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peal to the General Term having his deposit in person or by an authorized been decided in 1882 against him),

agent; the presentation of a check of the deParker satisfied the judgment of

positor by its payee is not such a demand

as will set the statute running against the record. Plaintiff succeeded in this depositor. action. W. A. Poucher, for applt.

The action was brought to reClark & Brown, for respt.

cover an unpaid balance of money Held, That Cushing's assignment deposited with defendant. The to Brooks in 1872 passed the title main question was the defense of to the judgment. Cushing had the the statute of limitations. In 1869 power to do this in the name of one Banker delivered to plaintiff, the firm, 61 N. Y., 225, and the his neighbor, a check with directitle passed even though the sections to get the money on it, pay ond alleged assignee had no notice a note of Banker's and deposit the of the previous transfer. 61 N. rest in some Troy bank. Plaintiff Y., 593 ; 3 Hill, 228. may

did this, and the deposit was credalso say that it does not appear ited to him by defendant and is that Parker was a bona fide pur- the basis of this action. Returnchaser or that he paid anything ing home, plaintiff made and defor the judgment or received any- | livered to Banker two checks, one thing for satisfying it. There is for $3,500 and the other for $1,367, no force in the claim that the first the two checks covering the whole assignment should have been re- deposit), payable to Banker's orcorded. The judgment is not a der. A day or two after Banker conveyance of land and the pro- endorsed and delivered them to visions of $ 1261 Code are only to Mrs. Houghtaling whom enable a judgment debtor to secure he

he was about to marry

and proper evidence of the right of an in consideration of marriage. assignee to satisfy a judgment. A day or two after this de.

Judgment affirmed, with costs. livery to Mrs. H. Banker's chil.

Opinion by Learned, P. J.; dren took procedings to have him Boardman and Potter, JJ., con

declared a lunatic;

he was at first declared such, and defendant, be.

ing indemnified, paid this deposit, LIMITATIONS. BANKS.

by order of the Court, to the com

mittee of Banker, the checks not N. Y. SUPREME COURT. GENERAL having been then presented for TERM. THIRD DEPT.

payment by Mrs. Houghtaling. Sylvester Viets, respt., v. The They were presented by her (then Union National Bank, applt.

Banker's widow) in 1871, pay

ment demanded, refused and proDecided Jan., 1884.

test made. The only demand made

by As between a bank and its depositor the stat

plaintiff was in 1878, and use of limitations begins to run against the shortly after he began this action. latter only from the time when he demands | Defendant now claims that the de



mand of Mrs. Houghtaling (Ban- to the use of all his property for life, and ker) was good, that the statute

also to use the principal if necessary to

her support ; the widow died and no accommenced to run in 1871, and

counting had been had between her adminthat the claim is therefore out

istrator and certain legatees under said lawed. Plaintiff had a verdict. will, whose legacies are payable after the

widow's death. James Lansing, for applt.

Both parties claim pay

ment of the mortgages and the representaWooster & Averill and R. A.

tives of the legatees are in possession of the Parmenter, for respt.

bond and mortgage. Held, A proper case Held, That the claim was not for an action of interpleader, and that the barred. The obligation of the

mortgagor should make payment to the ad

ministrator of the widow. bank is to pay to the depositor; it is not bound to pay any one Action of interpleader to deterelse. For this reason the holder mine to whom plaintiff, a mortof a check cannot sue the bank. gagor, should pay his mortgage. The payee is not necessarily the L. C., widow of one Z. C., loaned agent of the drawer, and if not, money of the estate to plaintiff on then in presenting the check the bond and mortgage in her own payee does not make a demand


Under her husband's will for the depositor. And certainly she was entitled to the use of all the endorsee is not necessarily the his property during her life, and agent of the payee. No demand also, in her judgment, might use is shown here by the payee even. the principal if necessary to her

The depositor should not be support. The will gave certain legaffected by a refusal of which he acies payable after L. C's death. has not at the time knowledge, ei- She died, and letters of administrather personally or through an tion on her estate were issued to the agent.

defendant, Gray. About the same Judgment affirmed, with costs. time letters of administration with

Opinion by Learned, P. J.; the will annexed de bonis non were Boardman, J., concurs ; Potter, issued to the defendants Bolton J., dissents.

and Scuber on the estate of Z. C. These latter defendants have pos

session of the bond and mortgage MORTGAGE. INTERPLEADER

and claim payment.

