are to be found with wheels open to view | He was, however, imperatively ordered and to touch. Persons employed to operate them are required to exercise ordinary care, and hitherto it has not been understood to be necessary that the wheels should be covered so as to prevent them from thoughtlessly placing their fingers between the wheels. But it is claimed that the ordinary rule has no application in this case, for the reason that the injury occurred on shipboard; that the plaintiff, having been commanded by his superior officer to operate the winch, was under coercion, and had no right to refuse. But it does not appear to us that this question is presented by the evidence. Under the maritime law the master has absolute authority on board of his ship, and his orders, if lawful, must be obeyed by the common seamen. The master, however, has no right to require a seaman to operate a dangerous machine. If, as we have shown, the machine was reasonably safe if operated with care, the master had the right to require the plaintiff to oper. ate it, and it was his duty to observe the care necessary to prevent the injury. But, assuming that the machine was dangerous, there were no threats made by the master, or evidence given tending to show coercion. The usual order was given to the plaintiff to operate the winch. He made no objection or complaint in reference thereto. He was in port, and could have left the vessel, and sought the protection of the consul, if the orders of the master were unlawful. Coercion must be established by the evidence. The bare fact that he was told to operate the winch does not establish an intent to unlawfully interfere with him, and we cannot, from that fact alone, assume that he would have been unlawfully punished had he refused to obey the order. In the case of Thompson v. Hermann, 47 Wis. 602, 3 N. W. Rep. 579, the plaintiff was ordered by the master to adjust a gaff which had been unshipped, by standing upon the lower boom, and pulling upon the bowline fastened to one of the horns of the jaw of the gaff, and which was liable to slip from the horn, which was smooth and slippery, and cause the plaintiff to fall from the boom to the deck below. The plaintiff, thinking it unsafe and dangerous to obey such an order, objected, and protested against the same, and informed the master that the main gaff could be adjusted by means of a tackle there at hand, and with safety to all concerned. But the master refused to adopt such precautionary means, and imperatively ordered the work to be done in the manner directed by him. The plaintiff thereupon undertook the task, and was in the careful discharge of his duty, in obedience to the order, when the line slipped from the horn of the jaw, causing the plaintiff to fall from the boom, and receive the injuries for which the action was brought. It was found as a fact that the master was grossly negligent in not adopting the safe and proper means suggested by the plaintiff. It was held that the plaintiff could recover. But in that case the seaman objected and protested against the improper order of the master. to do the work in the manner directed. Here was evidence of coercion, and no contributory negligence, clearly distinguishing the case from the one we have under consideration. It consequently appears to me that the exceptions to which we have called attention were well taken, and that the judgment should be re versed, and a new trial ordered, with costs to abide the event. (135 Ν. Υ. 635) STEINHAUSER v. MASON. (Court of Appeals of New York. Oct. 11, 1892.) DEATH OF PARTY - SUBSTITUTION OF EXECUTRIX. The executrix of an assignee for the benefit of creditors will not be substituted in his place in an action commenced by such assignee in behalf of the insolvent estate. Appeal from common pleas of New York city and county, general term. Action by Henry W. Steinhauser, assignee of Charles Magnus, for the benefit of the latter's creditors, against John Mason. From a judgment of the general term (19 N. Y. Supp. 228) affirming a judgment for plaintiff, defendants appeal. Motion to substitute Mary C. Steinhauser, as executrix of the will of plaintiff, in his stead. Motion denied. Franklin Bien, for appellant. Kling, for respondent. Abram PER CURIAM. This is simply a motion to substitute Mary C. Steinhauser, as executrix of the will of plaintiff, in his stead. As executrix, so far as any facts now appear, she has no place in the litigation, and no right of substitution. If she has been properly substituted as assignee in the place of her deceased husband, then she should make a motion to be substituted as such in this action, and, so far as we can perceive, there would beno answer to such a motion. The moving papers do not disclose the fact that she has been substituted