tirely silent as to this demand, and in no way whatever suggested even a supposition on the part of Mr. Graham, the writer, that the firm had or could make the claim, or any part of it, which was presented to the administrators of the estate against the intestate himself. In his own evidence as a witness, which he was permitted to give quite broadly, he stated that the understanding or arrangement between the firm and the intestate when he moved his desk to the store was that the amount of the compensation which was to be made should be left to the intestate himself. That is the reason assigned by the claimant for the omission to make any charge upon the books or in the account, or any reference in these letters to the compensation he testified they expected to receive. But even this explanation could not be entirely satisfactory when it is borne in mind that if any compensation whatever was owing to the firm it had then matured for the accommodation extended and the services performed during the period of near seven years. But if this circumstance should have no weight or effect in the disposition of the case, the explanation and excuse disclosed in this manner depended wholly upon the testimony of Mr. Graham; and that was in no sense controlling or conclusive upon the referee, for, where testimony is obtained from a party to a legal controversy, either a referee or jury may discredit and reject it on account of the intent of the person from whom it is obtained. Elwood v. Telegraph Co., 45 N. Y. 549; Gildersleeve v. Landon, 73 N. Y. 609; Honegger v. Wettstein, 94 N. Y. 253, 261. The referee was therefore supported in his conclusion by which he declined to be governed by this testimony. There were no rulings during the course of the trial, either upon evidence received or rejected, which can be relied upon as erroneous. The case, on the contrary, is presented in support of the appeals upon the effect alone of the evidence taken upon the trial. And the probabilities to be deduced from this evidence were so far favorable to this estate as to support the conclusion adopted by the referee that the claim made was without foundation. Both the judgment and the order denying the motion to set aside the report should be affirmed, with costs. All concur. In re TULANE'S ESTATE. (Supreme Court, General Term, First Department. January 28, 1889.) DESCENT AND DISTRIBUTION-INHERITANCE TAX-PROPERTY OF NON-RESIDENT. Property deposited for safe-keeping in the state of New York by its owner, a resident of another state, who dies intestate, passes by the intestate law of the latter state, and is not liable to the tax imposed by Laws N. Y. 1885, c. 483, on all property passing by will, or by the intestate law of New York, from any person dying possessed thereof while a resident of New York, or which shall be within the state. Appeal from surrogate's court, New York county. Paul M. Tulane and George O. Vanderbilt, administrators, etc., of Paul Tulane, deceased, appeal from an order of the surrogate requiring the payment of the "collateral inheritance tax" on certain securities of their intestate deposited with the New York Safe-Deposit Company. Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ. VAN BRUNT, P. J. The deceased at the time of his death, and for a long time prior thereto, which occurred in March, 1887, had been a resident of the state of New Jersey, and the property the succession to which it is sought to affect by this tax had been deposited by him in the vaults of a safe-deposit company in this city for safe-keeping. The deceased died intestate, and letters of administration were granted upon his estate in New Jersey. The safedeposit company refused to hand over this property until ancillary letters were issued in this state. The tax is claimed by virtue of the provisions of chapter 483 of the Laws of 1885. This act provides that after its passage all property which shall pass by will, or by the intestate laws of this state, from any person who may die seised or possessed of the same while being a resident of this state, or which property shall be within this state, or any part of such property, or any interest therein, or income therefrom, transferred by deed, grant, sale, or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, to any person other than those mentioned in the statute, shall be subject to a tax, etc. It is evident, in order to come within the provisions of this act, that the property which forms the basis of the tax in question must pass by will, or by the intestate laws of this state, or must have been transferred by deed, grant, sale, or gift. In the case at bar the property in question has not passed under any of the conditions mentioned in the statute. Such property has neither passed by will, nor has it been transferred by deed, grant, sale, or gift, but it has passed by the intestate laws of the state of New Jersey, although situated in this state,—a case not within the language nor the spirit of the statute. The