and 103 New York State Reporter

overseer, receive from the plaintiff a bill for a part of the expense incurred by him for the care, nursing, and maintenance of Mrs. Merrick, amounting to $85.50, and passed upon such bill, allowing him thereon $21.66, and the plaintiff was paid that amount. He was not satisfied with the amount so allowed him, and refused later, when requested by the overseer, to make or present to the town board any bill for the further expense incurred by him. In view of these facts, we are unable to see how the overseer was responsible for the failure of the supervisor to do his duty, if there was such failure, or how the overseer was guilty of any neglect of duty, or how it was possible for him to take any further steps than he did take to charge the town with liability for the care, nursing, and maintenance of Mrs. Merrick. It seems to us that he did all he could do officially or personally in the premises, and that there is no ground for charging him personally with the expense incurred by plaintiff for such care, nursing, and maintenance. In King v. Butler, 15 Johns. 281, the court said it was the duty of the overseer to furnish the relief; he was under a legal as well as moral obligation so to do; that the duty of procuring from a justice an order was imposed upon the overseer, and was his authority for directing the relief; and, if he neglected to procure the order, it was his own fault or negligence. Suppose the overseer applied to a justice for the order, and could not get it, would he still be liable for the expense incurred for relief, when, without the order, he had no authority to furnish it? Whatever the law may have been under the statute then in force, the overseer, under the poor law now in force, has no duty imposed upon him to get an order from the supervisor. His only duty is to apply to the supervisor. He cannot compel the supervisor to make the order, and he cannot furnish temporary relief beyond $10, unless the supervisor makes the order and the superintendent sanctions the expenditure. How, under such a law, can the overseer be said to neglect his official duty, and be personally liable for the expense incurred for the care, nursing, and support of Mrs. Merrick, because he did not get the order and sanction? The plaintiff calls our attention to many cases holding an officer personally liable for damages resulting from his neglect of duty, but those cases are unimportant here, because the overseer was guilty of no neglect of duty, as we have seen. The court committed no error in granting the motion for a nonsuit. The plaintiff's exceptions should be overruled, and the motion for a new trial denied, and judgment ordered on verdict, with costs.

So ordered. All concur.

(59 App. Div. 464.)

HAKES V. THORNTON.

(Supreme Court, Appellate Division, Fourth Department. March 12, 1901.) CONVERSION-RIGHT OF POSSESSION--QUESTIONS FOR JURY.

Where, in an action for damages for conversion of personalty seized by defendant as sheriff under an execution, the effect of a bill of sale, under which plaintiff claimed the property and his possession at the time of the levy, was put in issue, it was error to direct a verdict for plaintiff,

since defendant was entitled to the jury's finding as to the effect of such bill of sale, and as to the fact of possession at the time of the seizure. Spring, J., dissenting.

Appeal from trial term, Onondaga county.

Action by Lucius A. Hakes against Stephen Thornton. From a judgment of the supreme court, entered on a direction of a verdict, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and LAUGHLIN, JJ.

B. A. Benedict, for appellant.
D. R. Cobb, for respondent.

WILLIAMS, J. The action was brought to recover damages for the conversion of personal property, a stock of groceries. The defendant, as sheriff of Onondaga county, seized the property by virtue of executions against the firm of Hanley & Johnson. The plaintiff claimed that he was the owner and in the actual possession of the property when it was seized. The defendant claimed that the firm of Hanley & Johnson was the owner and in the actual possession of the property at the time it was seized. The plaintiff claimed title to the property by virtue of a bill of sale made by Hanley & Johnson to one Marsh, and a bill of sale by Marsh to plaintiff, both given May 5, 1898. The judgments were recovered, and the executions thereon issued to the defendant as sheriff, May 7, 1898, and the property was seized the same day the executions came into the sheriff's hands. The bill of sale by Hanley & Johnson to Marsh was in form absolute, but the defendant claimed the understanding of the parties was that it was given merely as security for the payment of a debt owing by Hanley & Johnson to Austin, Nichols & Co., whose representative Marsh was. Whether the bill of sale was an absolute transfer of the property, or was in effect a mortgage, was a question for the jury, and could not be determined against the defendant by the court. Both Hanley and Johnson testified that the understanding was the bill of sale should be for security merely, and that they should have until the following Tuesday to pay the debt; that the ownership of the property should in the meantime remain in their firm, and the business should be continued as usual by the firm; that they were not permitted to read or hear the bill of sale read, but were told that it contained these provisions. The court could not disregard this evidence, nor could it take this question from the jury, and hold the bill of sale absolute, and give present title and possession of the property to Marsh..

