Weeks v. Zimmerman. and said contracts were solely for her benefit. These facts certainly raise a presumption of knowledge of the improvements and of tacit consent on her part, which, according to the ordinary principle of agency, and under many adjudications upon similar statutes, is sufficient to establish the lien (Otis v. Dodd, 90 N. Y. 336; Husted v. Mathes, 77 N. Y. 388; Hackett v. Badeau, 63 N. Y. 376; Nellis v. Bellinger, 6 Hun 560; Hammond v. Shepard, 50 Hun 318.) The judgment should be affirmed, with costs. J. F. DALY and VAN HOESEN, JJ., concurred. CHARLES L. WEEKS et al.. Respondents, against HENRY C. ZIMMERMAN, Appellant. (Decided April 1st, 1889.) One of the partners of an embarrassed firm gave a chattel mortgage to plaintiffs, creditors, on all the firm property, to secure their claim. On the same day another partner, without knowledge of the chattel mortgage, transferred to defendant, another creditor, likewise without knowledge of the mortgage, a part of the property embraced therein, such property being taken in full satisfaction, and the debt cancelled on defendant's books. The chattel mortgage was not recorded until the following day. Held, that the transaction with defendant was not a payment of an antecedent debt, but an accord and satisfaction, and that defendant's title was good as against plaintiffs. APPEAL from a judgment of the District Court in the city of New York for the Third Judicial District. The facts are stated in the opinion. T. McMahon, for appellant. Schenck & Punnett, for respondent. Weeks v. Zimmerman. PER CURIAM.-[Present, VAN HOESEN and BOOKSTAVER, JJ.]-This action was brought to recover damages for the alleged conversion of a horse, wagon, and harness. On the 10th of September, 1888, the firm of Miller & Pfeiffer, doing business as bakers in the City of New York, were embarrassed, and among their creditors were the plaintiffs and the defendant. Between eleven and twelve o'clock in the forenoon of that day, Pfeiffer, in his firm name of Miller & Pfeiffer, executed and deliver to the plaintiffs a chattel mortgage on all of the firm property then used in their business, including the horse, wagon, and harness in controversy, to secure the indebtedness of his firm to the plaintiffs. On the same day, Miller, of the firm of Miller & Pfeiffer, on behalf of his firm and in ignorance of the fact that his partner had given the chattel mortgage to the plaintiffs, had an interview with the defendant, in which he stated his partner had taken away some of the goods, and that he was afraid they could not go on, but that if the defendant would take the horse, wagon, and harness for his debt, they would be able to pay everybody else with the remainder of the property. After some negotiation defendant agreed to do so, and sent his agent for them, and they were delivered to him between two and three o'clock in the afternoon of the same day. Defendant thereupon cancelled the debt on his books, and afterwards sold the horse, wagon, and harness for less than his debt. Plaintiffs did not file the chattel mortgage in the register's office until the following day. When they found the defendant in possession of the horse, wagon, and harness, they demanded them of him, and upon his refusal to deliver them they commenced this action for the conversion of this property, and after a trial, the court below rendered judgment in favor of the plaintiffs. In this we think it erred, and it fell into this error by regarding the transaction between Miller and the defendant as a sale of the property in payment of an antecedent debt, which it was not. No sum was agreed on as the value of the property. There was no bargaining as to the price; no bill of sale was executed; and although a writing is not necessary to Weeks v. Zimmerman. make a valid sale, yet we think it indicative of the intent of the parties. It was to be taken in satisfaction of the debt, no matter what was realized from the property, and this was consummated by defendant cancelling the debt on his books when the agreement was made. As the event turned out, the property realized less than the amount of the debt, hence it was of advantage to the contracting party. This makes the transaction an accord and satisfaction, which is a substitution of a new agreement in lieu of the former one, and is accepted in full performance of the first agreement. The new agreement, we think, would have been a bar to any action which the defendant might have brought against Miller & Pfeiffer upon the original debt; hence the defendant was a bona fide holder of the property in question as against the plaintiffs, as the transaction was completed before they had filed their chattel mortgage (Thompson v. Van Vechten, 27 N. Y. 568; Parshall v. Eggert, 54 N. Y. 18; Dutcher v. Swartout, 15 Hun 33). The judgment should therefore be reversed, with costs. Judgment reversed, with costs. Fitzgerald v. Equitable Reserve Fund Life Association. MAGGIE FITZGERALD, Respondent, against EQUITABLE RESERVE FUND LIFE ASSOCIATION, Appellant. (Decided May 6th, 1889.) The certificate of membership issued by a benefit society to a member provided for the payment on the death of the member of $2,000 from the 66 death fund or from moneys that should be realized to such fund from assessments, each member being liable for a certain sum on each assessment. In an action to recover the sum of $2,000 on the death of a member, the society alleged and proved that there was no money in the "death fund" except what had been collected by an assessment levied to pay this and other claims accruing up to the date of the assessment, and that this, when apportioned among the claims, amounted to but $214.25 per thousand. It appeared that there was a sufficient number of members to pay, upon an assessment under their contracts, the full amount of plaintiff's claim. Held, that, in the absence of a showing why a sufficient assessment was not made, the society was liable for the full amount. APPEAL by defendant from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon a verdict rendered by direction of the court and an order denying a motion for a new trial. The facts are stated in the opinion. Lucius McAdam, for appellant. P. Q. Eckerson, for respondent. J. F. DALY, J.-This is an action by the widow of John Fitzgerald to recover $2,000 upon a policy of insurance or "certificate of membership" issued to him by the Equitable Reserve Fund Life Association. On the trial the plaintiff Fitzgerald v. Equitable Reserve Fund Life Association. proved the policy, the death of the husband and proofs of death furnished as required by the policy, the refusal of the company to pay the amount of the policy, and an offer by them of $428.56 in full settlement of the claim. The defendants proved their constitution and by-laws (which were made by the policy a part of the contract between the parties), and claimed that their obligation was not an absolute promise to pay $2,000, but to pay from the death fund of the association, which fund was formed by money collected by assessments upon members. They then proved that there was no money in the death fund except what had been collected by an assessment levied to pay this and other claims accruing up to the date of the assessment; that that assessment produced $11,092.71, and being apportioned among all the claims, yielded $214.25 per 1,000, or $428.25 for the plaintiff. They did not show why an assessment sufficient to pay the claims in full had not been made. It appeared that there was a sufficient number of members to pay, upon an assessment under their contracts, the full amount of plaintiff's claim. By the policy issued to the deceased, the company undertakes to pay $2,000 from the death fund or from moneys that shall be realized to such fund from assessments. The assessment is to be made (upon the occurrence of a death) for such a sum as has been established by the board of trustees, according to the age of each member at admission and the amount of his certificate, as per table indorsed upon the policy. When the death fund is insufficient to meet a claim, a mortuary assessment is to be made. By the constitution it is provided that if the death fund be inadequate to pay claims, an assessment shall be made upon the entire membership then in force; the aggregate assessments in any year not to exceed the net cost of insurance upon the membership in force at the face value of the certificates according to the American Experience Table of mortality. The plaintiff having shown that there was a sufficient number of members to yield an assessment sufficient to pay this claim if an assessment had been made, it was incumbent upon the defendant to show why a sufficient assessment was |