was accordingly placed at liberty to take and state the account, without restricting it as to any parcel of the property sold, to the time when the sale itself had taken place. It has been objected that the court did not possess the power or authority to make this change in the preceding order, but that posi tion is not capable of being sustained; for it appeared, by the affidavit presented on behalf of the plaintiff, that the order, sanctioned by Mr. Justice POTTER, had been entered under an alleged misapprehension as to the extent of the right of the plaintiff to recover her one-third of the rents and profits of property which might have been sold after the commencement and during the pendency of the action. No authoritative decision appears to have been made by Justice POTTER, limiting the right of the plaintiff to recover the rents and profits of either parcel of land to the time when a sale did take place. But the order was adopted and entered as it was drawn, and proved at that time to be satisfactory to the plaintiff's counsel. It was not reviewing any decision made by Justice POTTER, therefore, for the court to make the order now in controversy; and, as it appeared that the preceding order had been entered under an alleged mistake of the plaintiff's rights, it was correct and proper to relieve the case from the effect of that mistake, by amending and enlarging the order. The power which the court possesses over orders made as the result of motions is more enlarged and more flexible than that existing over judgments, and other more formal determinations, concerning the rights of parties. Where their rights may be affected by an order made upon the decision of a motion, leave may be afterwards given by the court to rehear the motion itself, and so it may be also reheard without leave, upon additional facts brought to the knowledge of the court justifying that proceeding. This subject was considered quite at large in Riggs v. Pursell, 74 N. Y 370, and the court there held that formal notice of an application to renew a preceding motion was not indispensably necessary, and that the hearing of the motion itself was, in effect, allowing it to be reheard. Id. 378, 379. And the general principle from which this was considered to result, was followed in Easton v. Pickersgill, 75 N. Y 599. In substance and effect, the last order directed a broader and more extended inquiry than had been included in the first order; and, as that appeared to be justified by the facts, it was not only the right, but the duty, of the court to provide that direction. The order which is complained of has determined no right or liability in favor of or against either party. It has merely broadened the subject of inquiry before the referee, upon which evidence could be taken and reported to the court; and it appears by the affidavit that such evidence was received, and that the referee is ready to make his report upon its basis. When that shall be done, all questions of liability will be in a situation to be considered and passed upon by the court, and, if either defendant should be exonerated from liability for rents and profits after the conveyance of any parcel of the property in dispute, a decision to that effect will then be made; but if the sale shall not end the liability, then the case will be in a condition to be completely and effectually disposed of on that view. No harm has been done to any person by this order, but it has placed the case where it can be wholly and entirely disposed of, as the facts may require that to be done, under the law applicable to the controversy. The order should be affirmed, with $10 costs, and also the disbursements.

VAN BRUNT, P. J., and BARTLETT, J., concur.

KENNEDY et al. v. BURR et al.

(Supreme Court, General Term, First Department. November 23, 1888.) EXECUTION-LEVY AND LIEN-POSTPONEMENT.

An execution will not be postponed to an attachment, afterwards levied, on the affidavit of the officer levying the execution that it was intended merely to protect

the debtors, where the proceedings prior to execution indicate a bona fide intention to collect the debt, and the affidavits of plaintiff in execution and of one of the debtors and their counsel, deny collusion, and show that the officer was urged to proceed, but declined to do so, and adjourned the sale from time to time, against the remonstrance of the execution creditor.

Appeal from special term, New York county.

Appeal from an order denying an application to restrain the sheriff from proceeding under an execution held by his deputy in favor of the respondent Granville S. Ingraham, and to secure to the execution of the plaintiffs in this action priority in payment out of the proceeds of the debtors' property.

Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. James L. Bennett and R. J. Lewis, for appellants. Thomas Allison and D. M. Helm, for respondent.

