the ground that the judgment of S. L. Mayham, for applt. neither he nor the creditor was a party to the other action: they had no standing to ask relief in that action. 37 N. Y., 523; 73 Id., 571. Wm. W. Crannell, when he bought or took an assignment of his attorney's bid, had actual knowledge of plaintiff's claims, and was besides apprised of the facts by service upon him of the complaint herein. So that the foreclosure made no change and it relieved the case of the embarassment of the conveyance by Shaul to his sons. The simple question remains between plaintiff and Wm. W. Crannell whether plaintiff has made good his allegation that the $5,000 mortgage was executed to defraud creditors. If he has, he may still pursue his remedy against the mortgagor's land. Held, Error. The conveyance by Shaul to his sons was void. 66 N. Y., 374. The mortgage to Mrs. Crannell was void as to existing creditors to the amount of the note, $1,544. A promissory note of the giver being but an executory promise to pay, and not the payment itself, is not the subject of a gift. 3 N. Y., 112; 52 Id., 373. The assignment of the mortgage by the wife through a third party to her husband placed him, as to the excess of consideration, in the shoes of the assignor. The husband was not an innocent purchaser on the sale. It also appears that he held unquestioned mortgage liens on Shaul's property prior to the $5,000, amounting to $6,565. Hence, taking that the judgment of Baxter ing out the note, there was a deficiency on the foreclosure sale of $2,953. There was no other evi dence of the value of the premises. This deficiency is urged as a reason why relief should not be granted. It is said that the prior liens will consume the property. The referee has made no finding on this or any point in the case and we cannot assume this. And perhaps, if made to defraud creditors, it was void even though a part was for money actually loaned. 12 Hun, 308. Plaintiff had the right in this action to assail the mortgage of $5,000 and the foreclosure, for We think that under the com plaint plaintiff was entitled to a judgment (if the above facts had been found by the referee) declar was a lien upon the mortgaged land, notwithstanding the foreclosure, subject to the prior valid mortgage liens of Wm. W. Crannell and subject to so much of the $5,000 lien as should be found valid, and allowing him to pursue his remedy either by a an execution or a receiver. 12 Hun, 306; 16 Id., 168. Judgment reversed, referee discharged, new trial granted. Opinion by Landon, J.; Fish, J., concurs; Learned, P.J., concurs in result. EXEMPTION. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Charles L. Wilder, respt., v. Joel Stewart, applt. Decided Jan. 1885. A householder cannot, by an executory agreement, estop himself from the right to claim the benefit of the statute of exemptions. Even though a clause in a lease making the personal property to be put on the premises the property of the lessor as security for rent may give the lessor a right to hold exempt property therefor, the right is lost when he unites other claims with his claims for rent in the judgment. Appeal from judgment in favor of plaintiff. Action to recover for goods wrongfully taken and sold on exetion. Defendant on August 26, 1881, recovered judgment against plaintiff before a justice of the peace for $133, for rent of a farm, hay sold and delivered and money advanced to and expended for plaintiff. Execution was issued and levied, by direction of defendant, on a span of horses, harness, wagon, neck yoke, whiffletrees and a cow, and the same was sold thereunder. At the time of the levy, and at the sale, plaintiff forbade the taking and sale on the ground that the property was exempt. He was a householder and had a family for which he provided, and, by the undisputed evidence, the property was clearly exempt. The lease to plaintiff contained the following covenant: "That all of the proceeds of said farm, and all the hay, grain, and general proceeds of said farm, and all the personal property thereon and to be put thereon by Wilder, shall belong to and be the property of Stewart, who shall have the absolute title to the whole thereof as security for the payment of said rent and the faithful performance of the conditions of this lease," and under this covenant defendant claimed the right to take the property. Plaintiff recovered a judgment for the value of the property taken. J. W. Shea, for applt. .D. A. King, for respt. Held, No error. A householder cannot, by an executory agreement, estop himself from the right to claim the benefit of the statute of exemptions. 22 N. Y., 249; Freeman on Executions, § 216. Whatever right defendant may have had under the lease to hold the property as against the statute of exemptions, it was lost when he united his claim for rent with other claims and entered a judgment upon them. Judgment affirmed, with costs. Opinion by Follett, J.; Hardin,, P.J., and Boardman, J., concur. TAXATION. EXECUTORS. N. Y. SUPREME COURT. GERERAL TERM. FIRST DEPT. The People, ex. rel. Wm. H. Osgood et al., ex'rs., v. The Commrs of Taxes and Assessments of the City and County of N. Y. Decided Jan. 8, 1885. The whole amount of a fund held by executors on deposit in trust companies under a decree of a Surrogate to await the determination of contested claims against the estate which exceed the amount of the fund is subject to assessment and taxation. Contested and disputed claims against an estate, are not just debts within the meaning of the statute entitling a person assessed as executor, etc., to have deducted the just debts due from him in his representative character. Certiorari to review the decision of the Commissioners of Taxes and Assessments. The relators were assessed for Held, That the title to the reserved fund remained in the executors. That it was clearly subject to assessment and taxation unless exempted by statute. That the just debts which the relators owed in their respective capacity might be deducted, 2 R. S., 7th Ed., 99, $ 10, but that disputed and contested claims were not just debts within the meaning of the law. That it must be assumed that they could not be presumed from any were properly contested, and it fact shown in the papers that they would be established and recovered. That such a contingency does not come within any of the exemptions of the statute, and that the fund was assessable and taxable. Action of Commissioners affirmed. Opinions by Davis, P. J., and Daniels, J. the year 1884 in the sum of $650,000 for personal estate held by them as executors, erc. They made an application to the