or that any other varieties were employed at that time by carriers in general for the carriage of fruit. As we said in the opinion heretofore handed down (32 N. Y. Supp. 1), the jury were instructed that no duty rested upon the defendant to ship the goods in "refrigerator" or "Eastman" cars, and it appeared that the facilities remaining to the defendant for transportation, as called for in accordance with its duties, were duly employed. From the testimony of defendant's receiving clerk, it appears that knowledge of the fact that the goods were of a nature such as would be injuriously affected by cold was imputable to defendant; and, in view of further evidence in the case that the latter customarily used refrigerator and Eastman cars for transportation of fruit during the winter months, it would appear that the question whether, under the circumstances of the case, its duty did not require it to make use of an Eastman car after having accepted the goods for transportation, should have been left to the jury. Wing v.. Wing v. Railroad Co., 1 Hilt. 243; Steinweig v. Railway Co., 43 N. Y. 127; Tierney v. Railroad Co., 76 N. Y., at page 314 et seq. The fact that the goods were of the class designated in the shipping receipt to be "at owner's risk" does not affect the carrier's liability for injury resulting from its negligence, if proven, since an exemption upon this ground was not expressly provided for in terms, as would be required in order that liability so sought to be imposed might be resisted. Canfield v. Railroad Co., 93 N. Y. 537; Nicholas v. Railroad Co., 89 N. Y. 370. Motion denied, with $10 costs. All concur.

(12 Misc. Rep. 112.)

ELLENSTEIN v. KLEE et al.

(Common Pleas of New York City and County, General Term. April 1, 1895.) TENDER-AFTER ACTION IN DISTRICT COURT.

The provisions of the Code of Civil Procedure authorizing a tender after an action is brought (section 731 et seq.) do not apply to the district courts of New York City.

Appeal from Fourth district court.

Action by Abraham Ellenstein against Jacob Klee and another. There was a judgment in favor of defendants, and plaintiff appeals. Reversed.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. Jacob Rieger, for appellant.

Leo. W. Harburger, for respondents.

DALY, C. J. The record shows that the parties appeared in the district court on December 21, 1894, after service of the summons, and the "plaintiff complained against the defendants as follows: Work, labor, and services on an assigned claim; and the said defendants answered as follows: General denial, breach of contract, tender $17.05, $17.05 paid to clerk Dec. 21, '95 [evidently a mistake for 1894]." No proof of tender before suit was brought was offered

on the trial, and the justice, according to the record, "rendered judg ment in favor of the defendants, and against the plaintiff, $17.05, paid to clerk December 21, '94. Judgment for the defendants. Amount paid into court is sufficient to pay the plaintiff's claim."

As there was no evidence of tender before suit, we are to assume that no such plea was intended by the answer, and that the $17.05 was meant to be a tender at the time of the joining of issue. The provisions of the Code authorizing tender after suit brought (section 731 et seq.) do not appear to be made applicable to district courts (section 3347, subd. 6); and, if they were, there was yet no tender of costs, and it was ineffectual. Eaton v. Wells, 82 N. Y. 576. If the offer of judgment allowed by the old Code (sections 64, 68) is still applicable to district courts, then that practice was not pursued in this case, for there was no offer of judgment made. As the justice found that the plaintiff had a claim which the money paid into court was sufficient to satisfy, he should have rendered judgment in plaintiff's favor for the amount due. He could only render judg ment in defendants' favor on proof that tender had been made before suit.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.

(12 Misc. Rep. 86.)

KENNEY V. SUMNER.

(Common Pleas of New York City and County, General Term. March 15, 1895.) 1. APPEAL-FROM ORDER DENYING NEW TRIAL-CASE.

An appeal from an order denying a motion for a new trial must be taken

on a case.

2. SAME-MOTION TO DISMISS-STAY.

An order granting defendant a stay of 60 days after notice of entry of judgment in favor of plaintiff, to make a case, does not affect plaintiff's right to move to dismiss defendant's appeal, but only suspends the enforcement of the judgment.