DANIELS, J. The property of the debtors was seized under an attachment in favor of the plaintiffs in this action, on the day succeeding the completed levy under the execution in favor of Ingraham against the same defendants. The application to secure priority over that execution for the plaintiffs in this action proceeds upon the asserted fact that the proceeding was a friendly one, intended to protect the judgment debtors in the enjoyment, use, and sale of their property, and not in fact for the collection of the execution. And if that had been established to the satisfaction of the court, or could now be held to be proved by the affidavits, the plaintiffs in this action would be entitled to an order securing to them that advantage; for where an execution may be issued and levied in whole or in part to favor the debtor, and not for its enforcement strictly and regularly against his property, and is so used, it will become dormant in favor of succeeding execution creditors. Dunderdale v. Sauvestre, 13 Abb. Pr. 116. The controversy upon which this appeal depends is not so much as to the law as it is to the fact upon which this legal principle is made to depend. The affidavit of the deputy having the execution in charge does disclose such a state of facts as would render this execution dormant. But the case in favor of the application depends almost entirely upon the affidavits of the deputy; for those made by Lewis, the attorney, so far as they affect this fact, are in the main upon information and belief, and prove nothing as to the existence of the essential fact itself, while on behalf of the respondent and plaintiff in the execution, whose validity in this manner has been drawn in question, the affidavits are direct and positive that no such proposal or authority or intimation as the deputy swears to was made to him concerning this execution. The affiant Ackley had charge of the proceedings in the action, and of the execution after it was issued, and he, as well as the plaintiff in the execution, explained the delay intervening before the entry of the judgment to be entirely consistent with the bona fide intention of the respondent to collect his debt. The delay itself was obtained by special solicitation of the debtors founded upon an assurance that means would be provided, if that were conceded, through which the debt itself would be paid; and a delay obtained in that manner, and for that purpose, is not a fact which can be relied upon to abridge the creditor's rights afterwards, under his judgment and execution. The execution at first was not levied upon all of the debtors' property, but this is shown to have proceeded upon a misapprehension concerning the amount of a preceding chattel mortgage; and, when its true amount was discovered, all the debtors' property was included in the levy. The affidavit of Ackley is positive that no intimation or authority whatever was given to the deputy to favor the debtors under the execution, and no admissions made that the execution was designed to be or could be used for their convenience or protection in any manner whatever. In this statement he is sustained by the affidavit of Helm, the attorney for the respondent, and so he is by those of Ingraham, the respondent himself, and of Frisbee, and Burr, one of the debtors, and Untermeyer, his counsel. Their

affidavits all tend directly to establish the fact that no disposition existed, and no intimation was given, by which the deputy was at liberty to use the execution as a cover or protection for the debtors' property, or to delay its collection. On the contrary, the deputy was urged persistently to proceed with the sale of the property under the execution, and he declined to do so, and from time to time adjourned the sale, contrary to the remonstrance of the respondent himself and those acting in his behalf. Their affidavits entirely overcome the statements, as to the material facts, made on behalf of the plaintiffs in this action; and they certainly have a tendency to indicate the truth to be that the deputy procrastinated the proceedings with the expectation of securing a benefit to himself for the discharge of his legal duties. He denies in his affidavit that he suggested the payment to himself, for his proposed favorable management under the execution, of the sum of $1,000. But in this denial he is directly contradicted by the affidavits on behalf of the respondent. It is not necessary to determine whether this proposition was made by the deputy or not; for the facts, in no view of the case, have been established which would authorize a preference to be given to the plaintiff's execution over that of the respondent. The order was right, and it should be affirmed, with $10 costs, and also the disbursements.

VAN BRUNT, P. J., and BARTLETT, J., concur.

RUDD et al. v. BEARDSLEY.

(Supreme Court, General Term, First Department. November 23, 1888.) LANDLORD AND TENANT-ASSIGNMENT OF LEASE-DELIVERY.

The owner of a leasehold interest executed an assignment of it to trustees, to pay the rent to her for life, and, at her death, to her granddaughters, until the youngest became of age, when it was to be assigned to them. The assignment was made without the knowledge of the trustees named, and without the consent or knowledge of the lessor, and was placed by the assignor in her private compartment, in a safe owned by one of the trustees, where she kept her private papers, with instructions to keep, subject to her order, and that it remain there until after her death, which instructions were obeyed.' Held, that the delivery after her death was inoperative, as against a subsequent unconditional assignment with the consent of the lessor, followed by continuous possession by the assignee.