Commissioners of Taxes and Assessments for a correction of the said assessment and in support of such application they submitted an affidavit in which it was stated that they had duly accounted before the Surrogate of the County of New York, and upon such accounting a Brady, J., wrote for a modifidecree had been entered under cation of the taxation by placing which they had paid over the enit upon the whole sum mentioned tire estate except $184,268.21, in case it should not be diminished which remained upon deposit in by the payment of just debts out certain trust companies and banks, under a provision of said decree, remain after the payment of exof it, and upon such sum as might reserved for the payment of dis-isting debts by due process of law, puted and other claims and the further expenses of administration, and it was further stated that the debts presented against the estate were contested and exceeded the said sum. Thereupon the Com- N. Y. SUPREME COURT. missioners reduced the assessment to $480,000, and subsequently the relators commenced these proceedings to review this action of the Commissioners. John M. Bowers, for relator. if any should be so ascertained to exist. ATTORNEY. GENERAL TERM. SECOND DEPT. W. Cook et. al., respts. Decided Dec., 1884. There is no presumption that counsel have personal knowledge of the truth or falsity of affidavits presented by them in court. In the absence of any evidence of such knowledge an action does not lie against an attorney for conspiring to procure the dischage of a judgment debtor, on the ground that the affidavit of service of the notice of the motion for such purpose on .the creditor's attorney was false. Appeal from judgment entered on dismissal of complaint at Circuit. Action for damages. The complaint alleged that plaintiff had heretofore recovered a judgment against one Nelson, on which an execution was issued against the person, and that after various ineffectual attempts to procure Nelson's dischage, both under the provisions of the fourteen-day act and by writ of habeas corpus, the defendants, some of whom were the attorneys for said Nelson, conspired to procure the discharge of Nelson by taking proceedings under the fourteen-day act by filing an affidavit of one Riley that plaintiff's attorney had been duly served with notice of such application, which affidavit was false, and that thereby defendant procured the dischage of Nelson, no one appearing to oppose, whereby plaintiff was damaged. The answer was a general denial and that the said affidavit was true. Samuel Judson, for applt. Theodore B. Gates, for respt. Held, There is no presumption that counsel have knowledge of the truth or falsity of affidavits used by them in Court. That therefore, inasmuch as it does not appear that any of the respondents knew of the falsity of Riley's affidavit, and as proceeding with the motion was within the TERM. FIFTH DEPT. Frank W. Ellwood, applt., v. Christopher Forkel, respt. Decided Jan., 1885. In an action to recover rent due upon a lease, a breach of covenant to keep the rooms heated by means of a steam heating apparatus, is a proper subject of counterclaim, and it is error to exclude evidence to show that the rooms were insufficiently heated and rendered so uncomfortable that the tenant could not work therein; and the fact that he continued to occupy the rooms during the time the rent accrued is no bar to recover damages for breach of the covenant, especially when the lessor promised to improve the heating. Appeal from judgment of the Monroe County Court reversing judgment of the Municipal Court of the city of Rochester in favor of plaintff for $48.00. Appellant leased, by a written lease, to respondent a room in appellant's building in the city of Rochester, for the term of fourteen months from February 1, 1880, at an annual rental, the premises to be used as an artist's studio. The lease contained a covenant that the landlord would heat the demised premises by means of the steam heating apparatus in the building. Respondent entered and continued in possession of the room, holding over after the end of the term mentioned in the lease. The action was for rent due for the months of March, April and May, 1881, during which time respondent occupied the premises. Respondent in his answer claimed $200 damages for breach of the covenant to heat the room, which he pleaded as a counterclaim. He offered at the trial to prove that during the time he occupied the room under the lease, the building was insufficiently heated so as to Edgerton v. Page, 20 N. Y, 281, distinquished. The tenant holding over, there was an implied renewal of the lease upon the same terms contained therein. 51 N. Y., 307; 75 Id., 210. Judgment of County Court affirmed, with costs. Opinion by Lewis, J.; Haight and Bradley, JJ., concur; Barker, J., not voting. SUPPLEMENTARY PROCEEDINGS. RECEIVER. TERM. FIFTH DEPT. William C. Pettibone, receiver, applt., v. William E. Drakeford, respt. render it at times uncomfortable, N. Y. SUPREME COURT. GENERAL and so that he could not work at his profession; and upon complaint being made to the landlord he promised, at divers times, to improve the heating if defendant would continue in occupation. The evidence thus offered was excluded. Joseph S. Hun, for applt. Fanning & Williams, for respt. Held, That as the damages offered to be proven arose from a breach of one of the covenants of the lease upon which the action was founded, they were a proper subject of counterclaim; and the fact that respondent occupied the premises during the time the rent accrued did not prevent his claiming damages for breach of the covenant to heat the premises, especially as the offer was to prove that the landlord promised from time to time to improve the heating if defendant would continue as tenant. 35 N. Y., 269; 56 Id., 420; 35 Barb., 523; 4 Hun, 579. Decided Jan., 1885. A receiver appointed in supplementary proceedings cannot maintain an action to recover the possession of personal property transferred by the judgment debtor before his appointment, by way of mortgage, where the mortgagee has taken possession by virtue of his mortgage. Appeal from order granting a new trial to defendant upon a case and exceptions. This was an action to recover a chattel, brought by the receiver. On the 31st of January, 1881, Elizabeth J. Chase was the owner of the property described in the complaint, and on that day, for the purpose of securing defendant for what she then owed him, and for endorsements upon which he had become liable for her, she executed and delivered to him a chattel mortgage thereon, which was |