arose. It cannot, of course, be said to be connected with the original hiring, (except perhaps very remotely,) which took place a year before the alleged conversion, but the action is for rent for the last month of the occupation of the premises, at the end of which plaintiff is alleged to have taken possession and assumed a lien on the property of the defendant for the rent due. If the rent was due, the plaintiff may have had a lien, and if there was no rent due, as defendant claims, the taking and detention of the property were wrongful, and I do not see why the purpose contemplated by section 501 will not be effected by disposing of these two questions in the same action; it seems to me that they arise out of the same transaction. Demurrer overruled, with leave to plaintiff to reply within six days, on payment of costs.

FLANERY. EMIGRANT INDUSTRIAL SAV. BANK.

(Common Pleas of New York City and County, Special Term. May 15, 1889.) INTERPLEADer-Bank DEPOSITS.

In an action against a bank for certain moneys of which plaintiff claims to have been the actual depositor, where such deposits were made by and in the name of a third person, in whose name the bank-book was also issued, and whose personal representative claims the fund, and plaintiff ostensibly appears to be a stranger to the contract between such depositor and the bank, defendant's motion for interpleader will be granted, though plaintiff will be thereby precluded from introducing evidence which she might have used in the action against the bank. At chambers.

Action by Mary Ann Flanery against the Emigrant Industrial Savings Bank to recover moneys deposited by one Margaret Kilfoyle, deceased, and now claimed by Patrick Kilfoyle, her administrator. Defendant moves for an interpleader.

Hart & Price, for plaintiff. Richard O'Gorman, Jr., for defendant.

DALY, J. The application of the bank to interplead the administrator of Margaret Kilfoyle, deceased, as defendant, should be granted. The deposit was made in the name of the deceased, and the bank-book was issued in that The plaintiff, ostensibly a stranger to the contract between the depositor and the bank, has brought this action, claiming to be the actual depositor. In such a case the bank should be relieved and the rival claimants compelled to litigate the title to the deposit between themselves.

name.

The fact that the plaintiff in an action against the bank could give evidence of personal transactions with the deceased, which she would not be permitted to testify to as against the administrator, is no ground for refusing the interpleader. The hardship would be suffered by the bank if the motion were denied, and it were sued by the administrator, and as between the bank and this plaintiff the former is the innocent party and should not suffer. Motion granted.

In re LASAK'S ESTATE.

(Surrogate's Court, Westchester County. April, 1889.) WILLS-PROBATE-PARTIES-EXECUTORS.

Though under Code Civil Proc. N. Y. § 2614, et seq., providing that an executor, devisee, or any other person interested in the estate of the alleged testator, may present a petition for probate of a will, and providing also for the citing of husband, wife, and other persons, but not an executor, the executor is not a necessary party to the probate of a will, yet where the parties are cited and appear, on a petition filed by the executor, he cannot discontinue the proceedings without the consent of all, especially after he has appeared and examined witnesses.

Motion by John G. Wendel, as executor of the will of Francis W. Lasak, to dismiss the probate proceedings of said will.

S. B. Brownell, for executor. George G. Reynolds, for Victoria A. McKenzie, in support of the will. Mr. Johnson, for Ophelia J. Cuthbert, on the same side. Mr. Cardozo, for Cordelia D. Chauvet, contestant. Aaron Kahn and Robert Sewall, for Antoinette L. Schermerhorn, contestant. Chas. F. MacLean, for Margaret S. Ives, contestant.

