was never entered in the books of the chancery office. With reference to the last fact it is sufficient to say that the books do not contain a complete record of church property. The statement of Father Preston to Father Keogh cannot be regarded as a repudiation of the deed, in view of the fact that it was made in 1882, and for three years after that Keogh continued to collect the rent, and pay it over to the chancery office. Nor does it appear that at the time of the direction aforesaid there was any intent of returning to McEvoy or Keogh the rents that had been previously collected. As already stated, the deed conveys not only the mortgaged premises, but also an adjoining piece of land. There is no claim made that when attention was called to the deed at the time of its delivery by McEvoy to O'Connor, or at any time since, there was any disclaimer of taking title to the adjoining lot. This fact, as well as the acceptance of the rents, characterizes the transaction, and shows clearly the acceptance of the deed. With reference to the release, I think it was not competent for the executor of McEvoy, without the consent of the mortgagee, to release the archbishop from the covenant in the deed. The plaintiff must have judgment, with costs."

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Boardman & Boardman, for appellant. R. E. Prime, for respondent.

PRATT, J. The facts which show that the deed of Father McEvoy was delivered to and accepted by Cardinal McCloskey are so fully considered in the opinion of the special term that further discussion is uncalled for. It may well be, as claimed for defendant, that the delivery was not to the cardinal in person, but it is shown to be in the hands of his agent; and when his personal attention was called to the fact there was no effective disclaimer.

The only question remaining is the validity of the release. Whether a covenant in a deed in which a mortgage is assumed can be released by the immediate parties without consent of the mortgagee is a question which is not entirely settled. The better opinion seems to be that suggested in 105 N. Y. 228, 11 N. E. Rep. 498, to the effect that such release will be ineffectual. As the right of the mortgagee does not depend upon privity of contract, but upon principles of equity arising from the situation, it is not easy to see how the right of the mortgagee should be affected by acts to which he is not a party. The special term decision to that effect is in harmony with the generally received opinion, and the judgment must be affirmed, with costs.

DYKMAN, J., concurs.

BARNARD, P. J., (dissenting.) The court of appeals held in this case that the deed was intended to convey a title for church purposes, and that the grantee, Cardinal McCloskey, obtained no personal beneficial interest therein. The grant is to Cardinal McCloskey as archbishop of New York. The lands are in this diocese. Although the deed contains the clause that the grantee assumes the mortgage on the property as part of the purchase price, the covenant is not one of the deceased cardinal personally. The cases that hold that a title is a mere description of the person do not cover this case. It seems to me clearly to be embraced within the principle established by Whitford v. Laidler, 94 N. Y. 145. The evidence fails to make a different case from that heretofore presented to the court of appeals. Gifford v. Corrigan, 105 N. Y. 223, 11 N. E. Rep. 498. The evidence shows that Cardinal McCloskey was told some 18 months after the deed was executed that he was liable on this assumption clause, and it was read to him. He made no reply, except that he would "communicate with Father Keogh about it." The book of the church lands contained no memorandum, or even mention, of a conveyance of these lands. The deed remained in the possession of the grantor until he died, in 1882, it having been executed in 1878. There is not a fact in the case

that is not at variance with the finding that Cardinal McCloskey either intended to or did assume the payment of the mortgage in question. The judgment should therefore be reversed, and a new trial granted, costs to abide the event.

FULLER v. CLAFLIN et al.

(Supreme Court, General Term, Second Department. February 11, 1889.) SALE-WHEN TITLE PASSES-BILL OF SALE-EXECUTION BY PARTNER.

A bill of sale of certain goods, "to arrive" in a designated vessel, executed by one member of a copartnership in the firm name, to satisfy debts due by the firm to the vendees, and followed by a consignment of the goods to the vendees, passes title to the goods, though they are not on board the vessel at the time of the execution of the bill of sale, but are in the hands of the vendors' agents, on their way to the vessel.1 PRATT, J., dissenting.

Case submitted on agreed statement.

