plaint shows that the society suffered those losses by the active wrong of each taker and the gross negligence and wrong of all the other 51 directors who permitted and made the wrong possible by their neglect of duty. So that each injury arose from the wrongful act of some director and the gross neglect of all the others. The active or passive wrong of each of the 52 directors caused the entire loss and each item thereof. The complaint alleges but one cause of action against all the individual defendants. The interlocutory judgment should therefore be affirmed, with costs, with the usual leave to the defendants upon the payment of the costs below, and in this court to answer within 20 days. All concur, except PARKER, P. J., not voting. (47 Misc. Rep. 693) CENTRAL TRUST CO. OF NEW YORK v. EGLESTON et al. (Supreme Court, Special Term, New York County. June, 1905.) 1. WILLS-CONSTRUCTION-CONTRIBUTIONS BY LEGATEES. By testator's will, the income from the entire estate was to be divided into three equal shares, the trustee under the will to pay from these incomes the annuity to the widow first from the incomes derived from the property, being $2,000 for the first year and one-half after testator's decease, and thereafter $4,000 a year during her life; the balance of the income to be accumulated in three separate funds, and the trustee to pay from such income $2,000 to each son, less 100 pounds to be equally contributed. One-third of such 100 pounds was to be taken from each $2,000, as a charge thereon, and paid over by the trustee, as a legacy, to the widow during the period of one year and one-half from testator's death "to maintain the home," and thereafter, and until each son attained majority, to pay to each son from his separate share of the income accumulated $3,000 per year for education and expenses, 200 pounds to be paid to the widow and the same being made up in the same way as the 100 pounds and for the same purpose; the sons, in case such contribution of 200 pounds was not made from their shares, to receive each only $2,000. but to be relieved of any contribution. Held, that the contributions of 100 pounds and 200 pounds "to maintain the home" were to be made by each son, and not by them collectively. 2. SAME-PRECATORY WORDS. A will provided that testator's wife was to have for the first year and one-half, "while the estate is provided for, $2,000 per annum, and when the estate is settled after the above time $4,000 each year for life." After such settlement, each of the testator's three sons was to have $3,000, instead of $2,000, a year, so that the sum of $5,000, in additional income, was added to the income of the beneficiaries after settlement of the estate. The will further provided that, for the first year and one-half after testator's death, "I desire that the Central Trust Company (trustee under the will) advance to my wife in the ratio of my previous expenditure from five thousand dollars to about nine thousand dollars, so as to give time to adjust family affairs, this to be for the benefit of my wife and sons, not one but all, but if all of the children are of age (21) then for one year, not one year and one-half ($5,000 to $9.000)." The children referred to were under age. Held that, in view of the general scheme of the will, the precatory words were meant as a direction to the trustee, and that the amount of $5,000 to $9,000 was to be paid out in the same way as testator himself previously made the expenditure for the family; the "ratio" or proportions of the sum, and at what particular time to be paid, being left to the discretion of the trustee. 3. SAME-ADVANCES. and 132 New York State Reporter Such advance of from $5,000 to $9,000 was in addition to the separate provisions made for the wife and sons during the settlement of the estate; it not being stated from what funds the advance was to be made, and the advances not being expressly or by fair implication charged against the annuity for the wife or against the annuity or accumulations for the sons. In the absence of express designation, and it not appearing from the will as a whole that there was any other intention, the advances were not to be charged against any specific beneficial interest elsewhere provided: the word "advance" being equivalent to the word "pay," and such payment was to be made from the funds in the trustee's hands. On examination of questions presented on settlement of the decree. Judgment ordered submitted. For former opinion, see 95 N. Y. Supp. 945, 47 Misc. Rep. 475. CLARKE, J. Upon examination of the questions presented upon settlement of the decree, I am of opinion that the contributions of £100 and £200 "to maintain the home" are to be made by each son, and not by them collectively. A construction is also sought of the following clause: "For the first year and one-half after my death (if any child is under age) I desire that the Central Trust Company advance to my wife in the ratio of my previous expenditure from five thousand dollars to about nine thousand dollars, so as to give time to adjust family affairs-this to be for the benefit of my wife and sons, not one, but all— but if all of the children are of age (twenty-one) then for one year, not one year and one-half ($5,000 to $9,000). The children are under age, so the provision is for 11⁄2 years. The testator has used precatory words directed to the trustee. In Phillips v. Phillips, 112 N. Y. 197, 205, 19 N. E. 411, 413, 8 Am. St. Rep. 737, Judge Finch says: "The primary question in every case is the intention of the testator, and whether in the use of precatory words he meant merely to