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classed among misdemeanors un

WILL. PROBATE. der the terın malicious mischief.'' John Van Rensselaer, District N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT. Attorney, for People.

IV. J. Miner, J. S. L'Amor- In re will of Samuel Cottrell. eaux and H. L. Grose, for deft. Held, That defendant was en

Decided Nov., 1883. titled to have the jury instructed A will may be admitted to probate against in substance as requested.

To the testimony of the subscribing witnesses

upon other evidence satisfactory to the constitute larceny there must have

surrogate. been a felonious intent, animo furandi or lucri causa. Whart. Appeal from the decree of the Cr. Laws, SS 1781-4. The ma- surrogate of Rensselaer County, licions killing of a horse is a mis admitting to probate the will of demeanor. Penal Code, $ 654; 2 Samuel Cottrell, deceased. Both R. S., *695, and Ch. 682, Laws of of the subscribing witnesses deny 1896. It has frequently been hela having signed the will, and deny to be a misdemeanor of the nature that the testator signed the will of malicious mischief to kill an in their presence, or that he reanimal belonging to another, quested them to sign the will as though it has never been held witnesses. The attestation clanse larceny so to kill and take unless embraced all the requirements of some benefit was expected by the the statute. The testator made taker. Whart. Cr. Law, $ 1784; 1 out the willin his own handwriting. Mass., 59; 5 Cow., 258; 19 Wend.,

James Lansing, for applts. 420. It was a serious matter for

Robert H, McLellan, for respts. defendant whether he should be

Held, That in a proper case a convicted of grand larceny upon will may be admitted to probate facts which he claimed could only against the testimony of the subconstitute malicious mischief. He scribing witnesses, but upon other had the right to have the distinc-evidence satisfactory to the surrotion pointed out to the jury. He gate.

Code Civ. Pro., § 2620; 2 requested it, but it was not done, Bradf., 226; 52 N. Y., 517; 25 and defendant may have been con

N. Y., 422; 2 Barb. Ch., 40; 91 victed of a felony while the facts N. Y., 255. We think the will and the charge were equally ap

was properly admitted to probate. plicable to a misdemeanor.

The evidence of the genuineness of Judgment and conviction re

the subscribing witnesses' signaversed and new trial granted.

tures is quite satisfactory. And Opinion by Boardman, J.: what is the result should we, on Bockes, J., concurs ; Learned, P. | the contrary, believe the subscribJ., dissents.

ing witnesses ? It would follow that such signatures were forged ; that they were forged by Cottrell; that such forgery was needless,

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foolish, and suicidal ; that it de him. The order also provided feated his recognized purpose, that the report might be brought and that no motive can be assigned on for confirmation upon eight for such an act.

days' notice. Under that order Decreeaffirmed, with costs against the referee proceeded to a hearing appellants.

and determination of all questions Opinion by Boardman, J.: raised by either party upon the Learned, P. j., and Bockes, J., settlement of the account. No concur.

objection was taken before either

the referee or the Surrogate that SURROGATES. REFEREES.

the referee was not warranted by

the order in hearing and determinN. Y. SUPREME COURT. GENERAL ing such questions. The referee's TERM. FOURTH DEPT. report and the evidence taken by

him were filed Nov. 1, 1881, and In re final accounting of Reu

two days later a copy of the report, ben Leffingwell, adm’r.

with notice of filing, was served on Decided Oct., 1883.

the administrator's attorney. On

December 3, 1881, the matter was In the settlement of an administrator's ac

brought before the Surrogate upcount, the Surrogate referred the matter to a referee; the referee made his report, and on the referee's report and the eviits confirmation was regularly moved for dence, on due notice, and the debefore the Surrogate, who confirmed it,

cree appealed from was made on and no exceptions were taken to the same until some seven weeks afterwards. Held,

that day. No exceptions were That the Surrogate had no alternative but

served or filed until Jan. 23, 1882, to direct an order for confirmation, and when the administrator's attorney an appeal from his decision brings up

filed a paper purporting to contain nothing for review.

