the purpose and effect of which is to destroy a trust created by the will, and involves the power to determine title to real and personal property passing by the instrument. As the power cannot be upheld in the former, so likewise it may not be in the latter. The question which the cestui que trust and the remainderman presents for determination is the validity of the releases, which in terms pass titles to the trust estate. This is not a question arising upon the interpretation of the will, nor is it embraced within any of its terms, nor is it in any wise presented in the construction of that instrument. It is quite different from and independent of any question arising upon the terms of the will. The forum in which such question can be determined must, of necessity, be possessed of general equitable power. The validity of the releases involves a construction of the act under which they are claimed to be authorized, and the property is transferred by virtue of a decree giving force and effect to these instruments. The power which settles and determines these questions, therefore, is essentially equitable. It arises entirely outside of the will, and is not necessarily involved in the accounting of the testamentary trustee under the will. The surrogate has no power to determine such question, as it is not given to him, either by terms or implication in the Code provisions, and inherently it necessarily involves the application of equitable principles and powers in determination of the respective rights of the parties. Upon principle, and under the authorities which we have cited, it seems to be clear that the determination of the validity of these releases is quite outside of any jurisdiction possessed by the surrogate. The learned referee, however, concluded that by virtue of the provisions of sections 2812 and 2813 of the Code of Civil Procedure, the surrogate was invested with such power. An examination of these actions shows that the grant of power therein contained is the same as is given in the cases of executors and administrators. These provisions are that upon the judicial settlement of the account of a testamentary trustee the issues thereupon "must be determined in the same manner as other issues are determined." This is not a grant of power to the surrogate to try all issues, or those issues which can only be tried by the exercise of general equitable powers. On the contrary, so far as the grant of power is concerned, they are words of limitation, as the questions are to be determined in manner the same as such issues are usually determined. Thus this language, when construed with the grant of power given to the surrogate, limits his authority to the determination of those questions of which he has jurisdiction, and does not confer power to try and determine every question which may be proposed upon such accounting. In principle this question was determined adversely to such contention in Matter of Horn, 7 App. Div. 89, 39 N. Y. Supp. 954. We conclude, therefore, that the surrogate possessed no jurisdiction to pass upon and determine the effect of these releases. We are also of opinion that the proper construction of this will does not bring the case within the provision of the Acts of 1896 and 1897. The learned referee has clearly and succinctly stated the rea and 114 New York State Reporter sons for such conclusion, and we adopt the same as expressive of our views, as follows: "The wording of the act of 1893 had been so awkward and obscure as to provoke much criticism. That of the present laws was evidently framed with considerable care, in the effort to preserve as much of the superseded act as should be valuable, and at the same time make it distinct and unambiguous. We may therefore presume that the intent of the legislatures of 1896 and 1897 is to be found well expressed in the language which they used, and in especial we may presume also that whatever provisions of the act of 1893 were dropped in the revision were dropped deliberately. The privileges of the act of 1893 were afforded to any person beneficially interested in the whole or any part of the income of any trust heretofore or hereafter created for the receipt of the rents and profits of lands,' etc. The privileges of the present laws are afforded to a beneficiary in a trust for the receipt of the rents and profits of real property,' etc., 'who is entitled to a remainder in the whole or a part of the principal fund so held in trust, subject to his beneficial estate for a life or lives or a shorter term.' The expression provision as to a beneficiary of a part only of the income of a given fund' is thus stricken out, and the fund is referred to as subject to the 'beneficial estate for a life,' etc., of the person releasing. When language like the present is substituted for provisions like those of the act of 1893, the more proper construction would seem to limit its operation to those comparatively simple trusts where the cestui que trust has for the time being a complete equitable estate in the trust fund." It follows from these views that the decree of the surrogate should be reversed, and the report of the referee should be affirmed, with costs to all parties payable out of the estate. All concur, except LAUGHLIN, J., who dissents. (39 Misc. Rep. 533.) POWELL et al. v. BURSKY et al. (City Court of New York, General Term. December, 1902.) 