wholly unable to buy any mortgage himself, or to contribute towards the purchase of any such. Upon these facts, a court which permitted Theodore to buy in a mortgage for much less than its face, and to insist upon payment to him at the same rate as if he had paid all that was due thereon, would administer, in my opinion, neither law nor equity.

The counsel for the defendant Theodore claims, however, that even if he would not have the right at first to hold the mortgage for the full amount, yet, when informed of the purchase, the plaintiff's assignor, Ernest, should have offered to contribute his share of the purchase price of the mortgage; that such offer should have been made within a reasonable time after knowledge of the purchase, and the failure of Ernest to make it entitled the defendant to enforce the mortgage for its full amount. We do not think that the defendant places himself within any rule permitting such a result. All that appears in the evidence on the subject is that the defendant Theodore purchased this mortgage in December, 1881, and that on the 9th of February, 1882, when a question arose as to leasing a rolling-mill on his father's premises, Ernest was present, and heard that Theodore had purchased the mortgage. It is not found as a fact, but Theodore says in his evidence, that the price he gave for it was mentioned, and that he then said that he should hold it for the full amount of principal and interest. Ernest says he does not think the amount paid by Theodore was mentioned. It was not a conversation addressed to him, and no demand for contribution, and no intimation to that effect was made by Theodore. At that time the contract had been made by which Theodore was constituted the agent of the estate to attend to its business, and a salary agreed to be paid him therefor, and he was receiving all the income and rents therefrom. Under these circumstances, we think it cannot be plausibly contended that, even if Ernest heard the price paid by Theodore for the mortgage, and his claim to hold it for the full amount due thereon, that Ernest was bound to tender contribution of his share under penalty of a right on the part of Theodore to enforce the mortgage for such full amount. This is entirely different from the case cited by the counsel, of Mandeville v. Solomon, 39 Cal. 125. In that case one tenant in common discovered what he feared was a flaw in the title to some portion of the property, and he thought it best to purchase the outstanding title, if it could be done for the sum named, and he asked his co-tenant to make contribution for that purpose. His co-tenant refused. He subsequently purchased the outstanding title, paying the sum stated for it, and immediately wrote to his co-tenant all the particulars, and asked him to contribute his share, and he made no answer, but entirely neglected to contribute anything. Long subsequent to that time the co-tenant desired to avail himself of the purchase, and the court held that he was too late. The case of Lee v. Fox, 6 Dana, 171, at 176, is substantially an authority for the proposition announced here, although there is a mere statement contained in the opinion that the election should be made within a reasonable time. We think that in this case there was no such presentation of the subject to Ernest as to call upon him to make an election, even if it could be assumed that such a purchase, under the circumstances, if a demand had been made, called for contribution at the peril of an enforcement of the mortgage for the full amount. The above are all the questions submitted to this court, and in regard to each of them we think the decision of the general term was correct. Its order denying a new trial should therefore be allirmed, with costs.

All concur.

(110 N. Y. 50)

LIENKAUF v. CALMAN et al.1

(Court of Appeals of New York. June 5, 1888.)

1. INSURANCE-ASSIGNMENT OF POLICY AS COLLATERAL SECURITY-RIGHTS OF SUBSEQUENT CREDITORS.

In an action by the assignee of an insurance policy against a subsequent attaching creditor of the assignor, it is unnecessary to prove the policy; and such creditor cannot resist the assignee's right to the proceeds of the policy where the insurance company has recognized the assignment, and its liability thereunder. 2. SAME.

Where an insurance policy has been assigned to a mortgagee of the insured goods by the mortgagor, as required by the mortgage, as additional security, a subsequent attaching creditor of the mortgagor cannot take advantage of defects in the mortgage to defeat the claim of the mortgagee to the insurance fund.

Appeal from general term, supreme court, First department.

