son refused, the defendant moved for an order of satisfaction of both judgments upon the deposit by him with the clerk of this court of the sum of $164.20, with interest. His motion was denied at special term, and the present appeal is from the order of such denial. The defendant has a right to have his liability for costs beyond the amount tendered by him determined, and a motion is the proper remedy. Patten v. Stitt, 50 N. Y. 591. So it must be conceded that, inasmuch as the action is of an equitable character, the court of appeals had full power to dispose of the entire action, and to determine absolutely the question of costs. It therefore remains to be seen what the court of appeals actually determined. On the motion below the burden was on the appellant to establish the extent of such actual determination. By the tender of the costs inserted in the original judgment with interest the appellant impliedly admitted that the court of appeals did not intend that there should be no costs whatever. The actual intention on the part of the court of appeals he was bound to substantiate by proof. The evidence of such actual intention is to be found in the remittitur and the opinion. They must be construed together, because the remittitur refers to the opinion as the source from which the nature and the extent of the modification is to be gathered. But the printed papers on the present appeal do not contain the opinion, nor has the opinion been brought to our attention in any other way. For all that appears, therefore, the court of appeals may have intended to grant without costs in that court a modification which should not interfere with the costs imposed below. The question seems to be a close one, but under the imperfect disclosures of all the facts which bear upon it, and in view of the fact that the order now under review was made by the same learned judge who directed the entry of the order upon the remittitur, I am not prepared to say that there is error in the order appealed from. The order should be affirmed, with $10 costs and disbursements.

TOWNSHEND et al. v. FROMMER et al.

(Superior Court of New York City, Special Term. July 3, 1888.) ATTORNEY AND CLIENT-PURCHASE OF CHOSE IN ACTION-LAND IN ANOTHER'S POS

SESSION.

Code Civil Proc. N. Y. § 73, which declares that an attorney or counselor shall not buy a bond, note, bill of exchange, book-debt, or other thing in action for the purpose of bringing suit thereon, does not prohibit an attorney from buying land in the possession of a third person for the purpose of obtaining possession by suit. At chambers. Motion in ejectment by John Townshend and others against Edward Frommer and others, to strike out the fourteenth paragraph of the

answer.

John Townshend, for plaintiffs. John F. Dillon, for defendants.

TRUAX, J. It was stated in the brief submitted by the defendants on the argument that the fourteenth paragraph of the answer (the paragraph to which one of the plaintiffs objects) "is based on section 73 of the Code of Civil Procedure." That section declares that "an attorney or counselor shall not * * * buy or be in any manner interested in buying a bond, promissory note, bill of exchange, book-debt, or other thing in action with the intent and for the purpose of bringing an action thereon." The paragraph of the answer of which one of the plaintiffs complains is to the effect that said plaintiff "bought and became interested in the premises mentioned in the complaint, and in the alleged cause of action set forth in the complaint, and did instigate, promote, and become interested in the controversy herein, * * * for the purpose and with the intent of bringing this action, * contrary to the statute

in such case made and provided," i. e., in view of the said statement in the brief, contrary to section 73 of the Code of Civil Procedure. The cause of action set forth in the complaint is that the plaintiffs are the owners, as tenants in common, and are entitled to the immediate possession, of the premises mentioned and described in the complaint, and that the defendants wrongfully withhold from the plaintiffs the possession of said premises; and the relief demanded is that the court adjudge that the plaintiffs are seized in fee as tenants in common of said premises, and are entitled to the immediate possession thereof, and that they recover such possession from the defendants.

