greater or less in amount, are given by the affiant Hall, and they have not been denied or in any manner explained in the affidavits used to oppose the motion. It has been stated, by way of opposing the motion, that the account or invoice obtained in this manner was not identified as the account of the same goods delivered by De Vulder to Andrade & Co. and Lewisohn Bros. But the affidavit of Swan shows this to be a misapprehension; for it is stated in the affidavit that it was exhibited on the trial of the Park Insurance Company Case to C. De Vulder, who identified it as being in the handwriting of Godfrey Angel, a clerk of De Vulder, and who testified that it was the list or statement or invoice made by and for De Vulder, of the goods returned to Andrade & Co., and setting forth the prices at which the merchandise had been returned to them. And that was sufficient for the purposes of the motion to establish the identity as well as the accuracy of the invoice. Besides that, it appeared that upon the trial in which the invoice was introduced and used as evidence the jury had discredited the testimony and proofs of loss of De Vulder, and found it to be less than three-fifths of the amount stated by him; and it is not unreasonable to suppose that if another jury had the same evidence before it as the jury had in the Case of the Park Insurance Company, the verdict would certainly have been no more than in that case, in any event, and, following the inference arising out of the great difference between the actual and the asserted loss, would find a verdict for the defendant. The newly-discovered evidence might very well, according to the result reached in the Case of the Park Insurance Company, defeat the plaintiff's claim upon this policy. The only evidence given upon the trial of this action as to the goods returned to Andrade & Co. was a general statement in the books of De Vulder, and in the course of the evidence, that this amount of goods had been returned. No items or prices were disclosed by which any comparison could be made with the inventory of October, 1884, upon which the right of the plaintiffs to maintain the action was in a great degree made to depend. Such a comparison could only be made by the production of the invoice or account itself; and, as the facts were disclosed by the affidavits, a case was made upon which the defendant was entitled to an order setting aside the verdict, and directing a new trial to afford the opportunity to the company of introducing this evidence upon the trial of this action. The judg ment and verdict should be set aside, and the order denying a new trial on the ground of newly-discovered evidence should be reversed, and a new trial ordered, with $10 costs, and also disbursements to the defendant on the appeal from that order, and on the payment by the defendant of the costs and disbursements of the trial within 20 days after notice of their adjustment by the clerk. In case of the failure to make such payment, then the order as well as the judgment, which otherwise seems to have been regular, should be affirmed, with costs to the respondents.

VAN BRUNT, P. J., and BRADY, J., concur.

STERNFELD et al. v. WILLIAMSBURG CITY FIRE INS. Co.

(Supreme Court, General Term, First Department. November 23, 1888.) Appeal from circuit court, New York county.

Action by Adolph Sternfeld and others against the Williamsburg City Fire Insurance Company on an insurance policy. From a judgment on the verdict of a jury, and an order denying a motion upon the minutes for a new trial, and from an order denying a motion for a new trial on the ground of newly-discovered evidence, defendant appeals. Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ.

O. E. Bright, for appellant. W. W. Niles, for respondents.

DANIELS, J. The recovery in this action was for the amount of a policy issued upon the property of C. De Vulder, consisting of a stock of goods of the same description as the policy was issued upon by the Park Fire Insurance Company, (ante, 766.) The ver

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dict was for the full amount of the policy, together with interest upon it; and the mo tion was made for a new trial upon affidavits similar to those which have been mentioned in the case of the same plaintiffs against the Western Insurance Company, (ante, 768.) The evidence, which was discovered after the trial, was in no sense cumulative, as that rule has been settled by the authorities; and it is of such a description as to indicate a probability that upon its introduction into this case it may change the result of the litigation. And as there was no want of diligence in the discovery of the evidence, which it might have been anticipated would be produced by the plaintiffs themselves, or in making the application which was denied by the order, it follows that the order denying a new trial because of newly-discovered evidence should be reversed, with $10 costs, and also disbursements; and the verdict and judgment should be set aside, and a new trial ordered, upon payment by the defendant of the costs of the trial already had. If such payment shall not be made within 20 days after notice of the adjustment by the clerk of the amount of costs to be paid, then the order as well as the judgment should be affirmed, with costs.

VAN BRUNT, P. J., and BRADY, J., concur.

RICH et al. v. RICH et al.

