that the plea of ultra vires should not, as a general rule, prevail, when it would not advance justice, but, on the contrary, would produce a legal wrong. Raft Co. v. Roach, 97 N. Y. 378, 381, and authorities cited. The judgment appealed from should be affirmed, with costs. All concur. (34 Misc. Rep. 531.) METROPOLITAN LIFE INS. CO. v. SANBORN. (Supreme Court, Appellate Term. April 19, 1901.) 1. TEMPORARY RECEIVERS-PERSONAL LIABILITY FOR RENT. Defendant was appointed temporary receiver of a corporation renting an office under a yearly lease which had not expired, and he was seen in the office of the corporation at different times. The collector for the landlord demanded payment of the rent, which was refused by the receiver, but he stated that he would make application to the court for permission to pay the rent, but that he would not stand in the way if the landlord wished to relet it. Held, that the receiver was not personally liable under the lease for the time he occupied the office. 2. SAME. A temporary receiver appointed for the purpose of preserving corporation property pending litigation, and given no title thereto, is not liable for rent as a result of the mere taking of possession of the premises rented and occupied by the corporation. Appeal from municipal court, borough of Manhattan, Sixth district. Action for rent by the Metropolitan Life Insurance Company against Francis N. Sanborn. From a judgment in favor of the plaintiff, the defendant appeals. Reversed. Argued before BISCHOFF, P. J., and CLARKE and LEVENTRITT, JJ. Frederick H. Sanborn, for appellant. LEVENTRITT, J. The sole question in this case is whether the defendant is individually liable. On November 2, 1900, he was appointed temporary receiver of all the property and assets of the American Impulse Wheel Company in voluntary proceedings for dissolution. The company occupied certain offices under a yearly lease beginning on May 1, 1900. The defendant qualified as temporary receiver on November 8th. It appears in evidence that the premises were not vacated until the end of December; that the defendant was several times seen in the office of the company; that the plaintiff's collector called on him, demanding payment of the rent, receiving as an answer that the defendant could not pay at that time, but that he would make application to the court within a few days for permission to pay over the rent of that portion of the premises occupied by certain subtenants. The testimony of the collector, who, with the defendant, was the only witness called, also shows that the latter stated that he did not know whether the American Impulse Wheel Company would keep the offices, but that, in the event that the plaintiff should desire to relet, he would not stand in 69 N.Y.S.-64 and 103 New York State Reporter the way. The order appointing the defendant receiver merely authorized him to "immediately take possession of all the property and effects, real and personal, of every name and nature, of said corporation, and hold and administer the same according to law." The justice, on these facts, rendered judgment for the plaintiff against the defendant individually for the November and December rent sued for. There was no authority for this. If the defendant was liable at all, he was liable as temporary receiver only. It is to be observed that the action was not for the use and occupation, but on the contract of lease for a stipulated monthly rental. There is certainly no privity of contract between the defendant in his individual capacity and the lessor. He has entered into no contractual relation with the plaintiff which would make him liable on the cov enant to pay rent. Nor is there privity of estate. There is not, and could not be under the facts of this case, any relation of lessor and lessee between the plaintiff and the defendant as an individual. Not even in his representative capacity would this follow as a matter of course. Ordinarily, a temporary receiver has no title to the property or assets of the corporation, but merely their possession. Code, §§ 1788, 2423; Keeney v. Insurance Co., 71 N. Y. 401; Decker v. Gardner, 124 N. Y. 334, 26 N. E. 814, 11 L. R. A. 480. He cannot become liable for rent from the mere fact of taking possession of the premises. It may be questioned whether a receiver pendente lite, the ordinary chancery receiver or mere custodian of corporate property, in the absence of express authority pursuant to statute (Code, supra), granted by the court, conferring upon him some or all of the powers of a permanent or administrative receiver, ever becomes "liable," in the strict sense of that term, by virtue of any privity of estate arising out of his acts in the course of the preservation of the property. There is, correctly speaking, no such election to adopt the lease within a reasonable time, and thereby create a privity of estate, as in the case of a permanent receiver, having title to the corporate assets. Stokes v. Hoffman House, 46 App. Div. 120, 61 N. Y. Supp. 821. The court, in the exercise of its equitable discretion, may deem