We must assume, for the purposes of this appeal, that the understanding between the parties was as sworn to by the members of the firm of Hanley & Johnson. If this was so, then the firm held title to the property at the time it was seized, subject to the mortgage, and had an interest therein subject to seizure and sale under execution (Hall v. Sampson, 35 N. Y. 274; Hathaway v. Brayman, 42 N. Y. 324; Hamill v. Gillespie, 48 N. Y. 556; Manchester v. Tibbetts, 121

and 103 New York State Reporter

N. Y. 223, 24 N. E. 304); and the defendant in making such seizure did not become liable for the conversion of the property, unless the plaintiff was in the actual possession of the property under its mortgage, and the firm of Hanley & Johnson was out of possession thereof. This question of possession was, however, one of fact for the jury, and could not be determined against the defendant by the court.

Both Hanley and Johnson testified, not only to the understanding that their firm should hold the title and possession of the property til the following Tuesday, but that the firm actually did remain in possession until the property was seized. Undoubtedly the plaintiff made an effort to take possession, and claimed he was in possession when the seizure was made, but he could not take forcible possession, against the will of the firm, under a bill of sale such as the defendant had shown the bill of sale was understood to be. It having been agreed that title and possession should be retained by the firm, he could not, in violation of that agreement, by force, take possession of the property, and claim the title was transferred to him before the following Tuesday.

The court, at the close of the evidence, refused to submit any ques tions to the jury, and directed a verdict for the plaintiff, and in this there was error. The defendant had a right to the finding of the jury as to the understanding between the parties in the giving of the bill of sale by the firm to Marsh, and as to the fact of possession at the time of the seizure of the property; and, if the jury found these questions favorably to the plaintiff, then he was entitled to succeed in his defense to this action for conversion. He had a right, in such a condition of things, to seize and sell the property,-all the firm's interest therein,-which sale would have been subject to plaintiff's mortgage interest. Without considering or passing upon the other questions raised, we think the court erred, for the reasons hereinbe- . fore stated, in refusing to submit the case to the jury, and in directing a verdict for the plaintiff. We refrain from discussing the facts, because there must be a new trial, and the jury should be left to pass upon the facts upon such new trial without being influenced by any views we may entertain with reference thereto.

Judgment and order appealed from reversed, and a new trial granted, with costs to appellant to abide event. So ordered. All concur, except SPRING, J., who dissents.

(59 App. Div. 120.)

SEYMOUR v. WARREN et al.

(Supreme Court, Appellate Division, Second Department. March 8, 1901.) 1. STATUTE OF FRAUDS-CONTRACTS-SUFFICIENCY-CONSIDERATION.

A letter from defendants, in 1897, to plaintiff, agreeing to take entire charge of certain premises, keeping them in good order, and paying all expenses, until May 1, 1900; further agreeing to pay $75 per month, beginning May 1, 1897, and if, at the expiration of the agreement, the rent had advanced, and the agreement was renewed, to increase the monthly payment in proportion to the advance in rent,-was not a sufficient writ ing within the statute of frauds, since it did not show consideration for defendants' promise.

8. SAME

WHOLE OF CONTRACT-SHOWING

NECESSITY.

If the agreement between the parties was that defendants should pay taxes and interest on mortgage, the writing did not comply with the requirements of the statute of frauds, as it confined defendants' liability to the outlay incident to keeping the property in good order, and did not contain the whole agreement.

8. SAME-PAROL EVIDENCE-ADMISSIBILITY.

Where an agreement not to be performed within a year was void, within the statute of frauds, because it did not show consideration and contain the whole agreement, parol evidence was not admissible to remedy the defects.

4. CONTRACTS-CONSTRUCTION.

An agreement to take entire charge of certain premises, keep them in good order, and pay all expenses, and pay a certain amount per month therefor, is not an agreement to pay taxes and interest on a mortgage on the premises, since the expenses are merely those incident to keeping the property in good order.

Appeal from special term, Queens county.

Action by Cornelia Seymour against Walter H. Warren and another for breach of contract. From an order granting a new trial, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.

Edmund L. Mooney (Frederick A. Card, on the brief), for appellant. James J. Allen, for respondents.

