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ations as if it had been made directly to their authorized agent. 9 N. Y., plaintiff or his authorized agent, as it was

85 ; 7 Hun, 230; 1 Smith's L. Cas., intended to be communicated to and in

H. & W. Notes, 975. fluence him. This action was upon four

Judgment of General Term,

promissory notes made by w.. defend: affirming judgment on verdict for

W.,

plaintiff, affirmed. ant's intestate, in 1871, 1872 and 1873, the last of which fell due in

Opinion by Earl, J. All concur, April, 1874. Defendants set up as

except Rapallo, J., dissenting, and a defence the statute of limitations.

Danforth, J., absent. Plaintiff introduced in evidence a deed of a farm dated April 2, 1875,

EXECUTORS. CONTEMPT. executed by W. to his three sons,

N. Y. SUPREME COURT. GENERAL which recited that the conveyance

TERM. THIRD DEPT. was made “subject to the follow

In re William H. Snyder, exr. ing amounts due by me to the parties hereinafter specified, which

Decided Dec., 1884. forms a part of the consideration The proceeding by attachment, under the above expressed, and which I Revised Statutes, to enforce a Surrogate's charge the above estate above

decree, has been suspended by $ 2555 of

the Code. Under this section a Surrogate conveyed with the payment thereof

may by order punish for contempt a reand which said 'several amounts, fusal or wilful neglect to obey his decree. together with the interest, the said This section applies to the case of an execuparties of the second part assume

tor whose trust was created, and whose

wrongful acts in the trust were done, beand agree to pay; to Daniel De

fore this statute went into operation, but Freest about $600, to Mrs. De Freest who was called to account thereafter. about $400, together with the

Appellant was executor of one legal interest thereon."

It was

Olmstead; he received property not questioned that the debts the belonging to the deceased. He grantees had assumed to pay were

was called to account, accounted, the notes in suit. A motion to and in March, 1882, the Surrogate non-suit was denied and a verdict made a decree adjudging that there directed for the amount of the

was a certain sum in his hands, notes.

and directing him to pay it to cerAmasa J. Parker, for applts.

tain persons.

The decree was Matthew Hale, for respt.

served on him and payment deHeld, No error; that although manded; he has not paid. A the ackowledgment of the indebt- transcript of the decree was filed edness was made to a stranger, as in Rensselaer County Clerk's office, it appeared it was intended that it execution issued, and returned unshould be communicated to and satisfied. Upon the ground of wilinfluence the holders of the notes, ful neglect to obey the decree proit is just as effectual to defeat the ceedings for contempt were taken statute of limitations as if it had before the Surrogate. On the rebeen made directly to them or turn day the executor presented an

affidavit setting forth that he had, though the trust was created bein 1876, lost the moneys of the fore that time. The statute is only estate, which he had put in his own remedial. 91 N. Y., 235. business; that he had tried to get Order affirmed. money to make good the loss, but

Opinion by Fish, J.; Landon, J., had failed. Of these facts there

concurs; Learned, P.J., dissents. was no evidence beyond this affidavit. In reply the parties interested

AGENCY. SET OFF. in the estate presented affidavits tending to show that in 1878 the

N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT. .executor had conveyed valuable property to his wife for a slight Charles B. Nichols, respt., v. consideration, of which property Nelson Martin et al., applts. she was then in possession, and Decided Jan., 1885. upon which he and she resided.

A. had in his possession certain wheat The Surrogate fined the executor

which he treated as his own and sold to the amount of the deficiency, and defendants, taking their note to himself ordered him committed to jail un- for the price. Defendants supposed the til the fine was paid.

wheat belonged to A., but his wife was J. Lansing, for appit., exr.

the real owner. Defendant afterward pur

chased a note made by A., which they J. A. Cipperly, for respts.

proposed to set off against their note, held Held, That the matter rested

by A.

