defendant upon his guaranty. The plaintiff has had a recovery for the sum stated to be owing, with interest. The question now arising is whether or not the writing signed by the defendant was a sufficient memorandum of his promise to answer for the debt of another to satisfy the statute of frauds. Personal Property Law, § 31; Consol. Laws, с. 41.

[1-6] It will be observed that the writing does not expressly state a consideration for the promise of guaranty. The trial judge

said:

"It is implicit in this agreement that the vendor was to forbear for 30 days against the vendee."

We find no such implication in the writing. Nonpayment by the Checker Taxicab Company for a period of 30 days was nothing more than the specified condition upon the fulfillment of which the defendant's promise to pay in its stead was to become operative. Was other consideration implied? We must first determine whether or not the defendant intended to guarantee the payment of a debt already owing, or the payment of a debt which in part was to arise from future transactions. If the former, there was no consideration given for the guaranty. "Unless forbearance or further advances were requested, the difficulty indeed would be deeper than one of the statute of frauds; there would be no contract." Williston on Contracts, § 573. In order to determine the nature of the thing promised, recourse to the circumstances attending the execution of the writing may be had. Id. § 573. While oral proof of the promise made is not admissible, oral proof of facts from which the meaning of the written promise may be known is admissible. Marks v. Cowdin, 226 N. Y. 138, 123 N. E. 139. In that case it was said by Cardozo, J.:

"We exclude the writing that refers us to spoken words of promise. We admit the one that bids us ascertain a place or a relation by comparison of the description with some 'manifest, external, and continuing fact.'"

In our case the writing embodied a conditional promise of the defendant to pay for oil and gasoline delivered to the Checker Taxicab Company "in the sum of $7,500." The taxicab company was then indebted to the plaintiff in no greater sum than $4,708.70. It is self-evident, then, that the defendant contemplated future deliveries of oil and gasoline to that company and the accrual of a new

indebtedness therefor. Consequently, it is clear that the guaranty was in part for such new indebtedness. That being the case, we find in the writing an implication that the defendant made his promise in consideration of future deliveries to be made to the Checker Taxicab Company at his request. The consideration for a guaranty is sufficiently stated in a written memorandum which reads:

"I guarantee the payment of any goods which J. Stadt delivers to J. Nichols." Stadt v. Lill, 9 East, 348.

The same is true where the memorandum reads:

"To Barent P. Staats, Esq.: I hereby obligate myself to hold you harmless for any indorsement you may make for, or have made for, the late firm of Peck, Howlett & Foster, not exceeding $3,000." Staats v. Howlett, 4 Denio, 559.

The same is true of the following memorandum:

"Mr. Gates-Sir: I will be responsible for what stock M. E. McKee has had or may want hereafter to the amount of $500." Gates v. MeKee, 13 N. Y. 232, 64 Am. Dec. 545.

To the same effect are the following: Union Bank of Louisiana v. Coster's Ex'rs, 3 N. Y. 203, 53 Am. Dec. 280; Rogers v. Kneeland, 10 Wend. 218; Marquand v. Hipper, 12 Wend. 520; Church v. Brown, 21 N. Y. 315. It is the theory of all these cases that, where one party agrees with another party that, if such party for a consideration performs a certain act for a third person, he will guarantee payment of the consideration by such person, the act specified is impliedly requested by the guarantor to be performed and, when performed, constitutes a consideration for the guaranty. Under the authorities cited it cannot be gainsaid that in our case the defendant requested the plaintiff to make further sales to the Checker Taxicab Company, in consideration of which the defendant promised to pay if the taxicab company did not pay, and that the stipulated consideration for the promise was sufficiently expressed by the writing.

The judgment should be affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, and O'BRIEN, JJ.,

concur.

Judgment affirmed.

(248 Ν. Υ. 33)

DESCHENES et al. v. TALLMAN et al.

Court of Appeals of New York. May 1, 1928.

