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Plaintiff became a member of a lodge of Odd year after it was passed plaintiff Fellows in 1849. A by-law then provided

was paid $4 per week. Hence it that a sick member should receive four

cannot be said that the amend. dollars per week. The constitution and by-laws provided that a by-law might be

ment injured plaintiff any more amended by a two-third vote. Plaintiff than others. This might bave was taken sick in 1875 and remains so. In

been claimed had the reduction July 1878 the by-law was amended so as to

been put into effect at once. Plaingive persons who had been sick more than a year one dollar a week after that period tiff claims a vested right to benehad expired. After July 1879, plaintiff was

as fits as they were in 1849. But the paid but one dollar a week. In an action constitution and by-laws provide for the remaining three dollars per week,

for the amendment of the by-laws. Held, That plaintiff could not recover.

He must When a rule gives a member a right of This has been done. appeal he must prosccute that appeal to the take all the by-laws. He cannot bighest tribunal within the society in order

select one which is favorable to to entitle himself to the right to bring an

him and say this is absolute and action at law against the society.

reject another which provides for Plaintiff was a member of Hud- a repeal. We think plaintiff canson City lodge Independent Order not recover. 46 Vt. 362. of Odd Fellows. The defendant Further objection to recovery is is its treasurer. Plaintiff became this: The by-laws state that in all a member in 1849. The by-laws things not covered by them the then provided that a sick member constitution and general regnlashould receive $4 a week. The tions shall govern.

tions shall govern. Attached to constitution which he signed, and the by-laws are certain rules for also the by-laws, provided that a subordinate lodges.

subordinate lodges. Rule 1 say's by-law might be amended by a that the D. D. Grand Master shall two-third vote. Plaintiff was taken decide in writing all questions of sick in October, 1875, and con- law and usage properly presented tinued so.

In July, 1878, the to him. Rules 4 and 5 provide above by-law was amended so that for an appeal to the Grand Lodge. after a brother had enjoyed twelve Rule 1 seems to include a question months of "sick benefits,” his like the present. Plaintiff has benefit should be reduced to $1 a not presented his question to tlie week. Until July, 1879, plaintiff D. D. Grand Master or taken any was paid $4 a week. After that appeal. Until the appellate tribhe was paid but $1 a week, which unals have decided against him it he received under protest. He cannot, in law, be said that the sued in Oct. 1880, to recover for lodge has refused to pay. This sixty-seven weeks $3 per week ad- doctrine is substantially recogditional Plaintiff had a verdict. nized in 81 N. Y., 508, and 2 Daly,

329. And see 25 Alb. L. J., 33, J. M. Welch, for applt.

and 27 id. 438. Without deciding Baruhyte & Harover, for respt. whether the action of the appel

Held, The amendment operated late tribunal would conclude plain: equally on all members. For one tiff we think he must at any rate

It is a

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first seek redress within the society trial court, but there was no abuse itself by carrying the question to of discretion here. its highest tribunal.

We think that an appeal from a Judgment reversed, new trial judgment, simply, does not bring granted, costs to abide event. up this order for review. Code,

Opinion by Learned, P. J.; SS 1301, 1316. It is not a part of Boardman and Bockes, JJ., con- | the proceedings before the jury cuir.

which appear in a case.

motion to the court. And cerPLEADINGS. AMENDMENT. tainly if it can come up in this APPEAL.

way, it should be specified in the

notice of appeal. N. Y. SUPREME COURT. GENERAL

Judgment affirmed, with costs. TERM. THIRD DEPT.

Opinion by Learned, P. J.; Robert Ferguson, respt.,' v.

Boardman, J., concurs ; Bockes, Catherine McDonough, appli.

J., dissents. Decided Nov., 1883.

FIRE INSURANCE. ESTOP. Under $ 2944 of the Code, the County Court

PEL. EVIDENCE. has power to allow an amendment of the pieadings in an action begun in justice's N. Y. SUPREME COURT. GENERAL court and brought there on appeal.

TERM. TURD DEPT. An appeal from a judgment does not bring

up an order allowing an amendment of the Catharine J. Wise, respt., v. answer upon terms; or, if it can come up The Phenix Ins. Co., applt. in that manner, the order should be specified in the notice of appeal.