Appeal from special term, New York county

Action by Anna E. Rudd and others against Margaret E. Beardsley. From a judgment dismissing the complaint on the merits, plaintiffs appeal. Argued before VAN BRUNT, P J., and BARTLETT and MACOMBER, JJ. Lawrence & Wachner, for appellants. Sidney S. Harris, for respondent.

MACOMBER, J. This action was brought to vacate and set aside an assignment of a certain lease, and to have the same, and the rents and profits thereof, adjudged to inure to the benefit of the plaintiffs. Clement C. Moore, on June 20, 1861, being then the owner in fee of the premises known as “No. 325 West Twenty-Fourth Street," in the city of New York, leased the same to one Abram L. Casey. Casey entered into possession of the leasehold premises, and in February, 1863, with the knowledge and consent of the lessor, assigned the lease to Rachael Rudd, who thereupon entered into possession of the premises, and continued uninterruptedly in such possession, renting, and collecting the rents, until the month of March, 1882, when she received, from William T. Moore, a new lease of such premises. On June 26, 1882, Rachael Rudd, with the consent of William T. Moore, assigned the new lease to Margaret E. Beardsley, the defendant, whereupon the latter entered into possession of the leasehold premises, and continued in possession thereof since that time. The consideration of such assignment consisted of board and lodging, furnished by her to Rachael Rudd, and for care and nursing. Prior to this

time, however, namely, on the 15th day of June, 1880, Rachael Rudd executed an instrument, and assigned the said prior lease to Samuel F. Jayne and Mathias Abbott, from that date, for the residue of the term of years mentioned, in trust, to pay the rents and profits thereof to her, during life, and at her death to her two granddaughters, Anna and Carrie Rudd, the plaintiffs; and when the younger of the plaintiffs became 21 years of age, the trustees were to assign said lease to them, subject to the said rents and covenants and conditions and provisions of the lease. The last-ment oned instrument, namely, that of June 15, 180, was executed without the knowledge or consent of the trustees named therein, and without the consent or knowledge of Mr. Moore, the lessor, and was without consideration. One of the questions in the case is whether or not the paper purporting to be the assignment of the leasehold interest, made in 1880, was ever actually delivered. Rachael Rudd, after the same was executed, placed it in a pigeon-hole or compartment of her own, in a safe owned by Mr. Jayne, where he kept her private papers, with instructions that the same should be kept there, subject to her order, and that it remain there until after her death. Not only does the old lady seern not to have made any other disposition of the paper, but the trustees, Jayne and Abbott, never accepted the trust under it, but the same remained in the till of Rachael Rudd, undelivered, up to the time of her death. The delivery of the paper by Jayne, after the death of the assignor, was wholly inoperative as an act binding upon the estate of Rachael Rudd. Rachael Rudd continued in sole possession of the premises, continued to rent the house to tenants, and collect the rents, employing agents therefor, and paying taxes, as theretofore. This fact is established by a clear preponderance of the evidence, and, in the absence of proof showing that it was the intention to have the instrument delivered to the plaintiffs, or to the trustees named therein, after her death, it must be deemed to be conclusive and decisive of the rights of the parties. The acts of Rachael Rudd are clearly inconsistent with any purpose of having the instrument become effective after her decease, because she made the unqualified written ass gnment, on June 26, 1882, of the new lease, which bears date April 8, 1882, and which superseded the prior one. The judgment should be affirmed, with costs.

VAN BRUNT, P. J., and BARTLETT, J. concur.

GEYER 0. BREWSTER et al. (No. 1.)

(Supreme Court, General Term, First Department. November 23, 1888.) PAYMENT-EVIDENCE-Surrender of Notes.

The notes in suit were loaned to G. Bros., and by them discounted at a bank, where they were protested for non-payment. Subsequently the same accommodation parties gave G. Bros. other notes, with which to take up and cancel the former. G., one of the firm, went with plaintiff to the bank; and, upon plaintiff's delivering to it a sum of money, the notes in suit were handed over to G., who kept them several months before plaintiff got them. It did not appear that they were canceled. At the same time plaintiff received from the bank an assignment of a judgment against G. Bros., reciting that the judgment was for a certain sum, but containing nothing to show that the notes were merged in it. The date of its rendition was prior to the maturity of two of the notes. Held, that the evidence showed a payment of the notes, and not a sale to plaintiff.

