peal to the General Term having been decided in 1882 against him), Parker satisfied the judgment of record. Plaintiff succeeded in this action. his deposit in person or by an authorized agent; the presentation of a check of the depositor by its payee is not such a demand as will set the statute running against the depositor. The action was brought to recover an unpaid balance of money The deposited with defendant. main question was the defense of the statute of limitations. In 1869 one Banker delivered to plaintiff, his neighbor, a check with directions to get the money on it, pay a note of Banker's and deposit the rest in some Troy bank. Plaintiff did this, and the deposit was credited to him by defendant and is the basis of this action. Returning home, plaintiff made and de W. A. Poucher, for applt. Clark & Brown, for respt. Held, That Cushing's assignment to Brooks in 1872 passed the title to the judgment. Cushing had the power to do this in the name of the firm, 61 N. Y., 225, and the title passed even though the second alleged assignee had no notice of the previous transfer. 61 N. Y., 593; 3 Hill, 228. We may also say that it does not appear that Parker was a bona fide purchaser or that he paid anything for the judgment or received any-livered to Banker two checks, one thing for satisfying it. There is no force in the claim that the first assignment should have been recorded. The judgment is not a conveyance of land and the provisions of § 1261 Code are only to enable a judgment debtor to secure proper evidence of the right of an assignee to satisfy a judgment. Judgment affirmed, with costs. Opinion by Learned, P. J.; Boardman and Potter, JJ., con cur. LIMITATIONS. BANKS. Sylvester Viets, respt., v. The Decided Jan., 1884. As between a bank and its depositor the stat use of limitations begins to run against the latter only from the time when he demands he in A for $3,500 and the other for $1,367, mand of Mrs. Houghtaling (Banker) was good, that the statute commenced to run in 1871, and that the claim is therefore outlawed. Plaintiff had a verdict. James Lansing, for applt. Wooster & Averill and R. A. Parmenter, for respt. Held, That the claim was not barred. The obligation of the bank is to pay to the depositor; it is not bound to pay any one else. For this reason the holder of a check cannot sue the bank. The payee is not necessarily the agent of the drawer, and if not, then in presenting the check the payee does not make a demand for the depositor. And certainly the endorsee is not necessarily the agent of the payee. No demand is shown here by the payee even. The depositor should not be affected by a refusal of which he has not at the time knowledge, either personally or through an agent. Judgment affirmed, with costs. Opinion by Learned, P. J.; Boardman, J., concurs; Potter, J., dissents. MORTGAGE. INTERPLEADER N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Ezra Caulkins, plff., v. Danforth D. Bolton et al., admrs., defts. Decided Jan., 1884. Moneys belonging to her husband's estate were loaned by his widow, his administratrix, on bond and mortgage in her own name; she, by his will, being entitled to the use of all his property for life, and also to use the principal if necessary to her support; the widow died and no accounting had been had between her administrator and certain legatees under said will, whose legacies are payable after the widow's death. Both parties claim payment of the mortgages and the representatives of the legatees are in possession of the bond and mortgage. Held, A proper case for an action of interpleader, and that the mortgagor should make payment to the administrator of the widow. Action of interpleader to determine to whom plaintiff, a mortgagor, should pay his mortgage. L. C., widow of one Z. C., loaned money of the estate to plaintiff on bond and mortgage in her own name. Under her husband's will she was entitled to the use of all his property during her life, and also, in her judgment, might use the principal if necessary to her support. The will gave certain legacies payable after L. C's death. She died, and letters of administration on her estate were issued to the defendant, Gray. About the same time letters of administration with the will annexed de bonis non were issued to the defendants Bolton and Scuber on the estate of Z. C. These latter defendants have possession of the bond and mortgage and claim payment. Gray also claims payment and the Court below decided in his favor. H. Sturges, for plff. E. M. Harris, for defts. Bolton and Scuber. L. S. Henry, for deft. Gray. Held, That the action should be sustained. Plaintiff ought not to be required to pay Gray without receiving the bond and mortgage; nor to pay Bolton and Scu ber when the administrator of the mortgagee claims the debt. The questions which arise or may arise between the administrator of L. C. and the legatees over the language of the will and L. C.'s acts under it are not here. Those must be decided upon an accounting. This mortgage was taken to L. C., individually, and cannot be taken from her estate without an accounting; for the estate of L. C. may be indebted to her for commissions or debts paid or money advanced. The only question here is to whom the mortgagor shall now pay. The contract was made with the mortgagee individually and should be performed to her admin istrator. See 109 U. S., 258. Judgment affirmed, with costs. Opinion by Learned, P. J.; Boardman and Potter, JJ., con cur. REFERENCE. N.Y. SUPERIOR COURT. GENERAL Mary L. Day, respt., v. Joseph Decided Dec. 3, 1883. In an action to recover money alleged to have been deposited with defendants as bankers, the answer alleging that it was left with defendants as brokers as margin with which to operate in stocks, and setting out as a counter claim a long account showing a balance due defendants from losses arising therefrom, the Court has power to order a reference, though it appears that plaintiff's liability depends on her husband's authority to act as her agent. render an accounting before a jury unneces sary be given-e. g., that if the husband's agency be found, the account will not be disputed. Appeal from order denying motion for reference. Action to recover money alleged to have been deposited with defendants as