The People ex rel. Cook agt. Parker.

Second. That the alleged tenancy could be terminated only by the statutory notice to quit, which had not been given.

After hearing counsel, the justice denied the motion and adjourned the trial until June 14, 1881, whereupon the relator obtained a writ of prohibition from this court restraining the justice from further action in the premises on the ground of want of jurisdiction.

Such jurisdiction is clearly conferred by the Code of Civil Procedure (sec. 2231 to sec. 2265, inclusive). The overruling of the preliminary objections by the justice is not necessarily conclusive as to his final decision of the case. A different conclusion may be reached, after further consideration, upon the merits. While a writ of prohibition lies to restrain a judicial tribunal from exercising jurisdiction in matters not within its cognizance, as well as those in excess of it (Thompson agt. Tracy, 60 N. Y., 31), it was never intended that this remedy should be used as a means of interfering with the orderly practice of the courts or as a method to stay summary proceedings (People agt. Steenbergh, 9 Albany Law J., 411).

The relator is not remediless. If the final order of the justice awards delivery of the possession of the property to the respondent the issuance of the warrant may be enjoined in pursuance of subdivision 2, section 2265 of the Code (See, also, Sherman agt. Wright, 49 N. Y., 227; Armstrong agt. Cummings, 20 Hun, 313).

Writ dismissed, with costs.

Fullerton agt. National Burglar and Thief Insurance Co.

SUPREME COURT.

WILLIAM FULLERTON and others agt. THE NATIONal Burglar AND THEFT INSURANCE COMPANY OF THE CITY OF NEW YORK, WILLIAM H. RITTER and THE FARMERS' LOAN AND TRUST COMPANY.

Insurance company — Trust for the security of policyholders — What is sufficient to establish one- After such trust has been created title passes to trustee-Creator of such trust no power to revoke same.

The insurance company, defendant, in October, 1877, transferred to the trust company, defendant, two mortgages as security to the holders of policies in the insurance company, the latter company to collect and retain for its own use the interest upon the mortgages. The trust company was, at the request of the insurance company, to foreclose the mortgages in its own name, on being indemnified for costs and expenses, and to hold the proceeds for the protection of the policyholders. In September, 1878, the insurance company made an assignment for the benefit of creditors, and at the request of the assignee the mortgages were delivered to plaintiffs for foreclosure, as attorneys of the trust company, the plaintiffs giving a receipt stating that the proceeds, after deducting the interest which had accrued upon the securities, and the costs and expenses, were to be deposited with the trust company as security for the holders of the policies. There was $13,800 of interest due upon one of the mortgages at the time of the foreclosure, and $1,200 upon the other, while the foreclosure sale produced but $5,000 upon one mortgage and $1,000 upon the other. In this action to determine whether this $6,000, less expenses, should be paid to the assignee or to the trust company, and whether the plaintiffs have a lien for services to the assignee :

Held, that, as against the trust company, whose attorneys they are, the plaintiffs are not entitled to hold possession of the fund, after receiving their taxable costs and allowances; and also that, as the agreement under which the trust company received the mortgages created a trust, by which the policyholders of the insurance company were to be secured, the securities and their proceeds became irrevocably impressed with that trust, and the trust company is, therefore, entitled to such proceeds as against the assignee of the insurance company, and this notwithstanding the provision in regard to the receipt and collection of interest by the insurance company.

Special Term, March, 1882.

Fullerton agt. National Burglar and Thief Insurance Co.

LAWRENCE, J.-On the 26th day of October, 1877, the defendant, The National Burglar and Theft Insurance Company of the City of New York, entered into two agreements with the defendants, The Farmers' Loan and Trust Company, which are identical in their recitals and form, save and except as to the securities in the agreements respectively referred to. Said agreements recited that whereas, "The National Burglar and Theft Insurance Company of the City of New York is desirous of depositing securities with the Farmers' Loan and Trust Company of said city, as a security to the holders of policies in said first named company, and whereas the Farmers' Loan and Trust Company is willing to become the custodian and holder of said securities for said purpose, now, therefore, this indenture witnesseth that said, The National Burglar and Theft Insurance Company of the City of New York, hereby assigns, transfers and deposits to and with said Farmers' Loan and Trust Company for the purpose aforesaid, a certain indenture of mortgage, executed," &c.

