"that they were going to sell, and that he thought he could get the job of attending to it for me," and he received orders from Mr. Sweeney after that in regard to the property; that Mr. Sweeney brought the money, and told him to purchase the property, which he did, for $52,000; that he thought the man for whom he held title was Mr. Miller, whom he never saw, and whom he understood was a creditor of the Shareholders' Company; that upon selling the property to defendant he turned over the money to Mr. Sweeney; that he had advertised the property as directed by Mr. Sweeney, and forwarded many replies to him. In addition we have the testimony of Mr. Cobe, who said he remembered signing the letter of January 9th, and that the plaintiff said he thought he could get the property for $69,000, as he had a good deal of influence with Mr. Sweeney and Mr. Barker, but never told him he was authorized to purchase for $61,000; that thereafter he sent his cousin to Buffalo to appraise the property. The defendant's secretary testified that the plaintiff told him he had been unable to get a written contract with the Shareholders' Company, and the property would have to be transferred to other parties, as there were liens to be taken care of; thereafter plaintiff wanted to fix a date for closing title, and he asked him several times about the contract, and he never produced such contract, and never authorized plaintiff to obtain a contract with Mr. Kiley.

The appellant urges that the judgment entered on the verdict in plaintiff's favor for the amount sought should be reversed for the reasons, among others, that the plaintiff was not the procuring cause of the purchase of the property by the defendant, and that much of the testimony introduced over defendant's objection and exception and relied upon to sustain the verdict was in variance with the express terms of the contract, which provided for a sale of the Shareholders' Company to the defendant, and not a sale by Mr. Kiley. This was not, in my opinion, a material change or variation in the original contract, it being unimportant whether the defendant obtained title to the property by a direct deed from the Shareholders' Company as the result of the plaintiff's efforts, or by his efforts obtained title through a conduit to whom it was desired by the Shareholders' Company to first transfer the premises for particular reasons. The real question presented upon this appeal is whether the evidence sustains the finding that the plaintiff was the procuring cause of the sale to the defendant, and we have, therefore, at some length reviewed the record. Although we have little testimony introduced by plaintiff as to the interviews he had and the negotiations which he conducted with the Shareholders' Company and its officers, and through the latter with Mr. Kiley, the plaintiff's statement that he had such interviews at the time in question is uncontradicted, as is his testimony that the letters and papers in evidence related to this transaction, and followed in the regular course of business. The letters contain ample evidence that the plaintiff was in active charge of the negotiations, and that the defendant was fully apprised of the manner in which the sale was to be consummated, namely, through Mr. Kiley, an at

and 127 New York State Reporter

torney, and friend of Mr. Sweeney, the secretary of the Shareholders' Company. This conclusion, moreover, is fortified by the testimony in defendant's behalf, Mr. Kiley frankly stating that Mr. Sweeney supplied the money and gave him the work as a favor, and the object was to satisfy the claim of a creditor. And Mr. Kiley had no hesitation, upon being introduced to defendant's president, in immediately proceeding with the transfer of the property. Furthermore, the testimony of defendant's president and secretary is corroborative of the plaintiff's version. I think, therefore, that the finding of the jury is supported by the evidence.

The appellant's further points that there was error in the admission of evidence and in the charge, and that the plain::ff misrepresented to the defendant the price at which the property could be obtained, I have examined, but do not think they constitute ground for reversal.

I think, therefore, that the judgment and order appealed from should be affirmed, with costs.

(103 App. Div. 361.)

REIDY v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, First Department. April 7, 1905.) MUNICIPAL CORPORATIONS-FIRE DEPARtment-DeparTMENT INSURAnce.

Rev. New York Charter, § 792 (Laws 1901, p. 334, c. 466), provides that all persons who have paid into certain respective funds, and shall continue to pay into the life insurance fund, shall receive the benefit thereof, and, in case of the death of any employé în service of said department who has availed himself of this provision, etc., there shall be paid to the widow the sum of $1,000. Greater New York Charter, § 1543. p. 636, declares that, when a position is abolished, the person legally filling the position thus abolished shall be deemed suspended without pay, and shall be entitled to reinstatement in the same or corresponding employment if within one year thereafter there is need for his services. Held, that where plaintiff's husband had been employed in the fire department, as clerk in the bureau of the chief, but his position was abolished, and he was not reinstated prior to his death, plaintiff was not entitled to benefits from the life insurance fund, though her husband was otherwise entitled to the benefit of such fund.