Action by Levi A. Fuller, as receiver of the property of the firm of C. Brennan & Co., against John Claflin, Edward E. Eames, Horace J. Fairchild, Dexter N. Force, and Daniel Robinson, for the value of certain goods received by defendants under a bill of sale executed by Thomas K. Foster, a member of the firm of C. Brennan & Co., in the firm name. The bill of sale was executed before plaintiff's appointment as receiver.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
C. H. Hess, for plaintiff. S. F. Kneeland, for defendants.

BARNARD, P. J. It is fully settled that one member of a partnership may sell, hypothecate, or otherwise dispose of the property, securities, or effects of the firm. Thomas K. Foster, one of the members of the firm of C. Brennan & Co., consequently had the power to make the sale to H. B. Claflin & Co. The question in this case is reduced to the consideration of the fact whether or not the instrument dated August 31, 1888, executed by Foster, was sufficient and adequate by its terms to transfer to the vendees the title to the property therein referred to. Said agreement reads as follows: "NEW YORK, August 31, 1888. For value received, we hereby sell and transfer to H. B. Claflin & Co. 150,000 cocoa-nuts and ten tons of ivory-nuts, to arrive in the schooner Mary C. Decker, from San Blas, U. S. C. C. BRENNAN & CO." Subsequently to the execution of the above contract, and in order to carry out the terms thereof, the supercargo of the schooner was directed by telegraph to have the consignment made out to H. B. Claflin & Co. The consideration for the foregoing contract is ample and sufficient. C. Brennan & Co. were at the date thereof justly indebted to the defendants H. B. Claflin & Co., and suits had been instituted for the recovery of said indebtedness. It has been held in this state that any act which is for the benefit of one of the parties to a contract, and operates to the injury of the other party or parties, is a good and effectual consideration to uphold a sale. Hart v. Young, 1 Lans. 417; Britenstool v. Michaels, 56 N. Y. 607. It has been further held that the giving of a bill of sale of certain specific articles is a good consideration for the postponement of the enforcement of a claim. Audas v. Nelson, 64 Barb. 362. There remains but one more question to be considered in reference to this case, viz., in reference to the delivery of the subject-matter of the bill of sale. By a long line of decisions in this state, it is established that the delivery, which is one of the essential prerequisites to a valid sale, must be such as the article sought to be sold is by its nature susceptible of. Hayden v. Demets, 53 N. Y. 426; Wilkes v. Ferris, 5 Johns. 335. In the case under consideration, although the goods were not on the schooner at the date of the bill of sale, still they were

As to when title passes on a sale of chattels, see Hopkins v. Partridge, (Tex.) 10 S. W. Rep. 214, and note; Rechtin v. McGary, (Ind.) 19 N. E. Rep. 731.

Sup. Ct.] DUTCHESS COUNTY MUT. INS. CO. v. CITY OF POUGHKEEPSIE.

93

in the hands of agents or on their way thither, and the consignment of them to H. B. Claflin & Co., in accordance with the telegraphic instructions to that effect, operated to make as perfect a delivery as the circumstances of the case in question allowed. Even admitting that the sale was not complete in all essentials, still H. B. Claflin & Co., having given a valuable consideration for the instrument in question, have priority of right over the receiver appointed subsequently, under the principle of law set forth in the phrase, qui prior est in tempore potior est in jure. Judgment should be given for the defendant, with disbursements only according to the term of the submission.

DYKMAN, J., concurs.

He

PRATT, J., (dissenting.) The phrase, "sold to arrive," in mercantile contracts, does not import an executed sale. The sale is conditional, and, in case the events take place upon which its execution depends, the right of the vendee, in case of non-delivery of the goods, is to recover damages therefor. cannot maintain replevin. The title is in the vendor until the sale is completed, in the same manner as other sales. Anderson v. Read, 106 N. Y. 333, 13 N. E. Rep. 292. It follows, therefore, that the agreement of Brennan & Co. did not transfer to Claflin a present title to the goods. That remained in the vendors, and, upon the appointment of the receiver, vested in him as the representative of the court, as did the other assets of the estate. After that time the title of the goods could only be transferred by the receiver, or by order of the court. It also appears that on August 30th, when the contract was made, there were no goods of Brennan & Co. on the schooner M. C. Decker. There was therefore, at that time, nothing which answered the description of the contract. Before the goods were placed on board, they had vested in the receiver. They were not at any time before the receivership set apart or specified, or in any way appropriated, to the fulfillment of the contract, all of which was necessary to be done before the title could pass. Not till those steps were completed could any one tell which of the goods were to go to the vendee. The goods vested in the receiver before these things were done, and whatever was done by the agents of Brennan & Co. after that time had no validity. It follows that the goods were the property of the receiver, who must have judgment upon the agreed statement of facts for $3,724.65, and interest from October 16, 1888, and his disbursements in the action.