advise or influence the discretion of the devisee or himself to control or direct the disposition intended. In such a case, we must look at the whole will, so far as it bears upon the inquiry, and the use of the words 'I wish' or 'I desire' is by no means conclusive. They serve to raise the question, but not necessarily to decide it." In view of the general scheme of the will, the precatory words are meant as a direction to the trustee. The amount from $5,000 to $9,000 is to be paid out in the same way as testator himself previously made expenditure for the family, and the "ratio" or proportions of the sum and at what particular time to be paid is left to the discretion of the trustee, but payments between $5,000 and $9,000 are to be made. Such construction is in accord with the general scheme. The wife is to have for the first year and one-half, "while the estate is provided for, two thousand dollars per annum, and when the estate is settled after the above time four thousand dollars each year for life." After the settlement of the estate each of the three sons is to have $3,000, instead of $2,000, a year, so that the sum of $5,000 in additional income is added to the incomes of the beneficiaries after settlement of the estate. I therefore conclude that the advance of from $5,000 to $9,000 is in addition to the separate provisions made for the wife and sons during the settlement of the estate. The testator intended that during such settlement the family should have funds wherewith to continue in the same circumstances as his previous expenditures had provided. The trustee is "to advance from five thousand dollars to about nine thousand dollars." It is not stated from what funds the advance is to be made. The sums to be advanced are not expressly or by fair implication charged against the annuity for the wife nor against the annuities or accumulations for the sons. In the absence of express designation, and it not appearing from the will as a whole that there was any other intention, the advances are not to be charged against any of the specific beneficial interests elsewhere provided, but the word "advance" is equivalent to the word "pay," and the payment must be made from the funds in the trustee's hands. The provision is for "my wife and sons, not one, but all." During the first year and one-half allowed by testator for settlement of the estate the trustee is to pay from $5,000 to $9,000 out of the principal in its hands as a legacy to the widow, who is charged with the duty of applying the same for the benefit of herself and the three sons. Decisions signed. Submit judgment on July 31st. (113 App. Div. 19) EMERSON et al. v. SHEFFER. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) 1. BILLS AND NOTES-CONSIDERATION-FORBEARANCE. A bankrupt firm being indebted to plaintiffs on a draft, one of the members represented that he could not pay the draft or secure the indebtedness unless he could get a note from his wife or son, to which one of the plaintiffs replied that he would take such a note, and that he was not particular about an immediate settlement, if the debt could be secured, whereupon the note was secured, signed by the son, indorsed by the wife, and delivered to plaintiffs. Held that, though the note was accepted as security for the draft only, there was an agreement to forbear immediate action to collect the draft, which was a sufficient consideration for the note. 2. SAME-BURDEN OF Proof. Where a note sued on was given as security for the debt of a bankrupt firm in consideration of the creditor's forbearance to sue, and it was thereafter alleged that such forbearance was no consideration, because action on the claim was stayed by Bankr. Act July 1, 1898. c. 541, § 11, 30 Stat. 549 [U. S. Comp. St. 1901, p. 34261, for 12 months after the date of the adjudication in bankruptcy, or until the question of his discharge was determined, it was incumbent on the defendant to show affirmatively the existence of facts bringing the creditor within the prohibition of the statute. Appeal from Trial Term, Warren County. Action by Louis W. Emerson and another against George A. Sheffer. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. This is an action on a promissory note executed December 6, 1901, by the defendant, George A. Sheffer, to the order of and indorsed by Henrietta Sheffer, since deceased, payable one year from the date thereof, and now owned by the plaintiffs. The cause was submitted to the learned trial justice on an agreed statement of facts, from which it appears that said note was given to the plaintiffs as security for an overdue draft held by them against the firm of Wilson, Sheffer & Coonley. That on or about the date of said 98 N.Y.S.-67 and 132 New York State Reporter Emer note James A. Emerson, one of the plaintiffs, had a conversation with James H. Sheffer, one of the members of said firm of Wilson, Sheffer & Coonley, in which conversation said Emerson inquired of said Sheffer what his firm was going to do about said draft. Sheffer said that he did not have any money to pay, as the said firm of Wilson, Sheffer & Coonley were in bankruptcy at that time, and that all his assets had been turned over to the bankrupter court. Emerson replied that he was not particular about an immediate settlement, if Sheffer would secure the debt. Sheffer said he had nothing to secure the indebtedness with, unless he could get a note from his wife or son. son replied that he would take such a note. Sheffer afterwards procured the note in question, signed by his son and indorsed by his wife, and delivered said note to Emerson. Such