B. F. Sawyer, for applt. E. P. Wilder, for respt.. Held, That as far as the order included services which had preceded the final judgment it was unauthorized, for, by the judgment, all the preceding rights and obligations of, the parties were finally disposed of and the court determined the extent of the relief to which the plaintiff had become entitled. 59 N. Y., 212.

That the residue of the allowance was also without authority, for the statute has confined the power of the court to allowances of this nature during the time of the pendency of the action. Code Civ. Pro., $1769. That the statute was designed to oblige the husband in a proper case to provide for the support of his wife until that could be determined and finally adjusted by a judgment entered in the action. That after the entry of judgment the exercise of this authority by the court becomes unnecessary as well as inappropriate, for that must be intended to afford the plaintiff all the relief which, under the circumstances, she can be deemed

the proceedings in the case are regulated by other provisions of the Code in no manner extending the continuance of this authority. They are confined to the right of either party to review the judgment, and that right is absolutely given to either party on the performance of certain prescribed conditions, of which the payment of an allowance of this nature is not one. That if the authority to direct allowances of this nature should be held to continue during the pendency of an appeal from the judgment, it might be exercised in such a manner as altogether to defeat the right of appeal, and the law has in no form committed its exercise to the court.

Anonymous, 15 Abb., N. S., 307, overruled.

Order reversed and motion denied.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

STATUTE OF FRAUDS. N. Y. SUPERIOR COURT. GENERAL

TERM.

Matthew White, applt., v. James Rintoul, respt.

Decided Dec. 17, 1883.

Where one of two creditors of a certain firm, holding the notes of said firm for its indebtedness, at the request of the other creditor, and to enable the latter to collect his claim against the firm, promises to delay proceedings for the collection of said notes till a certain time after their maturity, in consideration of which the other creditor agrees to pay the notes at such date, such agreement to pay said notes is an original

undertaking and is not within the Statute of Frauds, and is therefore enforceable though not in writing.

Appeal from judgment in favor of defendant, entered upon dismissal of plaintiff's complaint.

The complaint was dismissed upon the ground that plaintiff's counsel, in opening the case, admitted that the promise of defend- | ant alleged in the complaint was not in writing, the trial judge holding that it came within the provisions of the Statute of Frauds as being a promise to answer for the debt of another. The material facts pleaded were as follows:

That on or about August 16, 1880, plaintiff held the promissory notes of Wheatcroft & Rintoul, to his order, of which the first had about two, and the second about six weeks, to run; and that at the same time defendant was also a creditor of said firm.

That at the request of defendant, and for the purpose of preventing an injury to his interests as such creditor, looking to the property of said Wheatcroft & Rintoul to collect his claim, plaintiff, about August 16, 1880, agreed with defendant not to institute any legal proceedings for the col

that neither of them has been paid,

etc.

Robertsons, Harmon & Cuppia, for applt.

Davenport & Leeds, for respt. Held, That the complaint was improperly dismissed, as it appeared that defendant's promise was not made for the benefit of the firm, nor in aid of their original contract, but for defendant's own benefit as a creditor; that the sole object of defendant in making the promise was to promote and subserve an interest of his own, and that the consideration, viz., plaintiff's forbearance, went directly to him, though the firm indirectly may also have had the benefit of it. 8 Johns., 28; 21 N. Y., 412; 71 N. Y., 91. The promise, though in form a promise to pay the debt of another, is to be treated as original and not collateral, and for that reason the Statute of Frauds does not apply.

Judgment reversed and new trial ordered, costs to abide the event.

Opinion by Freedman, J.; Sedgwick, Ch. J., and O'Gorman, J., concur.

DIVORCE. ALIMONY.

TERM. FIRST DEPT.

Sarah A. Lloyd, respt., v. Wm. T. Lloyd, applt.

Decided Dec. 21, 1883.

When, on an application for alimony and

counsel fee in an action for divorce, the plaintiff swears that she is informed and believes that defendant has an annual income of $10,000, statements by the defendant, in his opposing affidavits, to the effect

that he is embarrassed in business, and largely indebted, and unable to pay alimony, &c., will not warrant the denial of

such application, or a reduction on appeal of an allowance of $150 per month and $500 counsel fee.

If plaintiff's statement of the amount of defendant's income was not correct defendant should have denied it directly. Appeal from order allowing plaintiff a counsel fee of $500 and $150 per month as alimony pendente lite.

