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them. Held, That there was a failure of consideration of the note and the action

could not be maintained.

Appeal from judgment entered upon the report of a referee.

This was an action on a promissory note. The trial of the issues was referred and the referee found the following facts upon conflicting evidence:

That in January, 1881, the defendant, Eda Rubino, made her note for $5,000, chargeable upon her separate estate, and delivered the same to her husband, the defendant Eugene Rubino, solely for his accommodation and without receiving any other consideration; that Eugene Rubino endorsed the note and delivered it to plaintiffs under and pursuant to an agreement" that the said note was deposited with and received by the plaintiffs as margin or security in consideration of which the said Eugene Rubino was to have and receive a credit of $5,000 with and from the plaintiffs; that the plaintiffs would thereupon, for the usual commissions, upon the order of the defendant Eugene Rubino, purchase and sell stocks, &c.. and carry the same so long as he should desire. unless said security represented by said note should be exhausted; and that plaintiffs would not then dispose of the same until after they had demanded of the said defendant increased security or that he take the stocks and pay the market price thereof; and that plaintiffs would give him due notice of the time and place of the disposition thereof and due opportunity to make good his mar

gin or security." The referee further found that subsequently the plaintiffs refused to give Eugene Rubino the credit agreed upon, and that they sold and disposed of the stocks, &c., to his credit. without his direction or consent, and without notice or demand for other margin, and without waiting till the exhaustion of the margin, and closed his account with them, and brought this suit upon the note to recover a balance claimed to be due them upon such closing of the account. The referee upon these facts gave judgment for defendants.

A. Prentice, for applts. W. C. Beecher, for respts. Held, That the evidence did not preponderate in either direction sufficiently to justify the court upon appeal in disturbing the findings of fact made by the referee, who had the advantage of seeing and hearing the witnesses. 94 N. Y., 623.

That the facts found by the referee showed a failure of the consideration of the note, and that it could not be enforced by an action based upon the instrument or its endorsement. 60 N. Y., 146; 10 Hun, 56; 63 How., 81.

Opinion by Davis, P. J.; Brady and Daniels, JJ., con

cur.

FIRE INSURANCE.
HUSBAND AND WIFE.

N. Y. SUPREME COURT. GENERAL
TERM. FIFTH DEPT.

John Kelly, respt., v. The Agricultural Ins. Co., applt.

Decided Oct., 1884. When the application stated that the premises to be insured were incumbered $300, and the proof of loss stated that at the date of the fire the premises were covered by a mortgage for $600, the insured is not estopped from showing that the mortgage was originally for $600, and that before his application he had paid $300. Personal property owned by the wife at her marriage, which has been used in common in the household like the husband's, is not covered by a policy upon the husband's property.

Appeal from judgment on verdict at Circuit, and from order denying new trial.

Action on fire insurance policy covering a dwelling-house and its contents. The application, which by the terms of the policy is part of it, stated that the premises were incumbered $300. Plaintiff's proofs of loss stated at the date of the fire there was a mortgage on the premises for $600. Plaintiff testified on the trial that the mortgage was originally for $600, and that before he made his application for insurance he had paid $300, that was the mortgage referred to in the proofs of loss. The court charged "that the personal property of the wife which after marriage has been mingled with that of her husband and not kept separate and distinct, with the intention on their part to have it used together and not keep it separate, then it becomes the property of the husband."

A. H. Sawyer, for applt.
Ansley & Davie, for respt.

and

Held, That plaintiff was not estopped by the statement in the proofs of loss from showing what

the fact was respecting the mortgage. 54 N. Y., 193; 55 id., 222.

That the charge was erroneous. The credibility of plaintiff's testimony that his wife had transferred the property to him was a question for the jury. 86 N. Y., 548. The policy insured the plaintiff alone against loss by fire. He was insured as owner only, and was entitled to only such damages as were suffered by injury to or loss of his property. 17 Barb., 274; 1 Bosw., 518; 2 Cranch, 419; 4 Mass., 647; 22 Hun, 396; 61 N. Y., 579; 24 id., 381.

