CLARKE, J. Plaintiffs are the trustees in bankruptcy of J. M. Fiske & Co., a stock brokerage firm, and sue to recover $45,970.51, being a balance due to the said firm on account of purchases and sales of stocks and securities made by said firm for and on account, and at the request of the defendant. Plaintiffs also claim upon an account stated between themselves as the said trustees and defendant. The answer denies all the material allegations of the complaint, sets up two separate defenses, a partial defense, and counterclaim and two separate counterclaims. The order authorizes a general examination of the defendant, requiring him to submit to an examination, and testify concerning the matters stated in the affidavits and relevant to the issues in this action.

[1] The plaintiffs are entitled to the examination of the defendant respecting all matters relevant to the causes of action set up by them and material and necessary to prove in support thereof. We think that, so far as the defenses are concerned, plaintiffs are endeavoring to obtain a preliminary cross-examination of the defendant as to his claims, and are not endeavoring to obtain testimony material and necessary to their own cause of action for the purpose of introducing the same upon the trial. The pleadings and affidavits indicate that the defendant must go upon the stand to establish his affirmative defenses, and can be then subjected to cross-examination. We do not think that the papers make out a case justifying a preliminary cross-examination as to such matters of defense.

The order appealed from should be modified by limiting the examination to the matters set forth in the complaint and material and necessary to support the allegations thereof, and, as so modified, affirmed without costs to either party.

SCOTT and MILLER, JJ., concur.

INGRAHAM, P. J. (dissenting). The plaintiffs, as trustees in bankruptcy of the stock brokerage firm of J. M. Fiske & Co., seek to recover in this action the sum of $45,970.31 due to the bankrupts on account of the purchase and sales of stocks and securities by the bankrupts for, on account, and at the request of the defendant, the complaint alleging that an account showing that balance was stated between the plaintiffs and defendant. The defendant denies the stating of the account, and then sets up as an affirmative defense that upon the representations of one Naskins the defendant was induced to participate in a pool or joint venture to operate in the stock of a foreign corporation; that the representations were false, and, relying upon them, the defendant did not realize the profits to which he was entitled; that the bankrupts failed to perform their part of the contract in various particulars specified; that the affairs of the pool have never been adjusted; and that an action is pending for that purpose. There is a further defense that the purpose of the formation of said pool was illegitimate and contrary to public policy, and the defendant then sets up a counterclaim which the plaintiffs by their reply have denied.

The action being at issue, the plaintiffs seek to examine the defendant before trial, not only to prove their cause of action on an account stated, but also for the purpose of disproving the defendant's affirmative defenses. Among other facts the plaintiffs wish to prove by the examination of the defendant that the sales of securities involved in the cause of action were made at the defendant's special instance and request and for his account, and that the defendant agreed to reimburse the bankrupts for the amount expended in the said purchase of securities, that the bankrupts actually signed the pool agreement. by the actual and express authorization of the defendant upon promises well known to him, and that the defendant did not rely upon any representations made in connection with the bankrupts, but that all these purchases were well known to the defendant and ratified and confirmed by him, and also various other particulars which it would be necessary for the plaintiffs to prove to overcome the defenses and the counterclaim.

This affidavit therefore sets forth the facts and circumstances which establish that the testimony that the plaintiffs seek to obtain by the examination of the defendant is necessary to enable the plaintiff to disprove the defendant's defenses and counterclaim. The plaintiffs are trustees in bankruptcy, and necessarily have no personal knowledge of the circumstances under which these transactions were carried on. It is not a cross-examination of the defendant as to the facts which it was necessary for him to prove, but independent evidence to meet and defeat his defenses as alleged. The affidavit complies with section 872 of the Code of Civil Procedure, and the facts and circumstances showing such a compliance are fully set forth as required by rule 82 of the general rules of practice. This provision of the Code of Civil Procedure authorizes the court to order an examination of an adverse party to avoid a defense or a cause of action as well as to establish such a defense and cause of action. Herbage v. City of Utica, 109 N. Y. 81, 16 N. E. 62. I think the case is brought directly within Alden v. O'Brien, 138 App. Div. 249, 122 N. Y. Supp. 910. The plaintiffs are suing as trustees in bankruptcy. of a bankrupt firm to recover money due the firm on account of stock transactions for the benefit of creditors. It seems to be conceded that there were large purchases and sales of stock on account of the deferdant which resulted in a loss, which loss was actually paid by the bankrupt firm. The plaintiffs have no personal knowledge of the transactions, and I think the ends of justice require that the court. should allow them to prove their cause of action by examining the defendant as well as by an examination of the members of the bankrupt firm. There can be no question but that plaintiff would be justified in calling the defendant on the trial as a witness to prove the facts stated in the affidavit as material and essential evidence for the plaintiffs both in sustaining their cause of action and overcoming the defendant's defenses. The provision of the Code of Civil Procedure expressly authorizes an examination of the defendant before trial at the instance of the plaintiff, and this certainly is a case in which the