as assignee. This motion must therefore be denied, but, as she seems to have been thus substituted since notice of this motion, the denial is without costs. All concur. (135 Ν. Υ. 320) COLLINS v. HYDORN et al. (Court of Appeals of New York. Oct. 4, 1892.) RES JUDICATA-IDENTITY OF PARTIES-ACTION IN REPRESENTATIVE CAPACITY - FRAUDULENT CONVEYANCES-JUDGMENTS IN REM. 1. The judgment against a plaintiff in an action by him in his representative capacity, as trustee for creditors, to set aside a conveyance as in fraud of creditors, based on the ground that the conveyance was free from fraud, is not conclusive against him on the question of fraud, in an action by him individually on his own account merely, against the same defendants for the same purpose. 17 N. Y. Supp. 228, reversed. 2. Such a judgment is not one in rem, conclusive against the world. Appeal from supreme court, general term, third department. Action by William Collins against J. Bartlett Hydorn and Hattie W. Hydorn, impleaded with Elisha W. Hydorn, Eugenia M. Hydorn, Gilbert Geer, and John Jones, to set aside conveyances as fraud ulent. From a judgment of the general | assignment for the benefit of his creditors term (17 N. Y. Supp. 228) reversing, on the appeal of defendants J. Bartlett Hydorn and Hattie W. Hydorn, a judgment of the special term in favor of plaintiff, plaintiff appeals. Reversed. O'BRIEN, J. The plaintiff, as a judg to William Collins, the plaintiff in this action, who was substituted as plaintiff in his representative capacity in the place of his assignor, the original party. The cause was brought to trial, and in March, 1890, the court rendered a decision in favor of the defendants. The court found, as matter of fact, that the conveyances were made upon a good consideration, and without fraud, and received by the gran G. B. Wellington, for appellant. Charles D. Hudson, (Chas. E. Patterson, of counsel,) for respondents. ment creditor of one Elisha W. Hydorn, | tees therein without any fraudulent intent or knowledge of any such intent on the part of the grantor, and upon a good consideration, and the special term directed the dismissal of the complaint. Upon brought this action against the judgment debtor and his son and son's wife, with others, for the purpose of setting aside certain conveyances and transfers of real estate made on the 27th day of July, 1885, | these findings judgment for the defendants and a few months before the recovery of and for costs was entered. On appeal the the judgment, by the father to the son, judgment was affirmed at the general and through the son to his wife, the de-term, (12 N. Y. Supp. 581,)and subsequentfendant Hattie W. Hydorn, on the ground|ly in the second division of this court, (27 that the conveyances were made for the purpose and with the intent of hindering, delaying, and defrauding creditors. The facts and circumstances connected with the transfers, which the plaintiff claimed | the other way, and if the parties are, in constituted evidence of fraud, are quite complicated, and a particular statement of them is not necessary to the determina- | tion of the question presented by this appeal. It is enough to say that the court at special term, after a trial, found that the conveyances were made by the grantor therein with the fraudulent intent alleged, when insolvent, and that the defendants, who bring this appeal, participated in the fraud, and judgment was entered declaring the several conveyances and transfers void as to creditors. The | | granted a new trial, and, as there is no statement in the order of reversal that it was upon the facts, it must be deemed to have been upon some question of law. It appears from the opinion that but a single question was considered, and the judgment of reversal was ordered upon that ground. This question is the principal one discussed at the bar upon the argument of this appeal, and involves the legal effect of a former judgment, not pleaded by the defendants in bar, but claimed to be conclusive evidence for them | the principle of representation, though not N. E. Rep. 412.) There is no doubt that the question decided in that case is identical with the one presented by the pleadings in this, and decided at special term law, the same, the general term was unquestionably right, and this appeal cannot be sustained. But the plaintiff was a party to the former suit in his repre sentative capacity, as trustee for creditors, while in this he prosecutes in his own right. In the former suit he represented and acted for the creditors of Wiswell. In this he is seeking, as an individual, to enforce collection of a debt of his own. When the plaintiff became the statutory assignee of Wiswell, he found the suit pending, and could have continued its general term_reversed the