Knapp v. Simon, 96 N. Y. 284; Story, Agency, I gained for, and a recovery by the plaintiff and S$ 268, 396. It is not necessary, where the trustee of an express trust sues in his own name, that the complaint should show that other parties are beneficially interested. Hoagland v. Trask, 48 N. Y. 686; Merchants Bank v. Union R. R. & Trans. Co. 69 N. Y. 373; Wetmore v. Hegeman, 88 N. Y. 69. Finally, if it were necessary to set up the agency in the complaint this court will deem the proceedings amended so as to conform to the proof. Code Civ. Proc. §§ 721, 722, 732; Pratt v. Hudson River R. R. Co. 21 N. Y. 305; Bate v. payment of the judgment will be a complete protection to the defendant against any claim of the principal arising upon the contract. The other questions presented by the appellant relate to rulings by the referee upon offers of evidence, and were properly held by the general term to be without merit. The judgment should be affirmed. All concur. Hannah DIFFENDARFER, Appt., v. Graham, 11 N. Y. 237; Lounsbury v. Purdy, 18 George W. DICKS et al., Impleaded, etc., N. Y. 515; Foote v. Roberts, 7 Robt. 17; Bowdoin v. Colman, 6 Duer, 182. Danforth, J., delivered the opinion of the court: The action was to recover $22,251.60 as the price of certain bitumen theretofore sold and delivered by the plaintiff to the defendant. Besides a general denial, the answer set up that the bitumen was sold and delivered by the plaintiff, not on his own account, "but as known agent for the firm of Arles, Dufour & Co., his disclosed principals, under a special contract in writing, and without authority to receive the proceeds of such sales;" and upon this defense the defendant, upon trial of the issues before a referee, asked a dismissal of the complaint. His request was denied and judgment went against him, both upon the report of the referee and at the general term. The principal point made in his behalf upon this appeal is that the action was improperly brought by the plaintiff in his own name. It appeared that the contract was negotiated by one Clarke, a broker, who in that character made and signed a writing which, so far as is material, was in these words: A time for delivery was specified and the price declared payable thirty days from each delivery. This contract was assented to by both parties, and the referee finds that "There was no proof that the name of Arles, Dufour & Co., was disclosed or mentioned as the principal of the plaintiff in the negotiations for the sale, nor at any time before this contract had been executed and delivered;" but he also finds that at the time of making it, the " 'plaintiff was in fact the agent of Arles, Dufour & Co., of Marseilles, France, for the sale of imported goods,' and that the bitumen was sold and delivered by him, not on his own account, but for, and on account of Arles, Dufour & Co., and as their agent. The evidence sustains these findings, and the case is thus brought within the well established rule of law that when a contract, not under seal, is made with an agent in his own name for an undisclosed principal, whether he describes hismelf to be an agent or not, either the agent or principal may sue upon it. Considerant v. Brisbane, 22 N. Y. 389; Schaefer v. Henkel, 75 N. Y. 378. The defendant has received the thing bar Respts. 1. In an action by a residuary legatee to set aside an assignment of a claim due the testator's estate made by the administrator with the will annexed, on the ground of fraud, the plaintiff is entitled to prove the alleged inadequacy of the consideration of the assignment and that the estate from which the claim was owing was solvent. 2. 3. 4. In such action it is error to exclude evidence as to what the books of the debtor and creditor showed was the amount of the account assigned. Where the administrator sold a claim due the estate of more than $5,000 for $273, in an action to set aside the sale for fraud, the fullest inquiry as to the facts should be permitted within the rules of evidence. The jurisdiction of chancery to rescind contracts, for fraud or mutual mistake of material facts, is one of the best settled and most beneficent powers of a court of equity. (Decided April 19, 1887.) APPEAL from a judgment of the Supreme Court at General Term in the First Department, affirming a judgment of the Special Term dismissing the complaint in an action to set aside assignment of a claim due to a decedent's estate. Reversed. This action was brought by Hannah Diffendarfer, as sole residuary legatee named in the will of Sarah