DUTCHESS COUNTY MUT. INS. Co. v. CITY OF POUGHKEEPSIE. (Supreme Court, General Term, Second Department. February 11, 1889.) 1. TAXATION-EXEMPTION-MUTUAL INSURANCE COMPANIES.

The personal property of a mutual fire insurance company is exempt from taxation for other than state purposes, under Laws 1886, c. 679, § 4, providing that the lands of such insurance companies shall continue to be assessed for local purposes, but the personalty shall be exempt from all taxation, except as therein prescribed. 2. SAME-CONSTITUTIONAL LAW.

Such an exemption is not unconstitutional.

3. SAME-ERRONEOUS TAXATION-RIGHT TO RECOVER.

Illegal county taxes, paid under protest, or after levy and threatened sale, to a city treasurer, whose duty it is to receive them, and applied to the replacement of moneys paid by the city to the county for such taxes before their payment by the tax-payer, may be recovered from the city.

Appeal from circuit court, Dutchess county.

Action by the Dutchess County Mutual Insurance Company against the city of Poughkeepsie, to recover taxes paid. Plaintiff is a domestic corporation, engaged in fire insurance. Defendant appeals.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
C. B. Herrick, for appellant. F. B. Lown, for respondent.

PRATT, J. Two questions are raised by this appeal: (1) Whether the act of 1886, referred to, exempts the plaintiff from the payment of any other taxes than the taxes for state purposes imposed by the act; and (2) if it does so exempt, can this suit be maintained to recover back moneys paid to the city for such taxes? The taxes so paid were assessed on the personal property of the plaintiff for the years 1887 and 1888, and paid under protest; the tax of 1888, after warrant had been issued and levy made. The section of the statute under which plaintiff claims exemption is as follows: "Sec. 4. The lands and real estate of such insurance companies shall continue to be assessed and taxed where situated, for state, city, town, county, village, school, or other local purposes; but the personal property, franchise, and business of all insurance companies incorporated under the laws of this state, or any other state or county, and doing business in this state, and the shares of stock of said companies, shall hereafter be exempt from all assessment or taxation, except as in this act prescribed: provided, that this section shall not affect the fire department tax of two per cent. now required to be paid." This act seems to be as clear and explicit as possible, that the personal property of the corporations referred to shall be exempt from all assessment and taxation, except as therein provided. The taxes were therefore illegally imposed, and ought not to have been collected.

The defendant claims that portions of the money so paid were for county taxes, and collected upon the warrant of the board of supervisors, and therefore the city is not liable. The answer to this is that the treasurer of the defendant received the money in his capacity as an officer of defendant, and in pursuance of his duty as such officer. Prior to the payment of the taxes, the defendant had paid the county tax to the county treasurer out of the general city fund, and the taxes, when paid by plaintiff, were covered into the city treasury, to replace the moneys for county tax, and the balance for the other purposes for which the same were assessed. It cannot be said that any of the payments were voluntary. The first were, by an arrangement with the city treasurer, paid under protest, and the last after levy and threatened sale of property. The case of Everson v. City of Syracuse, 100 N. Y. 577, 3 N. E. Rep. 784, is not an authority applicable here. That was an action of tort against the city for levy and sale, made by a constable, and failed for the reason that the constable was not authorized by the city to commit the tortious acts complained of. This case is in the nature of an action directly against the city for money had and received by the defendant to plaintiff's use. The criticism upon the statute of 1886, indulged in by the defendant, may be just, but the remedy must be sought in the modification or repeal of the statute. We are unable to say it is unconstitutional. Judgment affirmed, with costs.