judgment, and | prosecution in the name of the original plaintiff, without making any change in the record. Would it be held then, after the same result, that the judgment would operate as a bar to this suit, or as evidence, simply because, in the discharge of his duty as a trustee for others, he stood behind the litigation? And, if not, how is the result changed by the fact that he became, on his own motion, or on that of the defendants, a party to the record, in his representative capacity? A party may be bound by a former judgment, on on the question of fraud. Marston v. a party by name. Ashton v. City of Rochester, 133 N. Y. 187, 30 N. E. Rep. 965, and 31 N. E. Rep. 334 But the mere fact that the same persons are litigants in the two actions is not always sufficient to satisfy the rule of res adjudicata. The same person may in law be considered another person, and consequently another party, by suing in another capacity. Wells, Res. Adj. p. 16, § 21. It was held by this court in Rathbone v. Hooney, 58 N. Y. 467, that a judgment against a party sued as an individual is not an estoppel in a subsequent action in which he sues or is sned in anothercapacity or character. In the latter case he is, in contemplation of law, a distinct person and a stranger to the prior proceeding and judgment. This proposition is sus. tained by the authorities there cited. that the same conveyances as are attacked | Substantially the same point was decided in this case were made in good faith and without any fraudulent intent. Pending the action, the plaintiff, Wiswell, made an in a more recent case, where it was held that a bankrupt's equity of redemption in land was not barred by a judgment of i foreclosure of a mortgage to which it | rule is applicable, it is clear that the judg was subject, though his assignee was a party to it in his individual, but not in his official or representative, capacity. Landon v. Townshend, 112 N. Y. 93, 19 N. E. Rep. 424. The rule is that a former judgment concludes the party only in the character in which he was sued, and thereforea judgment fororagainst an executor, administrator, assignee, or trustee, as such, presumptively does not preclude him, in a different cause of action, affecting him personally, from disputing the findings or judgment, though the same questions are involved. Bigelow, Estop. (5th Ed.) pp. 130, 131. Had the plaintiff in this case succeeded as assignee for creditors in the former suit, upon a finding that the conveyances were fraudulent, the judgment would not conclude the defendants in this case, in which the plaintiff prosecutes in another character or capacity, and therefore the plaintiff is not concluded by a judgment against him, as estoppels must be mutual. The plaintiff, now prosecuting in his own proper person, representing only his interest as an individual, is not concluded by the prior judgment against him in a representative character, because he must now be regarded in law as a different person and a stranger to the former suit. 2 Black, Judgm.§536; 2 Phil. Ev. (3d Ed.) pp. 8, 9, c. 1, §1,subd.1; Duchess of Kingston's Case, 2 Smith, Lead. Cas. (7th Ed.) p. 792, note; Leggott v. Railroad Co., L. R. 1 Q. B. Div. p. 606; Lander v. Arno, 65 Me. 26. ment against the plaintiff, as assignee, is not one of them. It was not a judgment in rem. It adjudged a disputed question of fact, namely, that certain conveyances to the defendants by the judgment debtor were made in good faith. It determined the intent of the parties to certain written instruments, when they were made, and from this followed the legal conclusion that the plaintiff had no cause of action, and is governed by the ordinary rule applicable to former judgments in courts of law andequity. The judgment of the general term should be reversed, and that of the special term affirmed, with costs. All concur. (134 Ν. Υ. 501) THIRD NAT. BANK OF SPRINGFIELD v. HASTINGS. (Court of Appeals of New York, Second Divi sion. Oct. 1, 1892.) PROMISSORY NOTE-ACCOMMODATION MAKERRIGHTS OF INDORSEE. In an action by a bank on a note it appeared that defendant, a resident of New York, made the note for the accommodation of the payees, residents of another state, who indorsed it to plaintiff, situated in the same state. The indorsers were afterwards discharged in insolvency proceedings, in which plaintiff proved the note as a claim, and received a dividend thereon. Held, that the maker was not discharged from liability, since the indorsers would have been discharged as to plaintiff if it had not appeared and taken the dividend, and defendant was not injured thereby. 