Thus it appears that the question that arises on this motion is: Is an attorney prohibited by section 73 of the Code of Civil Procedure from buying land, or an interest in land, where such land is in the possession of another, for the purpose and with the intent of getting possession of such land by means of an action? The counsel for the defendants conceded that plaintiff was not within the prohibition of said section of the Code unless he bought some "other thing in action," and contended that the plaintiff when he purchased the fee bought merely a right of action, and, therefore, a thing in action, and cites as authorities for this proposition the cases of Moses v. McDivitt, 88 N. Y. 62; Wetmore v. Hegeman, Id. 69; Browning v. Marvin, 100 N. Y. 144, 2 N. E. Rep. 635; Fowler v. Callan, 102 N. Y. 395, 7 N. E. Rep. 169. These cases are not authorities for the defendants' proposition. Moses v. McDivitt was an action brought by an attorney upon a bond; Wetmore v. Hegeman and Browning v. Martin were actions on contract; while Fowler v. Callan is an authority to some extent for the plaintiff. I do not see how it can be said that the plaintiff bought a thing in action, in view of the allegation in the answer that the plaintiff "bought *** the premises mentioned in the complaint." It is true that the defendants also say that the plaintiff "bought and became interested in the premises, * * * and in the alleged cause of action set forth in the complaint;" but the proceedings show that what the plaintiff purchased was the fee of the land, and not a thing in action. The motion is granted, with $10 costs to abide the event.

In re SIESEL'S ESTATE.

(Surrogate's Court, New York County. October 22, 1888.)

EXECUTORS AND ADMINISTRATORS-ACCOUNTING-REFERENCE.

The intermediate account of an administratrix will not be referred, to settle objections thereto, where the administratrix opposes the reference on the ground that within two months a year since her appointment will have elapsed, after which time she can be compelled to render her final account.

On application for a reference to settle objections to the intermediate account of the administratrix of Simon H. Siesel, deceased.

Henry Stanton, for petitioners. Hays & Greenbaum, for administratrix. RANSOM, S. Heretofore, on the application of certain creditors of deceased and the petitioners herein, the administratrix was required to render an intermediate account of her proceedings. To such account objections have been filed; and now an application is made for the appointment of a referee to pass upon the account and objections. This is opposed by the administratrix on the ground that on November 26, 1888, a year will have expired since letters were issued to her, and at that time she can be compelled to render her final account; and, if this intermediate account and objections are sent to a referee, it will entail an additional, and apparently needless, expense upon the estate. I think this is a reasonable ground for suspending this motion until the year has expired, at which time, if no application for the judicial settlement of her account is made by the administratrix or parties interested, this motion will be granted.

(15 Daly, 107)

WOLF v. SCHMIDT.

(Common Pleas of New York City and County, General Term. December 3, 1888.) LIMITATION OF ACTIONS-RUNNING OF STATUTE-PURCHASE OF ESTATE BY TRUstee.

An objection to the title on the ground that it is derived through a deed made by the executors of a deceased owner, the grantee in that deed immediately reconveying to one of the executors for the same consideration named in the executors' deed, and that the two deeds constituted one transaction,-the transfer of the trust-estate to one of the trustees as an individual,-cannot be sustained after a lapse of 34 years, the title derived through those deeds being merely voidable, and having become absolute under the statute of limitations; Code Civil Proc. N. Y. § 388, providing that actions, the limitation of which is not specifically prescribed, must be commenced within 10 years after the cause of action accrues.

Appeal from trial term; J. F. DALY, Judge.

Action by Morris Wolf against Anna Maria Schmidt to recover the deposit paid by plaintiff on a contract for the purchase of a house and lot from defendant; plaintiff contending that defendant's title was defective. From a judgment for plaintiff, defendant appeals. Code Civil Proc. N. Y. § 388, provides that all actions, the limitation of which is not specifically prescribed in that or the preceding title, shall be commenced within 10 years after the

cause of action accrues.

Wing, Shondy & Putnam, (J A. Shoudy, of counsel,) for appellant. Lachman, Morgenthau & Goldsmith, (Samson Lachman, of counsel,) for respondent.

