hands," to which he replied that "he supposed it would be a good thing." This was in the presence of the grantee, Marie S. Crowe. Mrs. Crowe was the mother-in-law of the debtor, and lived with him and his wife. No money was paid for the deed. The pretended consideration was 80 acres of land in Kansas. The debtor had never seen the land there, and it was worth $1,000. This, if true, would make out no adequate consideration for the farm worth $5,000, with a mortgage on it of $1,500 only. The case is a clear one where a debtor interposed a title between his property and his creditor, to hinder, delay, and defraud the creditor. After the recovery of the judgment by plaintiff, she became possessed of certain articles of personal property belonging to the debtor. The proof is not very clear what this property was, nor what was its value. It was proven by plaintiff not to have been worth $25, by one witness, and the plaintiff testified that it was not worth $10. The trial judge found the value to be $75, and deducted it from the judgment debt. The debtor has no cause, from this finding and under this proof, sufficient to reverse the judgment as to the deed. The proof of conversation between the defendant and the sheriff was properly rejected. The sheriff was not a party to the action, and was in no respect the plaintiff's agent, because he had in his hands an execution on her farm against the judgment debtor.

It

The inquiry as to the value of this personal property was neces sary to determine what was equitable between the parties. would have been inequitable to set aside the transfer in favor of a plaintiff, who had in her hands personal property of the debtor, without applying the value of the same upon her debt. The judgment should be affirmed, with costs. All concur.

VAN KEUREN et al. v. MILLER.

(Supreme Court, General Term, Second Department. July 28, 1893.) BUILDING CONTRACT-PAYMENT--ARCHITECT'S CERTIFICATE.

A provision in a building contract for the payment of the builder only on certificates of the architects that payments are due will not prevent recovery by the builder, when he has fully performed the contract, and the architects refuse their certificates without sufficient cause.

Appeal from special term, Dutchess county.

Action by Augustus Van Keuren and Egbert M. Haines against William Starr Miller. From a judgment for plaintiffs, defendant appeals. Affirmed.

Argued before DYKMAN and PRATT, JJ.

Esselstyn & McCarty, for appellant.

A. Lee Wager, for respondents.

DYKMAN, J. This is an appeal from a judgment in favor of the plaintiffs against the defendant. The action was for the recovery for work and labor furnished to the defendant in the construction of a large stone mansion at Rhinebeck, in Dutchess county, in pur

suance of a written contract. The action was tried before a judge of this court, and decided against the defendant, and from the judgment entered on such decision the defendant has appealed. The trial judge found and decided the following facts: On the 8th day of July, 1892, Augustus Van Keuren, one of the plaintiffs in this action, and the defendant entered into a contract, in writing, whereby Van Keuren agreed to do all the labor in connection with the mason work and plastering upon the erection of the residence of the defendant, already mentioned. According to the terms of the contract, the labor was to be done by the day. Carrin and Hastings were the architects of the building, and were intrusted by the defendant with the full charge and supervision of the work. Acker and Brown did the carpenter work upon the mansion, and they supervised the progress of the mason work, according to the written agreement between Van Keuren and the defendant. The work was begun about the 1st of August, 1892, and continued uninterruptedly until the month of December, 1892. On or before the 5th day of each month, all the bills for labor and services rendered and expenses incurred during the preceding month were presented to the architects for certification, and all such bills became due and payable on the 15th day of the month succeeding that in which they were incurred. The defendant agreed to pay such bills on or before the 15th day of the month in which they were presented, provided the bills were accompanied by the certificate of the architect that the payment was due. On the 8th day of September, 1892, with the written consent of the architect, the plaintiff Augustus Van Keuren assigned an equal one-half interest in the work, to be performed according to the terms of the agreement, to Egbert M. Haines, one of the plaintiffs, who thereupon became an equal copartner with said Van Keuren, and thereafter the work was conducted by the firm of Van Keuren & Haines, the plaintiffs in this action. During the month of October, 1892, the plaintiffs performed work and furnished labor for the defendant under the contract, and paid freight charges on material furnished to defendant, to the amount of $11,797.76. During the month of November, 1892, the plaintiffs performed work and furnished labor for the defendant under the contract, and paid freight charges on material furnished to the defendant, to the amount of $5,129.50. During the month of October, 1892, Ryder and Haines performed work for the defendant at Rhinebeck, in carting stone, lime, brick, cement, and general materials used in the building of the mansion of the defendant, as specified in the agreement, of the value of $1,957.35, which the defendant agreed to pay on or before the 15th day of November, 1892. During the month of November, 1892, Ryder and Haines performed labor and services for the defendant at Rhinebeck, consisting of carting stone, lime, brick, cement, and general materials used in the building of the mansion of the defendant, as specified in the agreement, of the value of $888.79, for which the defendant agreed to pay on or before the 15th day of December, 1892. All bills for work, labor, and services,

