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covery of two judgments. Woods v. Pangburn, 75 N. Y. 495. But po satisfaction is alleged in the papers, or suggested on the argument.

It is further contended that the character of the work performed by the plaintiff did not, under the statute, entitle him to a lien. This also was a matter to be determined on the trial of the action, and the judgment is conclusive on it.

The only objection that in any way goes to the jurisdiction of the court is that, money having been paid into the court to discharge the lien, thereafter nothing but a common-law action could be maintained by the plaintiff, and that such an action could not be maintained against the defendant in the county court, because he was a nonresident of the county. We think that the judgment concluded the defendant on this point, but the contention is plainly erroneous. The money deposited stood in lieu of the land for the satisfaction of plaintiff's claim if he established a valid lien. To reach that fund the plaintiff was obliged to show not only a claim against the defendant, but a lien on the land. The action was, therefore, one to foreclose a lien. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.

(76 Hun, 36.)


In re RITCH. (Supreme Court, General Term, Second Department. February 12, 1894.) EXECUTORS AND ADMINISTRATORS--ACCOUNTING--- EXPENSES OF LITIGATION.

Where the next of kin request that an appeal be taken from a judg. ment against the estate, and the questions raised on the appeal are sufficiently doubtful to warrant a hope that the judgment might be reversed, the administrator will be allowed his reasonable disbursements on such appeal. Appeal from surrogate court, Queens county.

Proceeding for the judicial settlement of the accounts of Thomas J. Ritch, Jr., as sole administrator with the will annexed of Nathaniel 0. Hawxhurst, deceased. From a decree settling the accounts, said Thomas J. Ritch, Jr., appeals. Reversed.

Argued before DYKMAX, PRATT, and CULLEN, JJ.
Geo. C. Brainerd, for appellant.
Benjamin W. Downing, for respondent.

PRATT, J. This matter seems to have been determined by the surrogate, not upon the ground that the services for which the $200 were charged were not performed, or that they were not worth that amount, but upon the theory that no appeal ought to have been taken, and hence they were unnecessary. It is plain, I think, that if the decision was based upon the point the services were not worth the amount charged, it is not sustained by the proofs, as there is no evidence going to show they were worth less than charged; neither is there any direct proof that they were incurred

in bad faith. The surrogate, however, has found as a fact "that all the rest of kin [except the plaintiff, who had recovered the judgment] united in a request and a statement that said administration have the said judgment reviewed by other tribunals.” Here was a judgment that swept away the entire estate, and it is not to be supposed for an instant that a clamorous judgment creditor would favor an appeal that might upset his judgment. tions raised upon the appeal were sufficiently doubtful to warrant a hope that the judgment might be reversed. Considering this fact, and the further fact that all the next of kin urged an appeal, we think the administration acted in good faith; that he had reasonable grounds upon which to appeal, and should be allowed his reasonable disbursements. Order reversed, with costs. All concur.

The ques.

(76 Hun, 32.)

UNITED STATES TRUST CO. V. STANTON et al. (Supreme Court, General Term, Second Department. February 12, 1894.) 1. STATUTE OF LIMITATIONS-PAYMENT TO REMOVE BAR.

A payment on a bond within the statutory period was relied on to remove the bar of the statute. A witness testified that he made the indorsement on the date specitied, but he also testified that he received the money, not from the obligor in the bond, but from the obligee, and that he did not know when the obligee received the money from the obligor.

Held insufficient. Culle J., dissenting 2. SAME-BURDEN OF PROOF.

Where a payment indorsed on a bond within the statutory period is re lied on to remove the bar of the statute, the burden is not on defendant

to prove that the payment was not made within the statutory period. 8. PLEADING-AVERMENT OF PLAINTIFF'S TITLE.

The complaint in an action on a bond alleged that it was executed by defendant to L. and D., executors of, and trustees under, the will of B.; that plaintiff had been appointed trustee under said will in place of L., deceased; and that by the appointment the bond passed to plaintiff. But it did not allege that the bond was an asset of B.'s estate. Held, that the complaint did not show any right in plaintiff, the words "executors and trustees" being only descriptive of the person. Cullen, J., dissenting.

Appeal from special term, Kings county.

Action by the United States Trust Company against Philip V. R. Stanton and others to foreclose a mortgage. From a judgment in favor of plaintiff, defendant Stanton appeals. Reversed.

For former reports, see 21 N. Y. Supp. 229, affirmed by 34 N. E. 1098.

