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findings and refusal to find were Also held, That the fixing of
supported by the evidence. It the price for board did not make
was distinctly proved that no spe- H. and his family boarders. 33
citied time was absolutely fixed or Cal., 557 ; 7 Cush., 417; 53 Me.,
agreed upon for the stay of H. 169; 35 Conn., 183.
and his family at defendants' ho- Judgment of General Term, af-
tel. Defendants had neglected to firming judgment for plaintiff, af-
post in the rooms occupied by H. firmed.
and his family the notice required Opinion by Miller, J. All con-
by the statute to exonerate them cur.
from liability.
Thomas C. Sears and Charles

P. Crosby, for applts.
George G. Munger, for respt.

Held, That H. and his family

The Evansville were transient guests and could

Natl. Bank, not be regarded as boarders and respt., v. Kaufman et al., applls. defendants are liable for the prop- Decided Oct. 2, 1883. erty lost within the rule which makes an innkeeper liable for the Plaintiff discounted certain drafts relying

upon a letter written by defendants to B. goods and property of his guests.

Bros., the drawers, whereby thcy guaran. Officers of the army and navy teed the payment at maturity of any drafts and soldiers and sailors who have that B. Bros. might draw or one F. No bills no permanent residence which of lading or consignments accompanied the

drafts, and one of them was accommodation they can call home may be re

paper. Held, That the guaranty was a spegarded as travellers or wayfarers

cial one and no right of action under it when stopping at public inns and was acquired by plaintiff. In the absence hotels, and to make them charge.

of evidence of a consideration no cause of

action accrued to B. Bros. able as mere boarders it should

A special guaranty contemplates a trust in be shown satisfactorily that

the person of the promisee and is not assignan explicit contract has been able until a right of action has arisen theremade which deprived them of the privileges and rights their voca

Affirming S. C., 12 W. Dig., 323. tion coufers upon them.

This action was brought to reIt appeared that defendants

defendants cover the amount of two drafts kept separate apartments for drawn by B. Bros., of E., Indiana, boarders and transient persons on F., of N. Y., at E., and forand that H. and his family were warded to N. Y. for acceptance registered among the former, but and payment by the drawee, by it did not appear that this fact was whom they were dishonored. Deknown to H. It was claimed that fendants were sought to be made he had grounds for supposing and liable under a letter from them to understood tbat he and his family B. Bros., in which they say: were boarders and not guests. Any drafts that you may draw Tield, Untenable.

on Mr. A. Feigelstock, of our city,


we guarantee to be paid at matur. ( to the guarantor, or by the promity. When the drafts in suit isee to either the principal or sonie were discounted defendants' letter third person according to the was produced by B. Bros, and left terms of the guaranty. with plaintiff as security. The Guaranties should receive such drafts were not accompanied by a construction as will accord with any bills of lading or consign the apparent intention of the par- . ments of property to the drawee, ties, in conformity with the rule and one of them appeared on its governing the construction of conface to be accommodation paper. tracts generally. 24 N. Y., 70;

Charles Edward Souther, for 13 id., 231; 17 Wend., 422. When applts.

the meaning of the language used E. B. Crowell and Asa Iglehart, in a guaranty is ascertained the for respt.

surety is entitled to the applicaHeld, That the guaranty was a

tion of the strict rule of construc-. special one, and no right of action tion and cannot be held beyond under it was acquired by plain- tie precise terms of his contract. tiff on account of the drafts it dis. 13 N. Y., 231 ; 60 id., 158 ; 6 id., counted; that unless there was 356. When the langnage of a evidence of a consideration no guaranty is ambiguous and does cause of action accrued to B. Bros.

not furnislı conclusive evidence of A special guaranty contemplates its meaning, all the circumstances a trust in the person of the prom- may be looked at to arrive at the isee, and from its very nature is intention of the parties. 18 N. Y., not assignable until a right of ac- 502; Brandt on Surety ship, 106; 4 tion has arisen thereon, which Hill, 200; Fell's Law of Guaranty, may, like any other cause of ac- 43; 1 B. & P., 158 ; 32 N. Y., 703; tion arising upon contract,

contract, be 18 Iowa, 352; 1 Barb., 637. then assigned. A consideration Judgment of General Term, reis necessary to render a contract of versing judgment for defendants guaranty valid, and unless such

on report of referee, reversed, and consideration be acknowledged by judgment on report of referee the contract itself it is necessary to affirmed. prove one in order to recover

Opinion by Ruger, Ch. J. All thereon. 8 Johns., 29; 4 id., 280); concur, except Danforth, J., not Brandt on Suretyship, 7. It is voting. not necessary that such consideration shall be expressed in the writ

TRUSTS. EXECUTOR REFERten contract if otherwise proved.

