Corley v. McEmeel.

that were litigated when it was admitted to probate, or upon any other grounds. The probate of a will of real estate is not res adjudicata against anybody. . . All the provisions to which we have referred have been substantially re-enacted in the Code. Sections 2626 and 2627 give substantially the same effect to the probate of wills of real and personal property as was provided in the Revised Statutes."

That it was the intention of the Codifiers to make no change in this respect, if not entirely clear from the new language used by them, becomes clear by reference to their notes upon revision.

It only remains to determine whether the decree of the surrogate and papers connected therewith offered in evidence by the counsel for plaintiff are admissible to establish prima facie the invalidity of the will, or are admissible for any other purpose. As under the stipulation the questions touching the validity of the will must be tried before a jury, with or without precise questions being framed before trial, this question is hardly pertinent here, since it does not bear upon any other issue in the case. I think it should be left to the decision of the court when that issue shall be tried. The Code provides that a "decree admitting to probate a will of real property " is presumptive evidence of all matters determined by the surrogate, but is silent as to the effect of a decree refusing probate.

The same language is used, however, relating to wills of personal property; and here, too, the Code is silent as to the effect of a decree refusing probate. It would, I think, in the case of a decree refusing probate of a will of personal property, hardly be contended that this had not the same force given by the Code to a decree admitting the will to probate. Section 2625 provides as to both wills of personal and of real property that where the surrogate decides "against the sufficiency of the proof or against the validity of the will," that he shall make a decree accordingly, and if required must state the grounds of his decision.

Central Trust Co. of N. Y. v. N. Y. Equipment Co.

The object of providing for a decree in such cases and the effect of such a decree is not clear unless it is to be regarded as res adjudicata as to wills of personal property, and as to the right to administer the personal estate, and as to wills of real estate, I think such a decree must at least be regarded as res adjudicata as to the right to have it probated at all. Whether it may be further regarded as prima facie evidence of the invalidity of the will, I do not decide. What may be the rights of Fitzgerald, and how such rights, if any, in equity, he has, should be protected by the final decree, I do not determine; since it is provided by the stipulation or in open court that in case any question shall be submitted to the jury, further proof might be offered by the plaintiff touching the Fitzgerald claim.

The question of the validity or invalidity of the will of Patrick Trenor must go to a jury. If a jury shall find that the will is for any cause invalid, then the real estate in controversy falls to the heirs-at-law subject only to such lien or title of Fitzgerald as may be hereafter determined by the court before which the remaining evidence is taken. If the jury shall find the will valid, and to be the will of Patrick Trenor, then this action fails.

CENTRAL TRUST CO. OF N. Y. v. N. Y. EQUIPMENT CO.

N. Y. Supreme Court, General Term, First Department; December, 1893.

Bills, notes, etc.; form an interpretation.] A lease contained an express agreement by lessee to pay, as rent, a specified sum per quarter, and stated that such rent was evidenced by certain promissory notes executed by the lessee: but the instruments

Central Trust Co. of N. Y. v. N. Y. Equipment Co.

executed by the lessee as evidence of the rent contained no express promise to pay. Held, that the lease and such instruments must be construed together, and the intent of the parties should control, and that in an action against the maker of such instruments, he could not contend that they were not promissory notes.*

Appeal by plaintiff from an interlocutory judgment of a Special Term of the Supreme Court, first district, sustaining defendant's demurrer to the complaint.

The action was brought by the Central Trust Company of New York against the N. Y. Equipment Company upon eight written instruments known as lease warrants.

The complaint pleaded each instrument as a separate cause of action. The form of each instrument was the same except as to date and number, and the statements of the several causes of action were substantially alike. As a first cause of action it was alleged, among other things, that defendant made and executed twenty certain promissory notes in accordance with the provisions of a lease entered into by defendant; that in and by one of these promissory notes dated April 1, 1889, the defendant for value received promised to pay without grace on a day mentioned to the order of itself, $4,500 at the office of the plaintiff in the City of New York. A copy of said promissory note was then set forth as follows:

"$4.500.

"NEW YORK, April 1, 1889.

"Without grace on the first day of July, 1891, there will be due to the order of the New York Equipment Company forty-five hundred dollars, for rental of 300 box cars under contract of lease of even date herewith, payable at the office of the Central Trust Company in the City of New York.