Argued before DYKMAN, PRATT, and CULLEN, JJ.
P. V. R. Stanton, (Josiah T. Marean, of counsel,) for appellant.
Edward W. Sheldon, for respondent.

PRATT, J. The burden was upon plaintiff to prove that the last indorsement of interest was made later than October 10, 1867. For that purpose was put in evidence the bond which bore an indorsement dated October 23, 1867, and a witness was called who testified that he made the indorsement on that date. Further ex.

amined, he testified that he received the money, not from the debtor in the bond, but from the obligee, and that he had no personal knowl. edge of the date when the obligee received the money from the debtor. Upon the question being put to the witness whether the obligee may not at that time have had the money for a month, he answers, "He may have had it a year, for what I know." The admission of the obligee that the $87 interest was paid was at that time against his interest, and is therefore competent evidence to prove the payment. Whether a statement of the obligee as to the time of payment, not being against interest, could be put in evidence, is a different question, but no such statement was made. We are at loss to see that the proof goes any further than to prove that the payment was made at some time on or previous to October 23, 1867. That is manifestly insufficient to remove the bar of the statute.

The interest was due on May 1, 1867, and, if any presumption can be indulged in as to the time of payment, it is probable that payment was made when due. The court below felt the weight of these considerations, but, on the ground that the defendant did not personally offer to testify, gave judgment for plaintiff. We think this was error. If plaintiff desired defendant's testimony, they should have called him. Where a transaction is so ancient, a witness whose professional experience must have taught him the imperfection of human memory may well hesitate to offer himself as a witness in his own behalf. We do not see that any presumptions should from that be drawn against him.

The court below seemed to consider that the burden was on defendant to prove the payment was not within 20 years. We think that was error. The complaint alleges that the bond and mortgage were executed by defendant to Leveridge and Duryea, "executors of the last will and testament of Bowne, and trustees appointed in and by his last will." It further alleges that plaintiff has been appointed trustee under the will of Bowne, in place of Leveridge, deceased; and the conclusion of law is alleged that, by the appointment, the bond and mortgage passed to the plaintiff. There is no allegation that the bond and mortgage were an asset of the estate of Bowne. The words "executors and trustees” are only descriptive of the person. There is no allegation that the will established any trust of personal property. The complaint, therefore, failed to state a cause of action in the plaintiff, and the mo. tion made at the opening of the trial to dismiss the complaint should have been granted. The judgment must be reversed; and as the cause, for reasons which have abundantly appeared on the former trials, is not one for which an amendment of the complaint should be granted, final judgment must be given for defendant, with costs.

DYKMAN, J., concurs.

CULLEN, J., (dissenting.) This is an appeal from a judgment of the special term for the foreclosure of a mortgage. The com

plaint sufficiently averred title in the plaintiff. It alleged that the bond and mortgage in suit passed to the plaintiff as part of the estate of Gilbert W. Bowne, under the order

of the court appointing plaintiff trustee. The bond ran to Leveridge and Duryea, "executors of the last will and testament of Gilbert W. Bowne, and trustees appointed in and by said will,” conditioned for payment to said Leveridge and Duryea, "and the survivor of them, their or his successors in office, or assigns." Granting that the omission of the word "as” in the first portion of the instrument made the terms "executors and trustees,” standing by themselves, mere descriptio personae, the condition of the bond that the payment was to be made to Leveridge and Duryea, their survivor and successors in office, clearly shows that the obligation ran to them in their representative capacity. People v. Miner, 37 Barb. 466; Beers v. Shannon, 73 N. Y. 292. The mortgage is of the same tenor. The case is therefore plainly to be distinguished from that of Peck v. Mallans, 10 N. Y. 509.

It is conceded that the indorsement on the bond of the payment of interest was prima facie sufficient to take the claim out of the statute of limitations. But it is said that in this case the indorsement has no probative effect, because it appears from the testimony of the person who made it that the check or money was received from one of the trustees, who might have obtained it time enough before the making of the indorsement to bar the mortgage by the statute. That trustee is dead, the transaction is over 25 years old, and the witness, who was the clerk and accountant of the trustee, naturally cannot recall the details of the payment. We think the presumption is that the payment was made at the time of the entry; especially in the absence of any evidence to the contrary on the part of the defendant. The judgment appealed from should be affirmed, with costs.

(76 Hun, 10.)

PICKSLAY v. STARR. (Supreme Court, General Term, Second Department. February 12, 1894.) GIFTS-CHECK OF DONOR.