(Supreme Court, General Term, First Department. November 23, 1888.) TENANCY IN COMMON AND JOINT TENANCY-OCCUPATION OF JOINT PROPERTY-LIABILITY OF CO-TENANT FOR RENT.

Code Civil Proc. N. Y. § 1589, providing for the settlement, in an action for partition, of the rights of co-tenants, where one has received more than his proportion of the rents, and section 1666, allowing one tenant to recover his just proportion from his co-tenant, do not render a tenant in common liable to account for the rent of the joint property occupied by himself.1

Appeal from judgment on report of a referee.

Action for partition by Theodore Rich and another against James V. Rich and others. Defendants appeal from an order charging them with the rental value of the portion of the premises occupied by them.

Argued before VAN BRUNT, P. J,, and BRADY and DANIELS, JJ.

William H. Hamilton, for appellants. John Henry Hull, for respondents.

DANIELS, J. By the order from which the appeal has been taken it was determined by the court that the appellants were liable for the rental value of premises sold under a judgment in partition, and which were occupied by them from May, 1877, until the date of the referee's report, in 1887. They rented out portions of the premises, from which they collected through their agent the sum of $3,302.27, which was all paid out for interest on a mortgage on the premises, and taxes, water rents, and necessary repairs. The

1 By virtue of the Ohio statute, which provides that one tenant in common may recover from another his share of rents and profits received by such tenant in common from the estate, "according to the justice and equity of the case," a tenant in common who uses the common estate simply to pasture his cattle is liable to account to his cotenants for their share of the value of such use, as for rents and profits received. West v. Weyer, 18 N. E. Rep. 537. See, also, note, Id. One who is tenant in common with minors is equally liable to them for the proportion of the rents derived from the common property as if they were of age. Linch v. Broad, (Tex.) 6 S. W. Rep. 751. A tenant in common may maintain trover against his co-tenant for his share of the common property consumed by the latter, Lewis v. Clark, (Vt.) 8 Atl. Rep. 158; or trespass against a co-tenant, where there has been a wrongful conversion of property, McClure v. Thorpe, (Mich.) 35 N. W. 829; or indebitatus assumpsit, where his co-tenant has received in money more than his share of the rents and profits of the common estate, Hudson v. Coe, (Me.) 8 Atl. Rep. 249; Richmond v. Connell, (Conn.) 11 Atl. Rep. 553. Mere occupation by one co-tenant, and forbearance to occupy by the other, will not render the former liable for rent, Hamby v. Wall, (Ark.) 2 S. W. Rep. 705; Sailer v. Sailer, (N. J.) 5 Atl. Rep. 319; Hause v. Hause, (Minn.) 13 N. W. Rep. 43; but the exclusion of such other co-tenant will, Holmes v. Best, (Vt.) 5 Atl. Rep. 385; Almy v. Daniels, (R. I.) 4 Atl. Rep. 753; Scantlin v. Allison, (Kan.) 4 Pac. Rep. 618. A tenant in common in possession, claiming under a tax title, is chargeable with the rent received. Minter v. Durham, (Or.) 11 Pac. Rep. 231. As to the right of one co-tenant to recover for use and occupation by another under a contract, see Kites v. Church, (Mass.) 8 N. E. Rep. 743, and note.