note was signed and indorsed by the maker and indorser, respectively, for the accommodation of said firm of Wilson, Sheffer & Coonley, said maker and indorser not owing anything to the plaintiffs at the time such note was given. The draft was not surrendered by the plaintiffs to Wilson, Sheffer & Coonley. From such agreed statement the trial court found as a fact that the plaintiffs agreed to grant the firm of Wilson, Sheffer & Coonley time to pay their indebtedness on their draft if they would secure the same, and that the note in question was accepted by the plaintiffs as such security. Argued before PARKER, P. J., and SMITH, CHESTER, and COCHRANE, JJ. George Lawyer, for appellant. COCHRANE, J. The defense urged against this note is that it lacks consideration, in that the original indebtedness represented by the draft of Wilson, Sheffer & Coonley held by the plaintiffs was not extinguished or paid by said note, and that there was no agreement to extend the time of payment of said draft. The note was concededly given, not in payment of the draft, but as security therefor, and if the defendant is right in his contention that the time of payment of said draft was not extended no recovery can be had on this note. Plaintiffs certainly did not agree to extend the time of payment of the original indebtedness for one year, the time which had to elapse before the maturity of the note, and no presumption of such agreement can be inferred merely from the fact of the acceptance of said note as security for the preexisting indebtedness. But the plaintiffs, as an inducement to the firm of Wilson, Sheffer & Coonley to secure their indebtedness, told them that they were "not particular about an immediate settlement," and on the strength of this statement the note in question was delivered. I think this amounted to a promise on the part of the plaintiffs that they would forbear action on the draft, and justifies the finding of the trial court that an agreement of forbearance was made by them in consideration of the note in question. By such promise the plaintiffs placed it out of their power to proceed immediately on the draft. No specific time of forbearance was mentioned, but it became the duty of the plaintiffs to wait a reasonable time before seeking enforcement of the originat indebtedness. Any time, however short, was a sufficient consideration for the note. Milius v. Kaufmann, 104 App. Div. 442, 93 N. Y. Supp. 669; Cary v. White, 52 N. Y. 142. In the case last cited it was said: "If there was an extension of time for a single day by a valid agreement as a consideration of the mortgage, there was a valuable consideration, within the rule." It is further urged by the defendant that, even if the plaintiffs agreed to grant forbearance on their original claim against the firm of Wilson, Sheffer & Coonley, such agreement was useless and of no value, because said firm was in bankruptcy, and that plaintiffs' right to proceed on such claim was stayed under section 11 of the bankruptcy act of July 1, 1898 (chapter 541, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3426]), which provides that action on such a claim may be stayed for 12 months after the date of the adjudication in bankruptcy, or if within that time the bankrupt applies for a discharge, then until the question of such discharge is determined. No facts appear in this record which show that the plaintiffs were within the prohibition of that statute. It does not appear when Wilson, Sheffer & Coonley were adjudicated bankrupts. If such adjudication had been made more than 12 months before the execution of the note in question, and said bankrupts had not within that time applied for their discharge, or if, having applied for the same, such discharge had been refused, the prohibitory provision of the federal statute above referred to would not affect the plaintiffs. It was incumbent on the defendant to show affirmatively the existence of such facts as would preclude the plaintiffs from enforcing their obligation against the bankrupt firm. The judgment should be affirmed, with costs. CHESTER, J., concurs. SMITH, J., concurs in result. PARKER, P. J., not voting. (112 App. Div. 877) STANTON v. BOARD OF SUP'RS OF ESSEX COUNTY. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) COUNTIES-SUPERVISORS-RESOLUTIONS-STATUTES-APPLICATION. County Law, Laws 1892, p. 1748, c. 686, § 17, requires that every act or resolution of a board of supervisors in the exercise of its legislative powers shall have a title prefixed concisely expressing its contents, followed by a reference to the law or laws conferring the authority to pass the act or resolution, the number of votes both for and against its passage, and provides for the publication thereof. Held, that such section applies to resolutions which have already become final and complete solely by the action of the board, and had no application to a resolution changing the site of county buildings, which was not final; the proposition being required to originate with, and be ratified by, the people after action by the board. Appeal from Trial Term, Essex County. Action by Merritt C. Stanton against the board of supervisors of Essex county. From a judgment dismissing the complaint (96 N. Y. Supp. 840), plaintiff appeals. Affirmed. Argued before PARKER, P. J., and SMITH, CHESTER, KEL LOGG, and COCHRANE, JJ. Richard L. Hand and Francis A. Smith, for appellant. COCHRANE, J. By this action the plaintiff, a taxpayer of the county of Essex, seeks to restrain the board of supervisors of that county from changing the site of the county buildings from Elizabethtown to |