depends for its support on those columns. It is claimed by the plaintiff that the means resorted to, or intended to be resorted to, by the defendant are inadequate to the protection of the elevated railway structure; and it has offered to do the work at the expense of the defendant in a way satisfactory to it, and to charge nothing except the actual cost. On the other hand, the defendant insists that he has a plan for protecting the columns and their foundations, and that it is sufficient and adequate in every respect. He also insists that the duty and obligation of supporting the elevated railway structure is upon the plaintiff itself; that he is engaged in the prosecution of a public work in the street, under the authority of the city, whose rights in the street have not been affected by the occupation of any part of it by an elevated railway structure, except so far as relates to the maintenance in safety of that structure and its appurtenances.

In disposing of this appeal, it is unnecessary to consider whether, as an original proposition, the obligation to protect the structure would rest upon the plaintiff. Under the terms of the contract made by the defendant with the city of New York, the duty of protection of the elevated railway structure, so far as it is necessary to protect it, rests upon, and has been assumed by, the defendant. By section 19% of his contract, the defendant expressly assumed the obligation to protect, as well as to make good any damage done to, the elevated railway structure, and the tracks, conduits, manholes, etc., of the several street railways. The obligation being thus imposed upon the defendant, the only question arising is one of fact, namely, whether the plan adopted by him for the protection of the elevated railway structure has been shown to be inadequate and insufficient. On that subject affidavits were presented to the court below of the engineers of the plaintiff, on one side, and of the engineers of the defendant, on the other. Those presented on behalf of the plaintiff are to the effect that the defendant's plans are insufficient, while the defendant's engineers, who seem to speak with equal authority and to be equally well qualified, positively state that the defendant's plan is not only adequate and safe, but is in every respect sufficient. The court below therefore had before it this question, and was undoubtedly impressed with the fact that the plaintiff had not sustained its allegation that the defendant's plans were insufficient and did not afford the protection required. In such a situation, we cannot say that the learned judge erred in the view he took of the case, and we see no reason for reinstating the injunction.

The order should therefore be affirmed, with $10 costs and disbursements.

MCLAUGHLIN, J., concurs. HATCH, J., concurs in result. VAN BRUNT, P. J., and O'BRIEN, J., dissent.

(96 App. Div. 517.)

and 123 New York State Reporter

HETZEL v. EASTERLY et al.

(Supreme Court, Appellate Division, Fourth Department. July 6, 1904.) 1. EXECUTORS AND ADMINISTRATORS-DUTIES-DISCHARGE OF LIENS.

Where mortgages on the property of a decedent are valid and enforceable liens, and the property covered thereby is worth much more than the amount due on the mortgages, it is the duty of the executors, when foreclosure is threatened, to preserve the estate from waste and destruction by paying off and discharging such liens.

2. SAME-DUTY TO DISCHARGE MORTGAGES-ATTEMPTED ASSIGNMENT-VALID

ITY.

Where executors are required by the will to pay a mortgage indebtedness, and funds are set apart from the estate with which to pay and discharge such indebtedness, it is their duty to pay such indebtedness, and their act in so doing cannot operate otherwise than as a payment and discharge of the mortgage, though they intend that it shall not so operate, and endeavor to preserve the lien by executing formal instruments of assignment.

3. SAME.

The fact that money especially dedicated by testator to the payment of an indebtedness secured by mortgage on property worth much more than the amount of the indebtedness is also applicable to the payment of other debts of testator does not affect the duty of the executor to discharge the mortgage, nor make it his duty to take it up by assignment to the estate, so as to be used as an asset in the payment of debts, as the unsecured debts would get the benefit of the payment of the mortgages through increase in the amount of unincumbered real estate belonging to the estate and subject to the payment of such debts.

4. SAME ASSIGNMENT OF MORTGAGES-TITLE OF ASSIGNEE-NOTICE OF DEFECTS. Where a will appropriated a fund for the payment of a certain mortgage indebtedness, and the executor paid the indebtedness, but, instead of taking a discharge, attempted to preserve the lien of the mortgage by taking an assignment thereof, a subsequent assignee of the mortgage was by the record of those facts charged with notice of the defect in his assignor's title, and occupied no better position than his assignor.

5. SAME SETTLEMENT OF ACCOUNTS-CONCLUSIVENESS.

Where the account filed by an executor for settlement, on which citation issued to defendants, who were nonresidents and did not appear, contained no reference to a purported transfer of a mortgage against the estate, which had in fact previously been paid and discharged, and the matters pertaining to this transfer were brought before the surrogate on a new affidavit or petition, filed subsequently to defendants' default, of which they had no notice, and to which they were not made parties, a decree of the surrogate purporting to approve the acts of the executor in purchasing and transferring the mortgage, instead of paying it, was, as to defendants, ex parte, and not a binding adjudication upon them.