Judgment and order reversed and new trial granted, with costs to abide event, unless plaintiff stipulates to reduce the judgment $233.75, as of the time of the rendition of verdict. Then judgment and order affirmed without costs of appeal to either party.

Opinion by Bradley, J.; Smith, P. J., and Barker, J., concur; Haight, J., not sitting.

PROMISSORY NOTE.

N.Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

The Bank of Hamilton v. William Mudgett.

Decided Oct., 1884.

The question whether a note was paid and extinguished, or merely extended, by the giving of other and successive notes, the preceding one being given up in each instance, Held, Under the particular facts of the case, to depend upon the intention of the parties, and to be a question for the jury.

Motion by defendant for new trial on exceptions taken at Cir

cuit and ordered heard at General | bank, judgment was recovered on Term in first instance.

Action to charge defendant as trustee of the Rochester Iron Manufacturing Co., a corporation organized under Ch. 40, Laws of 1848, with a debt of the company for failure to make the annual report, as required by § 12 of the Act. Plaintiff has no foundation for its claim unless it be the debt growing out of the discount of a certain note as follows: October 2, 1876, the iron company made its promissory note for $10,000, payable four months from that date, to the order of A., B., C. and D. at the Bank of Hamilton. The payees indorsed the note and the bank discounted it, the iron company receiving the proceeds to its own use. On the day when the note fell due another note for the same amount, payable to the order of the same persons in four months at said bank, was made by the company, indorsed by the payees, and discounted by the bank, and the proceeds were credited to the company, which drew its check on the bank two days later for $10,000 and the bank returned to the company the October note and charged the company with the amount of the check. At the maturity of the second note a third one for the same amount, like the others in all respects, was discounted by the bank, the proceeds were credited to the company, and the second note was paid by the company's check, which was charged to it on the books of the bank. The third note not having been paid at maturity was prosecuted by the

it against the company, and execution issued thereon was returned nulla bona. Afterwards the bank recovered judgment on the third note against A. and B., upon which nothing has been paid. D. had executed a mortgage to secure his indorsements, which covered the third note but not the first one. The mortgage was foreclosed in an action in which this plaintiff was a plaintiff and claimed an interest by reason of the third note. Plaintiff also proved its claim under the judgment recovered on the last note in an action against the stockholders of the iron company, brought under § 24 of the Act of 1844.

J. Breck Perkins, for deft.
Edward C. Jones, for plff.

Held, That, in general, the taking by a creditor of the debtor's note for an existing indebtedness does not merge or extinguish the indebtedness, but only extends the time of payment, and successive renewal notes are simply extensions from date to date of the time of payment, 76 N. Y., 521; but in the present case there was no original indebtedness independently of the notes. As to this distinction, see 10 S. & R., 75; 4 J. J. Marshall (Ky.), 1; 12 Peters, 34; 81 N. Y., 218; and note to 1 Smith L. C, 458. See also, 21 Wend., 499; 24 id., 115.

Still, we think, in view of the evidence, it cannot be said as matter of law that the first note was paid and extinguished, but that the question is one of fact, depending upon the intention of the

parties to the transaction. The refusal to leave that question to the jury was error.

pany moved to discontinue the proceedings, which was granted, and the company was directed to

New trial ordered, costs to pay respondents "their reasonable abide event.

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Before confirmation of the commissioner's report in railway condemnation proceedings motion may properly be made by the railway company to discontinue the proceedings, and the court in granting it may annex such terms as justice requires.