Decided Nov., 1883. This was an appeal simply from A clause in an insurance policy provided a judgment. The action for work that the company might require the insured and labor was begun in justice's

to submit to an examination of the circum

stances of his alleged loss. A loss occurred, court and appealed to the County

and the company before answer in this acCourt. There defendant sought tion on the policy enforced this rule. Held, to show a payment, but plaintiff that it could not tliereafter claim that the objected that such a defence had policy was invalid.

For the purpose of refreshing his memory, a not been pleaded. The court al

witness mily use an inventory made by hiin lowed defendant to amend and

at the time the policy was issued of the plead payment, on payment of $20 articles insured and their values, and may costs. This order is criticized.

testify therefrom both as to the nature and

value of the articles. Plaintiff had a verdict.

Butts & Merritt, for applt. Action on a policy of insurance

Stewart & McLaughlin, for to recover for a loss. The defence, respt.

among other things, was misrepreHeld, That under Code $ 2944 sentations by the plaintiff wlien the amendment was authorized ; procuring the policy as to the that the ternts imposed were prop- quantity and value of the proper. The question is one for the lerty; also over-valuation in the proofs of loss. A clause of the Decided Nov., 1883. policy provided that the company

A complaint which contained the usual allemight require the insured to sub

gations in replevin, also stated that the mit to an examination by it as to goods in question had been sold on a certhe circumstances of the loss, &c.

tain day to the vendees, and that plaintiffs

were induced to make the sale through Before service of answer herein,

false representations. It appeared that defendant required plaintiff to there had been dealings between the parsubmit to an examination under ties for more than a year previous. Held, this clause. On the trial, to re- That plaintiffs might show, under such a fresh her recollection, plaintiff

complaint, that from the beginning of the

dealings down to the sale defendants bad was allowed to use an inventory

made to plaintiffs false statements of their of the property (600 articles), resources ; that such evidence was compewhich stated not only the articles,

tent under the allegation of ownership in but also their value, and she testi

plaintiffs, and would tend to show that the

title never passed to the vendees. fied to their value from this inventory. Plaintiff had a verdict. The action was replevin for cerCharles A. Fowler, for applt. tain cases of muslin.

The comPreston & Chipp, for respt.

plaint alleges that plaintiffs own Held, That the defence of mis- the goods ; that defendant wrongrepresentations was untenable. fully detains them, and refuses After the loss, the defendant re- to deliver them, though demanded. cognized the validity of the policy It also stated that the goods had by requiring the insured to sub- originally been sold to the firm of mit to an examination under it. T. & P.; that plaintiffs were in81 N. Y., 10. It has subjected duced to make the sale by the the insured to trouble and ex- statements of T. & P. that they pense under the policy, and it were abundantly able to pay for cannot now claim it to be invalid. all their purchases, whereas in

The inventory, we think, could fact said T. & P. were then insolbe used both as to the kind vent; that about two months after and value of the articles. 77 N. the sale T. & P. made an assignY., 592.

ment to defendant, which, among Judgment affirmed, with costs. other things, conveyed this prop

Opinion by Learned, P. J.; erty ; and that no part of the purBoardman and Bockes, JJ., con- chase price had been paid. The cur.

sale in question was in October,

1881; but it appeared that between REPLEVIN. PLEADING. EVI- that date and March, 1880, plain

tiffs had made fourteen other sales DENCE.

to T. & P. On the trial plaintiff's N. Y. SUPREME COURT. GENERAL offered to show that in March, TERM. THIRD DEPT.

1880, and before the first sale, T. Lemuel Coffin et al., applts., v. & P. stated to plaintiffs that they William H. Hollister, assignee, were worth $45,000 to $70,000, and respt.

made confirmatory statements Vol. 18.-No. 6a.

down to the last sale; while in

EXECUTORS. PROMISE. fact they were insolvent, and the representations were untrue from N. Y. SUPREME COURT. GENERAL the first. The evidence was ex

TERM. THIRD DEPT. cluded.