12 N. Y. Supp. 401, affirmed. The judgment of reversal cannot, therefore, be upheld upon the ground taken at the general term. It is suggested that the finding of fraud by the trial court is not sustained by any evidence, and, as the court below should have reversed upon | Hastings, doing business under the firm Appeal from supreme court, general term, first department. Action by the Third National Bank of Springfield, Mass., against Orlando B. name of Hastings & Todd, on a promissory note. From a judgment of the general term (12 N. Y. Supp. 401) affirming a for plaintiff by direction of the trial court, defendant appeals. Affirmed. that ground, the point is available here to support the judgment. We think that the facts and circumstances proved at the trial justified the findings and conclusion. | judgment entered on a verdict rendered It would be difficult, in the absence of explanation, to hold that the numerous and complicated transfers of property by the judgment debtor, when insolvent, to members of his own family, followed by agreements and instruments on their part by which the use or income of the property, or at least a portion of it, was secured to him, were made in good faith, and with out any intent to hinder, delay, or defraud creditors. What evidence was before the court on the former trial, upon which contrary findings were made, we are not informed by the record. It is possible that the defendants in this case may have relied The other facts fully appear in the fol. lowing statement by Follett, С. Ј.: This action was to recover the amount unpaid on a promissory note, and was brought_by an indorsee against the maker. It was defended upon the ground that the maker had been discharged from liability. April 11, 1887, the defendant, at the city of New York, made his promis sory note, whereby he promised to pay, at that city, to the order of Hurlbut Paper Company, $2,904.46, five months after date. The note was made for the accom upon the record of the former judgment | modation of the payee, a firm composed as conclusive in their favor, and omitted evidence in explanation of the transactions that was before the court on the other trial. However that may be, we cannot hold that the findings in this case are without any evidence to sustain them. Nor do we think that the rule applicable to judgments in rem can be invoked to uphold the decision below. With respect | bank engaged in business in the same be Insolvent by a court of insolvency of | leged and attempted to be established of Thomas O. Hurlbut and Henry C. Hurlbut. It was indorsed by the payees, and by them sold to Fennessy, Armstrong & Co., of Springfield, Mass., who, before maturity, sold and delivered it to plaintiff. The Hurlbuts were resident citizens of Massachusetts, and were there engaged in business. The plaintiff was a national to such judgments, the general rule, no doubt, is that they are conclusive upon all the world, as they adjudge the status of some particular thing. Without attempting to define the cases to which the state. The defendant was and is a resident citizen of the state of New York. The notefelldue September 14, 1887. On the 19th of July, 1887, the Hurlbut Paper Company was, upon its own petition, adjudged to the state of Massachusetts. The note was presented for payment at maturity, but it was not paid, and was protested. September 30, 1887, the plaintiff's president was told that the defendant made the note for the accommodation of the payee. On the next day the summons and com. plaint in this action were personally arises out of the insolvency proceedings, and the acceptance by the plaintiff of the percentage paid in those proceedings. Among other provisions in the statutes of Massachusettsregulating insolvencies and proceedings by and against insolvents, are the following: "Sec. 81. The debtor shall thereupon, except as provided in sec served. October 3, 1887, the plaintiff duly |tion 84, be absolutely and wholly dis proved its claim on said note against the Hurlbut Paper Company in the insolvency court, and on the 5th of that month the insolvents filed with the court a proposal to compromise, by which they offered to pay in full all debts entitled to priority, the expenses of the proceedings, and 20 per cent, of all other debts. A notice to the creditors was issued by the court, and the hearing was set for December 6, 1587, on which date the court found "that the required proportion in number and value of the creditors who have proved their claims have assented in writing to said composition in accordance with the law; and, all the requirements of law having been complied with, it appears and I find that said composition has been duly assented to, and is consistent with justice and for the interest of the creditors." It charged from debts proved against his es- was thereupon adjudged that the insol-solvents and the plaintiff, being resident citizens of that state, were bound by its statutes