8. SAME-NOTICE.

There

A motion to dismiss an appeal must be made on a notice of eight days. Action by Alexander Kenney against Perrin H. Sumner. was a judgment in favor of plaintiff, and defendant appeals. Plaintiff moves to dismiss the appeal. Denied.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. William Henry Knox, for appellant.

W. McCloskey, for respondent.

DALY, C. J. Motion by plaintiff, on notice of four days, to dismiss defendant's appeal from an order denying a motion made by him upon the minutes for a new trial, and to affirm the said order, on the ground of failure to serve a proposed case or any printed papers on appeal. The plaintiff had a verdict at trial term on October 2, 1894, for damages; and defendant, on the same day, moved for a new trial, which motion was denied. The trial judge granted defendant a stay of 60 days after notice of entry of judg

ment, and 60 days to make a case. Plaintiff has not entered judg ment upon his verdict, and defendant has appealed from the order denying the motion for a new trial. He has not, however, made and served a case upon such appeal, and plaintiff moves to dismiss it.

Defendant insists that he is not bound to make and serve a case upon his appeal, on the ground that an appeal from an order denying a new trial upon the minutes is always heard upon a case made at the same time as the appeal from the judgment, and cites rule 38. Nothing in that rule prevents an appeal from the order and the service of a case on such appeal independent of an appeal from the judgment. Section 999 of the Code provides that an appeal from the order must be heard upon a case prepared and settled in the usual manner. Appellant contends that he cannot prepare a case in the absence of a judgment roll. Section 997 prescribes what a case shall contain, and it does not include a judgment roll.

It is also urged by appellant that this motion cannot be made by the plaintiff, because his proceedings are stayed until 60 days after notice of entry of judgment. But this is not so. The trial judge granted defendant a stay of 60 days after notice of entry of judg ment. This stay operated only in case judgment was entered, and suspended enforcement thereof. It does not tie plaintiff's hands upon defendant's appeal from the order denying a new trial.

It is also contended by appellant that his time to make a case runs from notice of entry of judgment. But this rule applies only to a case made upon appeal from a judgment rendered by the court or referee, as in the cases cited by him. French v. Powers, 80 N. Y. 146; Schwarz v. Weber, 103 N. Y. 658, 8 N. E. 728. The time to make a case, where the trial was before a jury, runs from the time of the trial or of a motion for a new trial. Rule 32.

But this motion must be denied because the notice (four days) is too short. Appeals from nonenumerated motions may be dismissed on three days' notice (rule 41); but the appeal from an order granting or refusing a new trial is an enumerated motion,i. e. a motion arising on a case (rule 38). Inasmuch as the order can only be reviewed upon a case made, it must be deemed a motion arising upon a case. Harper v. Allyn, 3 Abb. Pr. (N. S.) 186. A motion may be made to strike an enumerated appeal from the calendar, and for judgment for want of service of printed papers (rule 41); but such motion must be upon notice of eight days (Salters v. Sheppard, 11 N. Y. Wkly. Dig. 189).

Motion denied, without costs, with leave to renew. All concur.

(85 Hun, 506.)

PEOPLE v. FLOUR CITY LIFE ASS'N.
In re POST et al.

(Supreme Court, General Term, Fifth Department. April 12, 1895.) EQUITABLE ASSIGNMENT-ORDER TO PAY MONEY.

An order directing the treasurer of a life insurance company to pay a death claim "out of any sum belonging to the mortuary fund," signed by the vice president and secretary, operates as an equitable assignment pro tanto of the mortuary fund, though a by-law of the company provides that every claim shall be paid by means of "an order drawn upon the depositary of the mortuary and benefit fund, signed by the president or vice president, treasurer and secretary."

Appeal from special term, Monroe county.

Action to dissolve the Flour City Life Association. Lydia E. Post and others filed claims against the association. From an order directing payment of the claims in question the receiver of said association appeals.

Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.
Geo. F. Yeoman, for appellant.