1. ATTACHMENT-ACTION ON BOND-DEFENSE. An attachment was issued against certain nonresidents, and was thereafter vacated, and an appeal from the order vacating the attachment was abandoned. Thereafter local attorneys, assignees of the rights of the nonresidents, sued the surety on the undertaking in attachment to recover for their services to their clients. Held, that the surety could not set up as a separate defense that foreign attorneys of plaintiff in attachment were so negligent in failing to serve the summons on the nonresidents that the attachment was vacated, nor to allege that the appeal from the order vacating the attachment is still pending, where there is also no allegation of a stay of such proceedings. Appeal from special term. Action by Omar Powell and Daniel L. Cady against Nathan Bursky and another. From an interlocutory judgment sustaining a demurrer to the answer, Bursky appeals. Affirmed. Argued before SEABURY and CONLAN, JJ. Baggott & Ryall (George Ryall, of counsel), for appellant. SEABURY, J. This is an appeal from a judgment sustaining plaintiffs' demurrer to the alleged separate defense of the defendant Bursky. The action is brought by the plaintiffs, who are counselors at law, to recover the alleged reasonable value of services rendered by them to their clients. The plaintiffs were the attorneys for Louis Isaacs and Max Isaacs, who were defendants in an action brought against them by Philip Shapiro and Mannes Rose in the supreme court of this state. The defendants in this action were the sureties named in, and who executed an undertaking on an attachment obtained in, the action brought by Shapiro & Rose against L. and M. Isaacs. The complaint, after alleging various facts in reference to the attachment in the former action, and the assignment by L. and M. Isaacs of their rights under the undertaking to the plaintiffs, alleges that an order was made vacating the attachment from which Shapiro & Rose appealed to the appellate division (74 N. Y. Supp. 1146); that the plaintiffs in this action, as attorneys for L. and M. Isaacs, moved to dismiss said appeal because of the failure of Shapiro & Rose to serve the printed papers on appeal and the decision of the appellate division permitting Shapiro & Rose to apply to the special term for permission to serve and file the printed papers upon payment of costs within three days of the entry of said order; that the order was entered January 17, 1902; and that the plaintiffs in that action failed to pay the costs, and failed to move for leave to open their default, as provided in the order of the appellate division, "and have abandoned said appeal." The defendant Bursky, in his answer, as a separate defense alleges the sale and delivery by Shapiro & Rose to L. and M. Isaacs of certain goods, and, after alleging the facts in reference to the attachment, alleges that Shapiro & Rose sent to W. W. & J. R. Watts, attorneys of Louisville, Ky., copies of the summons and complaint and of the order directing service, with instructions to them to serve the Isaacses with the same, and that said Messrs. Watts, in violation of their said instructions, served the summons one day too late, so as to enable the attachment to be vacated. The answer also alleges that the attachment obtained in said action was vacated, and that the appeal from said order vacating it is pending and undetermined. To this alleged defense the plaintiffs in this action demurred upon the ground that it did not state facts sufficient to constitute a defense. The court at special term sustained the demurrer. From the interlocutory judgment entered upon such decision this appeal is taken. The alleged separate defense, as pleaded in the answer, is wholly insufficient. If the attorneys of Shapiro & Rose, W. W. & J. R. Watts, committed a wrong in delaying the service of the papers that were sent to them for service, it does not avail the defendant Bursky as against the plaintiffs in this action. If these attorneys committed an actionable breach of duty, it may have given Shapiro & Rose an action against them; but it certainly does not afford a defense to Bursky, who is sued as surety upon an undertaking which he entered into in that action. The alleged fact that an appeal is still pending from the order vacating the attachment is not a defense to this action. This question was squarely passed upon in Feiber v. Smith (Sup.) 6 N. Y. Supp. 446, where it was held that a defense. that an appeal had been taken from an order vacating the attach 80 N.Y.S.