SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. the court opened the case for further evidence relating to those three instruments, and limited the inquiry to the question whether they were obtained from the plaintiff by fraud. If there had been an adherence to such restriction it would be difficult to see in the proof offered any support for that charge, but the plaintiff did offer to introduce evidence tending to prove that those instruments were delivered conditionally to be used only in a certain event and for a certain specified purpose, and that such event or occasion had not arisen. The evidence was excluded, not because offered too late, but on the ground that it would present no question for the jury. The view taken of the record is such that when this evidence was offered, the condition upon which permission was at first given to the plaintiff to add further evidence was relinquished by the court. The evidence that the delivery of the instruments was conditional would be no contradiction of their terms or of the legal effect which their terms import, but that, because the event upon which they were to become operative had not occurred, they did not become effectual as a waiver of the notice mentioned in the contract. (Reynolds v. Robinson, 110 N. Y. 654; Blewitt v. Boorum, 142 id. 357.) These views lead to the conclusion that the exception to the exclusion of such evidence was well taken. But if the conditional delivery and the want of any operation or effect of those instruments be made to appear, the breach of the contract on the part of the defendant can embrace within its legal consequences damages for the period of ten days only, for the reason before suggested.

The plaintiff obtained by the judgment all the relief he sought by the second cause of action alleged in the complaint. There was no support in the evidence for any recovery upon the third cause of action, and as to that the complaint was properly dismissed. The dumping board at the foot of Forty-sixth street, East river, was in no condition for use when the contract was made. It is said that it had been destroyed by fire. There was no provision in the contract for its reconstruction or repair. Nor was there any ambiguity in the terms of the contract, or anything which required evidence to explain, or to complete or perfect any of its provisions.

The import of the contract was that the plaintiff should have the privilege of assorting all the refuse which was dumped from the

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

carts of the defendant, and as it was so dumped. It is not seen that any collateral promise made by the commissioner of street cleaning, to have that dumping board repaired for use, could give any support to the plaintiff's claim to a rebate, because it was not fitted up and put into use. He had the full benefit of his contract while engaged in its performance.

In the view taken of the case there was no error in any ruling at the trial, other than in the exclusion of evidence relating to the first cause of action alleged in the complaint, and for that the judgment appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment appealed from reversed and new trial granted, costs to abide the event.

In the Matter of the Petition of ADOLPH MACHWIRTH and JAMES SMITH, Composing the Firm of MACHWIRTH & SMITH, Appellants, for Leave to Sue JAMES MATTHEWS, as Receiver, etc., of the Firm of THORP & BOND, Respondent.

Receiver leave to sue an uncontested claim payment thereof, where ordered · lien on a fund waived.

Where a claim has been admitted by a receiver, the court will not authorize the claimants to bring an action against the receiver to establish it, nor will the court direct the receiver to pay the claim, unless it be shown that he has sufficient assets to pay all other creditors in full.

Where creditors of a firm, which is entitled to a fund held by the general government, who might, by filing notice of their claim with the public authorities, have had their claim protected, acquiesce in its being received by their debtor and by his receiver, they have no lien upon the fund, but stand upon the same footing as other general. creditors.

APPEAL by the petitioners, Adolph Machwirth and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of July, 1896, denying their application for leave to bring an action against James Matthews, as receiver, etc.

APP. DIV.-VOL. XV. 9

The papers disclose that the petitioners' claim has never been formally presented to the receiver and a demand made upon him for payment. Indeed, the claim of the petitioners is that the receiver has admitted the claim and promised to pay it without any formal presentation and demand. Consequently no action seems to be necessary for the purpose of having the claim established, as its amount is not contested. If, upon a formal presentation of the petitioners' account, the amount should be disputed and the claim rejected, upon a proper application by the petitioners the court would doubtless allow an action to be brought for the purpose of having the claim established. But until it appears that such step is necessary, a useless expense would be incurred to accomplish what the receiver is undoubtedly prepared to admit.

The petitioners have no lien upon the fund which was paid over by the general government, even though it be conceded that if they had filed notice of their claim with the public authorities it would have been protected. They were willing that the money should be received by their debtors and by the receiver, in consequence of which they now stand upon the same footing as the other general creditors of the firm represented by the receiver.

