and indorse promissory notes for the purpose | Bills, 738; Bank v. Cameron, 7 Barb. 143; of transacting the business it was authorized Hendrie v. Berkowitz, 37 Cal. 113; Lemoine to engage in, and that such power was con- v. Bank, 3 Dill. 44; Bloom v. Helm, 53 Miss. ferred by the board on its president. The 21; Daniels, Neg. Inst. (2d Ed.) p. 297, § 365; powers of corporations are those enumerated Edw. Bills, (3d Ed.) p. 98, § 105. Ex parte in the statutes under which they are incorpo- Estabrook, 2 Low. 547, is opposed to these rated, in general statutes, in the articles of authorities; but this case is in conflict with association, and like instruments, executed in the decisions in this state, and we believe it pursuance of the statutes, (denominated by to be without the support of any well-considMr. Brice "constating instruments, "-Ultra ered case. The indorsements having been Vires, 2d Amer. Ed., 27;) and also such pow-made for the accommodation of the makers, ers as flow from, or are incidental and neces- and the plaintiff having discounted the notes sary to, the exercise of the enumerated pow- with notice of that fact, cannot recover. The ers, (1 Rev. St. p. 599, §§ 1-3.) Counsel have judgment should be reversed, and a new not directed our attention to, nor have we trial granted, with costs to abide the event. found in any of the statutes referred to, a All concur. provision empowering the defendant to bind itself by making or indorsing promissory notes for the accommodation of the makers, for a consideration paid. It is well settled (Court of Appeals of New York. Oct. 8, 1889.) that such a power is not incidental to the powers expressly conferred on corporations organized under statutes authorizing the formation of corporations for banking, insuring, manufacturing, and like business corporations. Central Bank v. Dressing Co., 26 Barb. 23; Bridgeport City Bank v. Same, 30 Barb. 421; Farmers' & Mechanics' Bank V. Same, 5 Bosw. 275; Morford v. Bank, 26 Barb. 568; Bank v. Bank, 13 N. Y. 309: partnership business. A reference was had, Barb. 568; Bank v. Bank, 13 N. Y. 309; and on the findings of the referee judgment Bank v. Insurance Co., 50 Conn. 167; Bank (115 N. Y. 672) BURROWS v. DICKINSON APPEAL-REVIEW. On appeal from a judgment entered on the findings of a referee, where the evidence is not contained in the record, the referee's conclusions of law are alone the subject of review. Appeal from supreme court, general term, first department. Charles M. Dickinson for an accounting of a v. Globe Works, 101 Mass. 57; Davis v. Rail-was entered for plaintiff, which having been road Co., 131 Mass. 258; Culver v. Real-affirmed, on appeal to the general term, the Estate Co., 91 Pa. St. 367; Hall v. Turnpike ical error on the face of the referee's report. defendant again appeals, alleging arithmetCo., 27 Cal. 255. Kling, for respondent. The The defendant having the general power to bind itself by promissory notes and contracts of indorsement, the plaintiff is entitled GRAY, J. Upon this appeal we are preto recover, if it is a holder of the notes for sented with the judgment roll only, and, as value, and without notice that they were in- the case does not contain the evidence, the dorsed for the accommodation of the makers, correctness of the conclusions of law made and not in the usual course of business. The by the referee is alone the subject for review. referee finds that, in consideration of one-As we held recently in Gardiner v. Schwab, fourth of 1 per cent. per month for every month of the time on which the notes were given, the defendants indorsed for Squires, Taylor & Co., between November 10, 1876, and August 27, 1878,-the date of the first note in suit,-nineteen notes, precisely like the four in suit, except dates and amounts. aggregating $170,000, which were discounted by the plaintiff for, and the avails placed to the credit of, Squires, Taylor & Co. The referee also finds that defendant's president was never authorized by its board of directors to indorse commercial paper for the accommodation of makers, or to indorse such paper for a consideration paid by the makers, and that none of them knew that such indorsements had been made until this action was brought. The fact that the maker of a promissory note procures it to be discounted for his own benefit is, if unexplained, notice to the discounter that the indorsement is not in the usual course of business, but is for the accommodation of the maker. Stall v. Bank, 18 Wend. 466; Fielden v. Lahens, 9 Bosw. 436, 3 Trans. App. 218; Fielden v. Lahens, 2 Abb. Dec. 111, 6 Abb. Pr. (N. S.) 341; 1 Ames, 110 N. Y. 650, 17 N. E. Rep. 732, in such a The parent mistake upon the face of the report | Kelly as a security for money thereafter to appears, the result of which was to change be advanced by the plaintiff under an agreethe balance to one against, instead of in favor ment in writing by which Kelly had agreed of, the appellant. How this amount of $587 to erect four buildings upon the premises is arrived at does not appear, and the appel- covered by the mortgage, and that the plainlant's brief concedes that it does not. It cer- tiff was to advance $8,000 on each of such tainly is not for us to explain it. Not hav-buildings as they progressed in construction; ing the evidence, we must assume all the that the defendant Simonson furnished mafindings to