John McGrath, one of the party, saw the man knocked down, but did not see anybody strike the woman, and he says that he did not see anybody stand over the man when he was down. He also adds that he did not see whether they went near the man after that or not. This evidence was submitted to the jury in an impartial charge of the judge, and under it, in our judgment, the jury was fully justified in the verdict which was rendered. There were no exceptions to the rulings of the judge during the trial, or to any part of the charge to the jury. The judgment of conviction is affirmed. All concur.

MOONEY V. FAGAN.

(Supreme Court, General Term, First Department. January 28, 1889.)

1. APPEAL-REVIEW-WEIGHT OF EVIDENCE.

In an action for mason-work done, where the question litigated was whether there was a contract of employment or not, plaintiff testified to a conversation in which defendant said that he would give plaintiff a certain sum for doing the mason-work in question, and another witness testified to the same effect. Defendant testified that plaintiff had asked a certain sum for doing the work, but that he had refused to give it, and that he did not promise to let plaintiff have the work. Held, that a finding for plaintiff would not be disturbed.

2. SAME-MATTERS NOT APPARENT IN RECORD.

Exceptions to a refusal to make certain findings are not available where the requests to find are set out, but there is nothing to show what disposition was made of such requests, or that they were ever passed upon.

Appeal from circuit court, New York county.

Action by Christopher Mooney against Charles J. Fagan. Judgment was given for plaintiff, and defendant appeals.

Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ.
Samuel Greenbaum, for appellant. L. H. Andrews, for respondent.

BARTLETT, J. The sole ground upon which the defendant asks. us to reverse the judgment in this case is that the trial court erred in deciding the issues of fact which were presented for determination. He argues that upon the evidence the case should have been decided in his favor, instead of in favor of the plaintiff. But the exceptions which appear in the record do not suffice to authorize a review of the facts. The defendant excepts to the second, third, and fourth findings of fact, and to the first, second, and fourth conclusions of law, and also to the refusal of the trial judge to find the matters of fact and law requested by the defendant. The exceptions to the findings of fact are unavailable for any purpose. Code Civil Proc. § 992. The exceptions to the refusals to find are equally useless, inasmuch as the appeal-book discloses no such refusals. The requests to find are set out therein, but there is nothing to show what was the disposition made of such requests or any of them, or that the trial judge ever passed upon them at all. Notwithstanding this condition of the record, we have carefully examined the evidence, and deem it quite sufficient to warrant the conclusions reached by the court below. The principal question litigated was whether the defendant employed the plaintiff to do certain mason-work on two houses which the defendant built in West Tenth street, in the city of New York. The plaintiff testified expressly to a conversation with the defendant in which the defendant said he would give him $4,250 for doing the work. His testimony was corroborated by Samuel McMillan, a carpenter and building superintendent, who was also employed upon the houses. The defendant, on the other hand, swore that the plaintiff asked $4,250, but that he said, "No;" and he added: "That was the only conversation I had with reference to doing work for me. I did not at any other time have any conversation with him in regard to his doing any mason-work for me. I did not at any time promise to let him do this work." Upon these contradictory statements by the parties to the action as to the al

leged contract of employment, the learned judge, who saw both witnesses and heard them testify, believed the plaintiff rather than the defendant, and we are unable to say that he erred in so doing. The houses were constructed largely under the superintendence of the witness McMillan, and the substance of the defense was that McMillan, and not the defendant, was the real employer of the plaintiff. If a jury had rejected this view of the case, we should not feel justified in interfering with their verdict. Its rejection by the trial judge, upon conflicting proofs, affords no better reason for reversing the judgment than would exist if the action had been tried before a jury. The judg ment should be affirmed, with costs. All concur.

GUGGENHEIMER v. SAYRE.

(Supreme Court, General Term, First Department. January 28, 1889.) MORTGAGES-FORECLOSURE-SALE-PRIOR LIENS.

On foreclosure of a second mortgage, the prior mortgagees not having been made parties, it appeared that the referee conducting the sale of the mortgaged premises announced that the property would be sold clear and free of incumbrances. Held, that such sale was irregular, and the proper remedy was by a resale of the premises. Appeal from special term.

Action by Randolph Guggenheimer against Edward Sayre, impleaded with others. From an order directing a resale of certain premises, defendants appeal.

Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ.

T. M. McCarter and C. B. Meyer, for appellants. S. Untermeyer, for respondent.

BRADY, J. This action was commenced for the foreclosure of a mortgage upon which upwards of $36,000 was due. The property consisted of five buildings, on which there were two prior mortgages aggregating $29,500, each of which covered the entire property, and was a purchase-money mortgage. Both of them are controlled by the plaintiffs. The mortgagees therein were not made parties to this action. The referee, upon the sale, read printed terms in the ordinary form. They contained in relation to incumbrances only the following, viz.: "All taxes, assessments, and other incumbrances upon said premises will be allowed by the referee out of the purchase money." The property was sold, therefore, without particular reference to any existing mortgages. It appears to have been announced also by the referee during the sale that the property consisted of several parcels, and would be sold free and clear of incumbrances. After the sale, an application was made to amend the judgment nunc pro tunc by adding the words, "prior mortgages or other incumbrances," so that the judgment would by express terms direct the referee to pay out of the proceeds of the sale the prior mortgages on the property, or for an order directing the referee to pay out of the proceeds of the sale the prior mortgages on the property foreclosed. Mr. Justice PATTERSON who heard the motion, notwithstanding that there was some conflict in the affidadavits as to whether the sale was announced as one free and clear of incumbrances, determined that such an announcement was made, and, for cogent reasons assigned by him, denied the motion. This was done upon the authority of Bache v. Doscher, 67 N. Y. 429, which declares that when prior mortgages exist the sale must be made subject to them. If they are due, the subsequent incumbrancer seeking to foreclose his mortgage may bring in the prior mortgagees, and have the amount of their liens determined and paid out of the proceeds. Bank v. Goldman, 75 N. Y. 132. Subsequently a motion was made for a resale of the premises in consequence of the irregularities complained of, and that motion was granted: and it was substantially predicate of the fact that the referee, in the terms of sale and during the sale, stated

that the property would be sold free and clear of incumbrances. The learned justice who heard that motion agreed with PATTERSON, J., in the conclusions of fact and law pronounced by him, and directed a resale. He thought that, assuming the mistakes in the proceedings to have been made, it was extremely doubtful if the purchasers could, under the circumstances, be compelled to take title; and that it would be inequitable to attempt to hold the purchasers, who would undoubtedly refuse to take title, and thus tie up what appeared to be a valuable property. This view illustrates the propriety of the rule that a direction for a resale rests finally in the discretion of the court. Hale v. Clauson, 60 N. Y. 339; Crane v. Stiger, 58 N. Y. 625; Dows v. Congdon, 28 N. Y. 122; Bank v. Newton, 23 N. Y. 160. It was stated upon the argument that the resale, from the order directing which this appeal was taken, had taken place, and that the purchasers thereat had taken title; and also that the appellants neither applied to the referee nor to the court for a stay of the proceedings to accomplish the resale.

What has thus been said with regard to this appeal seems to be entirely sufficient to dispose of it, the resale having taken place; but it may be proper to indulge in one or two additional observations. There can be no doubt that the referee had no authority to sell the property free and clear of incumbrances, and that the sale in that mode was irregular, and the proper remedy was in a resale. The facts disclosed on this appeal are similar to those in Hotchkiss v. Clifton Air Cure, 2 Abb. Dec. 406. It is quite apparent that the sale, having been made in the manner described, was one made under a mutual mistake of fact; the purchasers at least believing that the decree provided for the payment of the incumbrances out of the proceeds of sale, which was not the case. We have thus the facts found by two justices of this court sustaining the proposition that the premises were sold in a manner which was not authorized, and a resale in the exercise of discretion by one of them. We see no reason for intimating even that the exercise of this discretion was improperly employed. Justice to the parties, and the proper administration of the rules of law, required the resale to be made, and perhaps the only surprising feature of the whole appeal is that it should have been argued under the circumstances. The order should be affirmed, with $10 costs and disbursements. All concur.