Gray also N. Y. SUPREME COURT. GENERAL claims payment and the Court TERM. THIRD DEPT.

below decided in his favor.

H. Sturges, for plff. Ezra Caulkins, plff., v. Dan

E. M. Harris, for defts. Bolton forth D. Bolton et al., admrs., and Scuber. defts.

L. S. Henry, for deft. Gray. Decided Jan., 1884.

Held, That the action should

be sustained. Plaintiff ought not Moneys belonging to her husband's

to be required to pay Gray withestate were loaned by his widow, his administratrix, on bond and mortgage in her

out receiving the bond and mortown name ; she, by his will, being entitled 'gage ; nor to pay Bolton and Scu

ber when the administrator of the render an accounting before a jury unnecesmortgagee claims the debt. The sary be given-e. g., that if the husband's

agency be found, the account will not be questions which arise or may

disputed. arise between the administrator of L. C. and the legatees over the lan- Appeal from order denying moguage of the will and L. C.'s acts tion for reference. under it are not here. Those must Action to recover money alleged be decided upon an accounting. to have been deposited with defenThis mortgage was taken to L. C., dants as bankers. Defendants individually, and cannot be taken alleged that the deposit was made from her estate without an ac- with them as brokers to be used counting ; for the estate of L. C. in speculation ; that it was so used may be indebted to her for com- by plaintiff's authority ; that out missions or debts paid or money of said transactions there was a advanced.

balance due defendants of a cerThe only question here is to tain sum for losses not covered by whom the mortgagor shall now said margin, and for this they set pay. The contract was made with up a counterclaim based on an the mortgagee individually and account of more than two hundred should be performed to her admin. items. A motion was made by deistrator. See 109 U. S., 258. fendants for a reference, on which

Judgment affirmed, with costs. it appeared that if the trans

Opinion by Learned, P. J.; actions were for plaintiff's account Boardman and Potter, JJ., con it was because she had directed cur.

them thạough her husband as her

agent. To meet the motion, among REFERENCE.

other objections, plaintiff filed a

stipulation that if the jury found, N. Y. SUPERIOR COURT. GENERAL, or the court decided, that plaintiff TERM.

had authorized her husband to act Mary L. Day, respt., v. Joseph she would not dispute the items of

as her agent in the above matters A. Jameson et al., applts.

the account. The motion was Decided Dec. 3, 1883.

denied; the order did not state

that the denial was because of lack In an action to recover money alleged to have

been deposited with defendants as bankers, of power, but in the opinion the dethe answer alleging that it was left with cision was based on that ground. defendants brokers as margin with Henry A. Root and Joseph H. which to operate in stocks, and setting out

Choate, for applts. as a counter claim a long account showing a balance due defendants from losses aris

Daniel P. Hayes, for respt. ing therefrom, the Court has power to Held, That it was within the order a reference, though it appears that power of the court to grant the plaintiff's liability depends on her husband's motion, because the matters to authority to act as her agent. It is within the discretion of the court to

which the account pertained were deny the motion, if a stipulation that will directly involved in the defenes


and counterclaim and were not bridge. The land taken was in the south merely details of evidence; and

part. The pipe under the canal had re

mained there thirteen years. Held, That in that it was within the discretion

appraising the value the farm should be of the court to deny it if the stip- considered as a whole, and that the spring ulation would render an accoun- was an element of value to both parties and ting before a jury unnecessary.

was properly made an item of the damages. Defendant claimed that on the Proceedings to take lands for trial they might be able to show railroad purposes. that plaintiff's husband was her

Turnbull had a farm of 200 acres agent as to some of the matters in nearly divided by the Erie Canal, the account and not as to others. over which he had a farm bridge.