have been warranted by sufficient terials for such buildings, at prices agreed proofs. The referee found as a fact that the upon, and which in the aggregate amounted plaintiff received on account of his copart- to the sum of $2,715.73, and that he had nership interest, and pursuant to some sub- filed in the office of the clerk of the city and sequent agreement between him and his part-county of New York a notice of his claim, ner, the sum of $2,157.20. This finding of and a lien upon the four houses and premfact is conclusive upon us on this record, and ises; that at the time of filing such lien the we should not disturb it, because we are un-plaintiff had not advanced upon the mortgage able to account for an item appearing else- the sums of money agreed to be advanced. where in the report, and which the appellant Other matters were alleged in the answer argues was not included as a charge to the which it will not be necessary to here conrespondent. As the general term very prop- sider. He prayed judgment that the premerly suggest, as the referee has found that ises be sold, and that the moneys arising the plaintiff is only to be charged upon the from the sale be brought into court, and that accounting with $2,157.20, his conclusion is he be first paid the amount due upon his lien correct. If he committed any error to the for materials furnished, with costs, etc. prejudice of the appellant, the omission to Upon the trial it appeared that the defendprint the evidence precludes us from review-ant's lien was filed on the 18th day of April, ing the question of whether the respondent should have been charged with a larger sum. The judgment appealed from should be affirmed, with costs. All concur. (116 N. Y. 329) DANZIGER v. SIMONSON.1 1884, and that on the 5th day of September, 1884, no notice of pendency of action to foreclose the lien had been filed. Thereupon the referee ruled out and excluded the evidence offered by the defendant to prove the defenses alleged in his answer, and found as facts that the defendant had not filed any notice of pendency of any action to foreclose his (Court of Appeals of New York, Second Divis- lien within 90 days after the filing of such ion. Oct. 22, 1889.) MECHANICS' LIENS-PERFECTING LIEN. Under Laws N. Y. 1882, c. 410, § 1813, as amended by Laws 1883, c. 276, providing that mechanics' liens shall not bind the property unless action is brought thereon within 90 days after the claim is filed, or unless the claimant, being made a party defendant in an action to enforce any other lien, files a notice of the pendency of such action, the defendant in an action to foreclose a mortgage, who claims under a mechanic's lien, must, in order to maintain his lien, file a notice of the pendency of such action. Appeal from superior court of New York city, general term. Action to foreclose a mortgage, brought by Max Danziger against several defendants; among them, William H. Simonson, who claimed a lien on the premises under a mechanic's lien. On report of a referee, judgment was entered for the plaintiff, which judgment was affirmed by the general term. Defendant Simonson appeals. N. C. Moak, for appellant. Lewis Sanders, for respondent. HAIGHT, J. This action was brought to foreclose a mortgage. The defendant Simonson was made a party defendant, as having, or claiming to have, some interest in or lien upon the mortgaged premises; which interest or lien, if any, had accrued subsequently to the lien of the mortgage. The answer interposed alleged, in substance, that the mortgage was executed by the defendant Andrew 1 Affirming 21 Jones & S. 158. lien. The question presented for review is as to whether the claim of the defendant continued a lien upon the premises after the expiration of 90 days from the time it was filed. The statute in force at the time provided that "no lien provided for in this title shall bind the property therein described for a longer period than ninety days after the claim has been filed, unless an action be commenced within that time to enforce the same, and a notice of the pendency of such action filed with the clerk of the county, and an entry of the fact of such notice made on the lien docket. And, where the claimant is made a party defendant to any action brought to enforce any other lien, the notice of the pendency of such action must be filed by him, or in his behalf. But the neglect to file such notice shall not abate any action which may be pending to enforce the lien. Such action may be prosecuted to judgment against the persons liable for the debt." Laws 1882, c. 410, 8_1813, as amended by Laws 1883, c. 276. Under the first clause of the section, it will be observed that no lien shall bind the property for a longer period than 90 days, unless an action be commenced within that time, and a notice of the pendency of such action is filed with the clerk of the county. It is not claimed that the defendant Simonson had commenced an action to enforce his lien within that time, or that he had filed such notice. His lien would therefore cease to exist after the expiration of 90 days, under | every, and is the same as if the statute read, the express provisions of the statute, unless "any action brought to enforce each and it was saved by the foreclosure action insti- every other lien." It consequently appears tuted by the plaintiff. The second clause of to us that