It appears from the papers submitted by the receiver that he is presently engaged in collecting the assets of the firm, and that he is now unable to state whether such assets will be sufficient to pay the debts of the firm in full or not. The receiver would not be justified in paying the petitioners' claim in full, unless it appeared that he was possessed of sufficient assets to pay all of the other creditors in full. And the court will make no order directing such payment except such facts appear. There is no reason to suppose that the receiver will not promptly discharge his duties in connection with his receivership, and pay the claims of creditors in due and orderly course. If he does not do so the petitioners can make application to the court to compel him to properly discharge his duty in this respect. At present we see no ground for granting the application, either to pay over or for leave to sue.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

The order should, therefore, be affirmed, but without costs and without prejudice to the right to renew the motion.

All concurred.

Order affirmed, without costs and without prejudice to the right to renew motion.

In the Matter of the Judicial Settlement of the Account of WILLIAM MUELLER and CATHARINE COOPS, as Administrators, etc., of HENRY DOHRMANN, Deceased.

CATHARINE COOPS, Appellant; WILLIAM MUELLER, as Administrator, etc., of HENRY DOHRMANN, Deceased, and Others, Respondents.

A savings bank deposit in trust, not intended to give the cestui que trust an interest therein, remains the property of the depositor.

Whenever a deposit is made in a savings bank by a person in his own name, in trust for another, and there are no circumstances rebutting such presumption, it will be conclusively presumed that the depositor has divested himself of the legal and beneficial title to the fund, and has vested himself with the legal title as trustee for the person named as cestui que trust; but when the depositor does not make the deposit in trust with the intention of giving to the person named as cestui que trust any beneficial interest in the fund, but for his own benefit, he does not divest himself of his legal title to the deposit, but continues to be its beneficial owner, notwithstanding the form of the deposit.

APPEAL by Catharine Coops from an order of the Surrogate's Court of the county of Kings, entered in said Surrogate's Court on the 21st day of September, 1896, confirming the report of a referee and settling the accounts of the administrators of the estate of Henry Dohrmann, deceased.

Howard C. Conrady, for the appellant.

William C. Courtney and Joseph G. Mathews (special guardian),

for the respondents.

GOODRICH, P. J.:

Henry Dohrmann died in Brooklyn May 20, 1894, intestate, leaving him surviving his widow, Katie Dohrmann (now Coops) and three infant children, Henry, Marie and Rudolph. The first two

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

were children by his first wife and the last by his wife Katie. At the time of his death he had two accounts in the Brooklyn Savings Bank, one in his own name for $2,447.17, and the other, "Henry Dohrmann in trust for Katie Dohrmann," amounting to $1,265. On June 4, 1894, letters of adininistration were issued to William Mueller and Mrs. Dohrmann.

On May 13, 1896, the accounts of the administrators were judicially settled by the surrogate. Included in this accounting as a part of the estate funds was the item of $1,265 resulting from what is called the trust account. An affidavit of Mrs. Coops accompanies. the proceedings, in which she states that the accounts are correct. Mrs. Dohrmann married her present husband April 18, 1895.

In June Mrs. Coops applied to the surrogate for an order vacating his decree, claiming that the item of $1,265 was not an asset of the estate, but was her individual property. The surrogate ordered a reference to decide this question of fact. The referee reported that the fund belonged to the estate, and the surrogate confirmed the report. From this order the present appeal is taken.

Upon the reference Mrs. Coops and Mr. Louis were examined for the purpose of showing that the trust fund belonged to the former and was put into the bank in trust for her by her husband with the intention that it should belong to her. To contradict this testimony Mr. Courtney, counsel for the administrator, the administrator Mueller and his wife were examined. The evidence offered by Mrs. Coops tended to show that the money deposited in the account was given to her by her husband, and that she did not know that it was to be included in and considered a part of the funds of the estate, while the testimony in opposition showed her clear admission made against her own interest, that the money was deposited for the purpose of having two accounts upon both of which interest could be drawn, a method which, as we understand, had reference to the practice of savings banks not to allow interest upon large accounts.

Mr. Courtney testified that when he was drawing the papers to obtain letters of administration he was told by Mrs. Dohrmann that the money belonged to the estate and was to be treated in the same manner as the other funds of the estate, and was to be divided among the widow and children. This is corroborated by the other two witnesses upon the reference. The referee was fully justified