court should give the plaintiffs the fullest opportunity of proving their right to recover this money.

I therefore think the order should be affirmed.

LAUGHLIN, J., concurs.

FRANCIS v. RYCROFT.

(Supreme Court, Appellate Division, First Department.

December 1, 1911.)

1. LIMITATION OF ACTIONS (§ 149*)-NEW PROMISE-CONDITIONS-PERFORM

ANCE.

Where a conditional promise is relied on to avoid a plea of limitations, performance of the condition must be shown, whether the promise is made before or after the statute has run.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 604-609; Dec. Dig. § 149.*]

2. LIMITATION OF ACTIONS (§ 149*)-NEW PROMISE-CONDITIONS-PERFORMANCE -"SETTLEMENT"-"SETTLE."

A promise by a debtor to pay a debt when her father's estate is settled, if constituting an acknowledgment of the debt to avoid the defense of limitations, is conditional on the settlement of the estate, and mere proof that the debtor has received from her father's estate a sum sufficient to pay the debt, in the absence of evidence of the amount of the bequest to her, is not proof of performance of the condition, and the defense of limitations is not avoided; the word "settlement" involving a finality, and to "settle" a debt meaning to discharge it.

[Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 604-609; Dec. Dig. § 149.*

For other definitions, see Words and Phrases, vol. 7, pp. 6446-6450.]

Appeal from Trial Term, New York County.

Action by George B. Francis, Jr., against Alice Griffith Rycroft. From a judgment for plaintiff on a verdict directed by the court, and from an order denying a new trial, defendant appeals. Reversed, and new trial granted.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and DOWLING, JJ.

Warren McConihe, for appellant.

Thomas W. Churchill, for respondent.

MILLER, J. The plaintiff, the assignee of the executors of one John Rycroft, deceased, sues to recover the amount of several alleged loans, made by the said testator to the defendant between May 11, 1900, and October 3, 1900, aggregating £205, with interest. The defendant was the daughter-in-law of the said John Rycroft, and the several sums in question were advanced in amounts varying from £5 to £60 to defray the expenses of the defendant and her daughter, who were then traveling in Europe. The letters written to the defendant by her father-in-law tend to indicate that he intended either to give said amounts to her or to debit them to her husband. The defendant, however, gave back receipts in each case, in which she prom

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ised to repay the sum advanced "at some future time," and the sub sequent correspondence between the parties shows that both treated the advances as loans to the defendant.

The action was begun by the voluntary appearance of the defendant on November 19, 1907. The defendant pleaded the statute of limitations. To avoid that plea, the plaintiff relies upon a subsequent written acknowledgment and promise to pay. On the 10th of March, 1902, the defendant wrote to her father-in-law, and in the course of the letter said:

"You can rest assured of one thing: When the estate is settled. I will pay you at once what I personally owe you. * Was not the least surprised at your dunning letter, notwithstanding I have told you many times I would pay you when my father's estate was settled."

And on July 2, 1903, she wrote another letter, in the course of which she said:

"What you advanced to me personally I have always told you that I intended to pay you just as soon as my father's estate is settled, which will be very soon."

[1] Assuming, without deciding, that those statements constituted a sufficient acknowledgment of the debt, the promise to pay was conditional; and it is well settled that, where a conditional promise is relied upon, performance of the condition must be shown, whether the promise be made before or after the statute has run. Dean v. Hewit, 5 Wend. 257; Tompkins v. Brown, 1 Denio, 247; Shoemaker v. Benedict, 11 N. Y. 176, 62 Am. Dec. 95; Brooklyn Bank v. Barnaby, 197 N. Y. 210, 90 N. E. 834, 27 L. R. A. (N. S.) 843.