bankers. Defendants alleged that the deposit was made with them as brokers to be used in speculation; that it was so used by plaintiff's authority; that out of said transactions there was a balance due defendants of a certain sum for losses not covered by said margin, and for this they set up a counterclaim based on an account of more than two hundred items. A motion was made by defendants for a reference, on which it appeared that if the transactions were for plaintiff's account it was because she had directed them through her husband as her agent. To meet the motion, among other objections, plaintiff filed a stipulation that if the jury found, or the court decided, that plaintiff had authorized her husband to act she would not dispute the items of as her agent in the above matters the account. The motion was denied; the order did not state that the denial was because of lack of power, but in the opinion the decision was based on that ground. Choate, for applts. Daniel P. Hayes, for respt. Held, That it was within the power of the court to grant the motion, because the matters to which the account pertained were It is within the discretion of the court to deny the motion, if a stipulation that will directly involved in the defenes and counterclaim and were not merely details of evidence; and that it was within the discretion of the court to deny it if the stipulation would render an accounting before a jury unnecessary. Defendant claimed that on the trial they might be able to show that plaintiff's husband was her agent as to some of the matters in the account and not as to others. Held, That the order should be modified so as to read: "without prejudice to the court on the trial directing a reference, on motion of defendants, if a reference shall be necessary or proper. bridge. The land taken was in the south part. The pipe under the canal had remained there thirteen years. Held, That in appraising the value the farm should be considered as a whole, and that the spring was an element of value to both parties and was properly made an item of the damages. Proceedings to take lands for railroad purposes. Turnbull had a farm of 200 acres nearly divided by the Erie Canal, over which he had a farm bridge. The land sought is on the south side of the canal; on the north side is his house and barns. On the south side is a never failing spring from which a pipe passes (and has for thirteen years) under the canal. and this spring affords the whole supply of water to the north side of the farm. The land taken, fourteen acres, is worth $100 per acre. The commissioners awarded Further held, That as the order did not state that it was made because the court had no power, defendants should pay costs of appeal. 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. EMINENT DOMAIN. DAMAGES. N. Y. SUPREME COURT. GENERAL In re The Boston, H. T. & W. Decided Jan., 1884. claim that the farm is in fact two separate pieces, and also that the canal property belongs to the State and the pipe is at most a revocable license in its present condition. Alonzo P. Strong, for applt. Thomson & Van Vorst, for respts. Held, That the appraisal made was correct. The spring was properly taken into consideration. Even though Turnbull had no le In 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. The part south of the canal had a valuable spring upon it which was connected by a pipe with the north part, where the houses and barns were, and it furnished all the water supply to the north part. The north and south parts were connected by a farm under the canal, still it had remained there thirteen years, and any one would give more for the whole farm because of what we may call the probability that the State would permit the pipe to continue as it had been. There is another consideration; there was a farm bridge, and there is nothing to show that, if the privilege of putting or keeping the pipe under the canal should be refused, Turnbull might not put a pipe along his farm bridge and thus have the benefit of the spring as before. We do not think that defendants, under the circumstances, can be held to a proof of an indefeasible right to maintain the pipe under the canal before allowance can be made them for their apparent easement so long enjoyed. Appraisal and order affirmed, with costs. Opinion by Learned, P. J.; Boardman and Potter, JJ., con cur. AGENT. FRAUD. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. John C. Phillips et al., respts., v. Cornelius A. Wortendyke, applt. Decided Dec. 21, 1883. An agent who obtains goods upon credit for his principal by means of false representations, knowingly made, as to the financial condition of his principal, is himself liable in an action for fraud. Such action may be brought before the debt of the principal matures. Appeal from order of Special Term, denying motion to vacate order of arrest. The motion was made upon the affidavits upon which the order of arrest was granted. From these affidavits it appeared that defendant was the President of the Wortendyke Manufacturing Co., and that he managed and controlled its affairs. Plaintiffs, prior to January, 1883, had had dealings with said company, and about said date its agent, one Banning, furnished plaintiff, at their request, with a statement of its affairs. This statement was made out by and under the directions of defendant. It showed that said. company had a surplus of over $400,000. Relying upon this statement plaintiffs thereafter sold upon credit and delivered to said. company, for its use, raw silk amounting in value to about $17,000, the whole of which remains unpaid. It further appeared that defendant knew that large items of liabilities had been omitted from said statement, and that said company was in fact insolvent when the statement was made. John R. Dos Passos, for applt. Held, That in the absence of explanation the affidavits were sufflcient to uphold the warrant; that defendant was personally liable for the fraud notwithstanding the fact that the credit was obtained for the benefit of the company. Held further, That a creditor, upon discovery of such a fraud, may repudiate the sale and at once bring his action against the agent without first suing the principal or waiting until the debt of the principal is matured. |