payment of which the original purchaser was relieved on account of irregularities in the second sale. Held, That B. was not liable for such deficiency. Appeal from an order relieving the defendant Boucieault from a judgment of deficiency upon foreclosure of a mortgage. The defendant Boucicault was the mortgagee of certain property in the city of New York, and he assigned his mortgage to plaintiffs, at the same time guaranteeing its payment. Plaintiffs subsequently brought this action to foreclose said mortgage, and under a judgment of foreclosure and sale the property was sold to G. at a price exceeding the mortgage debt. G., however, refused to complete his purchase, and thereupon a motion to compel him to do so was made, upon which it was ordered that G. complete his purchase, or in default that the property be sold and B. be charged with the deficiency arising under the re-sale. 66 N. Y., 193. Under this order the property was re-sold and a large deficiency arose upon such re-sale, but G. was relieved from the payment of such deficiency for the of such deficiency when it has been judicially declared, substantially, that the premises had not been sold according to law, and when the benefit of the first sale of the premises, if carried out, would have relieved defendant Boucicault from all liability, and the responsibility of the purchaser had been lost through the fault, negligence and omission of the plaintiffs themselves. Order affirmed. Opinion by Brady, J.: Davis, P. J., concurred; Daniels, J., dissented, upon the ground that the purchaser at the first sale had been relieved by the Court of Appeals, 74 N. Y., 377, from the payment of the deficiency arising at the second sale, not on account of any irregularity in such sale, but on account of a defect in the title to the property, proof of which they had not given upon the application to compel them to complete their purchase at the first sale. STATUTE OF FRAUDS. ACCEPTANCE. reason that in making the re-sale N. Y. SUPREME COURT. GENERAL the notice and terms of sale were considerably varied from those at the first sale at which G. was a purchaser, 74 N. Y., 377, and thereupon plaintiffs entered judgment against the defendant Boucicault for such deficiency. R. D. Harris, for applt. a A. J. D. Dittenhoefer, for respt. Held, That it would seem to be unjust to hold the defendant Boucicault responsible for the amount Vol. 20.-No. 8b. TERM. FIFTH DEPT. In re assignment of De Witt C. Hoover, for benefit of creditors. Decided Oct., 1884. The acceptance necessary to take a verbal contract out of the statute of frauds must be manifested by some act distinct from and in addition to the words of the agreement, and mere receipt does not necessarily prove acceptance. Appeal by L., a creditor of the assignor, from county judge's de- | attention of the assignee was not cree discharging the assignee. called to the offer. In a conver- The assignment was made August 20, 1879, and in the course of the proceedings the county judge directed payment of the money in the assignee's hands to the creditors, pro rata, specifying the amounts to be paid them respectively. The amount specified for appellant was $281.28. The assignee reported his execution of that order, and that the amount due appellant was paid by the sale to him of a horse, wagon and harness in satisfaction of his note of $200, and by tendering to him the amount due on his note of $100, which was refused, whereupon the assignee had deposited the amount with the county treasurer to appellant's credit as directed by the order, and had so advised appellant. The latter presented an affidavit stating reasons. why he should be heard, and the County Court directed a trial, which was had, and resulted in a decree discharging the assignee, from which this appeal is taken. In September, 1879, the assignor placed in appellant's hands a horse, wagon and harness to dispose of and apply the proceeds in payment of the two notes, and appellant received them for that purpose. This was with consent of the assignor's mother-in-law, who owned the property. The assig. nee was informed of the transaction. In August, 1880, appellant offered to the assignor to give. up to him the $200 note for the prop-not include the former, but may, erty, and the latter said he was willing if the assignee was, but the Held, That the position of the court below cannot be supported. Appellant's possession may have obviated the necessity of any act of delivery by the assignee, further than recognition and assent by him of an act of acceptance by appellant. Such acceptance was essential to constitute a sale and purchase, and it must have been manifested by some act as distinguished from and in addition to the words of the parties constituting the agreement. 47 N. Y., 449 7 Am., 461; 57 N. Y., 211; 65 id., 352; 22 Am., 619, and cases cited; 61 N. Y., 1; 39 Md., 472; 17 Am., 578. While acceptance includes receipt, the latter does under certain circumstances, be evidence of acceptance. 120 Mass., 309; 14 Hun, 149; 39 Md., 582; 10 Adol. & Ell., N. S., 111; 4 Hun, 709. At the time of the agreement appellant had possession as bailee, which relation existed at the time of sale of the horse, and which was not affected by the agreement. Nothing in the record characterized any act of the appellant in respect to the property as that of owner as distinguished from that as such bailee. See 1 N. Y., 261; Markham v. Jandon, 41 N. Y., 241-2, does not apply. Decree reversed. Opinion by Bradley, J.; Smith, P. J., Barker and Haight, JJ., concur. NEGOTIABLE PAPER. BANKS. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. The Charlotte Iron Works, respt., v. The American Exchange National Bank, applt. Decided Oct., 1884. Plaintiff left an acceptance with the R. bank for collection and credit to its account; the R. bank sent it to the bank where it was payable, with directions to remit the proceeds to defendant to the credit of the R. bank, which was done in due course of business; and the R. bank having, without defendant's knowledge, failed, Held, That defendant was not liable to plaintiff for the proceeds of the draft. accepted draft, and several days. before its maturity sent it to the City Bank of Rochester, where it kept an account, instructing the City Bank to collect and credit it to plaintiff's account. On December 29, the City Bank sent the draft to the Auburn bank, with directions to remit the proceeds to defendant to be placed to the City Bank's credit, and to notify it thereof. On December 19 the Auburn bank charged the amount of the draft to D.'s account, and issued its own draft on the National Park Bank of New