rental value of the whole of the premises, including the portions rented by the appellants, and the portions actually occupied by them, amounted to the sum of $8,750. This left a balance over and above the rents collected and applied, in the manner already stated, of $5,447.73. Four-tenths of this balance was charged against the shares of the four occupants and appellants, each being charged against his or her share of the proceeds of the sale of the property the sum of $726.36. The defendants excepted to the charge of these rents against them, and the diminution thereby of their respective shares of the proceeds of the property sold under the judgment in the partition. They, together with other parties to the action, were tenants in common of these premises, and, as the law has been generally understood and followed, were not liable to account for the value of so much of the property as was actually occupied by them. At the common law it was clear that no liability to account for such occupancy existed. But by a statute passed in England, known as the fourth of Anne, c. 16, it was provided that an action of account might be brought and maintained by one joint tenant or tenant in common, his executors or administrators, against the other, as bailiff, for receiving more than comes to his just share and proportion, and against the executor and administrator of such joint tenant or tenants in common. But this statute was held not to create any liability to account, unless the party proceeded against had actually received rents and profits from the joint property. A mere occupancy by one or more of the tenants in common was not considered to be sufficient within the language of this statute to create a liability. Henderson v. Eason, 9 Eng. Law & Eq. 337. Its enactment was followed by a similar statute in this state restricting in still clearer terms the liability of the occupant to receiving more than his just proportion of the money obtained from the joint property. 2 Rev. St. (6th Ed.) p. 1131, § 9. This section of the statute was made the subject of discussion and examination in Woolever v. Knapp, 18 Barb. 265, when the construction applied to the statute of Anne was followed; and it was held that a tenant in common, receiving no money or property from the premises owned in common, but occupying them himself, was not liable to account under the provisions of this statute. This was again sanctioned in Dresser v. Dresser, 40 Barb. 300; Wilcox v. Wilcox, 48 Barb. 327; Joslyn v. Joslyn, 9 Hun, 388; Roseboom v. Roseboom, 15 Hun, 309; and it received the sanction of the court in McCabe v. McCabe, 18 Hun, 153, and in Le Barren v. Babcock, 46 Hun, 598. The language of section 1666 of the Code of Civil Procedure, relating to the right of a joint tenant or tenant in common of real property to maintain an action to recover his just proportion from his co-tenant, is no broader than that contained in the Revised Statutes, and in no manner enlarges the right of the tenant who may be out of possession. Neither does section 1589 of the same Code, which has provided for the adjustment in the interlocutory or final judgment in partition, or otherwise, as the case may require, of the rights of one or more of the parties, as against any other party, by reason of the receipt by the latter of more than his or their proper proportion of the rents or profits of a share, or part of a share, confer any greater right on the party out of possession, or create any greater liability of a party in possession, to account for the rents or profits of the premises, while he may be only in their actual occupancy. The object of this section has been to provide no more than for equality of partition, and the adjustment of the rights of a tenant in common or joint tenant of that equality, by charging him with his proper proportion of the rents or profits which he may have received from the joint property. The person to be charged has been made liable for rents received by him, and not for the value of his own occupancy. It has not, either by language or implication, imposed a liability not previously existing upon the tenant to pay for his occupancy of the joint property when that may be all that is made to appear as the foundation of the claim against him. In the case of Scott v. Guernsey, 48 N. Y. 106,

the commission of appeals did charge one of the parties to an action in partition with the rental value of so much of the land as had been occupied by himself. His occupancy commenced during the continuance of a life-estate, with the assent of a life-tenant, and it was for the value of such occupancy after the decease of the life-tenant that he was charged by the judgment affirmed by this decision. Another occupant was in like manner charged with the rental value of the part of the premises occupied by him, but he had agreed to account for such rent on the final Settlement of the estate. The case was a complicated one in several respects, and the restricted provision of the Revised Statutes concerning the liability of joint tenants and tenants in common to account was not considered by the court. Neither was either of the authorities which have already been mentioned, and had then been decided, made the subject of the slightest allusion. And the court, in its decision, may very well, under these circumstances, as the amount was not large which was charged against Thompson, have overlooked these authorities controlling this part of the case. This decision was made in 1871, and while the same subject has frequently been before the courts since that time. it has not been regarded as a controlling authority, or one which should be followed in the disposition of controversies of this description. If the statute or either of the earlier cases defining the liability of a joint tenant or tenant in common to account had been considered by the court, and the decision had followed that the occupant of joint property should pay the value of his occupation, then it would clearly be a case which should now be followed. But as no attention was devoted to that statute or to those authorities, and whenever the question has risen since this decision, the court has continued to follow the earlier cases, the same course should be adopted in the disposi tion of the present action. And that will require these four items charged against the appellants to be rejected, and their right affirmed, to participate in the proceeds of the sale of the property under the judgment, without any reduction whatever on account of their respective occupations of the property partitioned. It does not appear by the papers presented to the court that the defendants have obtained any such benefit under the judgment directing the distribution of the proceeds of sale as precluded them from bringing this appeal. Neither does the fact appear that anything whatever has been paid to or for either of these parties under that judgment. The order from which the appeal has been taken should be modified by sustaining the exceptions of the defendants to the fourth paragraph of the referee's report, and the amounts charged against them respectively for their occupation of the premises should be rejected, and in all other respects the order should be affirmed, without costs; the order to be entered to be settled by Mr. Justice DANIELS.