-31 and 114 New York State Reporter ment, which was still undetermined, must, in order to be good, allege that a stay of proceedings has been ordered, or such other facts in connection with it as legally would accomplish that result. The appellant not only attempts to defend the sufficiency of his alleged defense, but tries to save it by challenging the sufficiency of the complaint. As a demurrer searches the record for the first fault in pleading, we have examined the allegations of the complaint. The complaint alleges that the appeal from the order vacating the attachment has been abandoned by the defendant. The defendant objects that this allegation is a mere conclusion of law, and that the plaintiffs should plead the facts showing the abandonment. We have seen, however, that it has been held that the pendency of such an appeal is not a good defense to the action, nor are allegations of facts showing the abandonment of the appeal essential allegations of the complaint. The complaint states a good cause of action, and the defense is clearly insufficient. The judgment sustaining the demurrer is affirmed, with costs. Judgment affirmed, with costs. CONLAN, J., concurs. (39 Mise. Rep. 530.) ROOT v. KELLEY. (City Court of New York, General Term. December, 1902.) 1. PAYMENT APPLICATION. Defendant executed five notes, equal in amount, payable at intervals of six months, with the provision that for each $500 paid by the maker to the payee on account of the principal of the notes the payee should deliver to the maker certain shares of stock. Before the first note matured, the maker delivered to the payee merchandise sufficient to pay it, which the payee applied to the last note against the maker's protest. Held, that it is a question for the jury, in an action by the payee on the first note, where the maker interposed a plea of payment, whether the maker ever acquiesced in the action of the payee in applying the merchandise to the last note. 2. SAME-NOTE. A payment of a note need not necessarily be made in money. Appeal from trial term. Action by Charles T. Root against Daniel J. Kelley. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed. Argued before McCARTHY, DELEHANTY, and SEABURY, JJ. Einstein, Townsend, Guiterman & Shearn (C. J. Shearn, of counsel), for appellant. Ludlow & McKnight (William G. McKnight, of counsel), for respondent. 12. See Bills and Notes, vol. 7, Cent. Dig. § 1259. DELEHANTY, J. The action is to recover a balance due upon a promissory note dated September 15, 1899, payable 18 months after date, made by defendant to the order of plaintiff. The note was the second of a series of five, each of similar date and amount, maturing, respectively, in 12, 18, 24, 30, and 36 months, delivered pursuant to a written agreement, and for a valuable consideration. The clause of the agreement defining the rights and liabilities of the respective parties thereto upon the payment of said notes, and which is pertinent here, is as follows (clause second): "That for each five hundred dollars paid by the party of the second part to the party of the first part on account of the principal of said notes, in the order of their maturity, the party of the first part shall deliver to the party of the second part five hundred and fourteen shares of the common stock of said American Queen, and five hundred and fifty shares of the preferred stock of said American Queen." The note in suit is the 18-months one, which matured on March 15, 1901. Prior to its maturity, plaintiff received from defendant. merchandise of a value sufficient to cancel the same. Instead, however, of applying this merchandise in satisfaction of said note when due, plaintiff applied it to the last note of the series, not due until September 15, 1902, a year and a half later. It is not disputed that defendant protested to plaintiff at this procedure, and on receipt of the 36-months note returned the same to him, with a request for a transmission of the note next due, namely, the one in suit. Nor is there any claim that the plaintiff did not send back to defendant, as testified, the 36-months note, with the statement, "I have canceled. the first and the last [notes], and I will take up the intermediate ones alternately." Defendant testified, however, that upon receipt of this communication he notified plaintiff that he did not agree that these notes be taken up out of their regular order; but plaintiff's testimony is to the effect that he had no recollection of ever receiving such a notice. At the proper stage of the trial defendant requested the court to dismiss the complaint, and for the direction of a verdict, which was denied, but the court did direct a verdict for the plaintiff for the full amount claimed; and from the judgment entered thereon, and from an order denying defendant's motion for a new trial, this appeal is taken. The defense pleaded and urged upon the trial without objection was payment, and I think, in view of the record, that at least there should have been submitted to the jury, as requested by defendant, the question whether he ever acquiesced in the action of plaintiff in the application of the merchandise in question to the satisfaction of the last note. The defense of "payment," in its most restricted sense, is the discharge in money of a sum due (Bouvier L. Dict.); but in its most general acceptation it is the fulfillment of a promise, the performance of an agreement, the accomplishment of every obligation, whether it consist in giving or doing. It is not a technical term, and has been imported into law proceedings from the exchange, and not from law treatises. To prove payment, the party pleading it must show the payment of money, or something accepted in its stead. Bouvier L. Dict.; 2 Greenl. Ev. (13th Ed.) § 516. To pay |