tor, after due presentment made for payment and due notice given to plaintiff of the fact. The fraud alleged consisted in false representations as to the pecuniary condi P. J., and Bradley, J., concur; EVIDENCE. TERM. FIFTII Dept. tion and solvency of defendant's N. Y. SUPREME COURT. GENERAL firm and its members, by which plaintiff was induced to endorse the drafts; and upon this issue the jury found for plaintiff, establishing the fact of fraud. One of the defenses was the statute of limitations, defendants claiming that the statute run from the time of the endorsement and not from the time of the maturity of the drafts and the charging of plaintiff as endorser. J. G. Record, for applts. Held, That the statute did not commence to run until after the drafts matured and plaintiff became chargeable as endorser. An action for fraud cannot be maintained unless damage has been sustained. An endorser's liability depends upon his being charged as such. If when the draft matured payment had not been demanded of the acceptor, and proper notice given to the endorser, he never would have been liable upon the drafts, and no legal damage would be inflicted upon him. A cause of action, therefore, did not arise until after the maturity of the draft and the charging of plaintiff as endorser. 2 Caines, 343; 12 N. Y., 313; 1 id., 413; 73 id., 305; 40 Barb., 320; 56 Barb., 598; 3 Cush., 145-149. Order affirmed. Solomon Longyear, respt., v. The U. S. Life Ins. Co., applt. Decided Oct., 1884. Where plaintiff relies wholly upon the testimony of himself and his wife, defendant has the right to demand that their evidence, though uncontradicted, should be passed upon by the jury. Appeal from judgment on verdict at Circuit directed by the court in plaintiff's favor. This appeal presents substantially the same questions on the merits as those in the case of King against this same defendant. post. The evidence is the same in all essential particulars. At the close of the evidence defendant moved for non-suit, which was denied. Thereupon defendant asked permission to go to the jury upon the questions of fact, which was refused, and defendant excepted. Hegeman & Buell, for applt. Held, Error. The evidence upon which plaintiff relied to show that there was no contract made and completed, and that there was no legal delivery to him of the contract, was given by himself and his wife. Although it was not directly disputed by other evidence, yet, as they were interested witnesses, the opposing party had the Opinion by Corlett, J.; Smith, right to demand that the credibil ity of their evidence be submitted to the jury. 68 N. Y., 464. New trial granted; costs to abide event. Opinion by Barker, J.; Smith, P. J., Haight and Bradley, JJ., concur. NEGLIGENCE. REVIVOR. N.Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Rhodella Kelsey et al., admrs., respts., v. Hugh J. Jewett, receiver, applt. Decided Oct., 1884. An action for personal injuries does not survive the death of the injured party. If a verdict for personal injuries is set aside and plaintiff dies before another trial, the cause of action abates. Action for injuries to the person of the intestate, alleged to have been caused by defendant's negligence. The intestate, before his death, recovered a verdict herein, and upon appeal the judgment entered thereon was reversed and a new trial was granted, shortly cases like this the common law rule that rights of action founded in tort died with the death of the injured party is unchanged. 75 N. Y., 192; 31 Hun, 358. The verdict having been set aside, and plaintiff having died, the cause of action abated. The sole purpose of 764, Code Civ. Proc., as amended, is to save to the estate of a deceased party the verdict, report or decision which may have been rendered in his favor before his death. After a verdict has been set aside as void or erroneous, the case stands the same as if none had been rendered. 