1. Covenants 94-Covenant of seizin held not broken where purchaser's title was derived from deed executed by liquidators of foreign corporation which subsequently executed confirmatory deed.

Where vendor covenanted seizin in conveyance of land located in New York and it appeared that he had taken title by virtue of conveyance made by liquidators of corporation owning property which was adjudged insolvent in Canada and second deed was made after vendor had secured execution of quitclaim deed by corporation, held, that although deed of liquidators was inoperative, yet confirmatory deed executed by corporation operated as conveyance precluding breach of covenant of seizin.

2. Judgment 822 (4)-Judgment of foreign court will not, of its own' force, transfer title to land located in state.

Judgment of foreign court will not avail, of its own force, to transfer title to land located in this state, though conveyance be executed by sheriff or master or other agent of court in fulfillment of its mandate.

3. Judgment 822(4)-Transfer by owner of title to land in this state, pursuant to judgment of foreign court, operates as transfer.

Judgment of foreign court compelling owner to transfer title to land in this state operates as transfer, since conveyance not judgment is then source of title.

4. Covenants 94-Threat of potential lien does not constitute breach of covenant of

seizin.

If title procured by vendor in Canadian insolvency proceedings was subordinate to liens that local creditors might have, held, that such threat of potential lien did not constitute breach of covenant of seizin in deed conveying property to defendant.

5. Covenants 125(2)-Only nominal damages were recoverable for breach of covenant of seizin, where confirmatory deed was accepted by purchasers.

Where purchasers counterclaimed for breach of covenant of seizin in vendor's action

to foreclose purchase-money mortgage, claiming that confirmatory deed which they accepted subsequent to alleged breach of covenant of seizin was ineffective, held, that if confirmatory deed did not destroy cause of action, it made damages nominal, being given before counterclaim was served and before demand was made for repayment of purchase price.

Action by Louis Deschenes and another against Francis J. N. Tallman and others. From an order (222 App. Div. 761, 225 Ν. Υ. S. 815) denying the plaintiff's motion for a judgment on the pleadings, the plaintiff appeals by permission and the Appellate Division certifies question. Reversed with directions, and questions answered.

See, also, 222 App. Div. 813, 226 N. Y. S. 799.

The Appellate Division certified the following questions:

"I. Does the answer, read together with the stipulations as to the laws of Canada, state facts sufficient in law to constitute a defense or counterclaim?

"II. Was the deed of the liquidators of Miller & Lockwell, Limited, valid to pass title to the real property in controversy and located in this state and recorded in its name?

"III. Was the subsequent deed of the corporation sufficient to pass title to said, real property?

"IV. Should the order of Special Term, dated May 18, 1927, have been reversed, and should the motion for judgment on the pleadings and the stipulations as to the laws of Canada have been granted?

"V. Were both of the above deeds, considered together, sufficient to pass title to said real property?"

Raphael H. Weissman and Sarah Schreiber, for appellants.

Edward J. O'Toole, of Brooklyn, for respondents.

CARDOZO, C. J. The complaint is for the foreclosure of a purchase-money mortgage. The answer is a counterclaim for breach of a covenant of seizin. Whether seizin was lacking is the question to be answered.

Plaintiffs sold the land to the defendant Francis Tallman in April, 1925. A predecessor in title was Miller & Lockwell, Limited, a Canadian corporation. By a decree of the courts of the province of Quebec, made in 1911, the corporation was adjudged insolvent, and its property, real and personal, was ordered to be sold by two liquidators duly appointed according to the laws of the province. The liquidators conveyed the land to the plaintiffs, who thereafter sold to Tallman

with covenant of seizin. The land is located in the city of New York. The defendants insist that title does not pass under a deed by foreign liquidators.