[2] The plaintiff rested, without attempting to prove that the father's estate had been settled, whereupon the learned trial court correctly ruled that it was necessary for the plaintiff to prove the happening of the condition, and dismissed the complaint. The plaintiff was then allowed to reopen the case, and to call the defendant as a witness to prove the happening of the condition. She testified that her father died May 19, 1900, that his estate had not been and could not be settled, as she understood it, until the death of her brother; that she had received from the executors some amount between $1,000 and $2,000; that, when she made the conditional promise relied upon, she had in mind the settlement of the estate upon the death of her brother, who was suffering from a chronic malady, as her father-in-law knew. It did not appear, and no attempt was made to show, under what circumstances the father's executors had advanced money to the defendant, and no attempt was made to show that there had ever been any accounting by them or judicial settlement of their accounts. However, at the close of the entire evidence, the court directed a verdict for the plaintiff, evidently upon the theory that the happening of the condition was shown by proof that the defendant had received a sufficient sum from her father's estate to pay the claim in suit, though she testified that the entire amount received by her was used in the payment of other debts of her deceased husband.

So far as the defendant is concerned, her father's estate will not be settled until there is either a judicial settlement and a decree for dis

tribution and the payment to her of her share, or at least until the executors, without a judicial settlement, pay her the share of the estate bequeathed to her by her father. There is nothing in this record to show the amount of the estate or the amount bequeathed to the defendant. As commonly understood, the word "settlement" involves a finality. To "settle" a debt means to discharge it. Part payment does not amount to a settlement, unless the debt is discharged. The defendant did not say that she would pay as soon as she received a sufficient sum from her father's estate, and therefore the mere proof that she had received enough to pay the amount sued for did not satisfy the condition. Doubtless the statute does not commence to run against the new promise until the happening of the condition, but the plaintiff cannot rely upon the promise to avoid the plea of the statute in a suit on the original indebtedness without proving the happening of the condition; i. e., that as to the defendant her father's estate has been settled by the payment to her of her distributive share, or of the amount bequeathed to her.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. All concur.

(72 Misc. Rep. 519.)

CLEMENT et al. v. CONGRESS HALL et al.

(Supreme Court, Special Term, Saratoga County. June, 1911.)

1. MORTGAGES (§ 410*)-FOReclosure—DisPOSITION OF PROCEEDS-DETERMINATION OF RIGHTS.

In an action to foreclose a mortgage on realty, a subsequent lienor, who was made a party defendant, is not entitled to a determination of the amount of his claim, where his answer was not served on the other defendant, but he must be relegated to the usual application for distribution of any surplus moneys.

[Ed. Note. For other cases, see Mortgages, Dec. Dig. § 410.*] 2. CHATTEL MORTGAGES ($ 85*)-FILING-NECESSITY-"BONDS."

Lien Law (Consol. Laws 1909, c. 33) § 231, providing that mortgages creating a lien on real and personal property, executed by a corporation as security for the payment of "bonds," need not be filed or refiled as chattel mortgages, applies in case of such a mortgage securing a single, nonnegotiable bond, in view of General Construction Law (Consol. Laws 1909, c. 22) § 35, providing that words in the singular number include the plural, and in the plural include the singular.

[Ed. Note. For other cases, see Chattel Mortgages, Dec. Dig. § 85.* For other definitions, see Words and Phrases, vol. 1, pp. 830-834; vol. 8, p. 7592.]

3. CHATTEL MORTGAGES (§ 286*)—“PURCHASER IN GOOD FAITH."

A corporation, acquiring an interest in real and personal property under a judgment of foreclosure which provides that the interest be sold subject to the lien of a certain mortgage, is not a "purchaser in good faith" as against such mortgage, within Lien Law (Consol. Laws 1909, c. 33) § 230, providing that every chattel mortgage, not accompanied by immediate delivery and followed by change of possession, is void as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a copy thereof, is filed.

[Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. § 576; Dec. Dig. § 286.*

For other definitions, see Words and Phrases, vol. 4, pp. 3117-3121; vol. 8, p. 7672.]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes