Drake v. Seaman, 97 N. Y. 234: 'What was said in Bank v. Kaufmann, 93 N. Y. 273, was not at all intended to decide the question upon which the courts have thus differed. The guaranty there was special, and without consideration in fact, and the question now under discussion was not before the courts.'"

In Mentz v. Newwitter, 122 N. Y. 491, 25 N. E. 1044, 11 L. R. A. 97, the same ruling was applied to a written memorandum of a contract of sale, and the memorandum was held void because it did not name or describe the vendor. The court said, per Brown, J. (page 497, 122 N. Y., and page 1046, 25 N. E.):

"The whole current of authority in this state is that the memorandum must contain substantially the whole agreement, and all its material terms and conditions, so that one reading it can understand from it what the agreement is." See, also, Newberry v. Wall, 65 N. Y. 484, and Stone v. Browning, 68 N. Y. 604.

It is to be observed that the writing in question makes no mention or suggestion of a consideration emanating from the plaintiff and inuring to the benefit of the defendants. The defendants agree to take charge of the premises, to keep them in order, to pay the expenses, and to pay the plaintiff $75 per month. The plaintiff does not agree to do anything, or to pay anything. There is no statement that the defendants are to receive anything as a consideration for what they are to do. The plaintiff says they were to collect and receive the rents, paying the $75 per month out of the rents, and retaining the balance. The memorandum does not say so. It does not even say that the $75 is to be paid from the rents. It does say that if the rents advance the monthly payment shall increase in proportion; but that does not necessarily involve the proposition that the payment shall come from the rents collected. The plaintiff further claims that the possession and control of the property by the defendants is a consideration. Here, too, the agreement is defective, for there is no statement that the defendants are to have control, the plaintiff not even agreeing that they may take charge of the premises. The case is not unlike the one of Lees v. Whitcomb, 5 Bing. 34, where the defendant agreed in writing to remain with the plaintiff for the period of two years for the purpose of learning the business of a dressmaker, and the memorandum was held insufficient because the whole agreement did not appear; the engagement on the plaintiff's part to teach being essential, and no such engagement appearing in the writing. In Wright v. Weeks, 25 N. Y. 153, Judge Allen said (page 161):

"It was decided as early as 1804, in Wain v. Warlters, 5 East, 10, that a writing could not be a memorandum of an agreement unless it contained the whole agreement.-that is to say, the parties, and the consideration, and the subject-matter, as well as the promise,-and this is now well established as law. It was then held that the word 'agreement,' in the statute, included not only the promise, but the consideration for it; and that parol evidence could not be given of the consideration of a promise, which, upon the face of the written engagements, was a nudum pactum.”

This doctrine has not been substantially modified. While a seal, or the words "value received," have been held sufficient, and while the consideration accordingly need not be expressed, there must, at least, be some expression of a consideration, or the fair and necessary in

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ference of one, arising from the language used, to indicate that the note or memorandum embodies a binding and valid agreement. It is equally obvious that, if the parties actually made the agreement alleged in the complaint, and the undertaking on the part of the defendants was to pay the taxes, the interest on the mortgage, water rates, insurance, and all other charges, in addition to the expenses of keeping the property in repair, the writing does not contain the whole agreement in this respect, and therefore fails to comply with the requirements of the statute. The deficiency cannot be supplied by parol, or the purpose of the statute would be destroyed, which is to free contracts which extend beyond a year from the uncertainties and possible frauds of speech. There is no ambiguity. The defendants agree to keep the premises in good order, paying all expenses. The collocation indicates that the expenses referred to are those incident to the keeping of the property in good order, and such expenses can no more be extended by construction to the taxes, insurance, and interest than they could be to a judgment or the principal of the mortgage, or the interest of a new mortgage which the plaintiff might put upon the place. The case of Foster v. Goddard, 1 Black, 506, 17 L. Ed. 228, is quite distinguishable. There the court had under consideration a contract to pay a share of the net profits in a business enterprise which would remain after deducting "the actual expenses that may appertain to the goods themselves, including the cost of said Foster's living"; and the court held that the taxes, clerk hire, and advertising were necessary disbursements, to be deducted in ascertaining the net profits. The court said (page 514, 1 Black, and page 230, 17 L. Ed.): "It was certainly not the intention of the parties that the defendant should make a donation by any expenditure in the business." In the case at bar, however, there is no suggestion of the ascertainment of net profits, viz. the difference between receipts and disbursements; nor do I think the word "expenses" indefinite, even, or that oral testimony could be received to explain its meaning, independently of the requirements of the statute. But, be that as it may, it is clear that it does not necessarily embrace and include the items of expenditure which are essential to the plaintiff's claim. The language of Judge Finch, in Drake v. Seaman, supra, is quite applicable (page 237, 97 N. Y.):

"We cannot hold this memorandum sufficient without a dependence upon parol evidence which would practically nullify the statute; and, since we have held that one party may be bound by his signature, while the other party, not signing, is not bound at all (Mason v. Decker, 72 N. Y. 595), it becomes very important for the party who does sign and is bound that the rule should be firmly adhered to which requires the real contract to be stated, with its substantial terms and conditions."

The cases cited by the appellant's counsel adjudging the specific performance of contracts voidable but partly performed, or performed in full by one party, relate solely to equitable jurisdiction, and have no application to an action at law to recover damages for the breach of such a contract.

The order should be affirmed, with costs. All concur.

(59 App. Div. 538.)

WOOD V. ZORNSTORFF.

(Supreme Court, Appellate Division, Fourth Department. March 19, 1901.) BANKS-JOINT DEPOSIT-Ownership-InteNTION OF PARTIES-QUESTION FOR JURY-DIRECTION OF VERDICT.

In 1890, deceased, an old man, transferred a bank deposit of $185 from his own name to the joint account of himself and daughter, the defendant. The deposit was added to from time to time, and at the death of deceased amounted to $1,538. Deceased's two sons paid him $12.50 per month, and supported and clothed him, and also paid him $300 per annum for three years in addition to his monthly allowance. In 1897 deceased made a will devising $850 in general legacies, and made defendant his residuary legatee, and had no property other than the bank account. The pass book was in defendant's possession, and several times deceased requested its return, and defendant promised to do so without asserting any claim to the deposit. Held, in an action by deceased's executor to recover the deposit, that the direction of a verdict for defendant at the close of plaintiff's evidence was erroneous, since it was sufficient to justify a finding that the deposit did not belong wholly to defendant, and the intention of the parties in making the transfer and in keeping a joint account was for the jury.

Appeal from trial term, Monroe county.

Action by Rollin B. Wood, as executor of the last will and testament of Frederick Weitz, deceased, against Catherine Zornstorff. From a judgment in favor of defendant, plaintiff appeals. Reversed. Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and LAUGHLIN, JJ.

Pomeroy P. Dickinson, for appellant.
William A. Sutherland, for respondent.

SPRING, J. November 17, 1890, Frederick Weitz had on deposit in the Rochester Savings Bank $185.85. On that day the account was transferred to Frederick Weitz and Catherine Zornstorff, the defendant in this action, and the usual pass book showed the account in that form. The account was continued in this manner, and additions were made to it, until the entire sum, amounting to $1,538.50, was withdrawn by the defendant, January 7, 1899, three days after the death of her father. The pass book during this period was retained by the defendant, but it does not appear with any satisfactory clearness who was responsible for the deposits made from time to time. Mr. Weitz was an old man, who moved about with difficulty, and in 1889 he had conveyed his farm to his two sons, who at first paid him a monthly allowance of $12.50, and also supported, clothed, and maintained him. Later, during that year, in compromise of an action pending between the father and his sons, this agreement was modified by providing for the payment to the old gentleman of $300 in three equal annual payments in addition to his monthly stipend. He was evidently a thrifty, economical man, and it is not a violent inference to entertain that out of these moneys he added to the bank account, as the deposits were strung along during this entire period in small sums. It can be urged with some plausibility that the account itself confirms the claim that these deposits were made by the father. In November, 1897, he made his last will and testament, dis69 N.Y.S.-16

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posing of $850 in general legacies, and making the defendant his residuary legatee. It does not appear that he was the owner of any considerable property, unless this bank account represented his sav. ings, and it can be claimed that his motive in drawing his will was to dispose of that fund. Beyond the inferences which might be drawn from these facts and circumstances, there was direct proof of more or less cogency. Several witnesses testified that the old gentleman repeatedly asked the defendant for his pass book, and she promised that she would bring it to him. She lived seven or eight miles from her father, and occasionally, at his instance, relatives called at her house, informing her that her father wanted his pass book, and she invariably promised to take it to him. When she came to visit him once he said, "I want my bank book, and I want to have my money, and look after it myself;" and she replied, "I will bring it to you some time or other." At another time when she came without it, he said to her, "Rather curious; a person who has money in the bank, and can't get a hold of his book and see whatever is going on with it." In these conversations, so far as the proof shows, there was no suggestion by her that the moneys in the bank were her property, or that the survivor was to take them, nor did she dispute his right to the bank book..