E. Quinn, deceased, against Geo. W. Dicks, William Apgar, as executor of the will of Thomas Walling, deceased, and Coffman James, administrator c. t. a. of Sarah E. Quinn, deceased, to set aside an assignment of a claim of $5,534.30 due from the estate of Walling to the estate of Sarah E. Quinn, deceased, which Coffman James, Quinn's administrator, March 10, 1882, assigned to defendant Dicks for $273; to restrain said Dicks from collecting the claim of the estate of Walling, by action or proceeding at law or otherwise, and to restrain Walling's executor from paying the claim to Dicks, or any person other than plaintiff or Quinn's administrator, and for other relief on the grounds: 1, that the assignment was made for a grossly inadequate consideration and in fraud of the rights of plaintiff, the said residuary legatee; 2, mistake of fact as to the actual amount of said claim; 3, actual fraud on behalf of Quinn's administrator and Dicks, the assignee. At the trial in the special term, after the close of plaintiff's case, the court granted defendants' motion to dismiss the complaint, and a judgment was entered accordingly. On appeal to the general term this judgment was affirmed and plaintiff appealed to this court. Further facts appear from the opinion. fact known to the purchaser, and no undue advantage is taken by the latter, and where there are no special circumstances calling for disclosure. But the jurisdiction of chancery to rescind contracts for fraud or mutual mistake of material facts, is one of the best settled and most beneficent powers of a court of equity. I. As sole residuary legatee named in Quinn's will, the plaintiff may elect either of two remedies: 1, a remedy against the administrator or trustee, to hold him responsible for devastating the estate; 2, a remedy as against the as-ed on June 8, 1883, to $5,534.30. The assignsignee to follow the assets in his hands, or to annul the fraudulent transfer to him. Fellows v. Longyor, 91 N. Y. 331, 332; Colt v. Lasnier, 9 Cow. 341; 1 Roper, Legacies, pp. 438-440; Dodson v. Simpson, 2 Rand. (Va.) 297; Hill v. Simpson, 7 Ves. 152; McLeod v. Drummond, 17 Ves. 169; Wilson v. Moore, 1 Myl. & K. 337. II. The assignment is void and ought to be set aside on the ground that it was made under mutual mistake of fact, as to the actual amount of the claim, and for gross inadequacy of price paid by Dicks, the assignee, to Quinn's administrator. Kerr, Fraud & Mistake, pp. 189, 296; Story, Eq. Jur. $ 110, 246; Pickett v. Loggon, 14 Ves. 214; Butler v. Haskell, 4 Desau. 651. Messrs. William Stone and H. D. Van Orden, for respondents: Assuming, for the sake of argument, that Dicks, previous to the purchase, knew the value of this claim, he was not bound to disclose his knowledge to the seller. McFarland v. Newman, 9 Watts, 55; Hargous v. Stone, 5 N. Y. 73, 89; Graham v. Meyer, 33 Hun, 489; affirmed in 99 N. Y. 611; Atty-Gen. v. Continental Life Ins. Co. 94 N. Y. 199. Mere inadequacy of price is no ground for setting aside an executed contract. Story, Eq. Jur. § 245; Osgood v. Franklin, 2 Johns. Ch. 1; S. C. 14 Johns. 527; Seymour v. Delancy, 3 Cow. 445; Udall v. Kenney, 3 Cow. 590; Worth v. Case, 42 N. Y. 362; Earl v. Peck, 64 N. Y. 596; Judge v. Wilkins, 19 Ala. 765. A party is not bound to use more care in dealing with executors or administrators in their representative character than in dealing with them as individuals. Field v. Schieffelin, 7 Johns. Ch. 150; Rogers v. Squires, 98 N. Y. 49. Andrews, J., delivered the opinion of the court: We concur with the opinion of Judge Davis that evidence was improperly excluded on the trial, bearing upon the question of fraud in the assignment and purchase of the claim in favor of the estate of Quinn, against the estate of Walling. This conclusion does not conflict with the authorities cited in the prevailing opinion, which establish that mere inadequacy of price, unaccompanied by fraud, is not a ground for rescinding an executed contract, and that a party is not to be deprived of the benefit of a good bargain, merely because the other party may have acted in ignorance of the value of the thing sold, or of some material The case presented by the evidence was that of the assignment by Quinn's administrator to the defendant Dicks, for the consideration of $273, of a claim in favor of that estate against the estate of Walling, amounting to more than $5,000, and which on a reference under the statute, instituted subsequent to the assignment, has been found by the referee to have amountment to Dicks was made