BRIASCO v. LAWRENCE.

(Supreme Court, General Term, Second Department. February 11, 1889.)

1. VENUE IN CIVIL CASES-CHANGE OF VENUE-PREMATURE APPLICATION.

An application for change of venue, made before serving an answer in an action for slander, on the ground that it will be impossible for a material witness to attend in the county where suit is brought, is prematurely made.

Such application should not be granted, in an action for slander, where the complaint does not show that plaintiff is not a resident of the county designated in the complaint as the place of trial, under Code N. Y. §§ 982-984, providing for a trial in the county where one of the parties resided at the beginning of the suit.

3. SAME-SUFFICIENCY OF AFFIDAVIT-WITNESSES.

An affidavit on which such application is based, is defective when it does not state that defendant has stated to his counsel what he expects to prove by his various witnesses.

Appeal from special term, Westchester county.

Rosanna Briasco sued Joseph B. Lawrence in Kings county in an action of slander. Lawrence, before serving his answer, filed an affidavit for change of venue, alleging that he was a resident of Westchester county; that his mother, who was infirm, was unable to attend court in Kings county; and that he had other witnesses residing in Westchester county whom it would greatly inconvenience to attend court in Kings county. A change of venue was granted, and plaintiff appeals.

Argued before BARNARD, P. J., and PRATT, J.

Horace Graves, for appellant. L. C. & W. P. Platt, for appellee.

BARNARD, P. J. There are two reasons why this order should not be granted. The action is one for oral slander, and it does not appear by the papers that the plaintiff is not a resident of the county of Kings, which is designated as the place of trial in the complaint. The place of trial would be proper in a county in which one of the parties resided when the action was commenced. Code, §§ 982-984. The affidavits seem to point to the convenience of the witnesses as the reason for the proposed change. One material witness is named living in Westchester county, and it is stated that "at least five other material and necessary witnesses" reside in that county. The answer to this is that the issue is not joined, and it is premature to move to change the place of trial for the convenience of witnesses before it is. The materiality of the witnesses cannot be ascertained until the issue is complete. The order should be reversed, with costs to abide the event.

PRATT, J. The defendant was premature in making this motion. Before serving his answer it was impossible to determine what witnesses would be material, or whether any witnesses would be necessary, upon the trial. It is altogether probable that the witness Lydia Ann Lawrence will be a material witness upon the trial, and that it will be impossible for her to attend a court held out of the county where she resides; but the decisions are too numerous and uniform upon this point to be disregarded. To permit such practice would be a premium upon laches. The defendant had ample time to answer, and should have done so before asking for a change of venue. The affidavit is also defective in failing to state that defendant has stated to his counsel what he expects to prove by his various witnesses. Order reversed, with costs and disbursements.

FOULKS v. WHITE.

(Supreme Court, General Term, Second Department. February 11, 1889.) 1. SET-OFF AND COUNTER-CLAIM-FAILURE TO PLEAD-ACTION FOR WAGES.

In an action for wages defendant claimed that a sum of money which he had paid in a certain transaction in which plaintiff was interested should be applied in part payment of the wages sued for; but there was no agreement to that effect, and plaintiff claimed that such sum had been paid in consideration of certain property conveyed by him to defendant. The latter also claimed that a set-off of such sum should be allowed because plaintiff had no title to the property conveyed. Held that, as no set-off or counter-claim was pleaded, such offset was properly disallowed. 2. APPEAL-REVIEW-HARMLESS ERROR.

Any error in a refusal to charge that plaintiff had no interest in the property conveyed to defendant was cured, where the jury found that the defendant was not liable therefor.

Appeal from circuit court, Kings county.

Action by John W. Foulks against Jefferson H. White, to recover for wages claimed to be due plaintiff; and also to recover an amount claimed to be due on the purchase price of certain letters patent sold to defendant. Plaintiff was employed for a year at a salary of $1,500, and claimed that only $1,000 had been paid to him under the contract. He further claimed that by the agreement for the conveyance of the letters patent he and defendant