Plaintiff became a member of a lodge of Odd Fellows in 1849. A by-law then provided that a sick member should receive four dollars per week. The constitution and by-laws provided that a by-law might be amended by a two-third vote. Plaintiff was taken sick in 1875 and remains so. In July 1878 the by-law was amended so as to give persons who had been sick more than a year one dollar a week after that period

had expired. After July 1879, plaintiff was paid but one dollar a week. In an action for the remaining three dollars per week, Held, That plaintiff could not recover. When a rule gives a member a right of appeal he must prosecute that appeal to the highest tribunal within the society in order to entitle himself to the right to bring an action at law against the society.

Plaintiff was a member of Hudson City lodge Independent Order of Odd Fellows. The defendant is its treasurer. Plaintiff became a member in 1849. The by-laws then provided that a sick member should receive $4 a week. The constitution which he signed, and also the by-laws, provided that a by-law might be amended by a two-third vote. Plaintiff was taken sick in October, 1875, and continued so. In July, 1878, the above by-law was amended so that after a brother had enjoyed twelve months of "sick benefits," his benefit should be reduced to $1 a week. Until July, 1879, plaintiff was paid $4 a week. After that he was paid but $1 a week, which he received under protest. He sued in Oct. 1880, to recover for sixty-seven weeks $3 per week additional. Plaintiff had a verdict. J. M. Welch, for applt.

Baruhyte & Hawver, for respt. Held, The amendment operated equally on all members. For one

year after it was passed plaintiff was paid $4 per week. Hence it cannot be said that the amendment injured plaintiff any more than others. This might have been claimed had the reduction been put into effect at once. Plaintiff claims a vested right to benefits as they were in 1849. But the constitution and by-laws provide for the amendment of the by-laws. He must This has been done. take all the by-laws. He cannot select one which is favorable to him and say this is absolute and reject another which provides for a repeal. We think plaintiff cannot recover. 46 Vt. 362.

Further objection to recovery is this: The by-laws state that in all things not covered by them the constitution and general regulations shall govern. Attached to the by-laws are certain rules for subordinate lodges. Rule 1 says that the D. D. Grand Master shall decide in writing all questions of law and usage properly presented to him. Rules 4 and 5 provide for an appeal to the Grand Lodge. Rule 1 seems to include a question like the present. Plaintiff has not presented his question to the D. D. Grand Master or taken any appeal. Until the appellate tribunals have decided against him it cannot, in law, be said that the lodge has refused to pay. This doctrine is substantially recognized in 81 N. Y., 508, and 2 Daly, 329. And see 25 Alb. L. J., 33, and 27 id. 438. Without deciding whether the action of the appellate tribunal would conclude plain· tiff we think he must at any rate

Under $2944 of the Code, the County Court has power to allow an amendment of the

trial court, but there was no abuse of discretion here.

We think that an appeal from a judgment, simply, does not bring up this order for review. Code, §§ 1301, 1316. It is not a part of the proceedings before the jury which appear in a case. It is a motion to the court. And certainly if it can come up in this way, it should be specified in the notice of appeal.

Judgment affirmed, with costs. Opinion by Learned, P. J.; Boardman, J., concurs; Bockes, J., dissents.

FIRE INSURANCE. ESTOP

PEL. EVIDENCE.

court and brought there on appeal.

An appeal from a judgment does not bring up an order allowing an amendment of the answer upon terms; or, if it can come up in that manner, the order should be specified in the notice of appeal.

This was an appeal simply from a judgment. The action for work and labor was begun in justice's court and appealed to the County Court. There defendant sought to show a payment, but plaintiff objected that such a defence had not been pleaded. The court allowed defendant to amend and plead payment, on payment of $20 costs. This order is criticized. Plaintiff had a verdict.

Butts & Merritt, for applt.
Stewart & McLaughlin, for

respt.

Held, That under Code § 2944 the amendment was authorized; that the ternfs imposed were proper. The question is one for the

TERM. THIRD DEPT.

Catharine J. Wise, respt., v. The Phoenix Ins. Co., applt.

Decided Nov., 1883.

A clause in an insurance policy provided that the company might require the insured to submit to an examination of the circumstances of his alleged loss. A loss occurred, and the company before answer in this action on the policy enforced this rule. Held, that it could not thereafter claim that the policy was invalid.

For the purpose of refreshing his memory, a

witness may use an inventory made by him at the time the policy was issued of the articles insured and their values, and may testify therefrom both as to the nature and value of the articles.

Action on a policy of insurance to recover for a loss. The defence, among other things, was misrepresentations by the plaintiff when procuring the policy as to the quantity and value of the property; also over-valuation in the

submit to an examination under this clause. On the trial, to refresh her recollection, plaintiff was allowed to use an inventory of the property (600 articles), which stated not only the articles, but also their value, and she testified to their value from this inventory. Plaintiff had a verdict. Charles A. Fowler, for applt. Preston & Chipp, for respt. Held, That the defence of misrepresentations was untenable. After the loss, the defendant recognized the validity of the policy by requiring the insured to submit to an examination under it. 81 N. Y., 10. It has subjected the insured to trouble and expense under the policy, and it policy, and it cannot now claim it to be invalid. The inventory, we think, could be used both as to the kind and value of the articles. 77 N. Y., 592.