The plaintiff, William H. Lienkauf, a banker of Mobile, Ala., loaned to the Mobile Furniture Manufacturing Company, a corporation of that state, the sum of $12,000, taking the company's note for its repayment, secured by collaterals of a mortgage upon the company's property in its warehouses, and of a policy of insurance in the La Confiance Insurance Company of France, covering the whole or a portion of the mortgaged property. Subsequently a portion of the mortgaged property insured by the said policy was destroyed by fire, and the loss was adjusted, under the same, at the sum of $4,554.50. An attachment was levied upon these moneys, in the hands of the agents of the insurance company in New York, in an action brought in the New York supreme court by the defendants in the present action, as plaintiffs, upon a claim against the Mobile Furniture Manufacturing Company. The agents of the insurance company paid to this plaintiff a part of the moneys in their hands, and reserved sufficient to protect themselves against the attachment.' Upon this action being brought against the agents to recover the balance of moneys so retained by them, an order was made permitting them to deposit the moneys to the credit of the action, and substituting the present defendants in their stead. The referee found for the plaintiff, and from the judgment affirming a judgment on his report the defendants have appealed. Stine & Calman, for appellants. William Man, for respondent.

GRAY, J., (after stating the facts as above.) The appellants opposed the plaintiff's right to recover the moneys in the insurance agent's hands, which represented the balance of the sum at which the loss under the policy was adjusted, on several grounds; but there are only two which are material to be considered here. They say that the policy of insurance and the assignment thereof were not sufficiently proved, and that the mortgage to plaintiff was void for defective execution.

As to the first of these grounds of objection to the recovery, we think the appellants have misapprehended their situation in the matter relatively to the plaintiff's claim upon the insurance company. The agreement between the plaintiff and the Mobile Furniture Manufacturing Company was that the repayment of the loan to them was to be secured by a mortgage of their personal property, and by the transfer of a policy of insurance insuring that property, or portions of it, against loss by fire. The policy was not collateral to the mortgage; but was collateral to the note promising to repay the loan. When the plaintiff made his claim upon the insurance company under the policy, which had been delivered to and retained by him pursuant to the agreement I have mentioned, the insurers recognized it, and transmitted the sum at which the loss was adjusted to their agents in New York for payment. If the insurance company recognized their liability under the policy, and the

'Affirming 39 Hun, 658, mem.

right of the plaintiff to claim for the amount of the loss, it does not lie in the defendants' mouths to resist that right of the plaintiff, if, prior to their attachment, plaintiff's title had attached to the moneys. We think the policy was not material to be proved, inasmuch as its existence as a liability of the company had been admitted by it by the adjustment of the loss and the remittance of the moneys. The policy was surrendered then, and forwarded to the home office in France as the voucher for the payment of the amount of the loss. The witness merely proved the fact that there was such a policy issued by the La Confiance Company to the Mobile, etc., Company, which had come to his possession as agent, and had been sent to France upon payment of the loss, and that there was noted on the policy an assignment to the plaintiff. The referee's finding that the policy was procured and delivered to the plaintiff when the loan was made, was supported by the evidence, and that plaintiff held the policy until the fire occurred and the loss was adjusted. It was admitted that the policy contained the usual clause against assignments. But this clause in policies is for the benefit of the insurance company; and, if they do not object to the assignment, the defendants certainly are not in a position to do so, as it is not a provision which would inure to their benefit. The proof shows that the policy belonged to plaintiff, and was held by him as a collateral security for repayment of the loan; and, under the authorities, as a chose in action, it was capable of being assigned by parol, and a delivery, when there was a valuable consideration. Hooker v. Bank, 30 N. Y. 83-87;

Greene v. Insurance Co., 84 N. Y. 572.