6. WITNESSES-IMPEACHMENT BY PARTY.

While a party calling a witness may not directly impeach him, yet, where the witness called is hostile, the party calling him may show the actual facts by other witnesses, though they contradict the hostile witness. 7. MORTGAGES-TRANSFER-CONSIDERATION-EVIDence.

In a suit to foreclose a mortgage, evidence held to support a finding that the note, in payment of which the mortgage was transferred to plaintiff, was originally given in lieu of a testamentary provision for testator's widow, for whom ample provision had been subsequently made by will, and was not a valid obligation against testator's estate.

8. DECEDENTS' ESTATES-PAYMENT OF DEBTS-MORTGAGES-FUND APPLICABLE. Where a mortgage was given by testator upon land which he during his

lifetime gave to his widow without any valuable consideration, the land covered by the mortgage was the primary fund out of which it should be paid, and the widow, as executrix, could not in the first instance pay it off from the general property of the estate.

9. EVIDENCE-EXAMINATIONS BEFORE TRIAL-OBJECTIONS-WAIVER.

Objections to the reception in evidence of the examination of a witness before trial, on the ground that it covered incompetent matters and that opportunity should have been given upon such examination for crossexamination, and that it was offered as a whole, instead of being read by question and answer, are waived when not seasonably taken upon the trial. 10. DEPOSITIONS-READING ON TRIAL-ADVERSE PARTIES-WHO ARE.

In a suit to foreclose a mortgage, a defendant who assigned and guarantied the note in purported payment of which the mortgage was transferred to plaintiff, and whose actual interests were otherwise hostile to her co-defendants, and whose attitude in the suit was in accord with that occupied by plaintiff, was an adverse party as to her codefendants, within the meaning of Code Civ. Proc. § 882, providing that a deposition taken before trial, "except in the case of an adverse party," shall not be read unless it appears that the party examined has died or is unable to attend, etc.

11. APPEAL-HARMLESS ERROR-READING OF DEPOSITIONS.

The improper reception in evidence of a deposition of an adverse party, who was herself called and examined as a witness upon the trial, and testified to the same facts that appeared in the deposition, was not prejudicial to her or to those associated in interest with her.

12. SAME AMENDMENTS TO PLEADINGS-WAIVER OF OBJECTIONS.

An objection to the allowance of an amendment to the answer, on the ground that it was unfair and disadvantageous to plaintiff to have such an amendment made late in the trial, could not be urged on appeal, where no such objection was urged when the amendment was made.

13. TRIAL-MOTIONS TO STRIKE-DISCRETION of Court.

A motion to strike out as inadmissible evidence which has already been offered and received without objection is addressed to the discretion of the court, and its refusal is not ground for reversal, though the evidence was inadmissible as against a timely objection.

14. EVIDENCE - ERRONEOUS ADMISSION - FAILURE TO OBJECT

PLEADINGS-Cure of Errors.

AMENDMENT OF

The rule that error in the admission of evidence, objected to as inadmissible under the pleadings, cannot be cured by a subsequent amendment of the pleadings to conform to the proofs, cannot be invoked where the evidence was not objected to as inadmissible.

Appeal from Special Term, Cayuga County.

Action by Joseph Hetzel against Eliza H. Easterly, impleaded with Jay M. Easterly and others. From a judgment dismissing plaintiff's complaint, plaintiff and defendant Eliza H. Easterly appeal; and from an order granting defendants Jay M. Easterly and others an additional allowance of costs the plaintiff appeals. Affirmed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

W. B. Baker, for appellant Hetzel.

John D. Teller, for appellant Eliza H. Easterly.

Frederic E. Storke, for respondents.

HISCOCK, J. The controversies presented to us upon these appeals arise in a general way out of and in connection with the settlement and disposition of the estate of one John M. Easterly, deceased.

and 123 New York State Reporter

This action was brought to foreclose a mortgage given by said Easterly and his wife, the defendant Eliza H. Easterly, upon real estate situate in the city of Auburn, to one Joseph Hadden, to secure a bond conditioned for the payment of $2,500, and which bond and mortgage are claimed by the plaintiff to have been assigned to him. The same parties executed another mortgage upon the same or neighboring lands to the same mortgagee to secure a bond conditioned for the payment of the sum of $2,000, and which instruments plaintiff also claims were assigned to him, and for the foreclosure of which mortgage a second action was brought. The issues involved in this action in their general nature included and covered those involved in the second action, and the two were tried and upon this appeal have been argued together.

