classed among misdemeanors un der the term malicious mischief." WILL. PROBATE. John Van Rensselaer, District N. Y. SUPREME COURT. GENERAL Attorney, for People. W. J. Miner, J. S. L' Amoreaux and H. L. Grose, for deft. Held, That defendant was entitled to have the jury instructed in substance as requested. To constitute larceny there must have been a felonious intent, animo furandi or lucri causa. Whart. Cr. Laws, $$ 1781-4. The malicions killing of a horse is a misdemeanor. Penal Code, § 654; 2 R. S., *695, and Ch. 682, Laws of 1836. It has frequently been held to be a misdemeanor of the nature of malicious mischief to kill an animal belonging to another, though it has never been held larceny so to kill and take unless some benefit was expected by the taker. Whart. Cr. Law, § 1784; 1 Mass., 59; 5 Cow., 258; 19 Wend., 420. It was a serious matter for defendant whether he should be convicted of grand larceny upon facts which he claimed could only constitute malicious mischief. He had the right to have the distinction pointed out to the jury. He requested it, but it was not done, and defendant may have been convicted of a felony while the facts and the charge were equally applicable to a misdemeanor. Judgment and conviction reversed and new trial granted. Opinion by Boardman, J.; Bockes, J., concurs; Learned, P. J., dissents. TERM. THIRD DEPT. In re will of Samuel Cottrell. A will may be admitted to probate against the testimony of the subscribing witnesses upon other evidence satisfactory to the surrogate. Appeal from the decree of the surrogate of Rensselaer County, admitting to probate the will of Samuel Cottrell, deceased. Both of the subscribing witnesses deny having signed the will, and deny that the testator signed the will in their presence, or that he requested them to sign the will as witnesses. The attestation clause embraced all the requirements of the statute. The testator made out the will in his own handwriting. James Lansing, for applts. Robert H. McLellan, for respts. Held, That in a proper case a will may be admitted to probate against the testimony of the subscribing witnesses, but upon other evidence satisfactory to the surrogate. Code Civ. Pro., § 2620; 2 Bradf., 226; 52 N. Y., 517; 25 N. Y., 422; 2 Barb. Ch., 40; 91 We think the will N. Y., 255. was properly admitted to probate. The evidence of the genuineness of the subscribing witnesses' signatures is quite satisfactory. And what is the result should we, on the contrary, believe the subscribing witnesses? It would follow that such signatures were forged; that they were forged by Cottrell; that such forgery was needless, him. The order also provided that the report might be brought on for confirmation upon eight days' notice. Under that order foolish, and suicidal; that it defeated his recognized purpose, and that no motive can be assigned for such an act. Decree affirmed, with costs against the referee proceeded to a hearing appellants. Opinion by Boardman, J.: Learned, P. J., and Bockes, J., concur. SURROGATES. REFEREES. N. Y. SUPREME COURT. GENERAL In re final accounting of Renben Leffingwell, adm'r. Decided Oct., 1883. In the settlement of an administrator's account, the Surrogate referred the matter to a referee; the referee made his report, and its confirmation was regularly moved for before the Surrogate, who confirmed it, and no exceptions were taken to the same until some seven weeks afterwards. Held, That the Surrogate had no alternative but to direct an order for confirmation, and and determination of all questions raised by either party upon the settlement of the account. No objection was taken before either the referee or the Surrogate that the referee was not warranted by the order in hearing and determining such questions. The referee's report and the evidence taken by him were filed Nov. 1, 1881, and two days later a copy of the report, with notice of filing, was served on the administrator's attorney. On December 3, 1881, the matter was brought before the Surrogate upon the referee's report and the evidence, on due notice, and the decree appealed from was made on that day. No exceptions were served or filed until Jan. 23, 1882, when the administrator's attorney an appeal from his decision brings up filed a paper purporting to contain nothing for review. Administrator's appeal from Surrogate's decree confirming report of referee appointed by the Surrogate to examine and report upon said administrator's account and ordering said administrator to pay a certain sum to Mary E. Westcott, respondent. The proceedings in which the decree appealed from was entered were begun after Sept. 1, 1880. By the terms of the order of reference the administrator's account and the exceptions filed thereto were sent to the referee "to examine and report thereon," and to bring in the evidence taken by exceptions to the report of the referee and also to the Surrogate's decree. A. H. Sawyer, for applt. McCartin & Williams, for respt. Held, That if there was any error in the action of the referee in hearing and determining the questions raised upon settlement of the account, it was waived. The Surrogate's decree, therefore, properly recites that the account and objections were referred to the referee to examine and report thereon and to "hear and determine all disputed matters relating to the questions raised" thereby : and the reference is to be regarded as having had that scope for the purposes of this discussion. The exceptions were too late and were ineffectual for any purpose. The referee had the same power as if appointed by this court for the trial of an issue of fact in an action. Code Civ. Pro., § 2546, 17, 2; Sup. Ct. Rule 30; 22 Barb., 319. No exceptions having been taken to the referee's report when confirmation was moved for before the Surrogate, that officer had no alternative but to direct the entry of an order for confirmation; and, no question as to the correctness of the report having been raised before him, the appeal from his decree brings up no question for review. Appeal dismissed, with costs. Opinion by Smith, P. J.; Hardin and Barker, JJ., concur. This action was brought to foreclose a mortgage executed by M. and wife to plaintiff, an association organized under the act for the incorporation of "building, mutual loan and accumulating fund associations," Chap. 122, Laws of 1851, as amended by Chap. 564, Laws of 1875. R. was made a party as a subsequent incum brancer. It was proved that plaintiff was organized April 1, 1876, and the number of its shares