VAN BRUNT, P. J., and BRADY, J., concur.

FOSTER . EASTON et al.

(Supreme Court, General Term, First Department. November 23, 1888.) 1. WILLS-CONSTRUCTION-LEGACY IN PAYMENT OF DEMANDS.

A testator received $700 from plaintiff, a nurse and housekeeper in his family, in consideration of a promise to make a provision for her in his will, and to keep up for her benefit a policy of insurance. He paid premiums on the policy until the company failed, and in his will gave plaintiff the income of $1,500, and the use of a house and lot, for life, "in full payment of any demand * by reason of any serv ices rendered for me in my life-time." Held, that this provision was in lieu of all demands, and that he had fully complied with the undertaking on his part.

*

2. NEW TRIAL-SURPRISE-FAILURE TO SUGGEST AT TRIAL.

A new trial will not be granted on the ground of surprise, occasioned by the reception of certain evidence which it is alleged plaintiff could have contradicted if she had anticipated it, and had not been prevented by illness from attending at the trial, where no suggestion of surprise was made at the trial, and no opportunity was requested to procure plaintiff's testimony.

3. PLEADING AMENDMENT—When made.

An order amending the answer so as to conform to the proof is proper when made in the presence of both parties without objection.

Appeal from special term, New York county.

Action by Mary A. Foster against James Easton and others, executors, to recover a certain sum of money alleged to have been received by their testator in trust for plaintiff. Judgment was entered for defendants, from which, and from an order denying a motion for a new trial on the ground of surprise, plaintiff appeals.

Argued before VAN BRUNT, P. J., and MACOMBER and BARTLETT, JJ. Louis P. Levy, for appellant. William Vanamee, for respondents.

BARTLETT, J. The findings upon which the judgment in this action is based are amply sustained by the evidence. The purpose of the suit was to compel the defendants, as executors of James B. Bell, deceased, to pay to the plaintiff a sum of money alleged to have been received by the defendants' testator under an agreement on his part that he would safely invest the same as a trustee for the plaintiff, and pay it over to her upon demand. It appears that the plaintiff acted as nurse and housekeeper in the family of the testator, and that his wife had caused her life to be insured for the plaintiff's benefit. Upon the death of his wife the testator collected the insurance to the amount of $700, and it is this sum which the plaintiff seeks to have impressed with a trust for her benefit. The trial judge has found that after the receipt of this money by Mr. Bell he made an arrangement with the plaintiff by which he might retain it for his own use, in consideration of a promise to make provision for the plaintiff in his will and an agreement on his part to keep up a then existing insurance policy in the Wayne County Co-operative Union Benefit Company, upon his own life, for the plaintiff's benefit. As a matter of fact he did provide for the plaintiff in his will by giving her the income of $4,500, and the use of a house and lot, for life. He also paid the premiums upon his insurance policy until the company by which it was issued failed and went out of existence. The gifts to the plaintiff are specified by the testator in his will to be made "in full payment and satisfaction of any claim or demand she may or might have or claim to have or make against me or my estate by reason of any services rendered for me in my life-time." It is strongly insisted in behalf of the appellant that this language manifests an intent that the testamentary provisions in favor of the plaintiff were intended only as a recompense for her services in the family of the testator, and were not meant to cover her claim for the insurance money. The trial judge thought, however, that there was no doubt the deceased designed the provision which he made to be in lieu of all existing claims, and that the plaintiff so understood it. This view is probably correct, but, if not, the testator appears to have complied fully with the conditions upon which he was allowed to retain the insurance collected upon the life of his wife, by keeping alive for the plaintiff's benefit the insurance on his own life so long as the company lasted in which his policy had been taken out. There was not such a complete failure of consideration as to defeat the agreement. The order amending the answer so as to conform to the proof was properly made. The counsel for the respondents swears positively that it was granted when both parties were before the court, and without objection, and there is no denial of this explicit statement. There is no merit in the appeal from the order refusing to grant a new trial on the ground of surprise. The action was in form a suit for an accounting as to any sums of money received by the testator for the benefit of the plaintiff, and the answer was in substance a denial of any information sufficient to form a belief as to the main allegations of the complaint, and also a plea of the statute of limitations. The alleged surprise really consisted in the action of the court in receiving testimony in behalf of the defendants to establish the agree