and subject to the decisions of its courts, in all matters of which they had jurisdiction, provided jurisdiction over their persons was acquired. The insolvency court had jurisdiction of the subjectmatter, and acquired jurisdiction over the insolvents by their petition, and of the plaintiff by issuing a warrant against the estate of the debtors and serving notice thereof on the plaintiff. Having jurisdiction, the court was authorized to make a decree discharging the insolvents from all liability on their indorsement of the note held by the plaintiff, no matter whether it appeared in the proceedings or not. Had the plaintiff voluntarily procured the discharge of the Hurlbut Paper Com vents should pay the sums into court; that the register should pay it over to the persons severally entitled thereto; and, further: "That when said sums of money shall have been paid into court as afore said, a certificate of discharge shall thereupon be granted to said debtors." January 3, 1888, the insclvents paid the required sum into court, and thereupon they were discharged from all copartnership debts provable against their estates founded on any contract made or to be performed by them within the state of Massachusetts. February 1, 1888, the plaintiff received from the register its percentage on the note, and indorsed thereon the following receipt: "Received of E. T. Slocum, register of the Berkshire county. Mass., court of insolvency, five hun-pany from its liability on the note, the dred and seventy-five 66-100 dollars, in full of the liability of the Hurlbut Paper Co. on within note, paid under the terms of the composition of said Hurlbut Paper Co., in insolvency, duly confirmed by said court. F. H. HARRIS, Pres" Plamen B. Candler, for appellant. James L. Bishop, for respondent. FOLLETT, C. J., (after stating the facts.) In case two persons are liable for a debt, -one as principal and one as surety,-a voluntary release by the creditor of the principal with knowledge of the relation existing between the debtors, discharges the surety. As between the Hurlbut Paper Company and the defendant the former was principalandthelattersurety.of which fact the plaintiff was told September 30, 1987. The question presented by the record is, did the plaintiff after that date voluntarily discharge the principal debtor, or in any way impair the surety's rights or remedies against the principal? If this question is answered in the affirmative the judgment must be reversed, but, if in the negative, it must be affirmed. The discharge al defendant would have been released. Gardner v. Bank, 11 Barb. 558; Phelps v. Borland, 103 NY. 406, 9 N. E. Rep. 307. In the cases cited the creditors were not within the jurisdiction of the insolvency courts, but voluntarily appeared, thus giving the court jurisdiction over them and authority to discharge the debtors from all liabilities to them. But such is not the case at bar. The plaintiff did not institute the proceedings against the insolvents, nordidit consent to the compromise approved by the court, and nothing that it did or omitted to do procured or contributed to the discharge of the insolvents. The bank being within the jurisdiction of the court, its claim would have been discharged, though it had refrained from proving it. Had the plaintiff refused to prove its debt, it would have had no effect upon the proceedings, nor upon the riguts of the defendant, except it would have deprived him of the benefit of the percentage paid on the compromise, of which he would have had just cause for complaint. The judgment should be affirmed, with costs. All concur. L (134 Ν. Υ. 255) PARKER v. MCLEAN et al. (Court of Appeals of New York, Second Divi sion. Oct. 1, 1892.) ACCOMMODATION INDORSERS - RIGHTS AS AGAINST BONA FIDE HOLDERS. One who has indorsed a note for the accommodation of the maker on condition that the proceeds should be applied to a specified purpose cannot defend an action by a bona fide holder, who purchased without knowledge of the condition, on the ground that the avails of the note were diverted to other purposes. Bradley, Vann, and Haight, JJ., dissenting. 