order appealed from should be reversed, with costs and disbursements. All concur. NEWCOMBE . IRVING NAT. BANK. (Supreme Court, General Term, First Department. January 28, 1889.) EXECUTION-RELIEF AGAINST INJUNCTION—ADEQUATE REMEDY AT LAW. By the amendment of Laws N. Y. 1888, c. 98, to Code Civil Proc. § 1419, the court is bound to approve an undertaking indemnifying the sheriff from liability for a levy, etc., if the indemnitors are responsible, and thereupon the sheriff is discharged from all liability by reason thereof. Held, that where several levies are made for which there are several indemnitors, and where, consequently, it is uncertain for what property each indemnitor is liable, there is no certain and adequate remedy at law for the levy, if wrongful, and a creditor, on sufficient security being given, should be restrained from enforcing his execution until the rights of the parties are determined. Appeal from special term New York county. Action by Richard S. Newcombe, assignee for benefit of creditors of Isaac J. Seligman and others, against the Irving National Bank. The complaint alleges that defendant has received from plaintiff's assignors three confessions of judgments, and, alleging the assignment to be void, has issued executions thereon with instructions to collect them out of the assigned estate, and has indemnified the sheriff, that if the assigned estate is sold plaintiff cannot recover adequate damages against the sheriff and his indemnitors, if it is determined that he is entitled to hold the assigned estate; that other judgment creditors have also indemnified the sheriff against plaintiff's claim; and prays that on making a deposit subject to final determination as to the validity of the assignment defendant may be restrained from enforcing the execu tions. The affidavit of one of plaintiff's attorneys states that since defendant gave the indemnity bonds to the sheriff about 40 judgment creditors have also indemnified the sheriff, and have issued executions against the property of plaintiff's assignors; that as he is informed and believes levies were made thereunder before levy was made under defendant's execution; that numerous sureties are on all these separate indemnity bonds; and that, if plaintiff should be compelled to sue for damages for wrongful levy, it would be impossible to determine which set of indemnitors would be liable, or in what proportion; and that great multiplicity of action must ensue, and his remedy would be inadequate. A preliminary injunction was granted, whereby defendant was restrained from selling the property under the executions, on plaintiff's giving a sufficient undertaking to indemnify it. Defendant appeals. The statute in question is Code Civil Proc. N. Y. § 1419 et seq., and the amendment by Laws 1888, c. 98. Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. Stern & Myers, for appellant. Charles Donohue, for respondent. VAN BRUNT, P. J. The order appealed from is certainly a novel one, but the circumstances under which it was applied for are equally novel. The rule is well established that a court of equity will not interfere by injunction where an adequate remedy at law exists; and in cases of trespass by the sheriff prior to this new legislation, (whereby one man is made responsible for the trespass of another,) the person against whom the trespass was committed had an ample remedy at law, because he could maintain his action against the sheriff for such trespass, and recover the damages which he had sustained. If such trespass had been directed by any other person, as by an indemnitor, he had the right also to join in such action such indemnitor. Under this condition of the law there was no uncertainty in regard to the remedy of the party injured. He had a complete and effectual one against the sheriff and his aiders and abettors. When the legislation took effect which authorized the court to substitute indemnitors in the place of the sheriff, certain discretion existed in the court, and, if the rights of the parties injured would be in any wise impaired by such substitution, the court had the right to refuse the same; and it has been held under this legislation that where there were a variety of indemnitors, and the sheriff was proceeding under a variety of executions, this was a sufficient ground for the refusal of substitution, because it was impossible for the injured party to know as to what part of the trespass each indemnitor was liable, and, as such indemnitor was not liable for the whole trespass, it made his remedy uncertain, and as a consequence the sheriff would not be relieved, but would remain liable for the whole trespass, as he had been previous to this legislation. By the amendment of 1888 no discretion is vested in the court. If the judge finds upon examination that the indemnitors are responsible, he is bound to indorse his approval upon the undertaking, and thereupon the sheriff is released and discharged from all further liability by reason of the