Sherman, and was given for the sole use and benefit of Morgan L. Birdsell. intention of the testator to provide for three months to the order of E. J. individuals within the circle of his sister's family. The title which the plaintiffs offered to convey was "good and sufficient" under the terms of the agreement. Held also, That while it is held that a title to be marketable must be not merely a good but an indubitable one, for other wise the purchaser would be buying alaw suit (17 P. F. Smith, 436), the possibility is too remote in a case like this to raise any serious question. No rational apprehension of danger from litigation can arise. Three distinct contingencies must arise before any interest hostile to the plaintiff's can be asserted. First, the death of the present wife of Anshutz; second, his subsequent marriage; and, third, his own death in the life time of his last wife. Judgment reversed, and judgment for plaintiffs on stipulation. Opinion by Woodward, J. PROMISSORY NOTE. MENT. The defendant sets up in his answer a counter claim of matters arising pricer to the giving of the note in suit. There was judgment for defendant, and the referee held and decided that the giv ing of the note in suit raised no presumption that all prior dealings between the decedent and defendant had been settled. S. N. Dada, for applt. Held, It is well settled in this state. that proof of the giving of a promissory note by one person to another, nothing else appearing, is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker at the date of such note was indebted to the payee at such settle ment to the amount of such note. (Lake v. Tyme, 6 N. Y. 161; De Trent v. Bloomingdale, 5 Denio, 304; DutchSETTLE- er v. Potter, 63 Barb. 20.) But this is a mere presumption which may be repelled by proof of the consideration of such note, and the occasion for and the same. circumstances attending the giving of N. Y. SUPREME COURT. GEN'L TERM, FOURTH DEPARTMENT. Sherman, administratrix, &c., applt., v. Peter D. McIntyre, respt. The proofs given and received at the Decided April, 1876. trial in explanation of the giving of the The giving of a promissory note by one note in question in this action, as found person to another is presumptively a settlement of all demands between by the referee, fully repel this presumpthe parties. tion arising from the giving of said This presumption may be repelled by note, and show that it was a mere acevidence. commodation note, given by the defend Appeal from judgment on report of ant for the benefit of another person to referee. This is an action brought to recover a note made by defendant, payable to plaintiff's decedent. whom plaintiff's intestate was not willing to lend the amount of money specified in said note without security, but agreed to do so upon the defendant's The note was for $100 and interest, responsibility as endorser or otherlated October 14, 1871, payable in wise. The decision and conclusion of the referee on this point was clearly correct. The referee finds that the defendant established a set-off exceeding the amount of said note, the particulars of which are fully stated in his report. Of these items of set-off, the referee finds the intestate was indebted to the defendant for the amount of a promissory note produced, and upon which there was due at the date the sum of $70; and also that the said intestate was indebted to the defendant at the time of his death in the sum of $160 for the board and care of the said intestate and his wife, besides some other items not in dispute. MECHANICS' LIEN. N. Y. COURT OF APPEALS. Jenks et al., respts., v. Brown, impl'd, appit. Decided May 30, 1876. A cancellation of the contract by mutual consent by the parties to it cannot affect the rights of a third party to enforce his lien for materials furn ished the contractor. Where a mechanic's lien has attached, it cannot be affected by any arrangement thereafter entered into between the contractor and the owner of the building. This action was to enforce a mechan ies' lien for the price of materials furnished by plaintiffs to one P., a contractThe findings of the referee upon these or, for repairing and altering a building, items are not unwarranted by the evi- on land belonging to defendant, in dence, or against the evi lence. On the Kings county. After plaintiffs had contrary, I do not see why his finding furnished the materials P. gave them an in respect to these items is not substan- order on defendant, to be paid out of tially correct, and why, in any aspect of the third payment due upon the conthe evidence, the defendant did not es-tract between him and defendant, and tablish a set-off sufficient in amount to which was accepted by defendant. Subextinguish the plaintiff's demand upon sequently, and before the third payment said note; and as the referee finds that was due P. under the contract, it was no judgment was claimed by the defend-cancelled. The evidence did not show ant, except the dismissal of the plain-how far the work was to be prosecuted, tiff's complaint, either in the pleadings or when it was to be finished, or that or on the trial, and no other judgment | P. was in default in the prosecution of was rendered, it would be superfluous it. It did not appear how much work for us to consider and discuss questions he had done before he stopped. Upon and exceptions relating to other items the cancellation of the contract it was of claim made by the defendant on the trial, inasmuch as if the referee erred in his decision in respect of such items, the plaintiff was not injured by such error, and it would still be our duty to affirm said judgment. The judgment should therefore be affirmed with costs. Judgment affirmed. Opinion by E. D. Smith, J. arranged that P. was to receive just the amount of the third payment. Plaintiffs' lien was filed January 5, 1874, and notice of it was served on defendant January 6th, and he then said that there was some arrangement "to cancel the contract." The instrument of cancellation was dated January 1, 1874, but there was no proof that it was executed on that day. At the close of the evidence defendant's counsel moved for a nonsuit, on the ground that the order the General Term affirming an order of never became due, as the contract was J. Albert Wilson, for respts. the Specal Term, reviving a special proceeding instituted against a discharg ed trustee, and pending at his death, against his executors. In 1858, the court, upon the petition of the trustee, Held, error; that the evidence show-made an order discharging him from ed that the order did become due, as the trust, and relieving his sureties, and the third payment was earned at the appointing a