Laws of 1863, Ch. 464; 6 Abb. Pr.,
N. S., 309.

N. Y. SUPREME COURT. GENERAL In the case of a special guar

TERM. FIRST DEPT. anty the consideration necessary to support the promise may either In re petition of Juan R. M. be one furnished by the principal Hernandez.

Decided Aug. 7, 1883.

agents of M. in place of his testaAlthough, upon the dcath of a trustee, the trust

tor, and, with their advice and vests in the Supreme Court under Chap. consent and that of their attorney, 185, Laws of 1882, and does not descend to defended the suit brought by G., his personal representative, nevertheless, and rendered services and incurred when the executor of such trustce, with the

disbursements therein. The peticonsent of the cestui que trust, assumes control of the trust property and makes dis- tioner presented a bill to M.'s bursements and renders services in caring agents for such services and disfor such property and in defending a suit

bursements, which was refused brought against him concerning it, hic is entitled to be reimbursed the amount so spent payment. He then presented his peand to be compensated for the services so

tition to the court, praying among performed, and this Court lias power, upon other things to be allowed to aca petition being presented by him praying count, &c. The agents of M. apthat he be allowed to account, &c., wliereupou it assumes the trust and appoints a

peared by attorney and opposed trustec, to order a reference to take proof the application, whereupon such of the value of such services, and the proceedings were had that a new amount of the disbursements.

trustee was appointed and a referAppeal from an order of Special ence was ordered to take proof of Term.

the facts set forth in the petition, The petitioner was the executor and particularly of the facts touchof one H., who was, at the time of ing the services performed or the his death, the agent of one M. expenses paid or incurred by the During his life time H., as such petitioner in and about the litigaagent, had invested money belong. tions therein mentioned, and in ing to M. in a mortgage upon cer- the care and management of the tain real property in the city of real estate. The agents of M. apNew York. It subsequently be pealed from so much of the order came necessary to foreclose this as directed a reference, claiming mortgage; and, at the foreclosure that since, under Chap. 185, Laws sale, H. bought in the property of 1882, the trust on the death of for the benefit of M., taking a

H. lad vested in the Supreme deed in hiis own name because M. Court the petitioner had no standwas an alien, and executing a de ing in court; that he could not acclaration of trust in favor of M.Cout as trustee, and was not enAfter the death of H. the peti- titled to compensation for defendtioner assumed to become the ing an action to which he was an owner of such property subject to improper party, and in the subject the trust. Subsequently one G. matter of which he had no intercommenced a snit against the peti. est; and further that the court had tioner for leave to redeem the no power to order the reference in premises, claiming that he bad an a special proceeding, and that if interest therein which had not the petitioner had any claim it been cnt off by the foreclosure. should be enforced by action. The petitioner applied to the per: George H. Forster, for applt. sons who had been appointed William A. Beach, for pet'r.

Held, That the petitioner was Action for damages for breach of clearly entitled to indemnity for a special agreement alleged to have the expenses incurred and to com- been made as follows: Plaintiff pensation for the services rendered had bought a village lot in Ilion by him; that his exact position and taken a warranty deed from with regard to the estate, whether one Dygert at the price of $1,500, he was gent or trustee, was a and had given Dygert a purchase matter of no consequence.

money mortgage back. Plaintiff That the court having assumed afterward found that there were two the burden of the trust under the prior mortgages covering the lot act' of 1882, supra, it became its and other lands, executed by Dyduty to ascertain the condition of gert: one for $5,000, held by dethe fund. That it had acquired fendant, and the other known as jurisdiction over the whole subject, the Rasbach mortgage, the amount and that there could be no doubt of which does not appear. The of its power to order the reference; evidence tended to show that and even if it did not possess such plaintiff after learning of the two inherent power as

court of prior mortgages was advised by egnity it was conferred by $1015 Mr. Rasbach, whose daughters of the Code of Civ. Pro.