Appeal from judgment on report of referee.

This was an action by Adam Geyer against Henry D. Brewster and others, on three promissory notes. There was a judgment for defendants, and plaintiff appeals.

Argued before VAN BRUNT, P. J., and BARTLETT and MACOMBER, JJ. A. Edward Woodruff, for appellant. J. L. Bennett, for respondents.

v.2N.y.s.no.20-51

MACOMBER, J. The three notes in question were made by the defendants Brewster & Becker, and indorsed by the defendants Lawrence Bros.' Co. and Henry E. Lawrence, and Lawrence Bros.' Co. delivered them so indorsed to a firm known as Geyer Bros., composed of Phillip and Frank Geyer. Geyer Bros. were indebted at the time of the making of these notes in suit, to Lawrence Bros.' Co., and were unable to meet such indebtedness; whereupon Lawrence Bros.' Co. loaned them this paper, to enable them to meet their obligations. The notes so loaned had been received by the Lawrence Bros.' Co. from their customers Brewster & Becker in the ordinary course of business, so far as appears. The amount of the indebtedness of Geyer Bros. to the Lawrence Bros.' Co. was much larger than the aggregate of the three notes embraced in this action. Geyer Bros. had the notes discounted at the National Bank of Rahway, N. J., which bank held them at the time of their maturity, respectively, and caused them to be severally protested for non-payment. A few months subsequently to the dishonor of the notes they found their way into the possession of the plaintiff Adam Geyer, through Phillip Geyer, one of the firm of Geyer Bros. It is at this point of the case that the material evidence offered by the respective parties is directed. It appears that after the maturity of the notes five other promissory notes were made by the defendants Brewster & Becker, which were likewise indorsed by the Lawrence Bros.' Co. and Henry E. Lawrence, the latter of whom was an accommodation indorser upon all of the paper, and the same were placed in the hands of Phillip Geyer under an agreement on his part by which he should take up and cancel the three notes for which this action is brought. Phillip did not, in form at least, cause the three notes in the action to be canceled. But there was a time when he and the plaintiff went to the National Bank of Rahway, and upon the plaintiff's delivering to the bank a considerable sum of money, at least several thousands of dollars, the bank parted with this paper, but did not, so far as the evidence discloses, cancel it. The vital question is therefore, in my judgment, whether or not the transaction at the bank of Rahway amounted to a transfer or sale of those notes to Phillip Geyer, or whether it amounted to a payment of them. If it was a payment in point of fact, it is quite clear that the plaintiff can have no action upon them. The evidence bearing upon this question is not altogether satisfactory, but it is such that the referee seems to have been borne out in his conclusion upon this branch of the case. In behalf of the plaintiff it is contended that, as a part of the transaction at the bank, there was received by the plaintiff a written assignment of a judgment recovered by the bank against the Geyer Bros., and that inferentially, at least, these notes formed a part of the consideration or cause of action resulting in that judgment. The evidence upon this branch of the case is meager. The judgment record in the action of the bank against Geyer Bros. is not before us. All that is given in evidence is the assignment of the judgment itself. That instrument contains a recital, in effect, that on the 20th day of January, in the year 1882, the bank recovered a judgment at the Union county circuit court against Frank Geyer and Phillip Geyer, partners trading as Geyer Bros., for the sum of $5,425.42 debt, and $4 costs of suit. This does not even raise an inference that these notes in question were part of the cause of action in that case. Two of the notes could not have been embraced in that action; because bearing date October 17, 1881, at three months, they did not mature until after the date of the judgment, namely, the 20th day of January, 1882. As to the note bearing date October 1, 1881. at three months, there is a total lack of evidence either way; and as the case was shaped at the trial, the burden of proof was upon the plaintiff to establish that these notes, or some of them, were the subject-matter of the judgment; and, having failed in that, no inference of a transfer from the bank to the plaintiff Adam Geyer can be drawn from the execution and delivery of the assignment of the judgment. On the other hand, the testimony shows con