the statute is broad enough to inthe section, as we have seen, provides that, clude a mortgage lien, and is not confined to where a claimant is made a party defendant mechanics' liens. to any action brought to enforce any other Again, it does not appear to us that it was lien, a notice of the pendency of such action the intention to limit the provision to memust be filed, etc. Although he appeared in chanics' liens. The object of the notice of the foreclosure action and answered, he did pendency of action was to give notice to subnot file any notice of the pendency of such sequent purchasers or incumbrancers, and action. If, therefore, the lien of the mort- all persons interested, of the nature of the gage is one within the contemplation of this claim, that an action had been commenced statute, the defendant's lien has expired, and upon it, and was pending, so that purchasers, no longer exists; for he has omitted to com- incumbrancers, and persons having an interply with the provisions of the statute for con- est might be warned and placed upon their tinuing the life of his lien. It is contended, guard. There is just as much necessity for a however, that the lien referred to in this con- notice of pendency to be filed where a forenection means other mechanics' liens, and closure action is brought as there is when an does not include a lien by mortgage; that the action is brought to foreclose another meword "other," appearing in the statute, chanic's lien. The notice of pendency filed means the same class or kind previously de- by the plaintiff in the foreclosure action gives scribed; and that, inasmuch as the chapter notice only of the pendency of that action, and pertains to mechanics' liens, other mechan- subsequent purchasers were informed as to ics' liens than the defendant's were the the nature and amount of the claim; but, if liens referred to; and our attention is called a mechanic's lienor is made a party defendto the case of People v. Richards, 108 N. Y. ant, a subsequent purchaser, in the absence 137-150, 15 N. E. Rep. 371. In that case of a notice of pendency, has no notice of the the defendant had been convicted of the existence of his lien, its nature or amount. crime of burglary for violating a sepulcher. True, he may find that the original claim was The question was as to whether the sepulcher filed; but upon an examination of the lien was an erection or an inclosure, within the docket he finds that the 90 days have expired, meaning of the Penal Code. The words un- and no notice of any action brought. He has der construction were, "other erections or notice of the existence of the foreclosure acinclosures." It was held in that case that tion; but he may be willing to take title to the the word "other" included things of a simi-premises, and assume the mortgage, and pay lar nature to those already described. An- the amount claimed in that action. All this other case to which our attention is called is he may do, and have no notice, constructive that of Flanagan v. Hollingsworth, 2 How. or otherwise, of the existence of an answer Pr. (N. S.) 391. The parties were owners on the part of a lienor, in which a judgment of real estate in the same vicinity which was is demanded for the sale of the premises, and subject to a covenant that the owner would that his lien be first paid out of the proceeds. not erect any cow-stable, hog-pens, etc., or It is claimed that this statute was' construed any other dangerous, noxious, un wholesome, in the case of McDermott v. McDonald, 50 or offensive establishment, trade, calling, or N. Y. Super. Ct. 153. In that case the court business whatsoever. It was held not to ex- was construing section 4, c. 315, Laws 1878. clude a livery stable; that effect must be That section was similar to the provisions of given to each word of the covenant. It does the first clause of the section we have under not appear to us that this case affords much consideration; but it did not contain the lataid in the determination of the question un- ter clause, which we are here called upon to der consideration. Were the word "other" construe. It does not, therefore, become a the only word to be construed, the former precedent that aids us in this case. For these case would have some application; but in reasons the judgment should be affirmed, with construing the provision we must consider costs. that which precedes and follows, in order, if possible, to determine the legislative intent. Where a claimant is made a party defendant to any action brought to enforce any other lien, a notice of pendency, etc., must be filed. The word "other" is preceded by the word "any;" and, under the rule of Flanagan v. Hollingsworth, we must give each word its appropriate meaning. The word "any" is used in various ways, and may convey different meanings. It may mean one or many, each or every. In some instances it means an indefinite number. The connection in which it is used in the statute under consideration appears to us to indicate each and PARKER, J. I concur in the result reached by Judge HAIGHT. The statute (Laws 1882, c. 410, § 1813, as amended by Laws 1883, c. 276) provides, in effect, that the lien provided for by that act shall not bind the property for a longer period than 90 days after the claim has been filed, unless-First, the lienor commence an action within that time to enforce the