it proper to direct him to pay the rent, but, as said by Barrett, J., in the case just cited, "That is an equity for the court to consider, not the custodian." The case before us fails to disclose that the temporary receiver, either by express authority granted by the court, or otherwise, ever became privy to the lease. The order appointing him was strictly limited to according him possession without any title, and it is very questionable whether the defendant, even in his representative capacity, can be held on a theory of privity. Certain it is, however, that as an individual he has succeeded to nothing belonging to a corporation still in existence and clothed with its franchise at the time this suit was brought, and that no action on the covenant to pay rent will lie against him individually on a lease to which he was neither privy nor party. The only possible theory on which the defendant could be personally liable would be in the event that he had been guilty of some neglect or misconduct, or that he had contracted in excess of his authority, or had assumed to enter into an obligation in his individual capacity. Manufacturing Co. v. Smith, 45 App. Div. 364, 60 N. Y. Supp. 849; Camp v. Barney, 4 Hun, 373; Manufacturing Co. v. Garden, 52 App. Div. 363, 65 N. Y. Supp. 147; Cook, Stock, Stockh. & Corp. Law, 878; Bead, Rec. 305. There is no pretense that he has been guilty of neglect or misconduct; there is not an iota of proof that he contracted in excess of his authority, or that he made any contract at all; and, so far from there being proof that be assumed to act in his individual capacity, the testimony of the plaintiff's sole witness contains a specific disclaimer of such assumption in the statement that the defendant purposed applying to the court for leave to pay over the rent from the subtenants. All that appears is that the defendant was in the offices of the corporation which was dissolving, and continued occupying them in behalf of the corporation. The lease itself remained a continuing contract of the corporation, under which it remained liable for the full extent of the term. In any event, the plaintiff could share with the general creditors pro rata in the assets of the corporation for the entire unpaid rental of the balance of the term, and probably could secure payment as a preferred creditor for the two months that it actually remained in possession of the offices through the defendant in his representative capacity. But the record is barren of any fact on which to predicate a personal claim against him. The two cases cited by the plaintiff are not in point. People v. Universal Fire Ins. Co., 30 Hun, 142, was a case in which a permanent receiver was directed to pay, as a necessary expense and a charge upon the funds in his hands, rent for premises which he had not promptly abandoned. The question of the personal liability of a temporary receiver under similar circumstances was in no wise passed upon. And in Rogers v. Wendell, 54 Hun, 540, 7 N. Y. Supp. 781, 8 N. Y. Supp. 515, the receiver, though a temporary one, was held personally liable because he had entered into a contract with the plaintiff's intestate in excess of the authority conferred upon him by order of the court. The judgment must be reversed. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. (Surrogate's Court, New York County. April, 1901.) 1 WILL-EXECUTION. Under 2 Rev. St. c. 63, § 40, where the attesting witnesses have affixed their signatures in a room adjacent to that in which testator was lying, and the paper, with all the signatures affixed, was shown him, and in the presence of the witnesses he again declared it to be his will, it was a sufficient execution thereof. 2. SAME-MENTAL CAPACITY Testimony of experts who had never seen testator while alive, and took no part in the autopsy on his remains, that in their opinion he must have been of unsound mind at the date of the will, is overcome by testimony of witnesses testifying from actual observation to the fact that he was of sound mind. and 103 New York State Reporter Application to probate the last will of F. S. Phillips. Application granted. Sullivan & Cromwell, for proponent. THOMAS, S. The paper offered for probate was subscribed by the decedent, at the end thereof, in the presence of each of the attesting witnesses. At the time of making the subscription he declared the instrument to be his last will and testament. There were two attesting witnesses, and each of them subscribed his name at the end of the will at the request of the decedent. This is all that the statute requires. 