exceptions to the report of the Administrator's appeal from referee and also to the Surrogate's Surrogate's decree confirming re- decree. port of referee appointed by the A. U. Sawyer, for applt. Surrogate to examine and report McCartin & Williams, for respt. upon said administrator's account Held, That if there was any and ordering said administrator to error in the action of the referee in pay a certain sum to Mary E. bearing and determining the quesWestcott, respondent.

tions raised upon settlement of the The proceedings in which the account, it was waived. The Surdecree appealed from was entered rogate's decree, therefore, properly were begun after Sept. 1, 1880. recites that the account and obBy the terms of the order of ref- jections were referred to the reference the administrator's account

to examine and

report and the exceptions filed thereto thereon and to “hear and deterwere sent to the referee “to ex- mine all disputed matters relating amine and report thereon," and to to the questions raised" thereby : bring in the evidence taken by and the reference is to be regarded

eree

as having had that scope for the This action was brought to forepurposes of this discussion.

close a mortgage executed by M. The exceptions were too late and and wife to plaintiff, an associawere ineffectnal for any purpose. tion organized under the act for The referee had the same power as

the incorporation of “building, if appointed by this court for the mutual loan and accnmulating trial of an issue of fact in an action. fund associations,” Chap. 122, Code Civ. Pro., SS 2546, 17, 2; Laws of 1851, as amended by Chap. Sup. Ct. Rule 30; 22 Barb., 319. 564, Laws of 1875. R. was made

No exceptions having been tak- a party as a subsequent incum en to the referee's report when brancer. It was proved that plainconfirmation was moved for before tiff was organized April 1, 1876, the Surrogate, that officer had no and the number of its shares alternative but to direct the entry

limited to 1,000, at $125 each. of an order for confirmation; and, Plaintiff's constitution provides no question as to the correctness of that "its members shall be such the report having been raised be persons who have signed the confore him, the appeal from his de-stitution, and have subscribed for cree brings up no question for re. one or more shares, or who have view.

received loans from the associaAppeal dismissed, with costs. tion." Article 7 provides that

Opinion by Smith, P. J.; "every member receiving a loan Hardin and Barker, JJ., concur.

from the association binds himself to pay a weekly contribution of

twenty-five cents interest for every BUILDING ASSOCIATIONS.

share so received, and for such a USURY. PLEADING.

time as shall be required to pay N. Y. COURT OF APPEALS. the holder of every share $125, in

cluding the premium allowed by The Concordia Savings & Aid such shareholder.” Article 23 Assn., respi., v. Reed, impl’d,

Reed, impl'd, provides that, “if each and every applt.

member shall have received for Decided Oct. 16, 1883.

each and every share the sum of

$125, deducting therefrom the The taking of a premium upon a loan made by a building association organized under premium paid by his own consent, the act of 1851 as amended in 1875 is then this association shall cease sanctioned by that act and does not render and determine and all mortgathe loan usurious.

ges and other securities shall be 1 here the complaint alleges that plaintiff is a discharged.”

Plaintiff had re. corporation created by and under an act of the legislature a simple allegation in the ceived enough dues from its memanswer that defendant has no knowledge or

bers to make the loan to M. in information sufficient to form a belief as to

August, 1876.

On June 11, 1877, whether plaintiff is a corporation or not

M. stopped making any payments created by, &c., is not sufficient to put plaintiff upon proof of its corporate exis

on his bond and mortgage or as a

member of the association. This Vol. 18.-No. 8.

terce.

action was commenced in July, $1,875, and the interest due thereon 1878. Defendant claimed that M. and all dues, fines and penalties was bound to pay upon his bond owing by the said Meier to said asand mortgage his weekly dues and sociation by the terms of the coninterest only until the association stitution, rules and regulations had received money enough to re- thereof shall be deemed due and deem all the outstanding shares, may be collected.” The trial and that it was incumbent upon court took the sum of $1,875 as the plaintiff to prove that there were basis of its calculation. shares outstanding and the amount Held, No error; that the taking required to redeem them.

of a premium was sanctioned by 0. 0. Cottle, for applt.

the act of 1851 as amended by Adelbert Moot, for respt. Chap. 564 of the Laws of 1875