Judgment affirmed, with costs. Opinion by Learned, P. J.; Boardman and Bockes, JJ., con

cur.

gations in replevin, also stated that the goods in question had been sold on a certain day to the vendees, and that plaintiffs were induced to make the sale through false representations. It appeared that there had been dealings between the parties for more than a year previous. Held, That plaintiffs might show, under such a complaint, that from the beginning of the dealings down to the sale defendants had made to plaintiffs false statements of their resources; that such evidence was competent under the allegation of ownership in plaintiffs, and would tend to show that the title never passed to the vendees.

The action was replevin for certain cases of muslin. The complaint alleges that plaintiff's own. the goods; that defendant wrongfully detains them, and refuses to deliver them, though demanded. It also stated that the goods had originally been sold to the firm of T. & P.; that plaintiffs were induced to make the sale by the statements of T. & P. that they were abundantly able to pay for all their purchases, whereas in fact said T. & P. were then insolvent; that about two months after the sale T. & P. made an assignment to defendant, which, among other things, conveyed this property; and that no part of the purchase price had been paid. The sale in question was in October, 1881; but it appeared that between

tiffs had made fourteen other sales to T. & P. On the trial plaintiffs offered to show that in March, 1880, and before the first sale, T. & P. stated to plaintiffs that they were worth $45,000 to $70,000, and made confirmatory statements

down to the last sale; while in

EXECUTORS. PROMISE.

fact they were insolvent, and the

the first. The evidence was excluded.

Hall & McGregor, for applts.
N. Davenport, for respt.

Held, Error. Under the pleadings the main issue was the ownership. The action was not for damages for the fraud. The complaint would be good if the allegations of fraudulent statements were omitted; and we may remark that the time at which these statements were made is not stated in the complaint; they are merely stated to have been made. Plaintiffs to sustain their allegation of ownership would necessarily have to show that the sale to T. & P. was void. If, for instance, T. & P. bought without any intention of paying and with a fraudulent design to obtain possession, it might be held that they got no title. In this view the evidence was proper. That, in the case of continuous dealing, representations made by the buyer long previously may be proved, although the goods then purchased had been paid for. See 1 Keyes, 432; 2 id., 655; 13 N. Y., 322; 24 id., 139. If T. & P. were from the first insolvent and their statements from the first untrue, there would be strong evidence that the purchase was fraudulent.

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

Opinion by Learned, P. J.; Bockes, J., concurs; Boardman, J., not acting.

TERM. THIRD DEPT.

Edgar Bull, applt., v. Elizabeth Bull, ex'rx, respt.

Decided Nov., 1883.

When a testator proposed to add a codicil to his will providing for his nephews, but was deterred by his executor, who said he would pay to them the intended legacies, and the executor was not a beneficiary under the will in any manner, Held, That he was not personally liable upon his promise, and especially not where it was understood between him and the testator that the legacies were to be paid from the estate of the latter. If a promise by an executor, under such circumstances, can be held to impose a trust upon the testator's estate, such trust can be enforced only against the estate of the testator.

One Franklin Bull made a will, by which the major part of his property ($15,000) was left to the children of his brother George, as residuary legatees, and George was made one of his executors. Shortly before his death, and during his last sickness, he determined to change his will and leave $500 to each of six nephews, and directed a lawyer to be sent for. This determination was made known to George, who thereupon said to the testator that he need not not trouble himself to make a codicil; that he, George, would pay to each of said nephews. It was understood between the testator and George that said sums were to be paid by the latter out of the testator's estate. George Bull died, and this action is by plaintiff as assignee of the claims

of all the nephews. No attempt

MENT.

Lansing & Lyman, for applt.
G. A. Forbes, for respt.

Held, That the action could not be maintained. We think the evidence sustains the finding that the payment was to be made out of the testator's estate. The residuary legatees refused to allow it to be made.

them.

If the promise had the effect to impose a trust upon the estate of Franklin, then such trust must be enforced against his surviving executor. If, on the other hand, it was a promise to pay personally, then, as George was not a legatee or devisee, he did not divert, by this promise, to his own benefit anything from the nephews. He practiced no fraud on Where a promise of this sort has been enforced, the promisor has always been a person who, by descent, devise or bequest, has received from the decedent property out of which the proposed devise or legacy would have come; which proposed devise or legacy was prevented by the promise of the person thus held liable. See the reason of the rule in 18 N. Y., 549. And if George was not presonally liable, then his estate is

not.

Judgment affirmed, with costs. Opinion by Learned, P. J.; Boardman and Bockes, JJ., con

cur.

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

The Flour City Natl. Bank of Rochester, respt., v. George Garfield, assignee, applt.

Decided Oct. 1883.

Where the owner of wheat shipped it to commission men, and made a draft against the consignees, which he got discounted by plaintiff upon informing the latter of the consignment, the discount being made upon the credit of the wheat and plaintiff relying upon the avails thereof for the ac ceptance and payment of the draft; and the shipper became insolvent and his assignee seized the wheat in transit, and the drawees refused to accept the draft, Held, That plaintiff has an equitable lien against the avails of the wheat, for payment of the draft, in preference to other creditors.

Appeal from portions of a judgment entered on referee's report.

Action to secure a decree declaring a lien in plaintiff's favor on certain funds in defendant's hands as assignee for the benefit of creditors of one Jeffrey Harwood, survivor of the partnership of S. & J. Harwood. The judgment upheld the lien as claimed, and directed its payment. When S. Harwood died, April 17, 1881, the firm owned a quantity of wheat in their warehouse. May 23, Jeffrey Harwood shipped the same by canal to Ege & Otis, commission merchants. A bill of lading was prepared in the usual. form, signed by the master of the canal-boat, and by Harwood in the firm name; and it gave the quantity and variety of wheat, but made no mention on whose ac

On