LARREMORE, C. J. The parties have entered into a written contract by which the defendant agrees to sell, and the plaintiff to purchase, the real estate known as 2134 Second avenue, in the city of New York. The plaintiff has rejected the title, and brought this action to recover back the deposit paid on signing said contract. The ground of his objection is that, as to a one-half interest in such premises, the same was, prior to May 6, 1853, vested in Tighe Davey and Peter McLoughlin, executors of Thomas Mooney, deceased, as trustees under his will; that in May, 1853, the said executors, for the expressed consideration of $750, conveyed the same by executors' deed to Thomas Mooney, of Peoria, Ill.; and that said Thomas Mooney, by a deed contemporaneous with the executors' deed, conveyed the same back to said Peter McLoughlin as an individual, for the same consideration named in the executors' deed. Upon the trial, the question was submitted to the jury whether the deed from the executors to Mooney, and the deed back to McLoughlin, were intended to constitute a single transaction, and a cover for the transfer of a portion of the trust-estate to one of the trustees as an individual. The jury answered this question in the affirmative, and, under the charge of the court, rendered a verdict for the plaintiff for a sum which included the amount of said deposit, and the expenses incurred in searching the title.

We are of opinion that defendant's motion to dismiss the complaint should have been granted. The verdict established that the conveyance to McLoughlin, by means of the two deeds aforesaid, was a sale by trustees to one of their number as an individual. There was sufficient evidence to go to the jury on this point, if the fact itself were the one on which the case turned. But granting that McLoughlin as an individual purchased from himself as trustee, what is the result? His title, and that of his grantees, was voidable, not void. This is well settled, and will not be disputed. Such a title will become absolute unless avoided by a lawsuit brought by the proper persons and within the legal time. We must therefore consider what the period is within which an action to set aside a purchase by a trustee of the trust-estate must be brought. It was held in Hawley v. Cramer, 4 Cow. 717, that such a purchase will be set aside on the application of a cestui que trust, if made within a reasonable time, and if not made within a reasonable time the right will v.2N.Y.s.no.20-45

be deemed waived or abandoned; that what shall be considered a reasonable time has no fixed rule, but rests in sound discretion; that the shortest period which a court of equity is bound to consider a bar to such a suit is, (in analogy to the statute of limitations,) at law, 20 years. This decision was made before the adoption of the Code of Procedure, and it is to be noticed that the suggestion of a 20-years limitation is furnished by an analogy to the positive provisions regulating actions of law. With the adoption of the Code, and the amalgamation of legal and equitable procedure, there came in a statute of limitations which applies just as imperatively to actions formerly instituted in chancery as to suits which have always been brought in courts of law. The provision in question was section 97 of the old Code, and was re-enacted as section 388 of the present Code of Civil Procedure. It has accordingly been held by the court of appeals that, under the Code, an action to set aside a trustee's purchase, as an individual, of real estate belonging to the trust, must be brought within 10 years from the accruing of the cause of action; and that the cause of action accrues as soon as the trustee takes possession, and begins openly and notoriously to occupy the premises as his own, asserting an individual right thereto. Hubbell v. Medbury, 53 N. Y. 98. Under this decision, it seems clear that the cause of action to set aside the transfer to McLoughlin, individually, accrued in 1853; and that as 34 years had elapsed between such time and the execution of the contract to convey to this plaintiff, any possible right to question such transfer is outlawed. I can see no reason why the court should not so hold if this were an action for specific performance, where the burden of proving the title good is on the seller. Certainly, in the present action, to recover back the deposit, in which the purchaser is required to prove affirmatively that the title is unmarketable, the lapse of 34 years raises a presumption that all adverse claims have been quieted, which the plaintiff must negative if he wishes to succeed. Our attention has been called to the case of People v. Board, 92 N. Y. 98, as an authority apparently in conflict with the views above expressed. It seems quite significant that in that case the case of Hubbell v. Medbury, supra, is not cited in the opinion of the court or the argument of either counsel. The question involved is so similar in both cases that it seems probable that the earlier case was overlooked in the decision of the later one. In such later case the court say: "Nor is the lapse of time conclusive upon the beneficiaries under the will of Meier. Twenty years had not elapsed when this attempted sale was made;" citing Hawley v. Cramer, supra. The case at bar is distinguishable from People v. Board, on the facts, for here 34 years have elapsed since the voidable conveyance was made. It matters not, therefore, whether the limitation to be considered is a statutory one of 10 years, as is held in Hubbell v. Medbury, or one of 20 years, as seems to be intimated in People v. Board. Under either authority, all rights of the cestui que trust to avoid the conveyance are presumptively outlawed. Syester v. Brewer, 27 Md. 288, cited in 2 Perry Trusts, (3d. Ed.) § 864. The judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.