While these facts do not conclusively establish the fact that the father owned or was interested in the deposits, they may warrant inferences, unexplained as they are now, which would justify a jury in finding the moneys, at least, did not wholly belong to the defendant. While the bank book during this period was in the name of the father and daughter, it does not necessarily follow from that fact that she was to receive the whole sum upon his death. The intention of the parties in making this transfer to the two, and in keeping it in that form, is what must control the solution of this action. De Puy v. Stevens, 37 App. Div. 289-294, 55 N. Y. Supp. 810; In re Bolin, 136 N. Y. 177, 32 N. E. 626. It may have been placed in the names of the two either to assure title in the survivor, or as a matter of convenience for this father in his advanced years, to enable his daughter to transact the business for him; and it is for the jury, taking into consideration their relations, and all the facts and circumstances, with the deductions to be properly drawn therefrom, to determine where the truth lies.

The judgment and order should be reversed, with costs to the appellant to abide the event. So ordered. All concur.

In re BACHILLER DE PONCE DE LEON.

(Supreme Court, Special Term, New York County. March 21, 1901.) EXECUTION-SUPPLEMENTARY PROCEEDINGS-BAR-CREDITOR'S SUIT.

An action by a creditor against his judgment debtor and a third party to set aside alleged fraudulent assignments to such party is not a bar to the examination of the party in supplementary proceedings in the absence of abuse.

Proceedings by Antonia Bachiller De Ponce De Leon supplementary to execution against the property of the Northwestern Life Assurance Company. Application to set aside an order for the examination of a third party denied.

Pavey & Moore, for judgment creditor.

Geo. Burnham, Jr., for Mutual Reserve Fund Life Ass'n, the third person.

MCADAM, J. In proceedings supplementary to execution against the property of the Northwestern Life Assurance Company, the judgment creditor, on the usual statutory grounds, obtained an order for the examination of the Mutual Reserve Fund Life Association. The association contends that it cannot be examined, because an action by the judgment creditor against the judgment debtor and the associa tion is now pending to set aside certain alleged fraudulent assignments to the third party; that the creditor, by filing her bill to reach the property alleged to have been fraudulently transferred, has elected a remedy which is a bar to the statutory proceedings. An examination of the cases fails to sustain the point raised. The remedies provided by supplementary proceedings and judgment creditors' actions are concurrent, and the creditor may prosecute either or both until satisfaction of his judgment, in the absence of any plea of abuse against which the party requires protection. Gates v. Young, 17 Wkly. Dig. 551; In re Sickle, 52 Hun, 527, 5 N. Y. Supp. 703; Schloss v. Wallach, 16 Abb. N. C. 319, note, 38 Hun, 638, 102 N. Y. 683; and see Wait, Fraud. Conv. (3d Ed.) § 61. Here there is no pretense of abuse. The objection must, therefore, be overruled, and the examination directed to proceed on March 26, 1901, at 10:30 a. m.

(59 App. Div. 378.)

PILKEY V. HARROWER.

(Supreme Court, Appellate Division, Third Department. March 6, 1901.) MASTER AND SERVANT-SAFE PLACE TO WORK-NEGLIGENCE-QUESTION FOR JURY.

A scaffolding fastened to the wall, on which a board was laid, was built over the machine at which plaintiff worked in defendant's factory, and plaintiff noticed that the board moved from the jar of the machinery, and moved it back to keep it from dropping on her, and informed the foreman, who put a nail in the board, and told her that it could not fall. A few days afterwards the board fell on the plaintiff, injuring her. Held, it was error to sustain defendant's motion for a nonsuit at the close of plaintiff's evidence.

Appeal from trial term, Montgomery county.

Action by Jane Pilkey against Lewis E. Harrower. From a judg ment in favor of defendant, plaintiff appeals. Reversed.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, and CHASE, JJ.

H. V. Borst, for appellant.

Edward P. White, for respondent.