HIRSCHBERG, J. The action of the learned trial justice in setting aside the verdict secured by the plaintiff was based on the theory that the contract or memorandum upon which the suit is brought is insufficient under the statute of frauds. The suit is for damages for alleged breach of agreement. The complaint alleges that on or about the 26th day of March, 1897, the plaintiff entered into an agreement with the defendants, whereby the defendants agreed to take entire charge of the premises No. 100 West 109th street, corner of Columbus avenue, in the city of New York, to keep the same in good order, and pay all expenses, taxes, interest on mortgage, and other charges against said premises until May 1, 1900; the rents of the said premises to be received by the defendants for their own use; and in consideration thereof the defendants agreed to pay to the plaintiff the sum of $75 per month, beginning May 1, 1897. The defendants pleaded the statute of frauds as a defense, and, as the agreement is unquestionably one which, by its terms, is not to be performed within one year from the making thereof, it was void unless in writing. To meet the requirements of the statute, the plaintiff produced upon the trial the following letter, signed by the defendants, and received by her under date of March 26, 1897, viz.:

"Dear Madam: We agree to take entire charge of the premises No. 100 West 109th street, corner Columbus Ave., keeping it in good order, and paying all expenses until May 1st, 1900. We further agree to pay you the sum of Seventy-five dollars ($75) per month, beginning May 1st. 1897. If, at the expiration of this agreement, the rent of said property shall have advanced, and if said agreement shall be renewed, we will increase the monthly payment to you in proportion to the advance in rents."

and 103 New York State Reporter.

The principal breach of the agreement set up in the complaint is the failure and refusal on the part of the defendants to pay what is alleged as "the proportionate part" of the taxes and the interest on the mortgage on the premises, such proportionate part probably being in relation to the amount of rent in excess of $75 per month, if any. The complaint alleges that the defendants, on or about January 25, 1899, informed the plaintiff that, if she desired to avoid foreclosure, she must pay the taxes on the premises to the amount of $140, which she did, and which sum she complains that the defendants have failed to repay her. The document relied on by the plaintiff is fatally defective in two particulars, viz.: First, it does not express the consideration stated in the complaint to the effect that the defendants were to have the rents in excess of $75 per month, nor, indeed, does it express any consideration for defendants' promise; and, second, it does not contain any agreement on the part of the defendants to pay taxes, interest on the mortgage debt, and other charges, but expressly confines their liability to the outlay incident to keeping the property in good order. As to the consideration, it needs no authorities to establish the proposition that a valid promise requires a consideration to support it. It may be conceded that, as the statute does not require the consideration to be expressed in the agreement, or note, or memorandum, it would be sufficient if it appeared that a consideration existed, notwithstanding the precise nature of it was not manifested. Prior to the insertion in the statute of the requirement that the consideration should be expressed in certain writings, the current of authority was to the effect that the consideration should be expressed as an essential part of the agreement. After the passage of chapter 464 of the Laws of 1863, by which the clause requiring the consideration to be expressed in the writing was struck out of the statute, it was held that the effect was not to destroy or annul the requirement that the writing must contain all the substantial and material terms of the contract. Drake v. Seaman, 97 N. Y. 230. The writing, so far as the same is executory, must still show on its face what the whole agreement was. Drake v. Seaman, supra.

In Barney v. Forbes, 118 N. Y. 580, 23 N. E. 890, Chief Judge Follett said (page 585, 118 N. Y., and page 891, 23 N. E.):

"A written guaranty, given by a third party to a creditor, that his debtor will thereafter pay to him a pre-existing debt, must, notwithstanding the amendment of the statute of frauds by chapter 464 of the Laws of 1863, expressly or by fair implication disclose that the promise rests on a legal consideration. Castle v. Beardsley, 10 Hun, 343; Drake v. Seaman, 97 N. Y. 230; Reed, St. Frauds, §§ 423, 426. Since that amendment the courts have held with great uniformity that all of the essential parts of contracts within the amended section must be in writing. Newberry v. Wall, 65 N. Y. 484, 488; Stone v. Browning, 68 N. Y. 598, 604; Drake v. Seaman, supra. The existence, or the acknowledgment of the existence, of a legal consideration for the support of such promise, is not only essential, but is absolutely indispensable. The history of this question is fully given in Church v. Brown, 21 N. Y. 331, and in Drake v. Seaman, supra, and it is quite unnecessary to again go over the cases, or give reasons for the existence of the rule. Speyers v. Lambert, 1 Sweeny, 335, 6 Abb. Prac. (N. S.) 309, and 37 How. Prac. 315, must be regarded as overruled. In Bank v. Kaufmann, 93 N. Y. 273, the defendants were held not to be liable upon their written guaranty, because there was, in fact, no consideration for it, nor was any expressed in the writing. It was said in