Held, That the order should be The land sought is on the south modified so as to read : “ without side of the canal; on the north side prejudice to the court on the trial is his house and barns. On the directing a reference, on motion of south side is a never failing spring defendants, if a reference shall be from which a pipe passes (and has necessary or proper.

for thirteen years) under the canal Further held, That as the order and this spring affords the whole did not state that it was made supply of water to the north side because the court had no power,

of the farm. The land taken, defendants should pay costs of fourteen acres, is worth $100 per appeal.

acre. The commissioner's awarded Order modified and so affirmed, $4,200, thus considering the farm with $10 costs.

as a whole and allowing for the Opinion by Sedgwick, C. J. ; loss of the spring. The company Freedman, J., concurs.

claim that the farm is in fact two separate pieces, and also that the

canal property belongs to the EMINENT DOMAIN.

State and the pipe is at most a reDAMAGES.

vocable license in its present conN. Y. SUPREME COURT. GENERAL


Alonzo P. Strong, for applt.

Thomson & Van Vorst, for In re The Boston, H. T. & W.

respts. R. R. Co., applt., v. Thomas H. Held, That the appraisal made Turnbull et al., respts.

was correct. The spring was propDecided Jan., 1884.

erly taken into consideration.

Even though Turnbull had no leIn proceedings to take land for railroad pur- gal right to put or keep the pipe poses it appeared that the premises were divided about equally by the Erie Canal.

under the canal, still it had reThe part south of the canal had a valuable inained there thirteen years, and spring upon it which was connected by a any one would give more for the pipe with the north part, where the houses

whole farm because of what we and barns were, and it furnished all the water supply to the north part. The north

may call the probability that the and south parts were connected by a farm State would permit the pipe to


continue as it had been. There is , affidavits it appeared that defend. another consideration; there was ant was the President of the Wora farm bridge, and there is noth- tendyke Manufacturing Co., and ing to show that, if the privilege that he managed and controlled of putting or keeping the pipe its affairs. under the canal should be refused, Plaintiffs, prior to January, Turnbull might not put a pipe 1883, had had dealings with said along his farm bridge and thus company, and about said date its have the benefit of the spring as agent, one Banning, furnished before.

plaintiff, at their request, with a We do not think that defen- statement of its affairs. dants, under the circumstances, This statement was made out by can be held to a proof of an inde- and under the directions of defeasible right to maintain the pipe fendant. It showed that said under the canal before allowance company had a surplus of over can be made them for their appa- $400,000. Relying upon this staterent easement so long enjoyed. ment plaintiffs thereafter sold up

Appraisal and order affirmed, on credit and delivered to said with costs.

company, for its use, raw silk Opinion by Learned, P. J.; l amounting in value to about Boardman and Potter, JJ., con- $17,000, the whole of which re

mains unpaid.

It further appeared that defendAGENT. FRAUD,

ant knew that large items of lia

bilities had been omitted from said N. Y. SUPREME COURT. GENERAL statement, and that said company TERM. FIRST DEPT.

was in fact insolvent when the

statement was made. John C. Phillips et al., respts., v. Cornelius A. Wortendyke,

John R. Dos Passos, for applt. applt.

Carlisle Norwood, for respts. Decided Dec. 21, 1883.

Held, That in the absence of ex

planation the affidavits were sufflAn agent who obtains goods upon credit for

cient to uphold the warrant ; that his principal by means of false representations, knowingly made, as to the financial defendant was personally liable condition of his principal, is himself liable for the fraud notwithstanding the in an action for fraud. Such action may fact that the credit was obtained be brought before the debt of the principal for the benefit of the company.

Held further, That a creditor, Appeal from order of Special upon discovery of such a fraud, Term, denying motion to vacate may repudiate the sale and at once order of arrest.

bring his action against the agent The motion was made upon the without first suing the principal affidavits upon which the order of or waiting until the debt of the arrest was granted. From these principal is matured.


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