On suit upon defendant's note, with the Surrogate, and that his

Held, they could not set off more than the

amount they actually paid for A.'s note. power has been wisely exercised. Under Code, S 2552, the decree was Appeal from judgment on verconclusive evidence that there were dict at Circuit, and from ordey desufficient assets in the hands of the nying new trial. executor to satisfy the sum di- A. sold defendants some wheat rected to be paid. The evidence ! which he had in his possession, but of the inability to pay was very which belonged to his wife. He unsatisfactory. The executor ad did not disclose to defendants that mits a breach of trust in having he was not the owner, or that he used the money himself. Under was transacting the business otherthe Revised Statutes the decree of wise than in his own right. In a Surrogate was enforced by at- payment he took defendants' note tachment, and there

was some payable to his order, and when it doubt as to his exact powers. But came due he called on them for under the Code that practice is su- 1 payment, and they proposed to set perseded and by $ 2555 the Surro- off against his claim so much as gate can punish for contempt one necessary of a note of A.'s for who refuses or wilfully neglects to $172, which they had purchased obey his decree (see subdivs. 3 and since the sale of the wheat. They 4). These sections took effect paid but $5 for the note. A. transSept. 1, 1880, and apply here, al- ferred defendants' note to plaintiff, who brought this action on it. De- Defendants had the right to have fendants claimed the right of set- the question of fact submitted to off as above, but the court directed a the jury if they desired it and so verdict for plaintiff for the amount requested. But it seems by the reof the note sued on. A. had failed cord that they did not ask that any four years before, and defendants question go to the jury; they knew it.

treated the questions presented as George Barrow, for applts. those of law only. They cannot Sereno E. Payne, for respt. now raise any questions other than

Held, Error. When a person of law upon their exceptions to rehas actual possession of personal fusal to direct a verdict for defenproperty, with apparent control of dants and to the direction of verit, and deals with it and makes dict for plaintiff. 12 N. Y., 18; 43 sale of it apparently as principal, id., 85 ; 78 id., 287. The evidence when he is in fact agent of another, is sufficient to authorize and supthe purchaser may treat the agent port a verdict for plaintiff. as the owner, and in an action by

Judgment and order affirmed. the principal for the price may set

Opinion by Bradley, J.; Haight off a claim he has against theagent, and Childs, JJ., concur. provided the purchaser in good faith supposed the agent was own

RAILROAD PASS. NEGLIer, and there were no circumstances

GENCE. which could put him upon inquiry or charge him with negligence in N. Y. SUPREME COURT. GENERAL not suspecting or ascertaining that

TERM. FIFTH DEPT. the seller was agent only. 7 Tenn., Benjamin McElwain, płff., v. 359; id., 360; 1 Q. B., 197; 4 Barn.

The Erie R. Co., deft. & C., 547 ; 24 Wend., 458; 26

Decided Jan., 1885.
How., 513; 20 Hun, 126; 97 Penn.
St., 309; 7 Cush., 371. See 4

Where a railroad corporation relies upon a

release from damages resulting from the Maule & S., 566 ; 2 Barn. & Ald.,

negligence of its employees contained in 137; 7 Bosw., 339 ; 9 id., 415 ; 51

a pass the conditions of the pass must be Barb., 244; 2 Cai. Cas., 341; 89 N. established affirmatively. Y., 570. Defendants were not

An agent of a railroad company, when tes

tifying in its behalf, is within the rule rechargeable with suspicion as to

quiring the credibility of interested witownership. They purchased the

nesses to be submitted to the jury. note without knowledge that A. A railroad pass contained this provision : was not the owner of the wheat. “The acceptance of this pass is to be con

sidered a waiver of all claims against the But they were entitled to set off

Erie Railway Company for personal damonly what they paid for A.'s note.

ages and injuries received when on the 7 Johns. Ch., 65; 1 Barb. Ch., 105; above train." Held, Not to release the 1 Cow., 622 ; 24 Wend., 464. This company from the results of its em. they did not do, but asked to set

ployees' negligence. off enough of the note held by Motion by plaintiff to set aside them to satisfy plaintiff's demand. non-suit granted at Circuit. Ex

were

ceptions ordered heard here in first for the jury whether the pass coninstance.

tained the release as contended by Action for damages occasioned defendant. by personal injuries to plaintiff Moreover, the question of the while a passenger on defendant's agent's credibility should have been road, caused by negligence of de- submitted to the jury, he being an fendant's employees.

agent of the company, making the Plaintiff was riding on a stock contract, and in its employ when pass. The evidence tended to show he testified in its behalf. 45 N. Y., negligence on defendant's part. 549 ; 92 N. Y., 621. The pass was lost, and the only Conceding the pass to have been witness who testified as to its con- in the form claimed by defendant, tents was B., defendant's station it does not constitute a defence. It agent, who issued the pass eigh- does not in specific terms contain a teen years before the trial, and the release from damages arising from effect of his evidence is, at most, defendant's own negligence or the that his recollection was that negligence of its agents and serat the time the pass was is- vants.