Edgar Bull, applt., v. Elizabeth Hall & McGregor, for applts. Bull, ex'rx, respt. N. Davenport, for respt. Held, Error. Under the plead

Decided Nov., 1883. ings the main issue was the own- When a testator proposed to add a codicil ership. The action was not for to his will providing for his nephews, but damages for the fraud. The com

was deterred by his executor, who said

he would pay to them the intended legaplaint would be good if the alle

cies, and the executor was not a beneficiary gations of fraudulent statements under the will in any manner, Held, That were omitted ; and we may remark he was not personally liable upon his promthat the time at which these state

ise, and especially not where it was under

stood between him and the testator that the ments were made is not stated in

legacies were to be paid from the estate of the complaint ; they are merely the latter. If a promise by an executor, stated to have been made. Plain- under such circumstances, can be held to tiffs to sustain their allegation

impose a trust upon the testator's estate, of ownership would necessarily

such trust can be enforced only against the

estate of the testator. have to show that the sale to T. & P. was void. If, for instance, One Franklin Bull made a will, T. & P. bought without any inten- by which the major part of his tion of paying and with a fraudu- property ($15,000) was left to the lent design to obtain possession, it children of his brother George, as might be held that they got no residuary legatees, and George was title. In this view the evidence made one of his executors. Shortly was proper. That, in the case of before his death, and during his continuous dealing, representa last sickness, he determined to tions made by the buyer long pre- change his will and leave $500 viously may be proved, although to each of six nephews, and dithe goods then purchased had rected a lawyer to be sent for. been paid for. See 1 Keyes, 432; This determination

made 2 id., 655 ; 13 N. Y., 322 ; 24 id., known to George, who thereupon 139. If T. & P. were from the said to the testator that he need first insolvent and their state- not trouble himself to make a ments from the first untrue, there codicil; that he, George, would would be strong evidence that the pay to each of said nephews. It purchase was fraudulent.

was understood between the testaJudgment reversed and new trial tor and George that said sums granted, costs to abide event. were to be paid by the latter ont

Opinion by Learned, P. J.; of the testator's estate. George Bockes, J., concurs ; Boardman, Bull died, and this action is by J., not acting.

plaintiff as assignee of the claims of all the nephews. No attempt

was

was

has ever been made to collect the DRAFT. EQUITABLE ASSIGNclaim out of Franklin Bull's es.

MENT. tate. Plaintiff

non-suited

N. Y. SUPREME COURT. GENERAL below.

TERM. FOURTH DEPT. Lansing & Lyman, for applt.

The Flour City Natl. Bank of G. A. Forbes, for respt.

Rochester, respt., v. George GarHeld, That the action could not field, assignee, applt. be maintained. We think the

Decided Oct. 1883. evidence sustains the finding that the payment was to be made out where the owner of wheat shipped it to comof the testator's estate. The re

mission men, and made a draft against the siduary legatees refused to allow

consignees, which he got discounted by

plaintiff upon informing the latter of the it to be made.

consignment, the discount being made If the promise had the effect to upon the credit of the wheat and plaintiff impose a trust upon the estate of relying upon the avails thereof for the ac. Franklin, then such trust must be

ceptance and payment of the draft ; and

the shipper became insolvent and his asenforced against his surviving ex

signee seized the wheat in transit, and the ecutor. If, on the other hand, it drawees refused to accept the draft, Held, was a promise to pay personally,

That plaintiff has an equitable lien against then, as George was not a legatee or

the avails of the wheat, for payment of the

draft, in preference to other creditors. devisee, he did not divert, by this promise, to his own benefit any- Appeal from portions of a judgthing from the nephews.

He ment entered on referee's report. practiced no fraud on

them.

Action to secure a decree deWhere a promise of this sort has claring a lien in plaintiff's favor been enforced, the promisor has

on certain funds in defendant's always been a person who, by de hands as assignee for the benefit scent, devise or bequest, has re- of creditors of one Jeffrey Harceived from the decedent property wood, survivor of the partnership out of which the proposed devise of S. & J. Harwood. The judgor legacy would have come; which ment upheld the lien as claimed, proposed devise or legacy was pre- and directed its payment. When vented by the promise of the per S. Harwood died, April 17, 1881, son thus held liable. See the the firm owned a quantity of reason of the rule in 18 N. Y., wheat in their warehouse.

On 519. And if George was not pre- May 23, Jeffrey Harwood shipped sonally liable, then his estate is the same by canal to Ege & Otis, not.

commission merchants. A bill of Judgment affirmed, with costs. lading was prepared in the usual

Opinion by Learned, P. J.; form, signed by the master of the Buardman and Bockes, JJ., con- canal-boat, and by Harwood in the cur.

firm name; and it gave the quan. tity and variety of wheat, but made no mention on whose ac

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