17 Wend., 208; 72 N. Y., 488; 11 Abb. Pr., 105; 11 Abb. Pr., N.S., 2; 57 N. Y., 527; 43 How. Pr., 97; 4 Hun, 176. Judgment overruling demurrer reversed, demurrer sustained, and judgment absolute ordered for defendant, with costs. Opinion by Barker, J.; Smith, P. J., Bradley and Corlett, JJ., concur. NEGLIGENCE. before which the original plaintiff N. Y. SUPREME COURT. GENERAL died. The present plaintiffs were substituted with leave to file a supplemental complaint, to which complaint defendant demurred. The demurrer was overruled, with leave to answer. Judgment was entered thereon, from which defendant appeals. Sprague, Morey & Sprague, for applt. W. S. Oliver, for respts. Held, That plaintiffs had no cause of action at the time of filing the supplemental complaint. In TERM. FIFTH DEPT. Amelia A. Bartholomew, respt., v. The N. Y. C. & H. R. RR. Co., applt. Decided Oct., 1884. Where a passenger, in the exercise of ordinary care and observation, was induced to believe, by the announcement of the station and to change cars, and by appearances created by the acts of the employees, that the train had come to a full stop for the discharge of passengers (though it had not, in fact), and proceeded to the platform, in the dark, for the purpose of alighting, but was thrown therefrom by the sudden start ing or violent jerking of the train, Held, That the case was properly submitted to the jury, to determine whether negligence existed on the part of the defendant, and whether plaintiff was free from negligence, under the circumstances of the case. for the jury, under the circumstances, to determine whether the train had stopped and whether the statement of the conductor, in connection with the announcement of the brakeman, did not amount to an instruction to plaintiff to make preparations to leave the Appeal from order denying motion for a new trial, made upon a case and exceptions. Action to recover for personal train and to go to the platform for injuries. When the train upon which plaintiff was riding had nearly reached Rochester, in the nighttime, she inquired of the conductor, and he informed her that she must change cars at that place and take the second right-hand train. Soon after the train slackened up, and the brakeman called, "Rochester; change cars;" the train stopped, and the passengers arose and proceeded to get off the cars; plaintiff arose the last one, and when she got upon the platform of the car the train gave a violent jerk, which threw her off and under the wheel, crushing her foot. This was the substance of her testimony. Two witnesses swore that the train gave a violent jerk, and one testified that the train had actually stopped. There was no conflict of evidence that most of the passengers arose and started for the platform as stated by plaintiff. In fact, the depot had not then been reached, but was some distance away; but it did not appear that any information was given by the employees that the place to alight had not been reachel. Edward Harris, for applt. that purpose, and whether those circumstances and the manner of handling the train were not such as to induce the plaintiff to believe that the train had stopped, even though it had not, and to act upon the appearances created and produced by defendant's employees. If plaintiff was on the platform, under the circumstances stated, she was rightfully there, and it was negligence on defendant's part, without giving any notice or warning, to suddenly start or violently jerk the train so as to throw her off. The facts were sufficient to warrant the jury in finding that plaintiff was not guilty of contributory negligence. The verdict cannot be disturbed as against the evidence. If the plaintiff, in the exercise of ordinary care and caution, was induced to believe by the appearances produced by the acts of defendant that the train had stopped for the discharge of passengers, she was not guilty of negligence in acting accordingly upon the invitation or instruction to alight, and the court properly instructed the jury to that effect. Order affirmed. Opinion by Corlett, J.; Barker and Bradley, JJ., concur; Smith, P. J., not sitting. FRAUDULENT CONVEY ANCE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Mulford Vial, respt., v. Elijah Mathewson, impleaded, applt. Decided Oct., 1884. If a grantee is innocent of any fraudulent intent and without knowledge of outstanding equities and pays a valuable consideration he is entitled to protection at least to the extent of the amount paid, as against the creditors of the grantor, notwithstanding there were other considerations that were void as to creditors-e. g., agreeing to sup port a parent grantor. In such cases the conveyance should not be declared absolutely void as being in fraud of creditors, but the most that can be done is to direct a sale subject to the amount paid by the purchaser; the creditors' remedy to be limited to the value of the land beyond that. Where the evidence on the part of the grantee showed that he paid certain valuable considerations exceeding the value of the land, and had no knowledge of plaintiff's claim against the grantor, but the referee omitted to find specifically whether all such considerations were or were not paid, or whether plaintiff had had such knowledge, or to find the