VAN HOESEN, J., concurs. (15 Daly, 93)

SCHMIDTKUNST v. SUTRO et al.

(Common Pleas of New York City and County, General Term. December 3, 1888.) PLEADING-COMPLAINT-CERTAINTY-PERSONAL INJURIES.

An allegation that defendants negligently allowed a step-ladder in their factory to become unsafe, whereby it gave way, and caused the injury, is sufficiently definite and certain, without specifying the particular defect causing the ladder to break

down.

Appeal from trial term.

Action by Caroline Schmidtkunst, administratrix of Paul Schmidtkunst, deceased, for a personal injury received by the decedent while in the employ of defendants, Emanuel S. Sutro and Bernhard Newmark. The complaint alleged that the injury was caused by defendants negligently allowing a stepladder in their factory to become unsafe and insecure, and dangerous, out of order, faulty, and dangerous to life and limb. From an order denying their motion to make the allegation more definite and certain, defendants appeal. Argued before LARREMORE, C. J., and VAN HOESEN, J.

Townsend, Dyett & Einstein, (H. E. Yonge, of counsel,) for appellants. August P. Wagener, for appellee.

VAN HOESEN, J. The order should be affirmed, with costs. The complaint alleges that the step-ladder was unsafe; that it gave way, and precipitated the plaintiff to the floor, whereby two of his ribs were broken. The meaning of this allegation is perfectly apparent, and the difficulty that the defendant experiences is not in understanding what he is charged with, but in ascertaining, in advance of the trial, what weak spots in the ladder the plaintiff expects to point out to the jury. It is obvious, therefore, that the allegation is not indefinite or uncertain, and that the application for information as to the defects in the ladder ought not to have been made, under section 546 of the Code. If the defendant had applied for a bill of particulars, though his motion would have been made under section 531, (which is the section that applies where a party desires information as to the details of a charge that his adversary has made against him in general terms, though in language so intelligible that the accusation is unmistakable,) it does not follow that he would have been successful. Where a step-ladder that an employer provides for the use of his servant breaks down; where the servant is thrown to the ground thereby, and is seriously injured; where the step-ladder is in the possession of the employer, and was never seen by the servant before he was told to go upon it; and where the servant has never seen it since the injury,—it is not likely that any court would call upon the servant to specify the cause of the collapse of the ladder, under pain of losing compensation for his injuries if he did not, in his bill of particulars, mention the very defect that, in the opinion of the jury, caused the breakdown. Again, there are cases to which the maxim res ipsa loquitur applies, and in such cases the plaintiff is not called on to give particulars, because the explanation of the cause of the accident is then devolved upon the defendant. It might turn out upon a motion for a bill of particulars that this case was one of that class. Order affirmed, with costs.

LARREMORE, C. J., concurs.

(15 Daly, 66)

FINNEY . GALLAUDET et al.

(Common Pleas of New York City and County, General Term. December 3, 1888.) 1. FACTORS AND BROKERS-ACTIONS-EVIDENCE-CUSTOM OF TRADE.

In an action against stock-brokers, where defendants concede that a profit resulted from operations for plaintiff down to a given date, but set up that after that time other ventures were made on plaintiff's account, which left him in debt to them, and it is admitted that they did not follow the usual custom of sending notices during the later transactions, evidence of the method of business between them and plaintiff during the time of the undisputed dealings, and the ordinary custom of trade as to sending notices, is admissible, as bearing on the question whether the later transactions were for plaintiff.

2. SAME-CONVERSATIONS WITH CONFIDENTIAL CLERK.

Evidence of conversations between one of the defendants and their confidential clerk is inadmissible on their behalf; but evidence of a conversation between such clerk and plaintiff is competent on behalf of the latter; the gist of defendants' defense being that such clerk was their employe, and, as such, received confidential orders from plaintiff.