moneys actually received on deposit by the Bank and not paid over. In the bond of 1881 there was a clause making those sureties also liable for the money then on deposit. By this defendant is not injured. It probably gives him a right of contribution against the sureties of 1881. No agreement was made in the matter and we cannot see how the acceptance of additional security, merely, released the surety.

Judgment and order reversed, new trial granted, referee discharged, costs to abide event. Opinion by Learned, P.J.; Bockes and Landon, JJ., concur.

FORECLOSURE.

N. Y. COURT OF APPEALS. Wyckoff, respt., v. Scofield et al., applts.

Decided March 17, 1885. When an injunction pending foreclosure of a mortgage forbidding the mortgagor to collect the rents but allowing his agents to do so and retain them subject to the order of the court is vacated, the parties stand in the same position as though no injunction had been granted and the rents collected by the agents belong to the mortgagor.

The court has no power to order rents already collected and in possession of the mortgagor to be paid over and applied on the mortgage debt.

This action was brought to foreclose a mortgage. At the time it was commenced an injunction was granted restraining the defendant S., who was the owner of the mortgaged premises, from collecting the rents. A copy of this order was duly served on S., with

notice of a motion for the appointment of a receiver. This was afterwards modified by the agreement of the parties so as to permit the agents of S. to continue to collect the rents and retain them, to abide the further order of the court. Upon the hearing of the motion the court vacated the injunction and denied the motion. Subsequently a similar order was granted and upon another motion a receiver was appointed, who obtained an order directing the agents of S. to pay over to him all the rents received subsequent to the granting of the first injunction.

Abner C. Thomas, for applts. Samuel A. Noyes, for respt. Held, Error; that the dissolution of the injunction left the parties in the same condition as though it never had been issued, and the agents of S. thereafter held the rents they had collected solely by virtue of their authority as agents and their possession was his. The stipulation operated simply as an amendment to the injunction, and was valid in affecting the defendant's interests only to the extent that the court had power to affect them by such an order, and it was intended by it that the rents collected should be held subject to the order of the court, and when the injunction was vacated there remained no obstacle to the assertion by him of his rights to the rents collected.

A mortgagee has no claim as such to the receipt of the rents and profits of the mortgaged property. 78 N. Y., 242.

In a proper case upon foreclosure

he may have a receiver of such rents, etc., appointed, who will then be entitled to collect and apply them in reduction of the mortgage debt, and in such a case the receiver may be authorized to collect such rents as have theretofore accrued but have not yet come to the hands of the owner of the equity of redemption. 94 N. Y., 342.

It is not within the power of the court to order rents already collected and in the possession of the owner to be paid over and applied on the mortgage debt. 10 Paige, 43; 84 N. Y., 461; 78 id., 242; 3 Sandf. Ch., 71.

Order of General Term, affirming order of Special Term, reversed. Opinion by Ruger, Ch. J. All

concur.

EXECUTION. TRUST.

All

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. William H. Salsbury, respt., v. Thomas U. Parsons, applt.

Decided April, 1885.

Where the cestui que trust is permitted by the trustees to occupy the land and cultivate it for his own benefit, as provided by the will, the products of his labor are not

"held in trust" for him and thus exempt from execution, but are his property free from any trust and subject to levy and sale.

Appeal from a judgment of county court, affirming the judgment of a justice of the peace.

Action to recover damages for the conversion of a quantity of wheat, which was levied upon and sold by direction of defendant, under an execution issued upon a judg

ment against plaintiff. Plaintiff claimed that the wheat was trust property and not subject to levy and sale upon an execution. Plaintiff's father died seized of the lands on which the wheat was grown, and devised the same to Abram Salsbury, "to have and to hold during the life of my son, Wm. H. Salsbury, (plaintiff) in trust for his benefit, or for the benefit of his family, subject, however, to the following conditions: If the said Abram and Guy Salsbury think it would be for the best good of my son or his family, they may let him occupy the land free of rental, or otherwise, as they may agree; but they shall not, in any case, grant the occupancy to him for more than one year at a time. Said land cannot be let or rented only by agreement of said Abram and Guy, or their chosen successors; and they may let the same to other parties than my son, or they may sell and transfer the land, and reinvest the proceeds in real estate, or put it on interest and be kept inviolate. They may appropriate the interest upon the money held in trust, or the use or income of any real estate held in trust by said Abram, for the benefit of my son or his family, to either his or their benefit."

Plaintiff occupied the premises with his family, by leave of the executor (Abram) and Guy Salsbury, under the provisions of the will, and the wheat in question was raised by him thereon. He had the entire management of the farm, paid the taxes, hired the help, and paid them with the money

received from the sales of the products of the farm.

M. S. & B. J. Hunting, for applt.

David Millar, for respt.

Held, Assuming that a valid trust for the receipt of the rents and profits and to apply the same for the support of plaintiff and his family was created, and that the whole estate, in law and in equity, was vested in the trustee, subject only to the execution of the trust, that as the wheat in question was not held in trust for the judgment debtor, but was in part the product of his own skill and labor, and he was permitted to occupy the premises and receive the profits thereof, it was not exempt from execution. Code, 2,463, 1,390-1. It is a familiar rule, that property exempt from levy and sale on execution remains so only so long as it maintains its identity and is kept intact.

No power or control appears to be given to the trustee during plaintiff's occupancy of the land; no judgment or discretion is vested in him in reference to its control and management.

Judgment reversed.

Opinion by Haight, J.; Barker, Bradley, and Corlett, JJ., concur.

hear, try and report to this court with his opinion," entered upon a stipulation of the parties made after issue joined to refer the cause for " hearing, trial and determination," is to be construed as an order for the trial and determination of the issues, and it is the only proper order that could be made by the court.