As to the second ground of defendants' objections, which i have noted, that the mortgage to plaintiff was void, I do not think that question affects the plaintiff's right of recovery. The point taken is that it was not acknowledged or verified in any way, and that it was not a valid obligation of the Mobile, etc., Company. The proof shows that the mortgage was signed and sealed by certain individuals representing themselves as the president and directors. It purported by its terms to be the act of the company, through its president and directors, under power and authority given to those officers by the stockholders, at a meeting previously held, where a resolution authorizing its execution for the purpose of borrowing the moneys in question from plainiff had been adopted. It is not necessary for us to decide, in respect of this instrument, further than that it represented a promise or agreement of the corporation, within the scope of its legitimate purposes, through its officers, and must be considered as a valid contract, though not bearing its corporate seal. It was a memorandum in writing, evidencing a corporate act, and making the corporation liable to the plaintiff; and it is not for the defendants to object to irregularities or defects of execution. The doctrine that no corporate act can be binding without being in writing, or under the corporate seal, has long ceased to be maintained. Ang. & A. Corp, § 231; Danforth v. Turnpike Co., 12 Johns. 227; Trustees v. Cagger, 6 Barb. 576; Moss v. Avell, 10 N. Y. 449-454. But a sufficient answer to the appellant's argument is that the plaintiff's right to the policy, or to its proceeds, did not depend on the mortgage. Though the mortgage contained the agreement of the company to keep their property insured against loss by fire for the plaintiff's benefit, it did not affect the policy itself as an additional collateral security available to plaintiff. The clause was nothing more than the promise of the company, expressed in the instrument, to provide further for plaintiff's security in loaning money to them. The learned referee disposed rightly of the case, and his opinion covered all the points made by the defendants in such wise as to make further notice of them by us unnecessary. The judgment and order appealed from should be affirmed.

All concur.

(110 N. Y. 618)

PEOPLE v. LYONS.

(Court of Appeals of New York. June 5, 1888.)

1. CRIMINAL LAW-APPEAL-REVIEW IN CAPITAL CASES-EXCEPTIONS.

Under Laws N. Y. 1887, c. 493, § 528, providing that "when a judgment is of death, the court of appeals may order a new trial if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the court below," a defendant cannot claim, as matter of right, the benefit of errors occurring on the trial, and not excepted to, but can only ask the court to determine upon the whole case whether or not justice requires à new trial, or whether the verdict is against law or evidence.

2. HOMICIDE-MURDER IN THE FIRST DEGREE-SUFFICIENCY OF EVIDEnce.

On a trial for murder, it appeared, on behalf of the prosecution, that some time before the crime defendant had a quarrel with deceased, and that, the day before, deceased struck defendant, severely cutting and bruising his face; that on that evening defendant said he would get "hunk" with deceased, that he would put a bullet in him the next time he saw him, etc.; that the next day defendant borrowed a pistol, the lender testifying that it was unloaded, and immediately went to the rear of the building, and was heard to "click" it, remaining long enough to load the pistol; that shortly thereafter he said he meant to get "square" with deceased; that he then went to a street corner where deceased was likely to be, although his way home was not in that direction, met him, and after some animated conversation, a witness testifying that there was no assault, fired the fatal shot, immediately running away and leaving the state; that defendant had been previously twice convicted of an attempt to commit burglary. On the other hand, defendant testified that deceased assaulted him, showing a slight wound; and a witness stated that he saw defendant leave the scene of the shooting, wiping blood from the same, in corroboration, and that the shooting was in self-defense. Defendant also alleged that it was accidental; he not supposing the pistol to be loaded. Held, that a conviction for murder in the first degree was warranted by the evidence. 3. SAME-EVIDENCE-RELEVANCY.

Evidence of a quarrel between defendant and deceased three or four weeks before the homicide is admissible as showing the commencement of the history of the relations between the parties.

4. SAME-INSTRUCTIONS-EXCUSABLE HOMICIDE.

An instruction that, if the pistol was fired by accident and misfortune, "you must be further satisfied, before you can acquit on the ground that the homicide was excusable, that the prisoner was engaged, at the time, in doing a lawful act by lawful means, and with ordinary caution, and without any unlawful intent;" and that, if defendant had been assaulted, "he would have no right to arm himself, and to go to the place where he expected to meet the man who had wronged and ill treated him, and inflict any bodily injury whatever upon him. That would be vengence, and it is not doing a lawful act in a lawful manner, "-is not improper, as conveying the idea that defendant was guilty even if he had unexpectedly and without seeking deceased met him, and if the pistol at the time had been accidentally discharged. 5. SAME.