March 10, 1882. If the estate of Walling was solvent it is the case of an assignment made by an administrator of a claim in favor of the estate he represented, upon a consideration which was grossly inadequate. The inadequacy of the consideration was one of the facts which the plaintiff was entitled to prove. Whether, standing alone, it would support a finding of fraud is not the question. The trial judge, we think, erroneously excluded evidence offered to show that the estate of Walling was solvent. It was a material fact bearing upon the question of the adequacy of the consideration. So also evidence was excluded as to what the books of Quinn and Walling showed was the amount of the account against Walling. This evidence was also, we think, improperly excluded. If it had ap peared from the books of both creditor and debtor that there was an admitted balance of $5,000 due to Quinn's estate, it would have been a significant circumstance bearing upen the good faith of the administrators of the respective estates; and also, in view of the other evidence, of the good faith of the defendant Dicks. The way in which the defendant Dicks came into the transaction is peculiar. Quinn and Walling both died in 1880. In March, 1881, the administrator of Quinn wrote the adminis trator of Walling that Walling was indebted to Quinn in the sum of $273. In November, 1881, the defendant Dicks sent one Condit to Philadelphia with $300 to buy the claim, but Jaines, the administrator of Quinn, then declined to sell it. In March, 1882, James came from Philadelphia to New York and there had an interview with Apgar, Walling's executor. James informed Apgar that as near as he could make out the claim was $273. The executor of Walling did not inform James that the claim was more than $273, or say anything upon the subject of the amount, but said he would pay the claim if James would make a detailed statement of it. James replied that he could not make a detailed statement, but only a statement of what appeared on the books. Apgar replied that this would not do and that he could not pay it. Thereupon, James went to one Egbert, a nephew of Dicks and a son of Walling's bookkeeper, "of whom Apgar told him," and the two together went to the place where Dicks was employed as a clerk, and found him; and Dicks offered James $273 for the claim, which offer James accepted; and thereupon Dicks 1587. FLECKENSTEIN V. DRY DOCK, E. B. & B. R. R. CO. HELCK V. REINHEIMER. took from his desk an assignment already prepared, which James signed, and the $273 was paid. The complaint alleges that at the time of the assignment Dicks had knowledge or information of the true amount of the claim. In his answer he denies knowledge only, but does not deny that he was informed of the amount. On the trial he testified that he did not know the amount until after the assignment, but admitted that he had testified, on the reference under the statute, that he was informed of the amount in October or November, 1881. If the plaintiff had been permitted to show that Dicks knew, or had reason to believe when he took the assignment, that Walling's estate was solvent, would not a case have been presented calling for explanation on his part? He knew that he was dealing with an administrator. If he knew also the amount of the claim, and that Walling's estate was solvent, must he not have known that the administrator of Quinn, in selling a claim of more than $5,000 for $273, was acting either under a mistake, or in reckless disregard of his trust? If he was acting in collusion either with the administrator of Quinn or of Walling, the transaction was a fraud. How came he to know that the claim was $273, or how did it happen that he prepared an assignment in advance? We do not say that this transaction may not have been fair and honest; but the circumstances are suspicious, and it was a case where the fullest inquiry as to the facts should have been permitted within the rules of evidence. The judgment should be reversed and a new trial ordered. All concur. Florian FLECKENSTEIN, Respt., V. DRY DOCK, EAST BROADWAY & BAT- 743 Hegan v. Eighth Ave. R. R. Co. 15 N. Y. 382; Craig v. Rochester etc. R. R. Co. 39 N. Y. 410; Whittaker v. Eighth Ave. R. .R. Co. 51 N. Y. 299; Wilbrand v. Eighth Ave. R. R. Co. 3 Bosw. 320; Adolph v. Cent. Park etc. R. R. Co. 76 N. Y. 535, 536; Barker v. Hudson River R. R. Co. 4 Daly, 276. Mr. Stephen B. Jacobs, for respondent: There was no error in the charge of the court or the refusal to charge as requested by defendant. Caldwell