Action by Mary E. Reidy against the city of New York. Case submitted on agreed statement of facts. Judgment for defendant. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Henry K. Davis, for plaintiff.

Terence Farley, for defendant.

LAUGHLIN, J. The question submitted for determination is whether the plaintiff, the widow of Michael Reidy, deceased, is entitled to receive the sum of $1,000 from the life insurance fund of the New York fire department. The decedent entered the employ of the fire department as a watchman on the 16th day of January, 1884, and remained continuously in the employ of that department, having received several promotions, until the 7th day of May, 1902, when the

position of clerk in the bureau of the chief of said department, which he then held, was abolished, and he was, in form, for that reason, discharged by an order of the commissioner on the 14th day of May, 1902. He died on the 28th day of the same month, without having been reinstated. From the time of entering the department he availed himself of the privilege of membership in the life insurance fund, as provided by section 521 of chapter 410, page 147, of the Laws of 1882; and there was deducted from his monthly pay, from time to time, as required, sums of money for the benefit of said life insurance fund. The only obstacle to the plaintiff's recovery is the abolition of the position, and the fact that the decedent was not reinstated in the department prior to his death. The statute formerly regulating the right of recovery was section 521 of the consolidation act; and at the time of the decedent's death it was section 792 of the revised charter (chapter 466, p. 334, Laws 1901), which provides, among other things, that:

"All persons who have paid into the said respective funds, and who shall continue to pay into the life insurance fund, shall receive the benefit of said fund as provided in this chapter. * * In case of the death * * *of any employee of said department in the service thereof, who has availed himself of this provision and was contributing there shall be paid to the widow,

the sum of $1,000."

The language of the statute seems to require, as a condition of the right of recovery, that the employé shall be in the service of the department at the time of his death. The learned counsel for the plaintiff contends that the decedent was in the employ of the department by virtue of the provisions of section 1543 of the Greater New York charter, which provides, among other things, that when a position is abolished or becomes unnecessary—

"The person or persons legally holding the office or filling the position or employment thus abolished or made unnecessary shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment or in any corresponding or similar office, position or employment, if within one year thereafter there is need for his or their service."

Where a position or employment is abolished or becomes unnecessary, the provisions of this section do not authorize the discharge of the occupant, but it is the duty of the head of the department to certify the facts to the civil service board, and the suspended employé is entitled not only to reinstatement to a position in the department as before, but to a corresponding or similar office or position in that or any other department of the city government, if within one year thereafter there is need for his services. See Matter of Jones v. Willcox, 80 App. Div. 167, 80 N. Y. Supp. 420; Matter of Donovan v. Cantor, 89 App. Div. 50, 85 N. Y. Supp. 406. It seems like a harsh rule in this case, but we are of opinion that the decedent was not in the service of the fire department at the time of his death, and that therefore his widow is not entitled to participate in the insurance fund.

It follows that the city is entitled to judgment in accordance with the submission, dismissing the complaint upon the merits, but without costs. All concur.

93 N.Y.S.-2

and 127 New York State Reporter

GREENE V. NEW YORK, O. & W. R. CO.

(Supreme Court, Special Term, Chenango County. March 1, 1905.) PLEADING-JOINDER OF CAUSES OF ACTION-DEMURRER.

A complaint showing a good cause of action in plaintiff in his individual capacity and for the estate which he represents, each arising under the same contract, and demanding specific performance and damages, is not demurrable.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 1673.]

Action by Nelson P. Greene, individually and as administrator of Adolphus T. Greene, against the New York, Ontario & Western Railroad Company. Demurrer to the complaint overruled.

William H. Sullivan, for plaintiff.

Howard D. Newton, for defendant.

FORBES, J. After a careful and considerate examination of the pleadings in this case, I am forced to the conclusion that the demurrer to the plaintiff's amended complaint must be overruled. The complaint shows one good cause of action in the plaintiff in his individual capacity, and I think an equally clear cause of action for the estate which he represents. I think under the earlier authorities of this state the complaint is subject to the objections raised by the demurrer, but under the Code of Civil Procedure there is no very serious doubt that the demurrer must be overruled. Each cause of action arose under the provisions of the contract between the railroad company and the original grantor, and whatever covenants are to be performed are covenants which run with the land, and that situation continued down to the death of the original plaintiff, Adolphus T. Greene. The action. demands two kinds of relief arising out of the breach of that contract: First, in equity, for a specific performance of the covenants; and, second, for damages arising from the breach of the same covenants. The present plaintiff has a right to the enforcement of those covenants in behalf of himself and under the transfer to him from the other owners. It seems to me that the difficulty with the complaint is that the causes of action are not numbered, and stated separate counts, but that is not a ground of demurrer.