A second and confirmatory deed, made in December, 1926, is also the subject of attack. After the sale to Tallman, the plaintiffs procured the execution of a quitclaim deed by the man, contains a recital that it is given "in confirmation of a deed" made by the liquidators; "it being the opinion of the liquidators that this deed is necessary for the beneficial winding up of the party of the first part and they having requested the execution of the same." The statutes of Canada are to the effect that the corporate life survives the appointment of a liquidator until the winding up is finished, but that the powers of the directors cease "except in so far as the court or liquidator sanctions the continuance of the same." The defendants insist that the later deed, being made under compulsion, adds nothing to the first one and leaves the title where it was.

The answer demands judgment for the cancellation of the purchase-money mortgage, the return of the cash payment, and reimbursement for the value of subsequent improve ments.

We think the counterclaim must fail. There is no need to determine what effect would be given to the liquidators' deed considered by itself. If they were chancery receivers (Sterrett v. Second Nat. Bank of Cincinnati, Ohio, 248 U. S. 73, 39 S. Ct. 27, 63 L. Ed. 135; Keatley v. Furey, 226 U. S. 399, 33 S. Ct. 121, 57 L. Ed. 273; Lion Bonding & Surety Co. v. Karatz, 262 U. S. 77, 87, 88, 43 S. Ct. 480, 67 L. Ed. 871; Mabon v. Ongley Electric Co., 156 N. Y. 196, 50 N. E. 805; Decker v. Gardner, 124 N. Y. 334, 26 N. E. 814, 11 L. R. A. 480), or receivers or assignees in insolvency or bankruptcy (Security Trust Co. v. Dodd, 173 U. S. 624, at p. 629, 19 S. Ct. 545, 43 L. Ed. 835; Osborn v. Adams, 18 Pick. [Mass.] 245; Callender v. Colonial Secretary, [1891] A. C. 460; Dicey, Conflict of Laws, p. 331), their deed would be a nullity. They would not gain a title to land within this state by force of their appointment in a foreign jurisdiction, and, not having it themselves, could not transmit it to another. If they were the universal successors of the corporation (Keatley v. Furey, supra, at pp. 403, 404, 33 S. Ct. 121, 57 L. Ed. 273; Chipman v. Manufacturers' Nat. Bank, 156 Mass. 147, 149, 30 N. E. 610), the representatives in dissolution proceedings of its personality and powers, a different consequence would follow (Martyne v. American Union Fire Ins. Co. of Philadelphia, 216 Ν. Υ. 183, 110 N. E. 502; Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337). The character and purpose of the proceedings in the courts of Canada are exhibited too imperfectly to enable us to judge with certainty of the origin and measure of the liquidators' powers. We leave the question open till decision becomes necessary.

[1-4] If the deed by the liquidators be assumed to be inoperative, there was none the

less a conveyance of title upon delivery by the corporation of a confirmatory deed of grant. A judgment of a foreign court will not avail, of its own force, to transfer the title to land located in this state. It will not avail though a conveyance be executed by the sheriff or a master or other agent of the court in fulfillment of its mandate. Fall v. Eastin, 215 U. S. 1, 11, 30 S. Ct. 3, 54 L. Ed. 65, 23 L. R. A. (N. S.) 924, 17 Ann. Cas. 853; Carpenter v. Strange, 141 U. S. 87, 105, 11 S. Ct. 960, 35 L. Ed. 640; Watts v. Waddle, 6 Pet. (U. S.) 389, 8 L. Ed. 437. "The court not having jurisdiction of the res cannot affect it by its decree nor by a deed made by a master in ac cordance with the decree." Fall v. Eastin, supra. But the rule is different where the conveyance is executed by the owner, though he act under compulsion. Fall v. Eastin, supra, at p. 11, 30 S. Ct. 3, 54 L. Ed. 65, 23 L. R. A. (N. S.) 924, 17 Ann. Cas. 853; Watkins v. Holman, 16 Pet. (U. S.) 25, 57, 10 L. Ed. 873; Corbett v. Nutt, 10 Wall. (U. S.) 464, 475, 19 L. Ed. 976; Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192. The conveyance, and not the judgment, is then the source of title. As to this the law has been undoubted since Penn v. Lord Baltimore (1 Ves. Sr. 444). The distinction is between a judgment directed against the res itself, and one directed against the person of the owner, who acts upon the res. His deed transmits the title irrespective of the pressure exerted on his will.

