Civ. Pro., 730. Order affirmed.

Opinion by Learned, P. J.; Bockes and Landon, JJ., concur.

CONTRACT.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Nathan Pond, assignee, respt., v. Chauncy J. Starkweather et al., applts.

Decided Oct., 1884.

B. was negotiating for a sale of chattels to a partnership, one of the members of which

objected to certain terms of B.'s offer; thereupon the other two members of the firm agreed orally with B. that if he would accede to their partner's wishes they would themselves pay B. according to the objec. tionable terms. Held, That the oral promise was a distinct contract and binding upon the promisors.

Appeal from judgment on verdict at Circuit, and from order denying new trial.

The assignor was party to a contract the caption of which recited that it was "an agreement between Charles W. Briggs, as party of the first part, and Hiram Sibley & Co., as party of the second part." The agreement was a contract of sale of personal property, and was executed on the part of Sibley & Co. by each member signing his name and attaching his seal. During the negotiations Mr. Sibley insisted that there should be included in the stated purchase price certain articles for which Briggs insisted that he should be paid an

Vol. 20.-No. 12.

Sibley & Co., orally promised Briggs that if he would accede to Mr. Sibley's demands they would themselves pay him the additional price. Briggs agreed to this, and this action is brought on that promise. The property was delivered to Sibley & Co.

H. H. Woodward, for applt, Starkweather.

Smith & Briggs, for applt, Averill.

J. & Q. Van Voorhis, for respt.

Held, That legally defendants were not individual parties to the written contract. The partnership was the party, and was separate and distinct from the individuals who composed it. 11 Wall., 484; 52 N. Y., 158; 93 id., 233.

The oral promise was binding. 13 Hun, 301; 44 Barb., 547; 36 id., 584. That it was not in writing does not inake it void. The sale was to the firm, not to defendants.

Judgment and order affirmed. Opinion by Barker, J.; Smith, P. J., Bradley and Corlett, JJ.,

concur.

PARTNERSHIP.

N. Y. COURT OF APPEALS. George et al., applts., v. Grant et al., respts.

Decided Nov. 25, 1884.

A mortgage given by a special partner to raise money with which to pay his individual debts when either he or the firm is insolvent is not void as preferential, under 1 R. S., 767, § 21.

As to whether an assignment, transfer or

mortgage by a general or special partner of his individual property to secure his individual debts made at a time when either he

or the firm is insolvent is prohibited under that section, quære.

Affirming S. C., 15 W. Dig., 402.

This was a creditor's suit to set aside certain mortgages, amounting in the aggregate to $70,000, made by defendant P., a special partner in the firm of V. D. & Co., alleged to have been made in violation of § 21 of the Act of Limited Partnerships, 1 R. S., 767. The mortgages were dated November 11, 1876, upon the individual property of P., and were executed by him to the defendant G. as security for advances made to him at and soon after that date and for a debt then owing by P. to G. The plaintiffs are judgment creditors of the firm of V. D. & Co. upon an indebtedness which accrued prior to the execution of the mortgage. The evidence tended to show that P. was insolvent when the mortgage was executed, and on December 18, 1876, made a general assignment of his property for the benefit of creditors. The firm of V. D. & Co. was also insolvent when the mortgages were executed, but its insolvency was not openly declared until December 26, 1876, when it also executed a general assignment for the benefit of its creditors. P. obtained the loan from G. for the purpose of paying his individual debts, among others one of $21,500, due the firm of G. & Co., of which the mortgagee was a member, and the money was advanced for this purpose and so applied. The evidence tended to show that P., when he

obtained the loan, was aware of his own insolvency and of the insolv There was ency of V. D. & Co. no proof that G., when he took the mortgage, had no such knowledge or notice. The mortgage was foreclosed before this action was commenced and the premises sold and bid in by the defendant F. for the benefit of the mortgagee. B. F. Blair, for applts.

Samuel Hand and G. Foster, for respts.

Held, That this action cannot be maintained, for the reason that the mortgages in suit were not upon the facts proved preferential securities within the 21st section of the statute as to Limited Partnerships. That section avoids securities created by the special partner with "intent of giving to any creditor of his own or of the partnership a preference over creditors of the partnership." So far as the mortgages were given to secure the individual debt of $2,500 they were void. This did not invalidate the entire security. The mortgages did not create or secure any preference. The preference, if any existed, resulted from the application of the money after it had been advanced by the mortgagee and received by the mortgagor. As to whether under section 21 of the Limited Partnership Act, 1 R. S., 767, which declares void as to creditors of the firm, "Every such sale, assignment or transfer of any of the property or effects of a general or special partner made by such general or special partner when insolvent, or in contemplation of insolvency

court there was no personal estate of the father of plaintiff remaining in which she was entitled to share.