Seven cases are cited by the demurrant, four of which arose in the old General Term, two at Special Term, and the other in the Court of Appeals; but it will be observed that all of them were decided in or before 1888. Four other cases are cited of more recent date, but these are decisions in the Court of Common Pleas of the City of New York, and one in the Superior Court of the City of New York. In those inferior courts the rules of pleading are entirely different. the other hand, in more recent years the Appellate Division and the Court of Appeals seem to have taken a broader view of the situation, sustaining a more liberal practice. In overruling the demurrer I am. not called upon to carefully analyze the cases, but, commencing with 17 How. Prac., a line of cases seem to be uniform in accepting the position which I must hold. Armstrong v. Hall, 17 How. Prac.

76; Shepard v. Manhattan R. R. Co., 117 N. Y. 442, 23 N. E. 30; Miles v. Dover Furnace Co., 125 N. Y. 294, 26 N. E. 261; Witherbee v. Meyer, 84 Hun, 146, 3 N. Y. Supp. 537, s. c. affirmed in 155 N. Y. 446, 50 N. E. 58; Peck v. Richardson (Sup.) 44 N. Y. Supp. 919; Tew v. Wolfsohn, 77 App. Div. 454, 79 N. Y. Supp. 286, s. c. affirmed, 174 N. Y. 272, 66 N. E. 934; Moss v. Cohen, 158 N. Y. 240, 53 N. E. 8; Hirsh v. Manhattan R. R. Co., 84 App. Div. 374, 82 N. Y. Supp. 754. I think from this line of authorities it will be found that the defect in the complaint, if any, cannot be remedied by demurrer. The demurrer must therefore be overruled, and an interlocutory judgment entered, with costs, with leave to answer within 20 days on payment of costs.

(102 App. Div. 485.)

WANAMAKER v. POWERS.

(Supreme Court, Appellate Division, Second Department. March 10, 1905.) 1. GUARANTY-DISCLOSURE OF CONDITION OF DEBTOR-DEFENSE.

Where a debtor solicited a person to become guarantor to his creditor, the fact that the indebtedness was not disclosed to the guarantor could not be taken advantage of by him to defeat his liability, in the absence of his having made inquiry concerning the condition of the debtor.

2 SAME-CONSTRUCTION.

Where a guaranty for the purpose of procuring an extension of credit limited the amount to $250 per month, and provided that the guarantor would pay on demand, on default of the principal, the monthly accounts on the 10th day of the month following the purchase, the guarantor was liable for every default which existed on the 10th day of the month, when demand was made on him in a reasonable time after its occurrence. 3. SAME-PAYMENTS-APPLICATION BY CREDITOR.

Where a debtor owes several debts to one creditor, and makes payment generally, an application by the creditor of the money paid is conclusive, when made before the account is questioned in the courts, as between the creditor and a guarantor on part of the indebtedness, in the absence of any stipulation in the contract of guaranty as to the application of payments.

[Ed. Note. For cases in point, see vol. 25, Cent. Dig. Guaranty, § 70.] 4. SAME-RELEASE OF CO-SURETY-EFFECT.

Where a guarantied creditor releases a separate co-surety for part of the guarantied debt, other separate sureties are only exonerated from so much of the whole debt as the co-surety who was discharged could have been compelled to pay over and above his actual payment.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Surety, 88 269-282.]

5. SAME-DESTRUCTION OF INSTRUMENT.

Where a guarantied creditor returned the guaranty to a separate cosurety, and it was destroyed by such co-surety, there was a release of the surety to whom it was returned, as between the guarantied creditor and other sureties.

Appeal from Special Term, Westchester County.

Action by John Wanamaker against Thomas J. Powers, Jr. From a judgment for plaintiff, defendant appeals. Affirmed. Following is the report of the referee:

It is admitted that the balance now due the plaintiff from Dye is the sum of $357.31. It therefore follows that, if the payments made by Dye to the