A different question would be here if we were required to determine whether the title would prevail against the remedies of creditors. Of. Huntington v. Chesapeake, O. & S. W. Ry. Co. (C. C. A.) 98 F. 459, 464; Osborn v. Adams, 18 Pick. (Mass.) 245. A title acquired in foreign insolvency proceedings is subordinated to local creditors with executions or attachments against the goods and chattels of a debtor. Security Trust Co. v. Dodd, supra; Barth v. Backus, 140 N. Y. 230, 35 N. E. 425, 23 L. R. A. 47, 37 Am. St. Rep. 545; Vanderpoel v. Gorman, 140 N. Y. 563, 35 N. E. 932, 24 L. R. A. 548, 37 Am. St. Rep. 601; Willitts v. Waite, 25 N. Y. 577, 582; Blake v. Williams, 6 Pick. (Mass.) 286, 17 Am. Dec. 372; Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 579, 580, 28 S. Ct. 337, 52 L. Ed. 625. Authority is not lacking that it is so subordinated in respect of land, though seizin has been transferred by the assurance of a deed. Huntington v. Chesapeake, O. & S. W. Ry. Co., supra; Osborn v. Adams, supra. If all this be assumed, the defendants are not greatly helped. Seizin there still is, though subject to the claims of creditors as inchoate or potential liens. Matter of Waite, 99 N. Y. 433, 2 N. E. 440; Security Trust Co. v. Dodd Co., supra, at p. 635, 19 S. Ct. 545, 43 L. Ed. 835; Mabon v. Ongley Electric Co., supra. We do not know from the answer whether any such claims exist. Very likely they have been extinguished, for fifteen years have elapsed between the appointment of the liquidators and the service of the counterclaim. If the claims are alive, they are at most in the nature of an incumbrance, burdening the title, but not defeating its transmission. A judgment that is merely inchoate or potential can have no greater effect than one that is actual and consummate. Rawle on Covenants of Title, §§ 59, 60; Sedgwick v. Hollenback, 7 Johns. 376; Jackson ex dem. Malin v. Garnsey, 16 Johns. 189, 192; Kuntzman v. Smith, 77 N. J. Eq. 30, 75 A. 1009. The defendants do not counterclaim because of the presence of an incumbrance. They do not even say that such a covenant was made. The basis of the counterclaim is the covenant of seizin. In the view of the pleader, title has so failed that the transaction in all its parts must be undone from the beginning. More must be shown, to justify that upheaval, than the threat of a potential lien.

[5] The defendants make the point that the deed of 1926, which they admit that they accepted, was ineffective, however voluntary, to destroy a cause of action for breach of a

covenant of seizin in the deed of 1925, since the breach was complete when the covenant was made. If it did not destroy the cause of action, it made the damage nominal. The confirmatory deed was given before the counterclaim was served and before demand was made for the repayment of the purchase price. Consideration has not failed now that title has been cured. Murphy v. U. S. Title Guaranty Co., 104 Misc. Rep. 607, 172 N. Y. S. 243; King v. Gilson's Adm'x, 32 Ill. 348, 355, 83 Am. Dec. 269; Cornell v. Jackson, 3 Cush. (Mass.) 506.

The order of the Appellate Division and that of the Special Term should be reversed, with costs in the Appellate Division and in this court, and judgment ordered in favor of the plaintiffs for the relief demanded in the complaint; the first question certified is answered "no;" the second question is not answered; and the third, fourth, and fifth questions are answered "yes."

POUND, CRANE, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur. ANDREWS, J., not sitting.

Ordered accordingly.

(248 Ν. Υ. 40)

SIENKO v. BOPP & MORGENSTERN et al.