This was an action for divorce because of the alleged adultery of defendant, and in support of plaintiff's application for these allow

cerning the amount of defendant's income as to warrant the conclusion that it had been overstated. That if that were the fact the statement should have been plainly denied by defendant and his brother. That no case was made out for a reduction in the sums directed to be paid. 4 N. Y. Supreme Court Rep., 574.

Order affirmed.

Opinion by Daniels, J.; Davis, P. J., and Brady. J., concur.

USURY.

De

that she was destitute of means and that she was informed and believed that defendant had an annual income of $10,000. fendant opposed the application by the affidavits of himself and his brother, who was associated with him in business, which alleged that their business was not in a prosperous condition and that, owing to plaintiff's habits of extravagance, defendant was largely in debt and was unable to pay alimony and counsel fee in this action, but neither the affidavit of defendant or of his brother directly denied the statement of plaintiff that defendant had an income of $10,000, nor did they state what the amount of his in

come was.

TERM. SECOND DEPT.

George S. Allison, respt., v. Rose Schmitz et al., applts.

Decided Dec., 1883.

A usurious mortgage which includes the amount of a prior valid mortgage which was assigned to the holder of the usurious mortgage cannot be used as a defense to an action upon such valid mortgage.

This is an appeal from a judg ment of sale in foreclosure.

Plaintiff agreed to loan to defendant Schmitz $3,000. The loan was made to pay a mortgage existing upon the property of $2,500 and the remainder in cash. The agreement was usurious. Plaintiff paid the prior mortgage and took an assignment of it to himself. He also took a mortgage for $3,000,

Tremain & Tyler, for respt. Held, That the statements of defendant and his brother were not so responsive or in conflict. with that made by plaintiff con

Vol. 18.-No. 12.

The

gage and the cash advanced. $3,000 mortgage was decided void for usury. This action is brought to foreclose the $2,500 mortgage J. Brown, for respt.

H. D. Batchelder, for applts.

Held. That the mortgage in question was not paid by defendant. It was a valid claim against her and plaintiff paid the amount of the same to the holder and took an assignment. The amount was paid from the amount of the loan agreed to be made by defendant. The creditor was changed but the debt remained. Defendant Rose Schmitz had paid nothing. If this payment had been included in an usurious mortgage the debt paid could still have been revived and collected. 64 N. Y., 294. If plaintiff had himself owned the first mortgage and had taken the $3,000 mortgage under similar circumstances he could have enforced the old mortgage which was free from usury. 56 N. Y., 214. The invalid mortgage cannot be used as a defense to a valid claim. 39 N. Y., 325. Plaintiff acquired a perfect title to the first mortgage by the assignment, although the $3,000 one was usurious and although he had agreed to pay the first mortgage out of the second loan.

Judgment affirmed.

Opinion by Barnard, P. J.; Pratt and Dykman, JJ., concur.

DOWER. WILLS.

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

Jane E. Bullard, applt., v. Arthur W. Benson et al., exrs., respts.

Decided Dec., 1883.

Where testator by his will gives to his wife a certain sum which is to be accepted and

received by her in lieu and bar of her dower and of all claims she may have upon or against his estate as his widow, she takes no portion of a dower interest in that part of the estate undisposed of by reason of legacies having lapsed or invalid disposi tions in other ways.

Appeal from that part of the decree of the surrogate excluding appellant from all dower interest in that portion of the estate undisposed of by will of testator, her husband.

Testator, by his will, devised real estate to his wife and cash to a large amount and made her the legatee of the life estate of onefourth of his residuary estate real and personal. By the 24th clause of the will he provides that "It is my will and I do hereby declare that the devises and bequests herein before made to and for the benefit of my beloved wife, Jane E. Bullard, are made and shall be accepted and received by her in lieu and bar of her dower and of all claims she may have upon or against my estate as my widow." The will gave legacies to a brother and cousin who died before the testator and these legacies lapsed, and the question presented is whether the widow takes the usual widow's portion of these legacies as in cases of intestacy.

C. J. Lowrey, for applt.
P. H. Adee, for respts.

Held, That the legacies, under the case of Kerr v. Doughty, 79 N. Y., 327, are undisposed of and pass to the next of kin. The question as to whether the widow takes the usual widow's portion of such legacies as in cases of intestacy is answered by the Court of Appeals