new trustee, it being made time of cancellation, that this being to appear that he had accounted for and so it did not matter that the contract paid over the trust fund in his hands to was not fully completed; that the de- his successor in the trust. In 1872, the fendant could not complain of non-per- cestui que trust applied to the court for formance, the contract having been can- an order vacating the order made in celled by mutual consent, and as far as 1868, and for other relief, upon allegaappeared before there was any default tions that that order was procured by on the part of P.; that this cancellation imposition and fraud upon the court. could not affect plaintiffs' rights to en- The court ordered it to be referred to a force his lion; that even if the date of referee, to take proof of the matters statthe instrument of cancellation was any ed in the petition, and report the same evidence against plaintiffs, it was not with his opinion thereon to the court. conclusive, and defendant's declaration The parties appeared and proceeded when the notice of lien was served tend- with the reference. Pending the proed to show that it was executed after ceedings the trustee died, and the Spethe filing and notice of lien. That cial Term made the order of revival. plaintiffs' lien having attached it could not be affected by any arrangement between defendant and P. thereafter entered into. Joshua M. Van Cott, for applt. Held, that the order was not a final Opinion by Andrews, J. SALE. DELIVERY. An order reviving a special proceeding N. Y. SUPREME COURT. GEN'L TERM. pending against a discharged trustee THIRD DEPARTMENT. Dellon et al., respts. v. Stanton, ap Decided May, 1876. An action may be sustained for the price of goods, value over $50, where TRUSTS. DEMURRER. the sale was by parol, no money paid N. Y. SUPREME COURT. GEN'L Term, at the time of sale, and the delivery made some time subsequent to the sale. Action for goods sold. The plaintiffs agreed to exchange furniture for lumber of defendant, who desired the furniture as a present to his grand daughter W. The furniture was charged to defendant. The account was over $50. There was no written contract, no part of the purchase money was paid at the time, and no part delivered at the time of the bargain. FIRST DEPARTMENT. Newton W. Hoff, trustee, &c., respt. v. George B. Pentz, applt. Decided May 26, 1876. The court has authority to appoint a Appeal from an order overruling a demurrer. The referee found that the defendant authorized W. to accept and receive The complaint alleges that plaintii the furniture at any time she chose to was, by an order of the court, duly apget it. That W. did accept and re-pointed to fill a vacancy caused by the ceive it on the 30th of January, and the the death of one Baker, in the position 6th of February, being about six weeks of trustee of the estate of John Pentz, after the bargain, and that the defend-deceased. The complaint also all ged ant knew of the delivery in January that he had duly qualified. before the delivery in February had¦ taken place. That the defendant had repudiated his contract to pay in lum ber. A. P. Smith, for applt. Held, That although the value of the goods was more than $50 and the contract by parol, yet the referee having found that the defendant authorized W to accept and receive the goods, and that she did accept and receive then, the action is sustained. Besides, the defendant knew of the delivery while it was going on, and did not notify the plaintiff's of any objection. Judgment affirmed, with costs. Opinion by Learned, P. J.; Bockes, and Boardman, J.J., concurring. It further alleged that the estate o Pentz consisted of land in the city or New York, a portion of which had been taken by the city for street purposes, and the amount awarded therefor paid to the defendant who had been employed by Baker as an attorney to conduct the business; and that he had failed to pay over a large portion of the money. that the real estate was held by Baker them. It was found that a portion as a trustee, and it was not necessary to was omitted in the deed, and that the set out the provisions of the will under plaintiff claimed to own that. On the which it was so held. The court had authority to appoint a trustee in place of the one deceased, and the real estate vested in him. 3 R. S., 5 Ed., 22 § 87. The money received came directly out of, and was a substitute for, a part of the trust property, and was impressed with the trust existing in the property out of which it issued. The order appealed from should be affirmed, and as the defendant does not appear to have any legal or equitable right to the money, it should not be ac companied with leave to answer over. Opinion by Daniels, J.; Davis, P. J. and Brady J., concurring. DEED. trial the jury found that the plaintiff' R. L. Hand, for applt. Held, That the jury were justified in finding fraud. It is ground for relief that the defendant agreed to sell the farm and executed a deed which he knew did not, and which he knew that the plaintiff and her husband believed did, convey the whole of the farm. The verbal negotiation was not within the statute of frauds. Glass v. Hulbert, 102 Mass. 24, disapproved. The plainFRAUD IN DESCRIP tiff has paid the full price and taken possession. The evidence of the agent TION. N. Y. SUPREME COURT. GENERAL TERM. was not in conflict with the written THIRD DEPARTMENT. Beardsley v. Duntley. Decided May, 1876. Where the vendor agrees to sell land and execute a deed, which he knows does not, and which he knows the vendee believes does convey the whole of the land, the vendor will be: ecreed to convey the residue. Admissions of the vendor made subsequent to the execution of the deed are competent to show fraud in the description. This action was brought to compel contract. He might take a contract in his own name for his wife's benefit. Evidence of what the defendant told other persons after execution of the deed was competent as showing fraud in inserting a description conveying less than he agreed to convey. Judgment affirmed. Opinion by Learned, P. J.; Boardman, J., concurring. SPECIFIC PERFORMANCE. REAL ESTATE. the execution of a deed. The plaintiff, N. Y. SUPREME COURT. GENERAL TERS. by her husband, entered into oral negotiations for the purchase of a farm. Subsequently the defendant executed a contract with the husband, and next day a deed of the premises to the plaintiff. The plaintiff went into possession of all the premises, and cultivated FOURTH DEPARTMENT. Knapp, respt., v. Hungerford et al., applts. Decided April, 1876 A parol agreement between an ancestor and a third person by which, for a consideration, the former agrees to |