York, payable to the order of defendant's cashier, and mailed the same to defendant, stating that it was for the credit of the City Bank as requested by it. On the same day it advised the City Bank by letter that the acceptance was paid and the proceeds had been sent to defendant as requested. Defendant, on December 20, received the draft on the Park Bank, which was that day paid, and the avails were credited to the City Bank. On the day of maturity of the draft plaintiff had a large balance to its credit at the City Bank. On December 19, the City Bank closed its doors, and on December 21 plaintiff telegraphed defendant that the draft belonged to it, and was a collection for its account. Defendant offered on the trial to prove that it received from the Auburn bank the draft Appeal from judgment on ref- before it had any notice or knowleree's report. Plaintiff held an acceptance of D., payable December 19th, at the National Exchange Bank of Auburn. Plaintiff was drawer of the edge of the failure of the City Bank, and in the ordinary course of business credited the amount thereof to the City Bank; that at the same time defendant had no ordered before another referee, costs to abide event. Opinion by Barker, J.; Smith, P. J., Haight and Bradley, JJ., concur. notice of the source from which the money was derived; that the draft was paid by the Park Bank in the usual course of business on the same day, through the Clearing House; that when the draft was so received and credited the City Bank was indebted to defendant in a much larger sum than the amount of the draft; that the N. Y. SUPREME COURT. GENERAL draft was credited and applied on said indebtedness, and the City Bank still remained largely in debt to defendant. The offer of proof was rejected. W. F. Cogswell, for applt. M. W. Cook, for respt. Held, Error. The evidence which was excluded would have constituted a complete defence. In legal effect plaintiff's debt against D. had been paid in money to defendant. This money came to defendant from one of its customers who was its debtor, in due course of business, with directions. to credit the same on its overdrawn account. See 80 N. Y., 100; 52 id., 350; 56 id., 480; 3 Keyes, 425. Defendant acquired a perfect and indefeasible title to the money, and plaintiff's right to follow it was gone. 79 N. Y., 183; 4 Burr., 452; 129 Mass., 358. McBride v. Farmers' Bank, 26 N. Y., 450; Grand Trunk R. Co. v. Edwards, 56 Barb., 408; and Ely v. Norton, 3 Keyes, 397, distinguished. This case is also within the principle of 7 T. R., 355; 2 Smith L. C., 77; 24 Wend., 458; 89 N. Y., 574; 13 W. Dig., 64; 124 Mass., 1; Story on Bailm., $390. Judgment set aside, new trial MASTER AND SERVANT. NEGLIGENCE. TERM. FOURTH DEPT. Iron Sarah Ann Williams, admrx., respt., v. The Syracuse Works, applt. Decided Oct., 1884. The rule requiring masters to exercise due diligence to furnish safe and suitable appliances, and keep them in a proper state of repair, applies to the premises where the employee is required to perform services as well as to the machinery. Appeal from judgment in favor of plaintiff, entered on verdict, and also from order denying motion for new trial on the minutes. Action to recover damages for the negligence of defendant, which occasioned the death of plaintiff's intestate. The deceased was employed by defendant as an engineer, and was crushed by the falling of a door upon him in the mill, and shortly before the accident was seen sitting smoking in the doorway, which was used for ventilation and for taking in supplies from the canal. At that time his engine was not running, and was 73 feet distant. The door was a heavy one, weighing between 300 and 400 pounds, and was raised by a pulley and weights weighing about 200 pounds. Plaintiff alleged and gave evi trial judge to consider any evidence introduced by defendant tending to assist plaintiff's case. 83 N. Y., 7. dence tending to establish that the [ for a nonsuit it was proper for the door, its fastenings and appliances, were improperly constructed in the first place, and that defendant had failed to inspect or repair them for several years, and that the rope had become worn out and decayed, that it broke and allowed the door to fall by simply the weight of itself and its weights. Portions of the rope were produced for the inspection of the jury. Evidence was given that it was a rule of defendants that employees should remain at their posts during the hours of work, and it was insisted that deceased left his engine unattended. On the other hand, it was insisted that within the sense of the instructions he had received and the regulations posted, that he didn't "leave" his engine. It was made a question of fact before the jury whether or not deceased had visited the door for the purpose of gaining fresh air, or whether he went there to smoke that he might not be noticed while smoking. It is claimed that a nonsuit should have been ordered. William E. Ayres, for applt. William Nottingham, for respt. Held, That a careful consideration of the evidence in the light of the rules laid down in the opinion on the former appeal leads to the conclusion that the court committed no error in denying the motion for nonsuit, made at the close of plaintiff's evidence, nor in denying the motion made at the close of the whole case for the same purpose. 80 N. Y., 622; 31 Hun, 392. In denying the motion Also held, That whether or not defendant was guilty of negligence was a question of fact properly submitted for the consideration of the jury. The ropes were produced before the jury, and witnesses who had examined them testified that they were in fact worn out and rotten, and totally unfit for use, and there was evidence tending to show that they were improperly made, and had been allowed to remain on the door since the mill was built, for the space of about 10 years, without being changed. There was evidence tending to show that ropes were not the usual appliances in use for the purpose of sustaining doors of such weight, where they were more or less subject to the action of gas, dust, steam and other destructive agencies found on such premises. There was also evidence tending to show that the pulleys on this door were not sufficient in size for safety. There was no evidence tending to show that there had been an inspection of the ropes and door by defendant or by a competent person in its behalf to determine whether they were in a safe condition or not. The absence of such an inspection was proper evidence for the consideration of the jury in considering the question of the alleged negligence of defendant. 88 N. Y., 225. We think the rule requiring |