Then follows in each agreement an enumeration of the securities thereby assigned. Each of said instruments contained a provision that the assignment and deposit were made upon the terms and conditions-first, that the trust company should hold and retain the bond and mortgage therein referred to as a security for the holders of policies in the National Burglar and Theft Insurance Company until the latter company shall make a deposit, for a like purpose, with the insurance department of the State of New York, in pursuance of any legislation which may be hereafter had for that purpose, or until said latter company ceases to do business as hereinafter provided; second, that said National Burglar and Theft Insurance Company of the city of New York reserves the right to collect and receive any and all interest which may become due and owing upon the principal sum named in said mortgage, and to retain such interest, when received, for its own use. It is also provided that if, at any time while said mortgage is held by the trust company under the assignment,

Fullerton agt. National Burglar and Thief Insurance Co.

the National Burglar and Theft Insurance Company shall request a foreclosure of the same, then the trust company will permit such foreclosure in its name, on being indemnified by the latter company against the costs and expenses of such foreclosure, and that in the event that any part of the principal of said mortgage is paid or collected, then said Farmers' Loan and Trust Company is to hold the proceeds of such payment or collection for the purposes herein mentioned, and under the terms and conditions of this indenture. Provision is also made in each of the agreements that if, at any time. hereafter, the National Burglar, &c., Company should require the bond and mortgage assigned, or the proceeds of the payment or collection of the same, or of any part thereof, for the purpose of making a special deposit with the superintendent of the insurance department as security to the holders of policies in said company, or shall at any time present to the trust company a certificate from the superintendent that it has deposited with him other securities for the protection of said policyholders, then, and in either case, that the trust company shall reassign the bond or mortgage, or any security or securities substituted therefor, to the National Burglar, &c., Company.

It is further provided by the agreements that the National Burglar, &c., Company reserves the right to substitute other securities in the place of those assigned; and in case of that event the trust company is to reassign and redeliver the bond and mortgage to the National, &c., Company. And it is fur-. ther provided, that if at any time while the trust company holds the bond and mortgage referred to in the agreements, or any security substituted therefor, the National Burglar, &c., Company shall cease to do business, and shall settle and discharge all its obligations to the holders of policies therein, then and in that event the trust company is to reassign said bond and mortgage, &c., to the National, &c., Company.

It appears from the evidence in this case that on the 5th day of September, 1878, the National Burglar, &c., Company exe

Fullerton agt. National Burglar and Thief Insurance Co.

cuted and delivered to the defendant Ritter an assignment of all its property and effects in trust for the benefit of its creditors; that said assignment was duly recorded, and that the assignee duly gave the security required of him and entered upon the execution of his trust; also, that on or about the 15th of November, 1878, said Ritter addressed to the trust company the following letter:

"NEW YORK CITY, November 15, 1878. "To the FARMERS' LOAN AND TRUST COMPANY, 26 Exchange Place, N. Y. City:

"You are hereby requested to deliver to Messrs. Fullerton, Knox & Crosby, counselors-at-law, 120 Broadway, New York city, the various bonds and mortgages heretofore assigned to you by the National Burglar and Theft Insurance Company of the city of New York for the purpose of having the same foreclosed in accordance with the terms of the various assignments of the said bonds and mortgages heretofore executed by the National Burglar and Theft Insurance Company of the city of New York to the Farmers' Loan and Trust Company. "WILLIAM H. RITTER,

"Assignee of the National Burglar and Theft

Insurance Company of the City of New York."

Also, that on the said fifteenth day of November the trust company delivered the bonds and mortgages, which are the subject of this controversy, to the plaintiffs and took from said plaintiffs a receipt which, after enumerating the several securities received by the plaintiffs from the trust company, recited that "said mortgages, bonds and assignments and abstracts hereinbefore mentioned being received by us for the purpose of foreclosing the mortgages herein before mentioned as the attorneys of said The Farmers' Loan and Trust Company, but said foreclosure to take place without cost or expense to said The Farmers' Loan and Trust Company, the proceeds of said foreclosure, after deducting therefrom the interest