The commissioners appointed to appraise the damages occasioned by the appropriation by the company of lands owned by Thorne and occupied, as his tenants, by the other respondents, made report awarding to Thorne $3,500 damages, and to the tenants $2,200. Motion for confirmation was denied with instructions to the commissioners to make their report more specific. They made another report which the court refused to confirm, and the court directed the commissioners to ascertain and report other damages to the tenants. Another award was made of $3,500 to Thorne and $9,397 to the tenants. No motion was made for confirmation of that award, but the com

disbursements and counsel fees therein," and it was referred to determine the amount thereof. The amount reported by the referee was a large percentage of the amount involved, but was reasonably incurred. At Special Term an order was made denying the company's motion to amend the order of discontinuance and reference so as to restrict the allowance to respondents' simple costs, disbursements, etc. Respondents' motion. to confirm the referee's report was granted at the same term. From the latter order this appeal is taken and a purpose is expressed in the notice of appeal to bring up for review the intermediate orders referred to.

J. M. Davy, for applt.

Brown & Garfield, for respts.

Held, That the court might defeat the company's purpose to discontinue, and might make it dependent on such conditions as the court might deem reasonable, and it was usual to apply to the court for leave to discontinue. 67 N. Y., 242; 20 Wend., 618; 56 N. Y., 144; 85 id., 478, reversing 16 Hun, 57. See 75 id., 375; id., 482; 85 id., 648.

The statutory restriction upon extra allowance of costs has no application on a motion for favor. Code Civ. Proc., § 3240; 55 N. Y., 145; 85 id., 478; id., 648.

The company could not discontinue to the prejudice of respondents so that the court could not,

upon motion, assume control of the proceeding for the protection of respondents. 75 N. Y., 375: 30 Hun, 649.

Quare, Whether by voluntarily proceeding under the order of discontinuance upon the terms there prescribed, and of the reference and taking the benefits of the order, appellant has not waived the right to review that order. 3 Abb., 142; 4 id., 468; 15 Hun, 188; 25 id., 319.

The intermediate orders are permitted to be brought up for re view. Code Civ. Proc., § 1358. They are within the discretion of Special Term.

Order affirmed, with $10 costs and disbursements.

Opinion by Bradley, J.; Smith, P. J., Barker and Haight, JJ.,

concur.

ALIMONY. CONTEMPT OF

COURT.

the provisions of the R. S. before the enactment of said section of the Code.

A motion for the punishment of a defendant in an action for separation as for a contempt of court for the non-payment of alimony directed to be paid by the judgment in the action cannot be opposed upon the affidavit of such defendant that he is unable to make such payment. That is made the subjectmatter of a motion on his part by § 2286 of the Code of Civil Procedure.

Appeal from an order directing the issuing of an attachment against the defendant for contempt directed to be paid by him to of court for failing to pay alimony plaintiff by a judgment issued in the action for a separation.

The motion was opposed upon the ground that since by the judgment the right to apply for leave to issue execution for the collection of alimony unpaid was reserved to the plaintiff, she was precluded from enforcing such judgment by contempt proceedings; that § 1773 of the Code of Civ. Pro. authorizing such proceedings did not ap

N. Y. SUPREME COURT. GENERAL ply to this case, since the judgment

TERM. FIRST DEPT.

Kate T. Ryckman, respt., v. Garrett W. Ryckman, applt.

Decided Oct. 31, 1884.

The fact that a judgment entered in an action for a separation directing the payment of alimony reserves liberty to the plaintiff to apply for leave to issue execution for the collection of alimony unpaid, does not prevent the punishment of the defendant as for a contempt of court for the non-pay

ment of the alimony so directed to be paid. Section 1773 of the Code of Civil Procedure, authorizing the punishment of the defend ant for a contempt for the non-payment of alimony directed to be paid in a judgment

for separation is applicable to a case in which the judgment was recovered under

Vol. 20.--No. 6a.

had been recovered before its enactment, and that it appeared by the affidavit of the defendant, read in opposition to the motion, that he was unable to pay the alimony directed to be paid by the judg

ment.

C. E. Rushmore, for applt.
John Henry Hull, for respt.

Held, That the plaintiff was not precluded from instituting these proceedings by the provision in the judgment for the issuing of execution for the collection of unpaid alimony. 18 Hun, 466; 80 N. Y., 156; 7 Hun, 208; 70 N. Y.,

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