Volume 20 — New York State Reporter

<p>1. Insurance (life)—Mutual benefit association—Constitution of— Certificate.</p> <p>One William Rothchild, who was then nnmarried, in 1874 became a member of the I. O. of E. S., a mutual benefit aid society, which obligated itself to pay $1,000 on the decease of a member. He duly; designated his uncle and aunt as his beneficiaries. Afterwards he married the defendant, and died leaving her his widow, but leaving no child- en. The plaintiff, an uncle of the deceased, claimed under the designation in his own behalf, and as administrator of his wife. Held, that the widow of the decensed member became entitled to the money under the constitution and by-laws existing when the written designation was made. Any action taken by the association or society afterwards, would not affect her rights ■ thereto.</p> <p>2. Same—Governed by law of association when issued. ■'</p> <p>The constitution and by-laws at the time that the designation aforesaid was made, secured to the member’s wife in the first instance the whole sum. Held, that the direction was no less imperative, because the deceased member was not married at the time when he made the written designation in favor of his uncle and aunt. That the designation was necessarily subject to the direction contained in the constitution or bylaws.</p> <p>3. Same.</p> <p>The constitution and by-laws of the order in plain language contained" the clear direction that the money should be paid in the first instnnee to the wife, and her right to it was in no way rendered dependent upon or subject to any written or other direction of the member himself. It -was secured to her in direct terms as a fundamental part of the agreement affecting the-disposition of the amount to be paid. Held, that the marriage of the deceased subsequently annulled the preceding written designation in favor of his únele and aunt, and entitled the wife or widow of the deceased member to the sum of money agreed to be paid by said association. .</p>

<p>1. Executors and administrators—Actions against foreign executor WHO HAS TAKEN OUT ANCILLARY LETTERS HERE.</p> <p>A judgment at law cannot be recovered in the courts of this state by a foreign creditor against a foreign executor, who has taken out ancillary lettei s here, but who has not received any money or other property of the decedent under such áncillai'y letters. '</p> <p>2. Same—When foreign executor compelled to account in equity—to PAY DEBTS OF DECEDENT—CODE ClV. PRO., §§ 2700, 2701,</p> <p>When a foreign executor has reduced assets of the decedent, within the jurisdiction of the courts of this state, to his possession, he will be compelled to account therefor in equity. And where he has secured such assets by virtue of his ancillary letters, he may be required by the surrogate to pay the debts of decedent, due to creditors within the state. Unless otherwise directed by the surrogate, or by the judgment or order of a court of record, the person to whom ancillary letters are issued must transmit the money or other personal property of the decedent, received by him, to the state where the principal letters were granted, to be disposed of pursuant to the laws of that state.</p>

<p>1. Assignment—What acts op assignor will not render void a general ASSIGNMENT.</p> <p>In an action by a creditor to set aside an assignment to entitle him to judgment, it must be established to the satisfaction of the court that the general assignment for the benefit of creditors was made with intent to hinder, delay and defraud creditors, and this fraudulent intent must be proved by competent evidence to have existed at the time the assignment was made.</p> <p>2. Same—What pacts do not show intent.</p> <p>The fact that, prior to the time of making the assignment, the assignors obtained credit for property purchased by means of fraudulent representations, that money or property belonging to the firm had been fraudulently misapplied by the asssignors, or that subsequent to the assignment the property that was_ covered by the assignment had been obtained and used by the assignors instead of being delivered to the assignee, does not of itseh necessarily show such intent. These facts are competent evidence to be considered in determining the intent with which the assignment was made, but a consideration of the whole testimony must convince the court that the brent with which the assignment was made was fraudulent, and the facts proved must be inconsistent with an honest intent in executing the assignment before the fact that the assignment was made with intent to hinder, delay or defraud creditors can be said to be proved. (Citing Loos v. Wilkinson 18 N. Y. State Rep., 210)</p>

<p>Appeal from an order continuing an injunction. The statement of facts necessary for the understanding of this opinion will be found in the opinion in this matter which is ante, page 72.</p>

<p>Landlord and tenant—Summary proceedings to recover the po'ssei#SION OP REAL PROPERTY—VALIDITY OP ADJOURNMENT BY DISTRICT COURT CLERK WHEN NO ANSWER IS PILED—WHEN THE PINAL ANSWER MAY BE piled—Jurisdiction op justice as to piñal order—Code op Civil Procedure, §§ 2244, 2248, 2249, 2289, 2259, 8120—Consolidation act, §§ 1292, 1858, 2148.</p> <p>A clerk of a district court, on petition of a landlord, issued a precept to a tenant, which precept was duly served, requiring the tenant to show cause why possession should not be delivered by her. On the return day, no justice being present, the clerk, after noting the appearance of the landlord, and the non-appearance of the tenant and that no answer had been filed, of his own motion adjourned the cause. On the adjourned day no justice was present, and the clerk again of his own motion adjourned the cause. On this last adjourned day a justice was present, and also both landlord and tenant, and the latter then presented her answer to the petition. To this the landlord objected and demanded a final order in his favor on the ground that the tenant was in default in not appearing on the return day. This was disputed by the tenant. The case was then adjourned by the justice, and the justice not being present on the adjourned day, the clerk further adjourned the cause. On this last adjourned day the cause was tried and a final order in the tenant’s favor made, Held, that the clerk had the power to adjourn the proceedings, although no answer had been filed; that the justice did not err in receiving the final answer when -he did; and that he had jurisdiction to make the final order.</p>