COFFIN, S. It is provided by section 2614 of the Code of Civil Procedure that an executor, devisee, legatee, or any other person interested in the estate of an alleged testator, may present a petition to the surrogate with a view to its probate. The next section provides for the citing of husband, wife, heirs at law, and next of kin, but not the executor. Hence, if any person other than an executor applies for probate, the executor need not be cited or made a party to the proceeding. So, too, all the parties in interest, without the executor, may appear before the surrogate and ask for immediate probate, which will ordinarily be granted. The executor, as such, is not, therefore, a necessary party to the proceeding. He is simply permitted to make himself such party by petitioning for a citation to be served on the proper persons. After all the parties have been cited, and some of them appear, a part of whom are desirous that the will should be sustained, and others that it should be rejected, and they enter upon a contest in regard to it, the executor, if he so elect, may sit by as an idle spectator of the controversy, or absent himself, at his option. There is no power possessed by the court to compel him to take an active part, and no order permitting him to withdraw is necessary. He has no beneficial interest under the will, and, if he even declines to examine the subscribing witnesses, the surrogate, in the discharge of his duty, would be compelled to do it. For he "must cause the witnesses to be examined before him," (Code, § 2618,) and any court may propound questions to witnesses. Indeed, surrogates in former times personally examined witnesses, and, where there is no contest, they constantly and habitually do so now.

Where, however, the parties appear on the return-day of a citation in a probate case, it seems to me that the executor has no power to discontinue or withdraw the proceeding without the consent of all. He is the mere instrument by which they are brought into court in order that they may assert their rights, and contend for what they may deem to be their interests. He, by the facts stated in his petition, has conferred jurisdiction of the subjectmatter, and, by proof of proper service of the citation, of the persons, upon the surrogate, and he cannot divest it of such jurisdiction by any act of his, more especially after appearing in court and duly examining the subscribing witnesses to the alleged will. The motion is denied.

PROGRESSIVE HANDLANGER UNION . GERMAN SAV. BANK.

(Superior Court of New York City, Special Term. May 13, 1889.) INTERPLEADER-ACTION FOR DEPOSITS.

Laws N. Y. 1882, c. 409, § 259, providing that in all actions against any savings bank to recover a deposit any persons claiming the same fund, and strangers to the action, may be made parties thereto upon defendant's petition, and that, upon payment of such money into court, such bank shall be stricken out as a party to the action, and be relieved of responsibility for such fund, applies to an action against a savings bank for a deposit which had been previously demanded by a third person, whether such third person claims the whole of such deposit or not.

At chambers. On motion for interpleader.

Action by the Progressive Handlanger Union No. 1 against the German Savings Bank, to recover certain deposits made with defendant. The Laborers' Union Protective Society No. 12, prior to the commencement of this action, had made a demand upon defendant for such funds. Laws N. Y. 1882, c. 409, § 259, provides that "in all actions against any savings bank to recover for moneys on deposit therewith, if there be any person or persons

1

* claiming the same fund, who are not parties to the action, the court in which such action is pending may, on the petition of such savings bank, and upon eight days' notice to the plaintiff and such claimants, make an order amending the proceedings in such action, by making such claimants parties defendant thereto; * * * the deposits which are the subject of said action may remain with such savings bank * * or be paid into court to await the final determination of the action, and, when so paid into court, the corporation shall be stricken out as a party to such action, and its liability for such deposit shall cease." Defendant moves to substitute the Laborers' Union Protective Society No. 12 as defendant.

*

Goodhart, Phillips & Rosenberg, for plaintiff. S. Kaufman, for defend

ant.

SEDGWICK, C. J. The application should be granted, under section 259, c. 409, Laws 1882. That section contemplates that, as in the present case, an action at law may be brought by a person in whose name the account with the bank is, and then, that a third person may claim the deposits as a fund equitably belonging to the third person, and that in such a case the section should be applied. I have a little doubt as to whether the claimant actually claims the whole of the deposit. If this be so, I am of the opinion that the section will still apply. Motion granted.

PRYOR v. FOSTER.

(Superior Court of Buffalo, General Term. July 12, 1889.)

APPEAL-Weight and SUFFICIENCY OF EVIDENCE.

It cannot be said as a matter of law that a finding of fact against the defendant in an action for fraudulent representations is erroneous, where the evidence introduced by him fails to establish a preponderance in his favor to overcome the inference of fraud arising from the plaintiff's evidence, to the admission of which he assigned no error.

Appeal from municipal court.

Action by John L. Pryor against Hubbard A. Foster, for damages for false representations made by him in regard to the heating capacity of a furnace in a house leased from him by plaintiff. Judgment for plaintiff, and defendant appeals. For opinion on former appeal, see 1 N. Y. Supp. 774.