v. N. J. Steamboat Co. 47 N. Y. 282; Smedis v. Brooklyn etc. R. R. Co. 88 N. Y. 13, 19; 2 Rorer, Railroads, p. 1431; Adolph v. Central Park etc. R. R. Co. 65 N. Y. 554; 76 N. Y. 530; Cohen v. Dry Dock etc. R. R. Co. 69 N. Y. 170; Healy v. Dry Dock etc. R. R. Co. 14 Jones & S. 484; Thurber v. Harlem Bridge etc. R. R. Co. 60 N. Y. 327; Kelsey v. Barney, 12 N. Y. 429; 1 R. S. § 6, 7, p. 695; Kenyon v. N. Y. Cent. etc. R. R. Co. 76 N. Y. 607; Green v. Erie R. Co. 11 Hun, 333. Earl, J., delivered the opinion of the court: The evidence of the plaintiff tended to show that while he was engaged in trying to remove his team and wagon from the track of defendant's road, one of its drivers carelessly drove one of its cars against him and caused the injury of which he complains. This evidence was controverted on the part of the defendant; and hence, there was a question of fact for the jury, and their decision thereon is not reviewable here. The trial judge did not err in charging the jury that the defendant did not have the exclusive right to the use of its tracks, but simply the paramount right. Street railways have the lawful right to put their tracks in streets and run their cars thereon. Their cars are confined to the tracks, and cannot turn out to avoid obstacles thereon; hence, they have the right of way, and persons lawfully driving upon the same tracks must not recklessly, carelessly or willfully obstruct the passage of their But such persons are not absolutely A street railway company has the para-cars. mount, but not the exclusive right to bound to keep off or get off from the tracks; the use of its tracks. (Decided April 19, 1887.) APPEAL from a judgment of the Supreme Court at General Term in the Second Department, affirming a judgment of the Kings Circuit on a verdict for plaintiff for $1,000 damages, in an action to recover for personal injuries sustained through the alleged negligence of defendant's driver. Affirmed. The facts and questions raised sufficiently appear from the opinion. Mr. Edmund Randolph with Mr. John M. Scribner, for appellant. The court erred in refusing to charge, as requested by defendant's counsel, that "the defendant was entitled to the exclusive use of its track for the unrestricted passage of its cars, and the plaintiff was bound to keep out of the way of the car, and if the plaintiff was hit while the car was proceeding at a lawful rate of speed, and the plaintiff had notice of its approach in season to get out of its way, the plaintiff cannot recover, and defendant is entitled to a verdict." they must fairly, and in a reasonable manner, them a remedy by action for damages. judicated upon, and demand judgment that the mortgaged premises be freed from the mortgage and that it be discharged of record, and on the trial both parties litigate those questions, and the defendants obtain judgment in their favor thereon, it is too late for the plaintiff, on appeal, to take the ground that the complaint should have been dismissed as to them because the questions could not properly be litigated in the action. Both parties having consented to litigate, are bound by the judgment. 3. Where a deed made in pursuance of an antenuptial contract conveyed land from the husband to a third party for the use and purpose mentioned in the contract, by which the husband in effect agreed to vest in his wife a life estate in the south half of the land, in case she survived him, with the remainder in fee to his heirs, and in the same contingency to vest in her an estate in the other half during two minorities of his children, with remainder in fee to such children, etc., held, that no trust estate and no estate whatever was vested in the grantee named in the deed, but such deed was a mere conveyance to him to the use of the respective beneficiaries named, which uses were executed by the statute without any conveyance. 