An instruction that, if defendant was threatened with personal injury, he should have avoided meeting deceased, or going through the streets where he might be, and should have called upon the law for protection, is not erroneous, as conveying the idea that defendant, after being threatened by deceased, had no right to come to a place where deceased might be, or to walk the streets in his vicinity. Appeal from court of general sessions, city and county of New York. Laws N. Y. 1887, c. 493, § 528, provide as follows: "When a judgment is of death, the court of appeals may order a new trial, if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the court below."

Blake & Sullivan, (Stephen S. Blake and Adolphus D. Pope, of counsel,) for appellant. John R. Fellows, Dist. Atty., and Benj. F. Dos Passos, for the People.

PECKHAM, J. This is an appeal from a judgment of conviction of the prisoner of murder in the first degree in the court of general sessions for the county of New York. The prisoner was indicted for the murder of one Quinn in August, 1887, in the county of New York. He was tried in the

general sessions before the recorder, and, having been duly convicted and sentenced to death, his counsel appealed from such judgment to this court under the act permitting such appeal, known as “Chapter 493 of the Laws of 1887." It is claimed on the part of the defendant that the evidence does not show the defendant guilty of murder in the first degree; and under the act of the legislature above mentioned, this court having the right to examine the record, and determine upon the whole case whether the verdict was against the weight of evidence or against law, or if justice requires a new trial, we are asked to make such examination in this case, and to reverse the judgment on the ground above mentioned. The case being one in which the only judgment to be pronounced upon conviction under the indictment is that of death, an appeal from such judgment makes it the duty of this court to examine with very great care and attention the whole record for the purpose of discharging the duty imposed upon us by the legislature, and determining whether, upon that evidence, justice does require a new trial. In making that examination for the purpose of such a determination, the statute says it is not necessary that an exception shall have been taken to any decision made by the court below. Still, as has been already said by this court, a defendant, under this statute, cannot here claim as matter of right the benefit of errors occurring on the trial, where no proper objection was made, and no exception taken to the decision of the court below. Such failure to make an objection, and take proper exception, deprives the defendant of his claim, as matter of right, to a reversal of the judgment. Under such circumstances, he can only ask that the court will determine, upon the whole case, the question whether justice requires a new trial or not, or whether the verdict was against the weight of evidence or against law. The court is then vested with power, in its discretion, to disregard the neglect, and review the case upon the merits. People v. Driscoll, 107 N. Y. 414, 14 N. E. Rep. 305.

Having the power, we have exercised it in this case, and have examined fully and carefully the whole record, and we are clearly of opinion that the verdict was not against the weight of evidence or against law, and that justice does not require a new trial. On the contrary, we are fully convinced that the defendant was treated with eminent fairness throughout the whole trial, and that the verdict is in accordance with law, and that a new trial should be denied. Not because we have any doubt upon the question, but simply because it is a capital case, we think it proper to state the facts which we think the jury would have been well justified by the evidence in finding in this case. The defendant is a man between 25 and 30 years of age, a resident all his life of the city of New York. The deceased was also a resident of the same city, and had been all his life, and was a young man of rather above the ordinary height, and, as the evidence tended to show, something of an athlete. Some time in May, probably the 30th, 1887, the deceased, the prisoner, and some others, including two or three young women, went to a picnic at the upper end of the island, at which there was dancing. While there, there was some disturbance among this party, and something like the commencement of a quarrel between the deceased and the prisoner; the deceased demanding of the prisoner that he should apologize for some words which he had spoken of one Meehan, who was a companion of the deceased. The defendant refused to do so, and said that he would not take water from him even if he was a wrestler. The whole party were finally put out of the ground, and from that time until the 4th of July there is no particular account of the relations existing between the prisoner and the deceased. On the 4th of July the same parties met, either just prior to their going to a bathing place in the upper part of the town, or at such bathing place, and there they all had a bath. From the testimony of the women it would appear that all the women were drinking freely, and the men of the party were partners in the same business. They wandered up and down