hield the Rasbach mortgage, tiat Order affirmed.

if he paid the Dygert mortgage , Opinion by Brady, J.; Davis, he should so pay it as to have the P. J., and Daniels, J., concur. money applied on the mortgage

held by Rasbach's daughters, and

they would give him a release, and CONTRACT. DAMAGES.

that the bank mortgage which N. Y. SUPREME COURT. GENERAL was the first lien would be satisTERM. FOURTH DEPT. fied by a sale of the premises cov

ered by it before reaching pl:inThomas McCraith, respt., v. The tiff's lot, if sold in the inverse National Mohawk Valley Bank, order of alienation; that plaintiff applt.

told Alexander, defendant's cashDecided June, 1883.

ier, what Rasbach had said ; and

that Alexander informed plaintiff Where a mortgage was held as collateral .sccurity by a bank, under an agreement that that the bank had possession of the proceeds of the mortgage, when col. the mortgage he had given to Dylected, were to apply on the principal debt, 'gert, and requested him to pay the payment of the mortgage before maturity is good consideration for a promise made

amount to the bank and promised by the bank.

him if he would do so that the As to measure of damages under certain cir- , bank would release his lot from cumstances, quare.

the lien of its mortgage and would Appeal from judgment on ver- also procure for plaintiff a release dict at circuit, and from order de- of his lot from the Rasbaclı mort. nying motion for new trial on the gage.

gage. Plaintiff thereupon, in conminutes,

sideration of that promise, paid to

the bank the Dygert mortgage be- an unreasonable time after defendfore it was due, and the bank subant had obligated itself to procure sequently released plaintiff's lot its release was a breach of the from its own mortgage, but neg- agreement. 11 Johns., 477; 1 Hill, lected to procure a release of the 145; 22 Barb., 388, S. C. aff'd 18 Rasbach mortgage.

The bank N. Y., 573; 1 N. Y., 550 ; 48 id., held the mortgage as collateral 532; 83 id., 51, 61; 88 id., 240. security for Dygert's indebtedness. The proposition that plaintiff canThe evidence tended to show that not recover because he neglected the cashier as well as plaintiff re- to attend the sale and use reasongarded the bank mortgage as well able efforts to prevent a sacrifice of secured without plaintiff's lot, and his property is unfounded. so expressed themselves to each In general the measure of damother during the negotiations; the ages in cases of a like nature is bank afterward foreclosed their the probable loss of value by reamortgage and realized their entire son of the existence of the incumdebt. Plaintiff's lot was sold un- brance agreed to be removed. 17 der the Rasbach mortgage, and Johns., 239 ; 1 N. Y., 550 ; 48 id., the purchaser went into possession. 532 ; 13 Hun, 563. We cannot apBefore the sale plaintiff notified prove the rule of damages laid defendant's cashier of the penden- down at the trial. A new trial may cy of the foreclosure suit and ask- change the facts materially on this ed him to procure the release, question, and we do not suggest which was not done. The judge any measure of damages as the charged the jury that if they right one under the peculiar cirshould find for plaintiff their ver- cumstances of this case. dict should be for the sum paid by Judgment reversed and new trial plaintiff to defendant, with in- ordered, costs to abide event. terest.

Opinion by Smith, P. J.; HarAmos H. Prescott, for applt. din and Barker, JJ., concur. Smith & Steele, for respt.

Held, As to the questions of ultra vires and the statute of BANKRUPTCY FRAUD. frauds, we adhere to our rulings

EVIDENCE. on the former appeal. 26 Hun,


The promise is supported by a Talcott, respt., v. Harris et al., good consideration.

applts. It was not necessary to plaintiff's

Decided Oct. 26, 1883. right of recovery that an eviction should have taken place, or that a Plaintiff proved his debt in bankruptcy proforeclosure should have been had. ceedings as an unsecured claim, resisted the The fact that defendant suffered

passage of composition proceedings, and

finally accepted the dividend on his claim the mortgage to continue to be an

under protest after a petition was presented existing lien on plaintiff's lot for for leave to deposit it to his credit. Held,

Vol. 18.-No. 4a.

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