4. Where the contract to carry out the use and purpose of which the deed was made, further provided that if the wife died before the husband without issue all the land therein described was to be conveyed back to the husband, and she died before him, held, that upon her death the deed ceased to have any operation and the whole title remained in him, and the mortgage given by him subsequent to the deed was a valid lien upon the premises. (Decided April 26, 1887.) APPEAL from a judgment of the Supreme Court at General Term in the Third Department, modifying a judgment of the Sullivan Circuit dismissing the complaint in an ac tion to foreclose a mortgage. Reversed. The facts and questions raised appear from the opinion. Mr. John F. Anderson, for appellant: The action was treated on the trial as one solely for the purpose of construing the instrument under which the defendants claimed the premises and its effect upon the mortgage. Having been tried in the court below upon the merits without any exceptions on the part of the defendants, it will be so considered on appeal. Brundage v. Domestic etc. Missionary Society, 60 Barb. 213; Barnard v. Onderdonk, 98 N. Y. 158-163; Keeler v. Keeler, 3 Cent. Rep. 324, 102 N. Y. 30. The court had jurisdiction over the parties, and they submitted their rights to it, and asked for an adjudication. Barnard v. Onderdonk, 98 N. Y. 158; Jordan v. Van Epps, 85 N. Y. 436. One asserting a right under the mortgagor is a proper party to an action for the foreclosure of the mortgage. Brown v. Volkening, 64 N. Y. 76; Bank of Orleans v. Flagg, 3 Barb. Ch. 316; Keeler v. Keeler, 3 Cent. Rep. 324, 102 N. Y. 30. After these defendants had asked to have the trust deed declared valid, and the mortgage discharged of record, and had tried the case upon the issues raised by their answer, without an exception, and asked and procured from the court a decision holding, as conclusions of law: 1, that the contract and deed were intended as a marriage settlement for the support aad benefit of the issue of said marriage; 2, that said instruments create a valid implied trust in the said Heury Reinheimer, which must be upheld and enforced as such; 3, that the mortgage to Catherine Gunglock conveyed no interest in the mortgaged premises; 4, that the plaintiff's complaint should be dismissed with costs; and these defendants having entered judgment upon that decision accordingly-it was error for the general term to dismiss the complaint as to these defendants because they were not proper defendants in such an action, or because the question litigated was not a proper one in an action to foreclose a mortgage. Hynes v. McDermott, 82 N. Y. 41-48; Osgood v. Toole, 60 N. Y. 475; Devyr v. Schaefer, 55 N. Y. 446. It was not a matter discretionary with the general term after the action had been disposed of in the court below upon the merits. Cole v. Malcomb, 66 Ñ. Y. 363. deed and in pursuance of which the deed was The agreement, which is incorporated in the made, provides that Jacob Reinheimer will Henry Reinheimer to the use and behalf of the settle and assign the lands and tenements to said Philipena in manner following: in the event of the decease of said Jacob Reinheimer during the lifetime of the said Philipena, the said Philipena shall have the south half of the and after her decease it shall revert to the heirs above named property during her natural life; of the said Jacob Reinheimer. The granting clause of the deed given in pursuance of this agreement, expresses the intent in the following language "I, the said Jacob Reinheimer, do hereby grant and convey to the said party of the third part the lands and tenements in the above named instrument in writing described and specified for the use and purpose also therein mentioned." The purpose of the instrument is here clearly expressed. The construction should be as favorable to, and as near the minds of, the parties as the rules of law will permit. 1 Chitty, Bl. book 2, p. 379; Brown v. Murdock, 12 Abb. N. C. 360. It is clear, in this instrument, that Jaeob Reinheimer did not intend to devest himself of this land, all that he had, during his lifetime. He only intended this deed to be operative, and to give his wife support, in case he died first. Then it would be important to not only reserve the use to his wife, but also to direct to whom it should revert at her decease. Counsel for the defendant urges that the clause in the second part of the deed, "In the event of the decease of the said Philipena with- | an action only for the foreclosure of the mortout issue during the lifetime of the said Jacob gage; being a mortgagee out of possession, and Reinheimer, all the property then held in trust not having acquired the title or right of posunder this indenture shall be transferred and session by foreclosure, he could not maintain assigned back to the said Jacob Reinheimer," | an action in equity to set aside a prior conveyis repugnant to the clause, "For the use and ance, or to remove a cloud upon the title. behoof of the said Philipena Winegarth in Moores v. Townshend, and cases cited, 3 Cent. manner following: in the event of the decease Rep. 441. of the said Jacob Reinheimer during the lifetime of the said Philipena," etc. In a deed, if there be two clauses so totally repugnant that they cannot stand together, the first shall be received and the latter rejected. 