Argued before BECKWITH, C. J., and TITUS and HATCH, JJ.

E. J. Plumley, for appellant. Fullerton, Becker & Hazel, for respondent.

TITUS, J. This case, when last before this court on an appeal from a judgment of nonsuit from the municipal court, was reversed on the ground that there was evidence from which the judge below or a jury could find that the defendant had been guilty of fraudulent representation, in making the lease of the premises to the plaintiff, as to the capacity of the furnace in the house to supply a sufficient quantity of heat to properly warm the dwelling-house on the premises. The evidence, taken on behalf of the plaintiff on the former trial, was read and considered in evidence by stipulation on the trial from which this appeal is taken. Evidence was given by the defendant for the purpose of overcoming the plaintiff's proof of fraud, and the court below found in favor of the plaintiff on this disputed question of fact. No error is claimed to have been committed in the admission of evidence. We are of the opinion that our former decision (1 N. Y. Supp. 774) is decisive of the questions here raised. It cannot be said that there is such a preponderance of evidence on the part of the defendant as to entirely overcome the inference of fraud raised by the plaintiff's testimony and his witnesses. The court below had all of the witnesses before it, and we cannot say, as a question of law, that an error was committed in finding the fact against the defendant. The judgment must be affirmed, with costs. All concur.

BOASBURG v. CRONAN et al.

(Superior Court of Buffalo, Trial Term. June 12, 1889.)

MUTUAL BENEFIT INSURANCE-TRUST TO PAY DEBTS.

Money due on a beneficiary certificate, made payable to a third person for the purpose and with the understanding that it shall be applied in payment of the debts and funeral expenses of the assured, is impressed with a trust to that effect, which equity will enforce.

Ullman & Ullman, for plaintiff. Andrus & Joyce, for defendants.

TITUS, J. This action, in form, is against Timothy J. Cronan and Neptune Lodge No. 57, Empire Order of Mutual Aid, but is, in fact, against Timothy J. Cronan, the beneficiary named in the certificate. The defendant Empire Order of Mutual Aid does not defend or claim exemption from the payment of the money, $1.000, to the person designated in the certificate, but comes into court, and by its treasurer disavows any claim to the fund, and is ready and willing to pay to whomsoever the court determines is entitled to it. The claim of the plaintiff is that the fund in the hands of the defendant Cronan is impressed with a trust to pay the plaintiff, and other creditors of Daniel Cronan; that the money was made payable to Timothy J. Cronan by the deceased for the express purpose and with the understanding of the defendant Cronan that it should be applied by him in the payment of his debts and funeral expenses. From the evidence in the case, I am satisfied that such was the agreement and intent with which Timothy J. Cronan was made the payee in the beneficiary certificate. Such being the case, equity will enforce the trust, and charge the fund in the hands of the defendant Cronan with the payment of the debts and funeral expenses of the deceased. The authorities cited by the defendant do not militate against this proposition, as the facts in this case take it out of the rule invoked by the defendant. They, in substance, lay down the rule that moneys received by a beneficiary in a certificate are not assets of the deceased, and not subject to the payment of his debts as against the beneficiary. In this case, the deceased has, by agreement, made the fund payable to the defendant Cronan for the express purpose of paying creditors; the defendant, therefore, is a mere trustee to effectuate that purpose, and has no claim on the fund as against the plaintiff and those creditors who were mentioned, and for whose benefit the fund was created. The facts, although meager, are sufficient to establish the plaintiff's right to recover. Judgment is ordered for the amount claimed by the plaintiff, with interest and costs, and the Empire Order of Mutual Aid is directed to pay the plaintiff that amount, and the balance to the defendant Cronan, to pay debts and funeral expenses.

SCHWARTZ et al. v. ALLEN et al.

(Superior Court of Buffalo, Trial Term. July 12, 1889.)