levy, detention, and sale of the property seized. This legislation produced a state of things which is entirely new, and has never existed before. The party whose property is seized under various executions, where the sheriff has been indemnified by various indemnitors, cannot present to the court the fact that he cannot know whom to proceed against for this levy as a reason why substitution should be refused, because the judge is bound to approve the undertaking if the sureties are sufficient; and the sheriff, as matter of law, thereupon becomes discharged, and the person whose property has been seized under the execution must thereafter look to the indemnitors for satisfaction for the trespass committed by the sheriff. As has already been suggested, each indemnitor is not liable for the whole trespass unless all the goods were taken under the execution which he has indemnified against, and the sheriff may make successive levies under the different executions, and the indemnitors under each execution are only liable for the levy made under that particular execution. Under these circumstances, unless the owner of the property is present at the time of the levy, and is informed by the sheriff as to what he levies upon under each execution, and he takes pains to inform himself upon the subject, it is impossible for him to tell as to what property each indemnitor is liable; and then, when he comes to try his action at law, it depends upon his testimony, where perhaps he is contradicted by the person making the levy under the execution, and he is thereby thrown into a sea of uncertainty as to whom he is to look for satisfaction. An action brought under such circumstances against divers individuals would certainly be a very inadequate remedy; and it is because of the fact that by his action for damages the owner of the property seized under these circumstances cannot secure adequate and certain relief that the aid of a court of equity is asked. As has already been stated, it is an unusual application, and the circumstances under which it is made are equally novel. The debtor, under circumstances such as these, has no adequate remedy at law, and it is necessary that this particular proceeding should be entertained by a court of equity because of the change in the relations between the owners of property and the persons who trespass upon them wrought by this legislation. We are of opinion, therefore, that the plaintiff was entitled, in view of the fact that his property had been levied upon under different executions upon which there were various indemnitors, and in view of the fact that it was impossible to tell with any degree of certainty what part of the property was seized under each particular execution, to the order granted, whereby the plaintiff's rights might be fixed, having before the court all the parties who claimed an interest in the property by reason of the levies made by the sheriff. The order should accordingly be affirmed, with $10 costs and disbursements. All concur. NEWCOMBE v. IRVING NAT. BANK. (Supreme Court, General Term, First Department. January 28, 1889.) Appeal from special term New York county. Action by Richard S. Newcombe, assignee, etc., against the Irving National Bank. Defendant appeals from an order restraining it from enforcing its judgments by executions upon property alleged by plaintiff to be a portion of the assigned estate. Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. Stern & Myers, for appellant. Charles Donohue, for respondent. VAN BRUNT, P. J. For the reasons stated in the opinion in the case of Newcombe v. Bank, ante, 37, (decided herewith,) the order appealed from in this case was right, and should be affirmed, with costs and disbursements. All concur. GUENTZER v. JUCH. (Supreme Court, General Term, First Department. January 28, 1889.) COVENANTS-RUNNING WITH LAND-LIABILITY OF VENndee. Plaintiff and an adjoining owner made a party-wall agreement to run with the land, by which, when the adjoining owner or his assigns should make use of the wall, one-half its cost should be paid to plaintiff. The land of the adjoining owner was afterwards acquired by defendant through conveyances, all of which were made subject to the agreement. Defendant having made use of the wall, plaintiff was entitled to have half its cost charged on defendant's land, and payment enforced by a sale thereof, and to a personal judgment against defendant for any deficiency.1 Appeal from special term, New York county. Action by John W. Guentzer against W. A. Juch. A demurrer to the complaint was overruled, and defendant appeals. Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. Edward Kaufmann, for appellant. Joseph Fettretch, for respondent. DANIELS, J. The complaint to which the demurrer was interposed set forth, as the plaintiff's cause of action, the making of an agreement under seal between himself and William H. Richards, by which it was agreed that a division or party wall should be built upon the line of land owned by these parties, on the westerly side of Eleventh avenue in the city of New York, the wall to be erected equally upon the property of each of these persons. It was further agreed, as the plaintiff was about to erect the wall, that when Richards, his heirs or assigns, should make use of it by the erection of a building upon his lot, there should be paid to the plaintiff, his heirs or assigns, onehalf the cost of erecting the party or division wall, and that this cost should be fixed or ascertained by two persons, one to be chosen by each party, or by a third party, chosen by these two, if they should be unable to agree. It was As to when pa rty-wall agreements constitute covenants running with the land, see Nalle v. Paggi, (Tex.) 9 S. W. Rep. 205, and note. further agreed by the parties for themselves, their respective heirs and assigns, that the cost of repairing or rebuilding the wall should be borne equally by the owners of the respective lots, and that the agreement should be perpetual, and at all times be construed "into a covenant running with the land, and that no part of the fee of the soil herein described, and upon which said party-wall is inclosed, shall be transferred or conveyed in or by these presents." The plaintiff built the wall as he was authorized to do by the agreement, and Richards conveyed his adjoining lot to Newman Cohen. By the deed making the conveyance it was declared that it was "subject also to a party-wall agreement made by John W. Guentzer with the party hereto of the first part, dated May 9, 1884, and recorded in said register's office May 14, 1884, in Liber 1793 of Conveyances, page 253." Cohen and his wife afterwards conveyed the same property to the defendant, declaring it to be conveyed "subject to the said party-wall agreement herein before referred to." He entered into the possession of the premises, and erected a building upon them, making use of the wall, as he was entitled to do by the agreement; and the plaintiff thereupon served him with a notice in writing requiring him to appoint a person to act with another selected by the plaintiff to fix and determine the cost of the wall, and the amount to be paid by the defendant for its use and appropriation to his building. The defendant failed to make the selection of a person to act in this manner, and the amount was appraised by the individual selected by the plaintiff, fixing the value of one-half of the wall at the sum of $901.15. This sum the defendant refused to pay, and the plaintiff, by his complaint, demanded judgment that it might be decreed to be a lien upon the premises owned by the defendant, and that they should be sold to pay this amount, with interest and costs, and that the plaintiff should have such other or further relief as might be just. The demurrer was served to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action; but as the complaint was considered at the trial to be sufficient, this demurrer was overruled, and a judgment was finally recovered, adjudging this amount of money, with interest, to be a charge upon the defendant's lot of land, and directing a sale of it, and out of the proceeds the payment to the plaintiff of the amount adjudged to be due and owing to him as the value of one-half the wall, and for the recovery of any deficiency against the defendant personally. It is entirely clear from the complaint that the agreement imposed a personal obligation upon Richards to pay to the plaintiff one-half the expense or value of the erection of this wall; and he, for his protection, when he conveyed his lot to Cohen, charged it with the duty and obligation of liquidating and discharging this indebtedness. The obligation in this manner created could only be discharged to the plaintiff, and it is to be inferred from the acts of the parties that it was intended by them that it should be so performed by the grantee of the property, and the same intention actuated Cohen in making his conveyance to the defendant. It was to continue the imposition of the burden of this obligation upon the property, not only for the relief of Richards, but for the benefit and advantage of the plaintiff. And when real estate is in this manner conveyed the effect of the conveyance is to create a charge upon it for the satisfaction of the obligation provided for. Jumel v. Jumel, 7 Paige, 591. And the property so charged becomes the primary fund, or source of payment; and, as between its grantor and grantee, the former afterwards stands as a surety only for the payment of the indebtedness. This was held to be the law governing courts of equity in that case, and the case of Cox v. Wheeler, Id. 248, supports the same principle. And it has since been sanctioned by the cases of Belmont v. Coman, 22 N. Y. 438; Dingeldein v. Railroad Co., 37 N. Y. 575; and Hamill v. Gillespie, 48 N. Y 556. And this obligation distinguishes this case from those of Cole v. Hughes, 54 N. Y. 444, and Scott v. McMillan, 76 N. Y. 141. And as it placel Richards in the |