Held, That the proof was prima and did not render the loan usurfacie sufficient to show that when ious. This is a case where the defendant ceased payment enough whole of a specified' sum becomes had not been received by plaintiff due because the partial payments to redeem the shares; that the are not made as stipulated, and evidence was at least sufficient to the principles of law which authrow upon defendant the burden thorize courts of equity sometimes of showing, if she could, that all to relieve from forfeiture do not the outstanding shares had in apply. some way been redeemed, so as to The complaint alleged that the entitle M. to have the mortgage plaintiff is a corporation created discharged.

by and under an act of the LegisThe mortgage was given to se. lature of this State, entitled “An cure the payment of the precise Act to incorporate mutual loan sum advanced or loaned to M., to and accumulating fund associawit $1,875. The plaintiff's consti- tions," passed April 10, 1851, and tution provided that “in case the several acts amendatory there are several members apply- thereof and supplementary thereing for a loan at the same time to. The answer in reference to said loan shall be given to the these allegations simply alleges member paying the highest pre- that the defendant has no knowlmium therefor to the benefit of edge or information sufficient to the association.” M. paid for his form a belief as to whether the loan a premium of $630, which was plaintiff is a corporation or not, paid out of the $1,875, and the created by or under the laws rebalance only was paid to M. The ferred to. mortgage provides that “if the Held, That this was not sufficontributions, interest, dues and cient to put plaintiff upon proof penalties herein specified shall at of its corporate existence. Laws any time remain due and unpaid 1875, Chap. 508, Code of Civ. for the space of three months, then Pro., $ 1776. The allegation of and in that case, the whole sum of the answer was not tantamount to an affirmative allegation that | vided for by the contract, and no the plaintiff is not a corporation. tender was made by them to de

Judgment of General Term, af- fendants of the price of the alcofirming judgment of foreclosure hol. Upon the trial one of plainand sale, affirmed.

tiffs' witnesses testified that he Opinion by Earl, J. All con- called on their behalf upon decur.

fendants at their office, December

31, 1879, and had an interview CONTRACT. TENDER.

with one of the defendants; that

he told them he appeared there at N. Y. COURT OF APPEALS.

the request of W., one of the Woolner et al., applts., v. Hill plaintiffs, and wanted to know if et al., respts.

it was necessary for plaintiffs to

do anything by way of tender or Decided Oct. 26, 1883.

performance of the contract in Defendants contracted to deliver to plaintiff order to keep it alive, and that

alongside , vessel 500 bbls. alcohol per H., one of the defendants, told month, c. 0. D., provided name of vessel

hini it was not. and number of pier were previously made known to them. In an action for non- Albert B. Boardman, for applts. delivery it appeared that plaintiffs' agent inquired of defendants if it was necessary

Edward T. Wood, for respts. for his principals to do anything by way of Held, That it was sufficient that tender or performance to keep the contract alive and was informed it was not. Held,

plaintiffs were ready and willing That it was sufficient that plaintiffs were to pay the contract price of the ready and willing to pay the contract price alcohol when delivered, and no of the alcohol when delivered and no tend.

tender necessary 1 Hill, er was necessary; that an assignment by 519; 5 N. Y., 155; 8 N. Y., 188; defendants for the benefit of creditors relieved plaintiffs from making a tender and

67 id., 129. that evidence of a waiver of tender and of It appeared that defendants plaintiffs' readiness to perform was admis made a voluntary assignment for sible.

the benefit of creditors on the 15th This action was brought to re- of December. cover damages for the non-deliv- Held, That this relieved plainery of 2,500 barrels of alcohol tiffs from making any offer of perunder a contract which provided formance by a tender of the that the alcohol should be deliv- money, as the assignee had no ered alongside of the buyers' ves- power as such to accept a tender sel at the rate of 500 barrels per or fulfill the contract; defendants month, from November to April having by their assignment dis inclusive, sellers' option, cash on posed of their interest in the condelivery, free of expense to buy- tract, there was no one to whom ers, provided name of vessel and the tender could have properly number of pier were made known been made, and they thereby before the vessel arrived. No no. waived the conditions which the tice was given by plaintiffs as pro- might have insisted upon had

was

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