In stating the reasons which lead us to the conclusion that the judgment herein appealed from should be affirmed, our discussion will naturally and most conveniently treat together the facts and issues of both actions. The mortgage for $2,500 was executed August 8, 1881. and the one for $2,000 April 13, 1882. The mortgagor, John M. Easterly, who owned the real estate, and who was the obligor upon the bonds, died in 1895. He left a last will and testament, which was promptly thereafter admitted to probate, and by which he provided, among other things, that his widow, Eliza H. Easterly, should have the benefit during life of certain property, including the real estate in question, and that upon her death the same should pass in remainder to, among others, certain nephews and nieces, who are defendants and respondents here. Said will also expressly and specifically gave to his executors the proceeds of a certain policy of insurance for $5,000 and the proceeds of two distinct pieces of land to be sold, in trust and as a fund to be used in paying off and relieving his real estate from certain liens, which concededly included the mortgages of which foreclosure is now being sought. He appointed as executor his wife, the defendant Lamoree, who is her brother-in-law, and one Reed, who thereafter accounted and was discharged. Not long after testator's death, for some reason which is not at all clear, the mortgagee, Hadden, is said to have insisted upon payment of his mortgages, and to have threatened foreclosure in case the same was not made. Thereupon the executors, out of the funds in their hands expressly dedicated to that purpose, paid to Hadden the amount due upon his two mortgages; but, instead of treating such transaction as a payment and satisfaction of them, they went through the form of taking an assignment thereof to themselves, and now swear to their mental operations which intended a preservation of said mortgages and liens. Thereafter said executors as a second transaction went through the form of assigning said bonds and mortgages to the plaintiff, who was a brother of the defendant widow. The $2,500 bond and mortgage were concededly transferred in part payment of a note for $3,000, alleged to have been given by the testator some time before death to his wife, and by her to have been transferred to plaintiff. The $2,000 bond and mortgage were in form sold and assigned to plaintiff as a means of raising money to enable the executors to pay to Mrs. Easterly a note amounting to upwards of $800 held against her husband's estate, and also to pay off a certain bond and

mortgage for $1,500 upon land of which her husband had made to her a gift during his life.

Various defenses are urged to the enforcement of these mortgages. It is claimed that by the transaction between the executors and the original mortgagee, Hadden, the same were absolutely paid and discharged, and could not thereafter be enforced or assigned by the execIn the case of the $2,500 mortgage, it is further insisted that the $3,000 note, in alleged payment of which it was transferred to plaintiff, was not a valid obligation in the hands of the widow against her husband's estate, and that no valuable consideration was received by her upon its transfer to plaintiff. In the case of the $2,000 mortgage it is claimed by defendants that the executors received no valuable consideration upon the transfer thereof to plaintiff; also that the $1,500 mortgage, which they desired to pay with proceeds derived from its sale, is primarily payable out of the land upon which it is a lien, and should not be paid by the executors out of the other estate of the testator. And, finally and generally, it is urged that the widow, her coexecutor and brother-in-law, Lamoree, and her brother, the plaintiff, entered into a general conspiracy to procure a transfer of the mortgages in suit to the last person who should utilize them for the twofold purpose of procuring payment for the benefit of the widow of the $3,000 note and the $1,500 mortgage referred to, and which were not valid claims, and also of procuring the absorption by or for the benefit of said widow, as against the remaindermen, of the land covered by said two mortgages, which was worth much more than the amount thereof. We shall discuss the defenses thus urged, and upon which the learned trial justice, after the manifest application of very careful consideration, has found in favor of the defendants urging them.

We feel clear that the transaction between the executors and Hadden resulted in such a payment, satisfaction, and discharge of the mortgages that the same were not thereafter valid liens, enforceable either by the executors or by their assignee, the plaintiff. No doubt is anywhere raised that the mortgages in Hadden's hands were valid and enforceable liens, or that the real estate covered thereby was worth much more than the amount due thereon. Under such circumstances, upon general principles, it became the duty of the executors, when foreclosure was threatened, to preserve the estate from waste and destruction by paying off and discharging such liens. In addition to the duty thus generally imposed upon them, the will of their testator had expressly and specifically placed this obligation upon them, and had put in their hands a fund more than sufficient to discharge said and any other liens upon his real estate. Nobody disputes that it was their duty to take the money in their hands and pay to the mortgagee the amount due upon his mortgages. The only question arises on the attempt of the executors, upon so doing, to take an assignment of and preserve the liens of said mortgages. In discussing the question thus presented, it is to be borne in mind that the bonds were the direct personal obligations of their testator, and the mortgages were liens upon his real estate. His estate was directly and primarily liable for their payment. There was no element in favor of his estate, or the executors representing it,