Geo. D. Williams, for respondents Post and others.
Irving Paine, for respondents O'Connor and others.

DWIGHT, P. J. The appellant was appointed at first temporary and afterwards permanent receiver of the defendant in an action for the dissolution of the corporation. He found among the assets of the association the sum of $2,435.13, belonging to the "mortuary fund in class B," on deposit in the Central National Bank of Rochester. It had been deposited by the treasurer, in obedience to a by-law of the association, as follows:

"Eighty per cent. of the net assessments for mortuary purposes shall be deposited with such bank or trust company as may be designated by the directors, to the credit of the mortuary and benefit fund of the Flour City Life Association, from which all claims shall be paid."

Before the appointment of the receiver each of the petitioners, respondents here, had received from the proper officers of the association an order on the treasurer for the payment of a claim which had been duly audited and approved by the executive committee, and which-allowing for difference of name and amountwas, in terms, as follows:

"Office of," etc.

"Rochester, N. Y., July 25, 1891. "To J. T. Baldwin, Treasurer: Pay to the order of Lydia E. Post, as executrix, two hundred three and 16/100 dollars, out of any sum belonging to the mortuary fund of class B, and this shall be your voucher. Wayland Trask, 1st Vice Pres't. Ralph Mendon, Sect'y."

"[Signed]

"$203.16.

The several respondents proceeded, by petition in the action in which the receiver was appointed, to obtain an order directing him to pay the several claims so allowed and certified, without waiting for administration of the receivership and a general distribution of the assets, on the ground that the several orders menv.33N.y.s.no.2-7

tioned constituted, in effect, an equitable assignment, pro tanto, of the fund in question, and that the portion of the fund so assigned never came to the hands of the receiver as assets of the association, but belonged to the several claimants at the time of the appointment of the receiver. The holding at special term was in accordance with this contention of the petitioners, and was, as we think, entirely correct. No question whatever is made of the justness and validity of the several claims, nor that they were duly audited and allowed by the proper officers of the association, nor that the several orders for their payment which were drawn upon the treasurer and delivered to the several claimants were so drawn and delivered in accordance with the uniform practice of the association in the payment of claims, of the character of those in question, established and allowed against its funds. Upon their face they are drawn payable unconditionally out of a particular fund, and they seem to meet all the requirements of the rule exemplified in the late cases of Brill v. Tuttle, 81 N. Y. 457, and Lauer v. Dunn, 52 Hun, 194, 5 N. Y. Supp. 161, and 115 N. Y. 405, 22 N. E. 270, to make them so many assignments, pro tanto, of the fund named in them. The contention to the contrary is based upon a by-law of the association as follows:

"Every claim, provided it shall have first been approved by the executive committee, shall be paid by means of an order drawn upon the depositary of the mortuary and benefit fund, signed by the president or vice president, treasurer and secretary, and made payable to the order of the beneficiary, if living," etc.

The objection is that the orders were not drawn by the officers mentioned in the by-law, nor upon the depositary of the fund. But this objection fails to discriminate between the custodian of the fund and the depositary of the fund, and assumes-contrary, as we think, to the principle involved-that the order which shall operate as an assignment of the fund must be drawn upon the latter. The treasurer is, no doubt, in a proper and important sense, the custodian of the funds of the association. They came originally to his hands; and though, for their better security, he is required to deposit them, he must yet keep his account with them, charging them with moneys received by him and deposited to their credit, and crediting them with moneys drawn from them for the payment of claims to which they must respond. Such being substantially the manner in which the accounts of the association were kept, as by all analogy and precedent we must assume it to be, it was certainly very proper, if not absolutely neces sary, that the first step in the payment of any claim which had been duly allowed, should be an order such as those in question in this case, drawn by the proper officers, upon the treasurer of the association, payable out of the appropriate fund; and, though such an order was required to be supplemented by a check, signed by the treasurer, with other officers, upon the bank where the money was deposited, for the actual payment of the claim, yet it seems to us that it was the order on the treasurer, rather than the check on the bank, which, within the principle relied upon