limited to 1,000, at $125 each. Plaintiff's constitution provides that "its members shall be such persons who have signed the constitution, and have subscribed for one or more shares, or who have received loans from the association." Article 7 provides that "every member receiving a loan from the association binds himself to pay a weekly contribution of twenty-five cents interest for every share so received, and for such a time as shall be required to pay the holder of every share $125, including the premium allowed by such shareholder." Article 23 provides that, "if each and every member shall have received for each and every share the sum of $125, deducting therefrom the premium paid by his own consent, then this association shall cease and determine and all mortgages and other securities shall be discharged." Plaintiff had received enough dues from its members to make the loan to M. in August, 1876. On June 11, 1877, M. stopped making any payments on his bond and mortgage or as a member of the association. This action was commenced in July, 1878. Defendant claimed that M. was bound to pay upon his bond and mortgage his weekly dues and interest only until the association had received money enough to redeem all the outstanding shares, and that it was incumbent upon plaintiff to prove that there were shares outstanding and the amount required to redeem them. 0. O. Cottle, for applt. Adelbert Moot, for respt. Held, That the proof was prima facie sufficient to show that when defendant ceased payment enough had not been received by plaintiff to redeem the shares; that the evidence was at least sufficient to throw upon defendant the burden of showing, if she could, that all the outstanding shares had in some way been redeemed, so as to entitle M. to have the mortgage discharged. The mortgage was given to secure the payment of the precise sum advanced or loaned to M., to wit $1,875. The plaintiff's constitution provided that "in case there are several members applying for a loan at the same time said loan shall be given to the member paying the highest premium therefor to the benefit of the association." M. paid for his loan a premium of $630, which was paid out of the $1,875, and the balance only was paid to M. The mortgage provides that "if the contributions, interest, dues and penalties herein specified shall at any time remain due and unpaid for the space of three months, then and in that case, the whole sum of $1,875, and the interest due thereon and all dues, fines and penalties owing by the said Meier to said association by the terms of the constitution, rules and regulations thereof shall be deemed due and may be collected." The trial court took the sum of $1,875 as the basis of its calculation. Held, No error; that the taking of a premium was sanctioned by the act of 1851 as amended by Chap. 564 of the Laws of 1875 and did not render the loan usurious. This is a case where the whole of a specified sum becomes due because the partial payments are not made as stipulated, and the principles of law which authorize courts of equity sometimes to relieve from forfeiture do not apply. The complaint alleged that the plaintiff is a corporation created by and under an act of the Legislature of this State, entitled "An Act to incorporate mutual loan and accumulating fund associations," passed April 10, 1851, and the several acts amendatory thereof and supplementary thereto. The answer in reference to these allegations simply alleges that the defendant has no knowledge or information sufficient to form a belief as to whether the plaintiff is a corporation or not, created by or under the laws referred to. Held, That this was not sufficient to put plaintiff upon proof of its corporate existence. Laws 1875, Chap. 508, Code of Civ. Pro., § 1776. The allegation of the answer was not tantamount to an affirmative allegation that the plaintiff is not a corporation. Judgment of General Term, affirming judgment of foreclosure and sale, affirmed. Opinion by Earl, J. All con cur. CONTRACT. TENDER. N. Y. COURT OF APPEALS. vided for by the contract, and no tender was made by them to defendants of the price of the alcohol. Upon the trial one of plaintiffs' witnesses testified that he called on their behalf upon defendants at their office, December 31, 1879, and had an interview. with one of the defendants; that he told them he appeared there at the request of W., one of the Woolner et al., applts, v. Hill plaintiffs, and wanted to know if et al., respts. Decided Oct. 26, 1883. Defendants contracted to deliver to plaintiff alongside vessel 500 bbls. alcohol per month, C. O. D., provided name of vessel and number of pier were previously made known to them. In an action for nondelivery it appeared that plaintiffs' agent inquired of defendants if it was necessary for his principals to do anything by way of tender or performance to keep the contract alive and was informed it was not. Held, That it was sufficient that plaintiffs were ready and willing to pay the contract price of the alcohol when delivered and no tend er was necessary; that an assignment by defendants for the benefit of creditors re lieved plaintiffs from making a tender and that evidence of a waiver of tender and of it was necessary for plaintiffs to Albert B. Boardman, for applts. Held, That it was sufficient that plaintiffs were ready and willing to pay the contract price of the alcohol when delivered, and no tender was necessary. 1 Hill, 519; 5 N. Y., 155; 8 N. Y., 188; 67 id., 129. It appeared that defendants plaintiffs' readiness to perform was admis- made a voluntary assignment for sible. This action was brought to recover damages for the non-delivery of 2,500 barrels of alcohol under a contract which provided that the alcohol should be delivered alongside of the buyers' vessel at the rate of 500 barrels per month, from November to April inclusive, sellers' option, cash on delivery, free of expense to buy ers, provided name of vessel and number of pier were made known before the vessel arrived. No notice was given by plaintiffs as pro the benefit of creditors on the 15th of December. Held, That this relieved plaintiffs from making any offer of performance by a tender of the money, as the assignee had no power as such to accept a tender or fulfill the contract; defendants having by their assignment disposed of their interest in the contract, there was no one to whom the tender could have properly been made, and they thereby waived the conditions which they might have insisted upon had |