same; or, second, the claimant be made a party defendant in an action brought to enforce any other lien, and in which a notice of pendency of such action shall be filed by him or in his behalf. This defendant did not commence an action within the prescribed 90 last days. Neither was a notice of pendency of | to him, as such administrator, the deposit, action filed by him, or in his behalf, in this with the interest thereon, then amounting to or any other action brought to enforce a lien. $629.40. Mrs. Knittel, in fact, left It follows that at the expiration of 90 days his claim ceased to be a lien binding upon the real estate in controversy, and the decision of the referee was therefore warranted. All concur; PARKEP and BROWN, JJ., in result, as stated in opinion of PARKER, J. (117 N. Y. 125) SCHLUTER v. BOWERY SAV. BANK. (Court of Appeals of New York. Nov. 1, 1889.) PAYMENTS TO ADMINISTRATOR-ACCOUNTING-DISCOVERY OF WILL-MARRIED WOMAN AS TRUSTEE. 1. The mother of plaintiff's intestate deposited a sum of money in defendant's bank as trustee for said intestate, then an infant. The act incorporating the bank provided that deposits should be repaid under such regulations as the board of managers should prescribe. One of defendant's by-laws provided that on the decease of a depositor the amount standing to his credit should be paid to his legal representatives. The depositor having died intestate, her administrator demanded, and was paid, the amount deposited by her. Held, that this payment was effectual to discharge the bank of any liability for the deposit, even though the administrator to whom payment was made was a foreign administrator. 2. Where a person dies intestate, as it is supposed, and letters of administration are granted, under which the administrator proceeds to settle the estate, the subsequent discovery of a will, which is admitted to probate, does not render void such letters of administration, or the proceedings thereunder. 3. Where a married woman constitutes herself a trustee under Laws N. Y. 1867, c. 782, and afterwards removes to a state where, under the laws, a married woman cannot act as trustee, such removal will not divest her of her title to the trust property located in New York, nor of her right to enforce the same. county, 4. An allegation in a complaint that letters of administration on the estate of a deceased person were granted by the surrogate of and that "said surrogate had jurisdiction, and was duly authorized and empowered, by the laws of the state of New Jersey, to issue said letters as aforesaid," is sufficient to authorize proof of the laws of said state, and of the jurisdiction of the surrogate in issuing letters. Appeal from supreme court, general term, first department. will and testament, which was subsequently, John McCrone, for appellant. Carlisle EARL, J., (after stating the facts substantially as above.) The defendant was incorporated by the act, chapter 229 of the Laws of 1834; and by section 6 of that act it was provided that deposits therein should be repaid to each depositor when required, and at such time, and with such interest, and under such regulations, as the board of managers from time to time prescribed. One of the by-laws of the defendant, printed in the pass-book which was delivered to the depositor, provided that on the decease of any depositor the amount standing to the credit of the deceased should be paid to his or her legal representatives. We have several times held that by such a deposit the depositor consti Here there was notice from the beneficiary, was good and tuted himself or herself a trustee, and that This action was brought by Eliza Schluter, the title to the fund was thereby transferred as administratrix of Antoinette Knittel, from the depositor individually to the deposagainst the Bowery Savings Bank. The itor as trustee; and in Boone v. Bank, 84 N. grounds of the action are as follows: In Y. 83, a case entirely similar to this, we held October, 1872, Margaret Knittel, then a mar- that payment of the deposit to the adminisried woman, deposited in the Bowery Sav-trator of the depositor, in the absence of any ings Bank the money claimed in this action, in trust for Antoinette Knittel, which was entered upon the books of the bank, and the pass-book belonging to Mrs. Knittel, as follows: "Bowery Savings Bank, in account with Margaret Knittel, in trust for Antoinette Knittel." Antoinette was then an infant about six years old, and lived with her parents in this state. Subsequently, they moved to the state of New Jersey, where they lived until June, 1875, where Mrs. Knittel died. Her husband took out letters of administration on her estate in the state of New Jersey; and on October 22, 1875, the defendant paid 1Affirming 47 Hun, 633, mem. But the claim is made that because Mr. Knittel was a foreign administrator, deriving his authority from administration granted in the state of New Jersey, he was not the personal representative of the deceased, and that therefore payment could not legally be made to him. Payment to the personal representative is good, because at the death of the intestate he becomes entitled to all his per sonal property wherever situated, and, hav-| ing the legal title thereto, he can demand payment of choses in action; and a payment to him made anywhere, in the absence of any conflicting claim existing at the