value of the whole land, but found as a conclusion of law that the deed as to a certain portion of the land was fraudulent and void as to creditors, because one of the consid erations was void, the report was set aside. Appeal by defendant Elijah from a judgment entered upon the report of a referee. The action was in the nature of a creditor's bill to set aside a conveyance of property as fraudulent. On the third day of January, 1878, one Putnam and defendant, Daniel (as surety), executed a note for $500, payable to plaintiff one year from date, upon which he recovered judgment against Daniel alone after default in payment, but execution was returned nulla bona. On the 16th October, 1878, Putnam conveyed 48 acres of land to Daniel, in consideration of the payment of certain notes which he had signed as surety for him, and the referee found that plaintiff's note was therein included. On the 21st of the same month Daniel was the owner of 179 acres of land which the referee found to be worth $4,000, subject to a mortgage of $3,250, and on that day conveyed the same to his son, Elijah, who was then married, thirty-six years of age, living with his father, for whom he had worked for many years, and who was indebted to him therefor, as the referee found, in the sum of $1,890. The evidence tended to show that the consideration for such conveyance was said debt of $1,890, the assumption of said mortgage, and the payment of certain debts owing by Daniel to the amount of $800. The referee found that the consideration was the assumption of said mortgage and the payment of notes (of which plaintiff's was not one) to the amount just stated and their actual payment; but did not find whether said debt of $1,890 was or not any part of the consideration. Defendant's evidence showed that Elijah knew nothing of plaintiff's note until long after he took the deeds and made all the payments, and had no notice of any other debts owing by Daniel. But the referee omitted to find either way on this question. There was conflicting evidence as to the value of the 48 acres, and the referee omitted to find the same; but he did find that after the purchase | whole land was worth, including Elijah sold it for $1,200. The the 48 acres; but the referee makes referee found that in addition to no finding against this evidence, the other considerations Elijah nor does he find that Elijah did agreed to support his parents dur- not own the farm stock. ing their lives, both of whom were advanced in years. Evidence was given tending to prove that Elijah owned, and had owned for many years, all the stock on the farm; but the referee made no finding on that question. As a conclusion of law he found that the deed of the 179 acres was fraudulent and void as against creditors, but reached no conclusion as to the 48 acres or the personal property. John G. Record, for applt. Julius A. Parsons, for respt. Held, Error. An examination of the evidence and the referee's report makes it clear that he was of the opinion that Elijah's agreement to support his parents, as a part of the consideration, made the conveyance void as against creditors, without regard to the other considerations paid by him, or whether he had knowledge at the time of the purchase of any other indebtedness owing by his father except such as he paid or assumed to pay, relying probably on 66 N. Y., 374-382; 11 Wend., 187; 9 Cowen, 73-85, and that class of cases. Otherwise, the referee would have passed on the questions of fact which he omitted. The findings made and the omissions to find clearly show that such was the conclusion he reached. In reaching such conclusion he fell into error. The evidence on the part of defendants shows that Elijah paid more than what the Vol. 20.-No. 8. The rule is well established that where a grantee is innocent of any fraudulent intent, and pays a valuable consideration without knowledge of outstanding equities, the conveyance cannot be held absolutely void. The most that can be done is to direct a sale subject to the amount paid by the purchaser. 16 Hun, 168; 20 Hun, 492; 87 N. Y., 620-622. Fraud is not to be presumed. 52 N. Y., 274. If in the present case it should be found that defendant Elijah occupied that position he is entitled to protection to the extent of the consideration paid, and a creditor's remedy would be confined to the value of the land beyond that. Neither the findings of fact nor conclusions of law were sufficient to present this question. Judgment reversed and new trial ordered before another referee. Opinion by Corlett, J.; Smith, P. J., Barker and Bradley, JJ., concur. |