"THE NEW YORK EQUIPMENT COMPANY, "No. 9. "By Jas. Irvine, President."

* See note at the end of this case.

Central Trust Co. of N. Y. v. N. Y. Equipment Co.

It was then alleged that such note was endorsed by defendant and transferred to plaintiff before maturity; and that at maturity it was presented at the place therein specified, and payment demanded, which was refused, and that no part thereof had been paid.

By the lease, annexed to the complaint, defendant leased from the U. S. Rolling Stock Company specified railroad equipments and rolling stock for five years, and as rent agreed to pay the Rolling Stock Company $4,500 per quarter, which rent was stated to be evidenced by twenty "promissory notes" executed by defendant for $4,500 each.

Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a, cause of action.

The Special Term sustained the demurrer and plaintiff appeals.

Adrian H. Joline and Henry W. Calhoun (Butler, Stillman & Hubbard, attorneys) for appellant.-I. The instruments in question are in the form of due bills, and are promissory notes (Citing Kimball v. Huntington, 10 Wend. 675; Russell v. Whipple, 2 Cowen, 536; Sackett v. Spencer, 29 Barb. 180; Daniel's Negotiable Instruments, 4th Ed. $$ 36-39; Edward's Bills, 3rd Ed. § 141; 1 R. S.

1,5; Id. 8th Ed. p. 2499; Plets . Johnson, 3 Hill, 112; Carver v. Hayes, 47 Me. 257; McClelland v. Norfolk Southern R. R. Co., 110 .V. Y. 469).

II. The reference in the instruments to another instrument does not affect their negotiability (Citing Jury z. Barker, Ellis, Blackburn & Ellis, 459; Taylor 2. Currie, 109 Mass. 36; Chicago Ry., etc., Co. v. Merchants' Bank, 136 U. S. 268; Daniel's Negotiable Instruments, §§ 51a, 790, 797; Wells v. Brigham, 60 Mass. 6; Mabie v. Johnson, 8 Hun, 309; McClelland . Norfolk Southern Ry. Co., 110. V. Y. 469, 474; White v. Vermont, etc., R. R. Co. 21 How.

Central Trust Co. of N. Y. v. N. Y. Equipment Co.

U. S. 575; Jones on Corporate Bonds and Mortgages, & 185; Harvey v. R. I. Locomotive Works, 93 V. S. 664; Heryford v. Davis, 102 Id. 235; Davis v. McCready, 17 N. Y. 230; Saddler v. White, 14 La. Am. 173; Brooks v. Christopher, 5 Duer, 216; Bank v. Casson, 39 La. Am. 865; Craig . Sibbett, 15 Pa. St. 238; Patten v. Gleason, 106 Mass. 439).

Thomas Thatcher and Philip G. Bartlett (Simpson, Thatcher & Bartlett), attorneys for respondent.-I. The instrument is not a promissory note, because it contains no promise whatever (Citing Smith v. Allen, 5 Day, 337; Currier v. Lockwood, 40 Conn. 349; Gay v. Rooke, 151 Mass. 115).

II. The instrument is not a promissory note, because it shows upon its face that its engagement is conditional (Citing Oatman v. Taylor, 29 N. Y. 649; Fletcher v. Thompson, 14 How. Pr. 308; Considerant v. Brisbane, Id. 487; Chase v. Kellogg, 13 M. Y. Supp. 351; Munger v. Shannon, 61 N. Y. 251; Brill . Tuttle, 81 Id. 454, 457; Ehrichs v. DeMill, 75 Id. 370).

VAN BRUNT, P. J.-This action was brought upon eight instruments in writing, being declared upon separately. The complaint alleges as to each the plaintiff's incorporation and that of the defendant; and that on April 1, 1889, the United States Rolling Stock Company and the defendant made and executed a certain agreement of lease, a copy of which is annexed to the complaint, and at the time of the execution and delivery of said agreement, said defendant made and executed its twenty certain promissory notes in writing in accordance with said agreement of lease, and that on or about April 1, 1889, said defendant made its certain promissory note, being one of the twenty promissory notes in writing above referred to, dated on the last mentioned day, wherein and whereby for value received, it promised