<p>1. Pension money left by testator-—When not exempt from payment OF DEBTS OF TESTATOR—CODE OlV PRO., § 1393—U. S. ReV. Stat,.§§ 4718, 4747.</p> <p>The testator, a pensioner of the United States, received a draft from the pension agent for $1,200, in payment, of the pension. For this draft a certain national bank gave him a certificate of deposit for $1,200, payable to himself. He held this certificate at the time of his death, and the executors received the money upon its surrender. Feld, that the exemption created by Code of Civil Procedure, section 1393, had no application after the pensioner’s death. That the federal legislation only protected pension money until it reached the pensioner, or his family in case of his death. See United States Revised Statutes, §§ 4718, 4747.- That the money received by the executors from the bank, as aforesaid, was assets in the hands of the executor applicable to the payment of debts.</p>

The testator by his will, first directed the payment of Ms debts and funeral expenses, and gave $500 to his executors, to be expended by them in having masses said for the Tepose of his soul. He also gave his brother Michael McElvoy $300. The rest and residue he bequeathed and devised to his niece Mary Ann Murphy. The executor or survivor of them, was given power to sell estate. He had real •estate at White Plains, Westchester county. The testator died in 1883.

<p>Application for probate of decedent’s will, made by Thomas Taafe and opposed by Ellen Figueira and others, next of kin. ,</p>

<p>Motion by plaintiff to dismiss an appeal from a judgment of the municipal court of Buffalo.</p>

The plaintiffs bring this action to recover damages to real property. Upon the trial, it appeared that the defendant was a corporation duly created under and by virtue of the Laws of the state of New York, for the purpose of constructing and operating a railway from the city of Binghamton, N. Y., to the International Bridge in the county of Erie, N. Y. The defendant’s premises adjoin those of plaintiffs on the easterly and northerly sides thereof.

Demurrer to a return to a writ of habeas corpus. The relator, Anna Burns, was the mother of an illegitimate child, named Henry George Fondry. In April, 1883, the said mother being without means of support either for herself or said infant, consented to its adoption by the defendant, and for that purpose applied to the county judge of Erie county to execute the necessary papers.

<p>1. Civil service—Laws 1883, chap. 354, as amended by Laws 1884, chap. 410—Clerk in assessors’ office—Within provisions of—Cannot enforce PAYMENT OF SALARY.</p> <p>Where a person had been appointed a clerk in the assessors’ office of the city of Buffalo without first having passed a civil service examination, and without being certified by the civil service commissioners, in violation of chapter 354 of the Laws of 1883, as amended by chapter 410 of the Laws of 1884, he cannot enforce payment of his salary, and a mandamus will not be granted to compel tlie mayor to sign the warrant for his salary, although such warrant had been directed to be drawn by the common council and was signed by the city clerk.</p> <p>3. Same—Not within exception in act.</p> <p>The appointment of such a clerk is within the provisions of the civil service act, and the fact that by an ordinance of the common council the assessors were required to file a bond for the faithful performance of their duties, does not place such appointment within the exception of the act which provides that, “ officers elected by the people and the subordinates of any such officer for whose errors or violation of duty such officer is financially responsible,” * * * shall not be subject to the regulations prescribed pursuant to this section. The duties of the assessors’ clerks are purely clerical—their acts have no public character, and the assessors are not liable for their acts except so far as they ratify and make them their own.</p>

Appral from a part of a judgment, entered upon the decision of the court upon a trial at special term. The action was brought to charge certain premises devised by the will of Jacob Weiting, deceased, to his son, Christopher Lorenzo, with the payment of certain legacies.

The facts will be found fully stated in the report of the decision of the general term in the case. 10 N. Y. State Rep., 446.

<p>Application for costs of proceedings on assessment of collateral inheritance tax.</p>

Appeal by the town of Moreau and John Conlin, as sole commissioner of highways, from an order of the Washington county special term, entered in the office of W arren county, ordering that a certain bridge be built, and directing the manner in which the same should be paid for.

<p>Appeal from a judgment of the general term of the court of common pleas of New York, affirming an order of the trial judge, denying a motion for a new trial; The surrogate of New York county, sent the questions arising on the proceedings to probate the alleged will to the common pleas of New York, to be there tried by a jury, pursuant t.o Code 'Civ. Pro., § 2547,</p>

Lawrence county requiring the defendant to serve an additional bill of particulars. Action by plaintiff against defendant for work done in constructing a portion of its railroad. The following is the opinion of Mr: Justice Tapp an granting the order complained of and contains a complete statement of facts.