12 N. Y. Supp. 219, affirmed. Appeal from city court of Brooklyn, general term. Action by Asa W. Parker against Alexander McLean and others. From a judgment entered on an order of thegeneral term (12 N. Y. Supp. 219) affirming a judg. ment directed in plaintiff's favor, defendant appeals. Affirmed. The action was brought against the maker and indorsers of a promissory note of date July 18, 1889, made by Evelyn P. Everett for $1,128.86, payable to her order four months after date at Long Islaud Bank, and indorsed by her, Alexander McLean, and Sampson B. Oalton. The defendant McLean alone defended, and he did so on the alleged defense that the note was made and by him indorsed for the accommodation of the maker, to be used for the special purpose of being applied in payment of a certain mortgage on personal property at the Hotel Everett in the city of New York. The court directed a verdict for the plaintiff. Horatio C. King, for appellant. Nathaniel C. Moak, for respondent. FOLLETT, C. J. In 1889, Sampson B. Oalton owned real estate in Brooklyn, subject to a mortgage held by Asa W. Parker, which was foreclosed, and on the sale the mortgagee purchased the property. Parker agreed with Oalton that the latter might exchange the property, and have all he could realize out of it after paying the debt. Miss Evelyn P. Everett was the lessee of the Hotel Everett in the city of New York, and owned the furniture and certain other property connected promissory note, by which she promised to pay, to her own order, $1,128.86, four months after date, at Long Island Bank. Miss Everett indorsed the note, and Alexander McLean also indorsed it for the accommodation of the maker, and it was then delivered to Oalton, who, July 21st, indorsed and delivered it to the plaintiff, who advanced $300 to enable Oalton to pay rent in arrear on the hotel property, and about September 1st advanced $750, making $1,050 paid in cash for the note. The remainder, $78.86, less the discount for the time the note had to run, was applied on an indebtedness of Mrs. Oalton to the plaintiff. The plaintiff testified, and in this he was uncontradicted, that the fa ther of Miss Everett and her agent was present when the $300 was paid. This action was brought against the maker and both indorsers to recover the amount due upon the note. McLean alone defended, upon the ground that his indorsement was for the accommodation of the maker, and was known to be by Oalton and the plaintiff; and that the note was made and indorsed for the purpose of paying the chattel mortgage for $2,000 given by Miss Everett, but was wrongfully diverted by Oalton and the plaintiff from that purpose. It is conceded that $600 of the avails of the note were paid on the chattel mortgage. At the close of the evidence a verdict was directed for the plaintiff for $1,050, the amount which he advanced on the note, which was $111.13 less than the amount due thereon. The defendant ex cepted to the direction and to the refusal of the court to submit to the jury (1) whether it was agreed, to the plaintiff's knowledge, that the note or its avails was to be applied in payment of the chattel mortgage; (2) whether the plaintiff was a bona fide holder of the note. These are the only exceptions discussed in behalf of the appellant. It is undisputed that $600 received from the plaintiff by Oalton were paid on the chattel mortgage. To that sum there was no defense. The defendant did not indorse the note in the presence of the plaintiff, and the condition upon which he says he indorsed it was not stated in the presence of the plaintiff or made known to him. The defendant therewith. In July of that year Oalton | indorsed the note which was presented to and Miss Everett agreed to exchange their properties free from all incumbrances. When they met to effect the exchange it appeared that there was a chattel mortgage on Miss Everett's property for $2,000, which did not become due until the following August, and could not, at the date of the exchange, be conveniently paid. It also appeared that the taxes in arrear upon the Brooklyn real estate amounted to $871.14, which, deducted from $2,000, the amount of the chattel mortgage, left $1,128.86 difference, which Miss Everett was required to pay or secure to be paid to Oalton. This being done, Miss Everett took the Brooklyn real estate, subject to $871.14 due for taxes, and Oalton the Everett House property, subject to the chattel mortgage for $2,000. To secure the payment of $1,128.86, the difference between the incumbrances, Miss Everett, on July 18, 1889, gave her him by Wood, who alone was present when the condition was imposed, and it is not claimed that what the defendant said to Wood was brought to the knowledge of plaintiff. The evidence on the part of the defendant does show that it was agreed between Miss Everett and her father on the one side and Mr. and Mrs. Oalton on the other that the avails of the note were to be used in payment of the mortgage. The restriction which the Everetts imposed upon the use of the note could be waived by them; and it appears, as above stated, that Mr. Everett was present when the $300 was advanced by the plaintiff on the note. Had the question been raised that the plaintiff was not entitled to recover that sum, but only the sum which he subsequently advanced, he might have shown a consent that the $300 might be used for other purposes. The case was tried upon the theory that |