of this case, so far as the plaintiff is concerned, is found in the fact of an omission of an item which it is testified was discovered a few months after the payment of the confessed judg When scrutinized the defense rests upon the contention that that item was included, because naturally it should have been in such a business transaction. I think that the verdict for the defendant was against the weight of the evidence and that for that reason the judgment must be reversed and a new trial must be ordered, costs to abide the event. HIRSCHBERG, P. J., WOODWARD, RICH and MILLER, JJ., concurred. Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event. Second Department, November, 1909. [Vol. 134. JOHN T. McGOVERN, as Executor, etc., of CATHERINE MCGOVERN, Deceased, Respondent, v. SUPREME COUNCIL, CATHOLIC BENEVOLENT LEGION, Appellant. Second Department, November 24, 1909. Insurance - practice - judgment in accordance with pleadings — raising question first on appeal. Where in an action to recover upon a death benefit certificate the plaintiff alleged that he and the assured had complied with all the terms and performed all the conditions of the policy, except as they had been waived by the defendant, and proved a case to justify a verdict if the complaint had alleged performance merely, the defendant, who took no exception at the trial to raise the point, cannot contend on appeal that the plaintiff did not prove his cause of action as pleaded. APPEAL by the defendant, the Supreme Council, Catholic Benevolent Legion, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of February, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 10th day of February, 1909, denying the defendant's motion for a new trial made upon the minutes. John C. McGuire [Edward J. Connolly with him on the brief], for the appellant. . Sewell T. Tyng [John T. McGovern with him on the brief], for the respondent. JENKS, J.: This action is to recover upon a death benefit certificate. The plaintiff complained that the assured and the plaintiff had complied with all of the terms and conditions of the policy, "excepting as the performance of the terms and conditions of said policy or contract have been waived by said defendant," and further that plaintiff had performed all the conditions of said policy or contract with regard to making proof of loss and claim and demand, "excepting as the performance of the same has been waived by said defendant." The answer was general denial. At trial the plaintiff proved a case App. Div.] Second Department, November, 1909. to justify a verdict if the complaint had alleged performance merely. There was no objection made by the defendant during the deliverance of the plaintiff's case save one of immateriality, irrelevancy and incompetency, as to the admission of certain correspondence between the plaintiff and the defendant after the death of the assured. When the plaintiff rested, the learned counsel for the defendant moved "to dismiss for failure to prove," and the motion was denied under exception. The defendant then rested and the plaintiff moved for a verdict. The court asked if the defendant cared to go to the jury on any specific issue of fact, and the counsel replied that he did not think that there was any question of fact for the jury, but that he desired to take an exception that would cover any possible right he might have. The court then directed a verdict. It is insisted upon this appeal that the plaintiff did not prove a cause of action in that he pleaded, not a performance, but performance except where compliance was waived by the defendant. The rule declared in Gillies v. Improvement Co. (147 N. Y. 420) is against the defendant and requires an affirmance of this judgment. In that case the plaintiff complained on quantum meruit, and the recovery was upon a contract. The trial proceeded on the pleadings as if the plaintiff had counted on the contract. The defendant raised the point upon appeal that the plaintiff had failed to make out his particular cause of action as stated in the complaint, but could only rely upon his exception taken at the close of the plaintiff's case to the ruling of the referee refusing to dismiss the complaint on the ground that the plaintiff had failed to make out a cause of action. The court held this was insufficient, saying, per O'BRIEN, J.: "The only exception that the defendant relies upon to raise this question is one taken at the close of the plaintiff's case to the ruling of the referee refusing to dismiss the complaint on the ground that the plaintiff had not made out a cause of action. The point that the plaintiff had failed to make out the particular cause of action stated in the complaint was not raised at all, nor was it suggested at any stage of the trial. The facts proved and found warranted the judgment, and it is a familiar rule that where the cause is tried on both sides without regard to the technical form of the action as disclosed by the complaint, and no question is raised Second Department, November, 1909. [Vol. 134. at the trial, or objection made to that course, the successful party will be deemed to have recovered upon the facts shown, and not strictly upon his pleading. (Belknap v. Sealey, 14 N. Y. 143.)” The judgment must be affirmed, with costs. HIRSCHBERG, P. J., WOODWARD, RICH and MILLER, JJ., concurred. Judgment and order affirmed, with costs. WILLIAM H. J. BODINE, by His Guardian ad Litem, CHARLES F. SWAN, Appellant, v. JOSEPH T. WILLIAMSON and Others, Respondents, Impleaded with JOSEPH T. WILLIAMSON, as Administrator de Bonis Non of MARY A. BODINE, Deceased, and Others, Defendants. Second Department, November 24, 1909. Principal and surety-surety of administrator power to attack decree - fraud - pleading - duty of adverse party - enjoining action. A surety upon the official bond of an administrator or one standing in the place of such surety cannot maintain an action to set aside the decree of a Surrogate's Court of competent jurisdiction settling the administrator's accounts in the absence of fraud leading to the decree. A complaint which alleges that an administrator charged himself in his inventory and account and was charged by the decree judicially settling the same with two items with which he should not have been charged because the property never actually came into his possession, but makes no suggestion that all the facts were not known to the administrator at the time, fails to show any fraud leading to the decree. It was not the duty of the next of kin to protect the administrator from an erroneous decree for when parties are dealing at arms length and here is no rela tion of trust and confidence between them there is no obligation upon either one to reveal to his adversary the infirmities in his own case or supply omissions and deficiencies in his adversary's case. Equity will not enjoin the prosecution of claims merely because their transfer is alleged to have been champertous. APPEAL by the plaintiff, William H. J. Bodine, from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Richmond on the 7th day of July, 1909, upon the decision of the |