2 Rev. St. c. 63, § 40. The attesting witnesses affixed their signatures in a room adjacent to that in which the decedent was lying, and the witnesses do not agree as to whether the decedent could have seen them as they wrote their names. The paper, with all of the signatures affixed, was shown him, and in the presence of the witnesses he again declared it to be his will. This was a sufficient execution of the instrument as a will. Our statute does not require that the attesting witnesses shall sign in the presence of the testator. Lyon v. Smith, 11 Barb. 125; Ruddon v. McDonald, 1 Bradf. Sur. 352; Herrick v. Snyder, 27 Misc. Rep. 462, 59 N. Y. Supp. 229. The testator was of sound mind. The physicians, who never saw him during life, and took no personal part in the autopsy upon his remains, but who were of the opinion that he must have been of unsound mind at the date of the will, are contradicted by every witness testifying from actual observation. At and after the time when the experts for the contestant were confident that the testator must have been an obvious incompetent, his conversation was interesting, and seemed intelligent to eminent physicians and clergymen, and to other disinterested and competent witnesses. Nothing approaching to proof of undue influence can be found in the case. On the contrary, the will in question is the third of a series of wills, by each of which the testator gave all of his estate to his wife, who now survives him and is the proponent; these wills being dated in 1893, 1895, and 1899. The other questions attempted to be litigated by the contestant have, in themselves, and except as they might have been material on the question of undue influence, no bearing on the present controversy. It is, for example, not important to determine whether the failure of the co-partnership firm composed of the testator and his brother, the contestant, in 1871, with its resultant loss of the brother's capital, was or was not the fault of the testator, or whether the testator for years furnished money for the support of his brother as a recognition of an obligation, or because of his affection for him, or to keep him quiet and escape from his society, or whether the spots on the brother's face resulted from dissipation or disease. It is sufficient for all present purposes that the will was duly executed by a competent testator, free from restraint or undue influences. The objections are overruled, and the will admitted to probate; costs payable out of estate. Probate decreed. (Surrogate's Court, New York County. April, 1901.) RES JUDICATA-ACCOUNTING BY ADMINISTRATOR. An executor was ousted from his office by a refusal to probate the will under which he was appointed. The appellate division, on appeal from the surrogate's decree on his accounting, decided that he was not entitled to credit for moneys which he had promised by his individual note to pay counsel for services rendered in litigating the will. Held, that the surrogate was bound by that decision on a subsequent accounting by the executor, who had been appointed administrator of the same decedent, and could not allow him said money, he having in the meantime paid his note. In the matter of the judicial accounting of the administrators of Lewis R. Blair, deceased. Motion to confirm referee's report. Exceptions to report sustained. James O'Neill, for administrator William Blair. THOMAS, S. The claimant, William Blair, was named as executor in a testamentary paper admitted to probate by a surrogate of this court. The decree admitting the will was reversed by the appellate division of the supreme court (In re Blair's Will, 84 Hun, 581, 32 N. Y. Supp. 845), and such reversal was affirmed by the court of appeals (Id., 152 N. Y. 645, 46 N. E. 1145). The letters testamentary granted to the claimant were vacated, and he subsequently accounted for his acts and doings as executor. On such accounting he asked to be allowed for moneys paid and obligations incurred by him in the litigation concerning the validity of the will. A decree was made by the surrogate in harmony with his contention, allowing him $2,150 paid, and the further sum of $2,700 agreed by him to be paid to counsel. In re Blair's Estate, 28 Misc. Rep. 611, 59 N. Y. Supp. 1090. On appeal to the appellate division this decree was modified, and the allowance was limited to $2,150; that being the entire amount actually disbursed. In re Blair, 49 App. Div. 417, 63 N. Y. Supp. 678. Letters of administration on the estate of the decedent have been issued to the claimant, William Blair, and also to William E. Blair, and both administrators are now accounting, each submitting a separate account. The claimant reasserts his claim for $2,700, which existed at the time of his accounting as executor as a claim on a promissory note, but which note he has since paid. His co-administrator resists this claim. The learned referee deems the reasons given by the appellate division of the supreme court for its modification of the decree to be technical, and the claim for reimbursement meritorious, and reports in power of its allowance. I cannot agree with his reasoning or his conclusion. The only title of the claimant for reimbursement for the expenses of his un successful litigation rested on his office as executor and the favor of the court to protect him by allowances to him on his accounting as such executor. The decree on his accounting, as modified by the appellate division, made after he had ceased to be an executor, was a final determination of all questions as to permissible allowances to |