1 Chitty, Bl. book 2, p. 381. The latter clause was unnecessarily in the deed. It was made for a specific purpose; to take effect in a certain contingency. That contingency did not, and cannot now, happen. The deed is therefore inoperative, and the trust ceased when Philipena died during the lifetime of Jacob Reinheimer. When the purpose for which an express trust was created shall cease, the estate of the trustee shall also cease. R. S. Banks' 7th ed. p. 2182, § 62; p. 2183, 67; Quin v. Skinner, 49 Barb. 128. The word revert implies that there was a residue left in the grantor. This is not one of the trusts authorized by that statute. It does not come under either of the subdivisions. R. S. Banks' ed. p. 2181, §§ 49, 55. This instrument is not a power under Revised Statutes, Banks' ed. p. 2182, § 58, for the reason that it does not direct or authorize the performance of any act which may be lawfully performed under a power. It is a passive trust and is therefore void. Jarvis v. Babcock, 5 Barb. 139; Hotchkiss v. Elting, 36 Barb. 38; Verdin v. Slocum, 71 N. Y. 345. If it is held that this conveyance was limited upon a contingency which cannot now happen, and that it is a power in trust under the statute relating to powers (Revised Statutes, p. 2191, 102, referring to the Statutes of Uses and Trust, p. 2183, 67), the purposes of the power have ceased to exist, and the power has also ceased, and the premises revert to the grantor without any conveyance. Rights claimed in priority or hostility to the mortgage cannot properly be litigated in a foreclosure action; and a judgment determining that right is erroneous. Eagle Fire Co. v. Lent, 6 Paige, 637; Corning v. Smith, 6 N. Y. 82; Lewis v. Smith, 9 N. Y. 502; Merchants Bank v. Thomson, 55 N. Y. 7; Rathbone v. Hooney, 58 N. Y. 463; Emigrant Industrial Sav. Bank v. Goldman, 75 N. Y. 127. Since the reorganization of the courts of this State, blending in the same tribunal both legal and equitable jurisdiction, and permitting both legal and equitable controversies to be tried and determined in one action, there would seem to be no doubt as to the power of the court to determine all matters, voluntarily submitted by the parties. Barnard v. Onderdonk, 98 N. Y. 158. The supreme court in banc having determined, in view of all the facts, that the rights of parties dependent on this trust deed ought not to be adjudged in this action, and having awarded to the plaintiff a usual judgment of foreclosure, leaving questions of title to be settled in a proper action for that purpose, after he shall have acquired all the title possible under his mortgage, leaves no ground whatever for appeal to this court. The trust deed executed prior to the mort Quin v. Skinner, 49 Barb. 128, 133; Hawley v. James, 5 Paige, 318, 457; Sharpsteen v. Til-gage devested the mortgagor of his title. lou, 3 Cow. 660; Hutchings v. Baldwin, 7 Bosw. 241. As to the south half, this deed was void for uncertainty as to the heirs of the said Jacob Reinheimer. The grantees must be plainly described, capable of contracting, and competent to take the estate. Jarvis v. Babcock, 5 Barb. 146: 4 Kent, Com. 462; 2 Bl. 296; Verdin v. Slocum, 71 N. Y. 345, cases cited on 347. If the deed to the north half is a power, it was given only for the purpose of securing to Philipena support in case of the decease of Jacob Reinheimer, during her lifetime. The power was to take effect only upon that contingency; and the purpose of the power having ceased, the power also ceases. R. S. Banks' ed. p. 2191, § 102. It was a conveyance in præsenti. The language of the granting clause is "hereby grant and convey to the party of the third part the lands and tenements." The only event in which the title was to return to the grantor was the death of Philipena, for whose use the conveyance was made, before her husband and without issue. This event can never happen as she died first, leaving issue. It seems clear from a reasonable interpretation of the instrument that it operated to convey a life estate to Philipena, with a contingent remainder in fee to the children of the marriage. The grant was to the "use and behoof of Philipena Winegarth." No estate, legal or equitable, vested in the trustee. 3 R. S. 7th ed. p. 2180, § 49. The beneficiaries of the grant were, there The plaintiff's action must be regarded as fore, vested with a legal estate of the same |