MANCHESTER v. TIBBETTS.

(Supreme Court, General Term, Fourth Department. September, 1888.)

1. APPEAL-REVIEW-WEIGHT OF EVIDENCE-FINDING OF REFEREE.

In an action for conversion of chattels, brought by a wife who claims as mortgagee of her husband, against a sheriff selling the same under an execution against the husband, where the evidence of the husband and wife, corroborated by some circumstances, tends to establish the good faith of the mortgage, while other facts tend to show that it is fraudulent, the finding of the referee in favor of the plaintiff will be upheld, as his opinion on the weight of evidence should be respected by the court on appeal; such testimony, if believed, being sufficient to meet the requirement of 2 Rev. St. N. Y. p. 136, § 5, imposing the burden of proof in such case on the wife.

2. FRAUDULENT CONVEYANCES-INSOLVENT MORTGAGOR-INTENT.

Though the mortgagor was insolvent when the mortgage was made, it would not be vitiated thereby if given to secure a just debt, with no intent to defraud creditors.

Appeal from judgment on report of referee.

Action by Sarah M. Manchester against J. Warren Tibbetts, to recover for the conversion of certain chattels seized and sold by defendant under execution against plaintiff's husband, Charles W. Manchester. Plaintiff had a mortgage on the property to secure her in a debt owed by her husband, evidenced by a promissory note for $1,016.06. The mortgage bore date October 28, 1886, and there was a prior mortgage thereon to one King, on which about

$300 was due. The referee found for plaintiff, and judgment was entered accordingly. Defendant appeals.

Argued before HARDIN, P. J., and FOLLETT and MARTIN, JJ.
D. P. Van Vleet, for appellant. Simeon Smith, for respondent.

HARDIN, P. J. 1. Whether or not the plaintiff's mortgage was void, as against the creditors of the mortgagor, was made a prominent question of fact upon the trial. The defendant was entitled to the benefit of the presumption declared in the statute, while such question was under consideration. That presumption would "be conclusive evidence of fraud, unless it be made to appear on the part of the person claiming under such sale or assignment that the same was made in good faith, and without any intent to defraud creditors." 2 Rev. St. p. 136, § 5; Look v. Comstock, 15 Wend. 244; Edgell v. Hart, 9 N. Y. 213; Russell v. Winne, 37 N. Y. 591. The onus was upon the plaintiff to establish, by evidence satisfactory, that the mortgage was "made in good faith, and without any intent to defraud creditors." With a view of establishing that proposition, she gave testimony tending to show the origin of the indebtedness which she held against her husband, the amount due thereon, and that for the purpose of securing that indebtedness he executed to her a promissory note and the chattel mortgage on the 25th of October, 1886. If such indebtedness actually existed, and the note and mortgage were made in good faith, and delivered to her, and the mortgage filed as the statute requires, as to the filing of which no question was made, the transfer to her was as valid as though the transfer had been made to another party under similar circumstances. Savage v. O'Neil, 44 N ̧Y. 298; Seymour v. Fellows, 77 N. Y. 178; Woodworth v. Sweet, 51 N. Y. 8; Rawson v. Railroad Co., 48 N. Y. 216.

Upon the question of fact, of whether the indebtedness existed, and whether the mortgage was made in good faith, to secure the plaintiff, her testimony was given, and the testimony of her husband, and certain facts and circumstances were disclosed tending to sustain the position taken by her in respect to the chattel mortgage. On the other hand, certain facts and circumstances were disclosed in the evidence which form certain indicia of fraud. It was the province of the referee to determine where the truth lay in respect to the allegations of good faith on the one side, and the allegations of fraud on the other. While it is true that this court is authorized to review the evidence, and to reach a conclusion thereon averse to the conclusion reached by the referee, it is also the duty of the court, in considering the evidence and circumstances, to give influence to the finding of the referee. Sperry v. Baldwin, 46 Hun, 124. The referee saw the witnesses, heard them testify, and had somewhat better opportunity of judging as to whether they were truthful or not than this court can have. After reading the evidence, and allowing the finding of the referee to have its proper influence upon us, we are not inclined to overturn his findings of fact. He has specifically found that there was no agreement or understanding between the parties to the mortgage at the time of the execution thereof, other than such as was stipulated on the face of the mortgage. In the absence of such a parol agreement, the circumstance disclosed in the evidence, that the mortgagor sold some of the articles, may not be held suflicient to avoid the mortgage. Southard v. Benner, 72 N. Y. 424; Brackett v. Harvey, 91 N. Y 214; Sperry v. Baldwin, supra, 125.