time, is valid. It is true that, if the defendant had declined payment, the foreign administrator could not have brought action in this state to enforce it. But a voluntary payment to such an administrator has always been held valid. Therefore, in receiving this payment, Mr. Knittel was the personal representative of the deceased, and able to give an effectual discharge to the defendant. Parsons v. Lyman, 20 N. Y. 103; Petersen v. Bank, 32 N. Y. 21; In re Butler, 38 N. Y. 397; Wilkins v. Ellett, 9 Wall. 740. Mrs. Knittel, however, actually left a will, which was subsequently admitted to probate. But the letters of administration were not therefore void, the court having jurisdiction to grant them; and, until they were revoked, all persons acting in good faith were protected in dealing with the administrator thus appointed. And so it has always been heid. Rodgerigas v. Institution, 63 N. Y. 460, 76 N. Y. 316; Kittredge v. Folsom, 8 N. H. 98; Patton's Appeal, 31 Pa. St. 465. Here the payment was made before the will was admitted to probate, and at the time of such payment Mr. Knittel was the legal representative of the deceased, and authorized to administer upon her estate. Our attention has been called to no case, and we are confident that none can be found, holding that the subsequent discovery of a will, and its admission to probate, renders the prior appointment of an administrator absolutely void so as to give no protection to persons who, in dealing with the administrator, have acted on the faith thereof. Woerner, Adm'n, 568, 588, 571. Under the act, chapter 782 of the Laws of 1867, Mrs. Knittel, although a married woman, was capable of being a trustee. She constituted herself a trustee here, and here the trust fund remained; and therefore, although by the law of New Jersey a married woman could not be appointed a trustee, yet the trust could be enforced here. Her removal to that state did not divest her of the title to the fund she thus had; and that title remained in her, as no one was appointed to take it from her. The statutes of New Jersey were proved, showing that the surrogate of the county of which Mrs. Knittel was an inhabitant and resident at the time of her death had jurisdiction to grant letters of administration upon her estate. While he had no authority to grant letters of administration unless she died intestate, intestacy, like inhabitancy, was one of the facts which he was to determine. He had general jurisdiction of the subject of administration; and, having determined that she died intestate, he was authorized to grant administration upon her estate. The proceedings in the surrogate's court were properly exemplified and proved. But the further claim is made that the answer was insufficient to permit the laws of New Jersey to be read in evidence, for the reason that they were not therein alleged. It is there alleged "that Margaret Knittel died an inhabitant of, and domiciled in, and a resident of, Hoboken, Hudson county, N. J.; that thereafter, and on the 19th of October, 1875, letters of administration on the goods, chattels, rights, and credits of Margaret Knittel, deceased, were duly issued to one Louis Knittel, the husband of the said Margaret Knittel, by the surrogate of the county of Hudson, state of New Jersey; that said surrogate had jurisdiction, and was duly authorized and empowered, by the laws of the state of New Jersey, to issue said letters as aforesaid." We think these allegations were sufficient to authorize proof of the laws of New Jersey, and of the jurisdiction of the surrogate in issuing letters. If the plaintiff desired more specific allegations, and were fairly entitled to them, she should have moved to make the answer more specific and definite. The answer gave her every information to which she was entitled; and she might, if she could, have shown that the surrogate had no jurisdiction, and that the laws did not authorize him to grant administration of the estate of Mrs. Knittel. So far as the case of Throop v. Hatch, 3 Abb. Pr. 23, may seem to hold the contrary doctrine, it does not receive our approval. We are therefore of opinion that the judgment should be affirmed, with costs. All concur. (115 N. Y. 533) KNICKERBOCKER et al. v. GOULD.1 (Court of Appeals of New York. Oct. 8, 1889.) ACCOUNT STATED. In an action on a stated account, where dewas rendered, the court is justified in directing a fendant does not dispute its accuracy, or that it verdict for plaintiffs, as there is nothing to submit to the jury. Appeal from supreme court, general term, first department. Action by Henry W. Knickerbocker and others against Charles W. Gould, on an account arising from stock transactions. On trial the court directed a verdict for plaintiffs, and the judgment entered thereon having been affirmed on appeal to the general term, defendant again appeals. F. F. Andrews, for appellant. Delos McCurdy, for respondents. EARL, J. This action was brought by the plaintiffs, stock-brokers, doing business in the city of New York, against the defendant, their customer, residing in the county of Saratoga, to recover a balance of account. The plaintiffs bought for the defendant certain shares of stock, receiving from him a portion of the purchase price as margin, and advancing for him the balance, and holding the stock. The defendant failed, upon de1Affirming 42 Hun, 660, mem. |