Court of Appeals of New York. May 1, 1928. 1. Master and servant

393-Compensation due employee at time of his death is payable to his widow; "death benefit" (Workmen's Compensation Law).

The compensation which under a claim filed may be due to an injured employee before he died is not a death benefit under Workmen's Compensation Law, § 16, since in case where compensation has been awarded him and not yet paid, or where an award for compensation has not yet been made at the time of his death, and there is due him at time of his death compensation under the provisions of the Workmen's Compensation Law, such amount due him is payable to his widow.

2. Master and servant398-Widow of injured employee, filing election to sue third party with claim for deficiency, held not required to file further "claim for disability compensation" on employee's death (Workmen's Compensation Law, § 28).

Injured employee's notice of election to sue third party, with claim for compensation for any deficiency constituted a claim for compensation made within the one year limitation of the Workmen's Compensation Law, § 28, and on death of employee it was not necessary for widow to file a further claim for disability compensation in order to assert whatever right thereto she had under the Workmen's Compensation Law.

3. Master and servant388-Widow of Injured employee dying from causes unrelated to accident has no claim for death benefit (Workmen's Compensation Law, § 16).

Where injured employee dies from causes unrelated to accident sustained by him, his widow has no claim for a death benefit allowed by Workmen's Compensation Law, § 16.

4. Master and servant 393-Widow of employee dying from causes other than injury held entitled to disability award not paid during employee's lifetime (Workmen's Compensation Law, § 33).

Where injured employee died from causes other than injury, and disability compensation had not been paid to injured employee in his lifetime, held that, under Workmen's Compensation Law, § 33, widow of employee was entitled to such disability award.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings under the Workmen's Compensation Law by Dora Sienko for disability and death benefits arising out of the injuries to, and death of, her husband, Anton Sienko, employee, opposed by Bopp & Morgenstern, employer, and the Union Indemnity Company, insurance carrier. An award of the State Industrial Board was reversed by the Appellate Division, Third Department (222 App. Div. 398, 226 N. Y. S. 366), and claimant appeals. Order of Appellate Division reversed, and that of State Industrial Board affirmed.

Leo J. Hickey, of Brooklyn, for claimant appellant.

Albert Ottinger, Atty. Gen. (E. C. Aiken, Asst. Atty. Gen., of counsel), for appellant. Bernard J. Vincent and T. Carlyle Jones, both of New York City, for respondents.

CRANE, J. This appeal requires the interpretation of section 33 of the Workmen's Compensation Law (Consol Laws, c. 67), which reads:

"In case of the death of an injured employee to whom there was due at the time of his, or her death any compensation under the provisions of this chapter, the amount of such compensation shall be payable to the surviving wife or husband, if there be one, or, if none, to the surviving child or children of the deceased under the age of eighteen years, and if there be no surviving wife or children, then to the dependents of such deceased employee or to any of them as the commission may direct. An award for disability may be made after the death of the injured employee."

[1] The amount of compensation here payable to the surviving wife must not be confused with the death benefit allowed by section 16 of the Workmen's Compensation Law. Section 3 provides compensation for injuries or death incurred by employees in hazardous employments. If the injury causes death, section 16 provides that the compensation shall be known as a death benefit and shall be payable to the surviving wife or other dependents according to certain rates therein fixed. The compensation which under a claim filed may be due to the injured em

ployee dying pending suit against third party held not estopped from claiming disability award (Workmen's Compensation Law, §§ 20, 33).

Where injured employee, electing to sue third party with claim for compensation for deficiency under Workmen's Compensation Law, § 20, died from cause other than injury, pending third party action, held that employee's widow was not estopped to claim disability award under Workmen's Compensation Law, § 33.

There may be, and frequently is, a lapse of time between the injury and the death of the employee. Perhaps compensation has been awarded to him and not yet paid, or it may be that an award for compensation has not yet been made, at the time of his death. In either case, if there is due him at the time of his death compensation under the provisions of the Workmen's Compensation Law, this amount due him is payable to his widow.