Though a check is not the subject of gift by the maker, because he may stop payment after delivery to the donee, yet, where a person gives a check to another with the intention of making a gift to the donee of the amount thereof, the gift becomes complete on payment of the check, and the donor cannot afterwards claim that he gave it under mistake. Dykman, J., dissenting. Appeal from judgment on report of referee.

Action by Charles Pickslay against Theodore B. Starr to recover $3,352.10, the balance alleged to be due the plaintiff on account of salary. From a judgment in favor of plaintiff for $4,301.78, defendant appeals. Affirmed.

The following is the opinion of Hamilton Odell, Esq., to whom the case was referred to hear and determine:

The plaintiff sues to recover a balance alleged to be due from the defendant for salary. The defendant avers that he has paid the plaintiff in

full. The sum claimed is $3,352.10. From 1869 to April, 1891, the plaintiff was in the employment of the defendant as a salesman. The defendant seems to have dealt very generously with him, paying him a liberal salary, and adding thereto in each year from 1883 to 1888, both inclusive, a Christmas gift of $2,500. These gifts were made by the defendant's checks, sent by him to the plaintiff from Europe. The plaintiff's salary during these years was $5,400. In April, 1889, an arrangement was made between the parties by which the plaintiff's salary was increased to $9,000, and, in addition to this, he was to receive, after May 1, 1890, a commission or percentage of one and one-half per cent. on yearly sales in excess of $600,000. In the evening of December 24, 1889, the plaintiff had an interview with the defendant in the latter's office, at the close of which the defendant wished him a Merry Christmas, and handed him an envelope, which contained a check for $2.500, drawn to the plaintiff's order. On the day following Christmas, another interview took place, concerning which the plaintiff testifies as follows: "I bade Mr. Starr 'Good night, and went away, and got as far as the elevated station at 23d street, and I remembered that I hadn't spoken to him in regard to his present, and I returned, and went up into the office again where he was, and I said: "Mr. Starr, I have come back. I was already at the elevated station, and I remembered I hadn't thanked you for your present, and I came back to thank you for your present to me, and also on behalf of Mrs. Pickslay, to return her thanks to you for the present you gave her.” Mr. Starr said he was very glad that we were pleased. I said, 'Good night,' and then went home.” The defendant does not deny this conversation, His testimony is that he cannot recall it, but he will not say that it did not take place. Nor does he deny, in any particular, the testimony of the plaintiff touching the delivery by him to the plaintiff of the check in question. These other facts appear by the plaintiff's testimony, and are not denied: That the check was not paid to the plaintiff in response to any request for money made by him on or before December 24, 1889; that the defendant was then indebted to the plaintiff on account in the sum of only $2,100; and that the plaintiff was never paid his salary by the defendant personally. The defendant testifies as follows: "According to my best knowledge and belief, it was January, 1891, that Mr. Pickslay came to me, and said: 'Mr. Starr, you gave me a check Christmas, 1889. Was not that a present?' I said: 'No,-a present? Why, no, of course not.' He said: "What did you give it to me for? I didn't ask you for any money.' 'Well,' I said, 'Pickslay, it was a mistake.' I had been in the habit of giving him at Christmas a present of $2,500 when his salary was $5,400, and I said I had made a mistake that year.

Q. Why did you make out that check for Mr. Pickslay at that time? A. As near as I can get to my thoughts, it was that this contract, this new contract, that you see recorded in the book, was entirely out of my mind. I can't account for it in any other way,that that contract was out of my mind, and, having been in the habit of doing that for six years previously, I did it that time. Q. That is, not remembering this contract, you made out the usual Christmas check, or bad the usual Christmas check made out, and delivered it to Mr. Pickslay. Is that it? A. That is about it, yes." He further testified that it never entered his head to give the $2,500 to the plaintiff in addition to his salary and commissions under the new agreement, and that in December, 1889, after the check had been given, his bookkeeper inquired of him what should be done with it, and was directed to charge it to the plaintiff's account. It was so charged, but the plaintiff was not informed of the fact, nor in any manner advised that the check was not intended and delivered to him as a Christmas gift, until the following May, when, during the defendant's absence in Europe, he was furnished by the bookkeeper with a statement of his account from the defendant's books.

A gift is defined to be “a voluntary transfer of his property by one to another, without any consideration or compensation therefor. To make it valid, the transfer must be executed, for the reason that, there being no consideration therefor, no action will lie to enforce it.” Gray v. Barton, 55 N. Y. 72. The proofs in the present case show conclusively, as it seems to me, that the defendant's plain intention, when he delivered the $2,500 check to the plaintiff, was to make the plaintiff the usual Christmas gift. It certainly



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