A. Hazeltine, for applt.

W. L. Sessions, for respt. Held, That, upon the showing, plaintiff suffered no damage by reason of the alleged fraud. The settlement and decree conclude plaintiff from contending that as the debts of the testator were allowed to the executrix out of the real estate they ought not to have been credited to her in the settlement of the personal estate. R. S., § 65, subd. 1. The claim should have been interposed before the surrogate. The receipt was a proper voucher to show the payment of the $300 in extinguish. ment of plaintiff's claim to that amount, and there is no proof that any other effect was given to it by the surrogate.

2

The judge erred in receiving in evidence the deed of plaintiff's share of the real estate, and the arrangement respecting it, which evidence had no bearing except to impeach the decree.

The judge's charge to the jury, that plaintiff's share of her father's personal property was $149, was erroneous for the reason already given and for the reason that it made no allowance for the value of the widow's right to use the property for life.

The judge erred in charging that if the fraud was established, the jury might give punitive dam ages. 55 Barb., 615. Order affirmed.

Opinion by Smith, P.J.; Haight and Bradley, JJ., concur; Bar ker, J., not sitting.

APPEAL.

N. Y. COURT OF APPEALS.

Bate, applt., v. McDowell et al., respts.

Decided Dec. 9, 1884.

Where neither the order of Special Term, vacating an attachment, nor the order of affirmance at General Term specifies the ground on which they were made, it cannot be said by the Appellate Court that they were not made on the ground specified in the order to show cause on which the motion to vacate was based.

No appeal will lie to the Court of Appeals from an order vacating an attachment on the ground of insufficiency of the affidavit on which it was granted.

See S. C., 14 W. Dig., 244.

This was an appeal from an order of the General Term, affirming an order of the Special Term vacating an attachment granted herein against five of the defendants. Neither the order of the Special Term nor that of the General Term specifies the ground upon which they were made. The order to show cause upon which the motion to vacate was based specified. the insufficiency of the affidavits to entitle the plaintiff to the attachment as one of the grounds upon which the motion was predicated. John Brooks Leavitt, for applt. James McCreery, for respts. Held, That this court is not authorized by the record to say that the motion to vacate granted on the ground of the insufficiency of the affidavits. 93 N. Y., 647.

was not

EVIDENCE. USAGE.

N. Y. COURT OF APPEALS. Jonsson, respl., v. Thompson, applt.

Decided Dec. 2, 1884.

In an action to recover for services as hostler, plaintiff claimed and gave evidence tend. ing to prove that he was employed at $20 per month. Defendant denied this and testified that he had previously employed plaintiff at $10 and made no other agreement. He then offered to show a general custom at hotels for hostlers to receive scale money, and that this formed part of their compensation. The offer was rejected. Held, Error; that if such usage existed the parties may be presumed to have contracted with reference to it and

there was no such clear proof of a special contract in conflict with the usage as justified the rejection.

Reversing S. C., 15 W. Dig., 475.

This action was brought to recover for work and labor performed by plaintiff for defendant, and for money advanced, lent to and laid out and expended by plaintiff for defendant.

It appeared that defendant had employed plaintiff as hostler for $20 a month wages.

Upon the trial a witness, H., while testifying as to the date at

which plaintiff entered defendant's employ, referred to a paper; what the paper was did not appear. Said date had been admitted by defendant in his own testimony. It was claimed that the testimony of H. was improperly received. Wood, Butler & Morris, for applt.

M. A. Leary, for respt.

Held, Untenable.

Plaintiff's evidence tended to establish that his services as hostler were worth $20 per month and board. He had been employed by defendant at his hotel as hostler for several years without any settlement. He admitted that he had received scales or gratuities amounting sometimes to $2 and sometimes to $4 per day. There was no evidence as to any special agreement as to scales and compensation except that plaintiff, before entering defendant's employ, had been employed by a livery-stable keeper as hostler at $20 per month, and plaintiff testified that he stated that fact to defendant, and said livery stable keeper testified that he told defendant he had paid plaintiff $20 per month, and defendant said that plaintiff wanted the same from him and he would try him at that.

These statements were contra

dicted by defendant, and there was no evidence as to any agreement as to scales being credited as part of plaintiff's wages, except that plaintiff testified that on two occasions he gave scale money to defendant, $23 at one time and $11 at another. Defendant testi