2. When the plaintiff's mortgage was executed, the mortgage to King was not due, and the legal title, therefore, to the property described in the King mortgage, remained in the mortgagor at the time of the execution of the mortgage to the plaintiff, and at the time the plaintiff's demand was made upon the defendant for the property. Subsequent to the execution of the mortgage to the plaintiff she made some efforts to take possession of the property cov

ered by her mortgage. While the circumstances are very slight to indicate that she assumed control and possession of the property, if her chattel mortgage was valid, her right to have the possession of the property at the time the demand was made was secured to her by her mortgage, inasmuch as her mortgage was past due, having been given payable one day after its date, and the demand was made several days after the date of the mortgage.

3. It seems, upon the whole evidence given upon the trial, the referee was of the opinion that the property sold by the defendant was fairly worth, "over and above the claims thereon prior to the plaintiff's mortgage," the amount due upon plaintiff's mortgage. When the plaintiff rested no motion for a nonsuit was made, and no exceptions were taken upon the trial which are deemed worthy of discussion by the appellant, or which, upon examination, are found to be of any avail to the appellant.

4. The circumstance that the mortgagor was insolvent at the time he executed the mortgage to the plaintiff is not sufficient to vitiate the plaintiff's mortgage. The paramount question is whether the mortgage was given for actual bona fide indebtedness, and with an honest intention of securing that indebtedness to the plaintiff without any intent to hinder, delay, or defraud other creditors. Livermore v. Northrup, 44 N. Y. 107; Jaycox v. Caldwell, 51 N. Y. 395; Plow Co. v. Wing, 85 N. Y. 421. After the referee made up his mind to believe the testimony of the plaintiff and her husband upon the subject of the plaintiff's chattel mortgage, we think he was warranted in finding the facts which sustain the mortgage. While this case has some suspicious circumstances,-while some features of it are likely to start a suspicion that the transaction between the plaintiff and her husband was fraudulent,-we are not prepared to say that the referee has found upon the essential question against the weight of evidence. His report is therefore sustained. Judgment affirmed, with costs. All concur.

PEOPLE v. Todd.

(Supreme Court, General Term, First Department. January 28, 1889.) GAMING-OPTIONAL CONTRACTS-PURCHASE AND SALE OF STOCK.

A contract between two persons by which one, for a consideration paid, is allowed the privilege of buying of or selling to the other shares of stock agreed upon, if he should elect to do so before the stock reaches a given per cent. of advance or depreciation in value from the contract price, it not being intended to deliver the shares, but to settle the transaction by payment of the difference between the contract price and the value reached by the stocks, is not gambling, within the meaning of Pen. Code N. Y. c. 9, prohibiting any one to keep or use any table, cards, dice, or other apparatus commonly used in gambling.1

Appeal from court of general sessions, New York county. Conviction of Elliott W. Todd for keeping a gambling room. appeals.

Defendant

Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ. L. W. Emerson and Freling H. Smith, for appellant. McKenzie Semple, Asst. Dist. Atty., for the People.

BRADY, J. The transactions which were alleged to constitute gambling, under section 343 of the Penal Code, related to the fluctuation in the price of stocks bought and sold in the New York Stock Exchange, as indicated by a stock quotation ticker. The purchaser of a stock named by him would deposit a margin, and receive an acknowledgment in printed form, with blanks

Concerning the validity of contracts for dealing in futures, see Washer v. Bond, (Kan.) 19 Pac. Rep. 323, and note; Floyd v. Patterson, (Tex.) 10 S. W. Rep. 526; Copley v. Doran & Wright Co., 1 Y. N. Supp. 888; Osgood v. Bauder, (Iowa,) 39 N. W. Rep.

887.