See 25 N. Y., 442; 7 Hill, sued passes in a certain form 533 ; 8 N. Y., 375; 66 id., 313; 71

issued to drovers who id., 180; 86 id., 275 ; 90 id., 270. shipped cattle under a special con- Non-suit set aside and new trial tract like the one made with plain- granted, costs to abide event. tiff. The form of pass described Opinion by Barker, J.; Bradley, by the witness contained the clause: J., concurs ; Haight, J., not “The acceptance of this pass is to voting. be considered a waiver of all claims against the Erie Railway Company ASSIGNMENT. CREDITORS. for personal damages and injuries

FRAUD. received when on the above train.”

N. Y. SUPREME COURT. GENERAL Cook & Lockwood, for plff.

TERM. FIFTH DEPT. Defendant not appearing on argument.

M. Amanda Swift et al., admrs., Held, It was incumbent on de respts., v. Edward C. Hart et al., fendant to establish clearly and be applts. yond doubt that the pass contained Decided Jan., 1885.

. a release exempting it from dam- Assignment to H. by an insolvent debtor of ages arising from personal injuries securities for payment for legal services to one of its passengers by reason

to be performed by H. for the insolvent

in the event of an assignment by the latof the negligence of its own ser

ter for the benefit of creditors, Held, To vants. The agent's evidence should

be a fraud on creditors of the insolvent. be scanned with the closest scrutiny Where the securities so assigned were judgto see if it establishes such release. ments which had been recovered by H. as

attorney for the inso Held, No presumption can be made in de

H. still had his lien upon such judgments fendant's favor as to the conditions

for his compensation and disbursements of the pass. There was a question therein.

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Upon refusal by the assignee to bring an id., 65; 115 Mass., 505; Wait on action to reclaim property fraudulently Fraud Con., $ 390.

Fraud Con., $ 390. But the reserassigned by the insolvent, creditors may sue in equity for that purpose, joining vation of property to pay for prothe assignee as defendant, and the pro- fessional services which might be ceeds of their recovery will be assets for thereafter required was, to that distribution under the assignment.

extent, a fraud on the creditors. Appeal from judgment on ref- 2 Abb. Dec., 11; 3 Keyes, 398 ; 1 eree's report.

Sandf. Ch., 83; 3 Barb. Ch., 644 ; On Jan. 5, 1883, Schad made 4 N. Y., 211 ; 15 id., 132; 17 id., written transfer to defendant Hart 22. It is not within the rule givof judgments worth $800, reciting ing effect and validity to security that Schad was indebted to Hart for future advances. 6 N. Y., 147. $200 for legal services, and desired The instrument cannot be supto retain him in proceedings and ported as security for the existing litigation that might arise in mat- debt if Hart was chargeable with ters relating to a general assign- actual intent to defraud Schad's ment of Schad for the benefit of creditors, but is wholly void in creditors, and, Hart desiring pay. that event. 87 N. Y., 620. The ment therefor, and consenting to referee found such intent, and the take those judgments as payment evidence seems to support the in full for such services and re- finding. tainer, such transfer was made. Hart, as attorney for Schad, reAnd it was provided that if any covered the judgments so assigned, surplus remained after such pay- and had liens upon them respecment, Hart should hold it as col- tively for his compensation and lateral to notes held by him, in- disbursements therein, Code Civ. dorsed by Schad. Next day Schad Proc., $ 66, with the right to reconveyed property to other parties, tain sufficient of the money coland on Jan. 8, made a general as- lected on them to satisfy the liens. signment for benefit of creditors 51 N. Y., 140 ; 52 id., 489; 85 id., to defendant Stebbins. Plaintiffs 284; 89 id., 509. The lien is not are judgment creditors of Schad, extinguished by the transfer of the and brought this action to set aside judgments, such transfer having the transfer to Hart as a fraud on been void. 64 N. Y., 294 ; 49 id., creditors, and recovered judgment 111; 3 Metc., 40. to that effect.

By force of the statute of 1858, W. L. Marcy, for applt. Hart. the assignee is a trustee for the

Ellsworth & Potter, for applt. creditors to the extent of the powStebbins.

er conferred as effectually as if David Miller, for respts.

his appointment had been made by Held, That Hart had a perfect or pursuant to law vesting him right to obtain preference for the with title for the purposes of the debt due him. 61 N. Y., 626 ; 76 trust. 72 N. Y., 424; 98 U. S., 20. id., 213; 48 Barb., 344; 7 Hun, The remedy of individual creditors 591 ; 14 id., 172; 30 id., 192; 31 in respect to property fraudulently

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