The court, at Special Term, has no power to review the findings of the referee on ques tions of fact and to find the facts contrary to the findings of the referee; but if it appears that the proceedings have been regular, free from fraud or collusion, and that the evidence is sufficient to uphold the findings of fact, it is the duty of the court to enter judgment upon the report. Appeal from judgment entered on report of referee, and from order confirming report and allowing entry of judgment thereon, and also from order denying defendant's motion to correct the order of reference.

Action for a separation on the ground of abandonment and neglect to support plaintiff. The answer set up the ill conduct of plaintiff in justification. After issue joined, the parties made a stipulation in writing referring the same to T. C. White "for hearing, trial and determination." Upon this stipulation an order was entered, on motion of defendant's attorney, referring this cause to said White "to hear, try and report to this court with his opinion." Upon the coming in of the report plaintiff's application for judgment was denied, and it was "referred back to the same referee to take such other and further proofs as either party may present upon the issues, and then upon all the proofs before him that he may make his report, passing upon all the issues, both of fact and law, referred to him by

the order of reference." In pursuance of this order the referee made his report, passing upon all the questions embraced within the issue made by the pleadings, upon which report plaintiff was, upon application to the court, allowed to enter judgment.

E. B. Vedder, for applt.

E. W. Hatch and Chas. E. Forsyth, for respt.

Held, That the order of reference entered on the stipulation of the parties is to be construed as an order to hear, try and determine the issues joined by the pleadings, as it was the only proper order to be made by the court on filing the stipulation, 30 Hun, 154; and the order denying the motion to amend and correct the order of reference should be affirmed.

The judge at Special Term held and decided that the court at Special Term had no power to review the findings of a referee on questions of fact and to find the facts contrary to the finding of the referee; but if from an inspection of the report of the referee and evidence taken before him it appears that the proceedings have been regular, free from fraud and collusion, and that the evidence is, in its strength, nature and character, sufficient to uphold the findings of fact, that it becomes the duty of the court to enter judgment upon the report of the referee. In reaching this conclusion the learned justice followed the decision in Schroeter v. Schroeter, 23 Hun, 230, which is an authority directly in point and decisive of this question, and necessarily leads to an affirmance of

Vol. 21-No. 12.

the order granting leave to plaintiff to enter judgment on the report of the referee.

Judgment and orders affirmed, with costs.

Opinion by Childs, J.; Haight and Bradley, JJ., concur.

ASSIGNMENT FOR CREDITORS. EXAMINATION. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

In re assignment of Alfred Wilkinson et al. to Charles E. Hubbell,

applts.; application of John H. Poune, respt.

Decided April, 1885.

An order for the examination of the assignor and assignee will not be denied, or if granted will not be vacated, on the ground that such examination may develop fraudulent transactions on the part of the assignor and assignee sufficient to set aside the assignment.

Where the petition shows that there is reasonable ground for apprehending that there has been a fraudulent disposition of assets, or a fraudulent omission thereof from the inventory, or that fraudulent claims have been placed upon the schedules, an examination should be ordered.

Appeal from order refusing to vacate an order for the examination of the assignors and assignee.

Dec. 9, 1884, A. and J. F. W. made a general assignment to H. for the benefit of creditors, which was recorded Dec. 10, 1884. The assignee accepted and entered on the discharge of his duties. Dec. 20, 1884, an inventory and schedules were filed in which P. is recognized as a creditor in the sum of $658.72, the full amount claimed. by him.

Jan. 1, 1885, upon the petition of P. and accompanying affidavits, which set forth that shortly before the assignment the assignors conveyed to relatives by deed and mortgage a large amount of real estate for an inadequate consideration, that the inventoried lial lities greatly exceed the inventoried assets, and other facts tending to show that the inventory is incorrect, the assignors and assignee were ordered to appear before the County Judge and be examined and produce the books and papers of the assignors, pursuant to § 21 of the General Assignment Act.

Motion was then made by the assignors and assignee to vacate said order on an affidavit by counsel which stated on information and belief that the application of P. is made in the interest of creditors proceeding in hostility to the assignment, and not for the benefit of said assigned estate. The only fact stated as a foundation for the belief is that petitioner's attorneys are the attorneys of twenty creditors of the assignors who have commenced actions to put their claims in judgment, and deponent believes that said creditors intend to bring an action or actions to set aside the assignment. The motion was denied.

The only ground urged for reversal is that if petitioner's allegations are true the evidence discovered would support an action to set aside the assignment as fraudulent. Louis Marshall, for applts. Frank H. Hiscock, for respt. Held, That the order appealed from was correct. By the exami

nation authorized by the twentyfirst section the legislature intended to enable persons interested in the assigned estate to discover the assignor's assets applicable to the payment of his debts, so that they may be pursued and recovered by the assignee; and also to ascertain the actual liabilities of the assignor, to the end that the assets may be justly distributed among the real creditors, instead of upon fictitious and overstated claims. Subdivision 4 of § 20 and

26, Gen. Ass. Act, provide for the determination of of disputed claims. Overstated claims may be reduced, 44 Barb., 192, and fraudulent or illegal ones may be rejected, 1 Am. Ins. R., 56; id., 281; Burr. Ass., 3d ed., § 428. Examinations are not limited by the act to transactions in connection with the assigned estate occurring since the assignment.

Admitting, as all must, that it is the legal right of the creditors to discover by the examination, 1st, the assets; 2d, the amount which each person is entitled to receive from the assignee, it is illogical to say that because the petitioner, in pursuing his rights, may develop fraudulent transactions on the part of the assignors and assignee sufficient to set aside the assignment at the suit of other creditors, that the examination must not be ordered, or if ordered must be discontinued and the assets left uncollected, or that the avails of those collected be distributed to persons not entitled to dividends. No court has so construed this section, and the cases cited by appellant's coun