and freight furnished by the plaintiffs and Ryder and Haines during the month of October, 1892, were presented to the architects for their certification on or before the 5th day of November, 1892, and the architects issued their certificate to the effect that the payment of the bills was due, and that all of such bills for October became due and payable on the 15th day of November. All the bills for work, labor, and services and freight furnished to defendant by the plaintiffs and Ryder and Haines during the month of November, 1892, were presented to the architects on or before the 5th day of December, 1892, and repeated demands were thereafter made upon the architects that they issue their certificate that the payment of the November bills was due. The architects refused or neglected to issued a certificate for the November bills, and they were requested and directed by the said defendant not to issue a certificate for November, 1892.

No legal or valid reason for the refusal to issue such certificate was shown upon the trial of this action, and the architects have failed to justify such refusal. All of the bills of November, 1892, became due and payable on the 15th day of December, 1892, the same as if certificates thereof had been issued by the architects. Prior to the commencement of this action, Ryder and Haines assigned and transferred to the plaintiffs herein their claim against the defendant for work and labor rendered during the month of October and November, 1892, amounting to $2,846.14, with interest from the time their claims became due, and the plaintiffs are now the owners and holders thereof. All the work, labor, and services furnished and performed by the plaintiffs and Ryder and Haines were furnished and performed under the direction and supervision of the architects and Ackert and Brown, the carpenters doing the work, and such work, during its progress, was approved by the architects from week to week, and by the said architects inspected at least three times a week during the progress thereof. The plaintiffs' commissions for their general services in connection with the work, as called for under the said written contract, viz. ten per cent. on the cost of all labor and material furnished for the mason work, is not included in the plaintiffs' claim in this action. The plaintiffs and Ryder and Haines faithfully kept and performed the covenants and agreements to be kept and performed on their part, and the defendant failed to keep and perform the covenants and agreements to be kept and performed on his part, by neglecting and failing to pay the bills due for October and November, 1892. On the 2d of December, 1892, the defendant paid to the plaintiffs, on account of such work, the sum of $10,000 and no other payments have been made thereon. The judge found and decided, as conclusion of law, that the defendant is indebted to the plaintiffs in the sum of $9,773.40, with interest on $3,771.31 from November 15, 1892, and with interest on $6,002.09 from December 15, 1892, said interest amounting to $176.29, making together the sum of $9,949.69, for which last sum, with costs, the plaintiffs are entitled to recover judgment against the defendant, and judgment was

directed accordingly. The facts so found are fully justified by the evidence, and there were no questions of law involved. There is no merit in this appeal, and the judgment should be affirmed, with costs.

BAAS v. PAIN.

(Supreme Court, General Term, Second Department. July 28, 1893.) EXAMINATION of Defendant before TRIAL-WHEN PERMISSIBLE.

A defendant who is connected with a firm against which plaintiff has a demand may be examined before trial in regard to its composition, in order to ascertain the proper parties defendant to substitute for those designated as John Doe.

Appeal from special term, Kings county.

Action by Helena Baas against James Pain, Henry J. Pain, and John Doe for personal injuries received from a display of fire works made by "James Pain & Sons, London, England, represented by Henry J. Pain." The action was commenced by service of summons and a complaint on Henry J. Pain. The complaint alleged that a copartnership existed between defendants, which was denied in the answer. From an order for the examination of defendant Henry J. Pain before trial, to ascertain who are the proper parties defendant to substitute for those designated as John Doe, defendant Henry J. Pain appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN, J.

William S. Cogswell, for appellant.

Hector M. Hitchings, for respondent.

DYKMAN, J. This is an appeal from an order for the examination of the defendant Henry J. Pain as a party defendant to ascertain the composition of James Pain & Sons, to the end that the plaintiff may determine the names of the persons who should be made parties defendant in an amended complaint, which is rendered necessary by the answer of the defendants. We think the order was properly made, and should be affirmed, with $10 costs and disbursements.

TRUSTEES, ETC., OF TOWN OF EAST HAMPTON v. VAIL et al. (Supreme Court, General Term, Second Department. July 28, 1893.) GRANT FROM BRITISH GOVERNMENT-DESCRIPTION IN PATENT.

Plaintiffs in ejectment for land under the water of a bay on the north side of Long island claimed under patents which conveyed lands bounded on the north "by the bay," and on the south by the Atlantic ocean, "together with all havens, harbors," etc., to the said tract belonging, or in any wise appertaining. Held that, whatever might be meant by the term "bay," the grant extended only to the water on the north, and did not include the lands in dispute, it not appearing that the bay on the north was entitled to be called a haven or a harbor.

Exceptions from circuit court, Suffolk county.

Action by the trustees of the freeholders and commonalty of the town of East Hampton against Jeremiah H. Vail and George M. Vail to recover certain land. There was a verdict for defendants, and plaintiffs' exceptions were ordered to be heard in the first instance at general term. Exceptions overruled.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. Wilmot M. Smith, (Charles R. Street, of counsel,) for plaintiffs. Thomas Young and T. M. Griffing, for defendants.

DYKMAN, J. This is an action of ejectment for the recovery of land under the water of Ft. Pond bay, on the northerly side of Long Island. The plaintiffs claim title under a patent from Gov. Gen. Richard Nichols to John Mulford and others, for and on behalf of themselves and their associates, the freeholders and inhabitants of the town of East Hampton, in 1666, and a confirmatory grant from Gov. Gen. Thomas Dougan, in 1686, to Capt. Thomas James and others, freeholders and inhabitants of East Hampton. The primary and paramount question is whether the premises were included in the patents, and that depends upon the language of the instruments, in describing and bounding the same. That language is this:

"All that tract of land which already hath beene or that hereafter shall bee purchased for and on the behalf of the said towne, whether from the natives (Indian proprietors) or others within bounds and limitts hereafter set forth and exprest, vitz:-That is to say their West bounds beginning from the East limitts of the bounds of Southhampton (as they are now laid out and stak't according to agreement and consent) so to stretch East to a certain Pond commonly called the Fort Pond, which lyes within the old bounds of the lands belonging to the Muutauke Indyans, and from thence to go on still East to the utmost extent of the Island, on the North they are bounded by the Bay and on the South by the sea or maine ocean. All which said tract of land within the bounds and limitts before mentioned, and all or any plantation thereupon, from thence forth are to belong and appertain to the said towne, and bee within the jurisdiction thereof, together with all havens, harbors, creeks, quarryes, woodlands, meadows, pastures, marshes, waters, lakes, rivers, fishing, hawking, hunting, fowling, and all other proffits, commodityes, emoluments, and hereditaments to the said tract of land and premises within the limitts and bounds aforementioned, described, belonging or in any wise appertaining."

Then follows the usual habendum clause. The description of the premises in the confirmatory patent from Gov. Dougan is substantially the same. Ft. Pond bay is not within the limits and bounds named in either patent, but the plaintiffs insist that it was included therein, and conveyed thereby, by the words, "together with all havens, harbors, creeks," etc., but it must be remembered that those words are followed by the words, "within the limits and bounds aforementioned." That clause is restrictive of all the subjects named, and therefore nothing is included in the patents, unless it be within the limits and bounds specified therein. The language is peculiar, and the description is somewhat uncertain. The west bounds of the premises begin at the east limits of the town of South Hampton. Then the language describes a single line stretching east to Fort Pond, and from there still east to the utmost extent