1. PAYMENT-PROOF OF PAYMENT.

In an action to foreclose a mechanic's lien after the death of the owner of the house, defendants alleged payment of the debt by decedent in his life-time, but failed to produce any receipt for payment, though it appeared to have been decedent's habit to take receipts. Held that, the defense being an affirmative one, with the burden of proof on defendants, the failure to produce a receipt, or rea sonably account for its absence, was sufficient to defeat the defense.

& EVIDENCE-BOOK ENTRIES.

An entry made by a debtor in his own favor is inadmissible to prove payment of the debt, though offered in evidence after his death.

& SAME-DECLARATIONS.

Nor is the testimony of one who heard him say that he had paid the debt admissible for that purpose.

4. MECHANICS' LIENS-FOR WHAT OBTAINED.

Laws N. Y. 1885, c. 342, § 1, provides that any person who shall perform any labor or service or furnish any materials used in the erection of any house may have a lien for the price and value thereof. Held, that a furnace set within a brick structure, and the connecting pipes and appurtenances, are part of the house, and entitle the person furnishing them to a lien for their price.

5. SAME-Procedure-VERIFICATION.

Section 4 provides for a verification of the notice of lien "to the effect that the statements therein contained are true." Section 25 declares that the lien law is to be liberally construed, and that a substantial compliance with its provisions shall be sufficient. Claimant's verification to the notice of lien was that he knew the contents thereof, and that the same were true, but he did not swear that the "statements" were true. Held, that the verification, though not in statutory language, was a substantial compliance with the law.

Action by Leopold Schwartz and others against Eliza E. Allen and others, to foreclose a mechanic's lien for a furnace put in a building while it was being constructed. Defendants denied the right of lien for that class of work or materials, objected to the verification of notice of lien as insufficient, and alleged payment of the debt.

Lyman M. Baker, for plaintiffs. F. R. March and Alvin Burt, for defendants.

BECKWITH, C. J. The action is brought for the foreclosure of a mechanic's lien. Ethan Allen, late of the city of Buffalo, on or about the 1st day of November, 1887, entered into a contract with the plaintiffs by which the plaintiffs undertook to furnish the said Allen, for his residence then in process of erection, a “No. 140 Boynton latest improved Crusader furnace, and to set the same in the best masonry work, with four runs of the best heating pipe to the first floor, and four runs of tin heating pipe in the second floor, with all the necessary register boxes and hot-air pipes, made of tin, to supply heat to the registers, and all the tin flashings requisite to render the same safe and secure from fire," in consideration of which furnace and appurtenances the said Ethan Allen agreed to pay the plaintiffs $176. The plaintiffs performed their undertaking. On the 26th day of December, 1887, said Ethan Allen died intestate, and the defendant Eliza E. Allen is his widow, and the defendant Francis Julia Allen his daughter and heir.

The defendants contest the plaintiffs' claim mainly upon these grounds: First, that "the lien law does not cover a furnace;" second, that Ethan Allen, in his life-time, paid the plaintiffs; third, that the notice of lien is invalid for want of a sufficient verification.

First. The statute, (chapter 342 of the Laws of 1885,) entitled An act for the better security of mechanics, etc., who perform labor or furnish material for buildings, etc., provides (section 1) that any person who shall perform any labor or service or furnish any materials used in the erection of any house may, upon filing the notice of lien prescribed in the fourth section of the act, have a lien for the principal and interest of the price, and value of such labor and material. It seems too plain to require any discussion that the furnace set within the brick structure, and the connecting pipes and appurtenances, were a part of the house, and that the same passed to the heir as a part of the realty, and that the contribution the plaintiffs so made to the construction of the house entitled them to a lien under the statute. It seems clear that the furnace and its connections, constructed by the plaintiffs, were in fact, and by the parties to the contract, deemed to be a part of the house. Secondly, as to payment. The defendants claim, and are very sincere in their belief, that the intestate in his life-time paid the plaintiffs. They found their belief on the circumstances that on a certain occasion he took money and went down town with the apparent purpose of paying bills; that the same day he made an entry of payment in his account-book, on a page where he entered all the payments he made on the construction of the house; that