The materials called for for the $2,000 group appears to have been delivered and paid for. The plaintiff went forward with the work of manufacturing the materials for the second group, and had completed them to the value of $1,900, holding them in storage at the request of Brettell, when it came to the knowledge of the plaintiff that the latter had abandoned the work. The plaintiff then, for the purpose of making its claim as small as possible, ceased work on the order, and subsequently demanded payment of its claim for the materials which had been completed. The defendant, without denying liability, entered into an arrangement, through his attorney, for a delay in the payment of the claim, pending a foreclosure of the mortgage upon the premises, but finally declined to carry out the agreement, and on the trial of this action, and upon this appeal, contends that he is not liable under the written guaranty above set forth, on the ground that the agreement to pay was based upon the condition of delivery of the goods to Brettell.

We are of the opinion that the fair reading of this contract, in connection with the surroundings of the parties, forbids this narrow construction, even in behalf of one who stands as a surety. The contract is that:

"In consideration of the delivery of the aforesaid trim, sash, doors, etc., to the said Frank Brettell, and for the purpose of giving him credit for the same, I hereby guarantee," etc.

The materials demanded by the contract had to be manufactured. The plaintiff was not willing to manufacture them and rely upon Brettell taking them, and it was for the purpose of inducing the plaintiff to manufacture and deliver the same that the guaranty was made, and the fact that the plaintiff acted in good faith in manufacturing the goods, up to the time that it learned that Brettell had defaulted in his contract of construction, and then stopped work to prevent the loss being larger than necessary, entitles it to consideration here. The evidence shows that the plaintiff was ready to deliver the goods, that it merely held them in storage at the request of Brettell until he should need them, and that the plaintiff was willing at all times to deliver the same to any one who was in a position to pay for the same, and thus relieve the defendant; and we are of the opinion that this constituted such a constructive delivery as to hold the defendant liable. Under the guaranty, if the plaintiff had actually delivered the goods to Brettell, and the latter had sold them to a third party, the defendant would have been liable. He is in a much better position now. He has only to pay the amount due and come into the ownership of the property; and, having fairly contracted for just what has occurred, he is in no posi tion to avoid his obligations upon a narrow construction of the language of the contract, and thus defeat its spirit.

The judgment and order appealed from should be affirmed.

Judgment and order affirmed with costs. All concur.

HENTZ v. HAVEMEYER et al.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) PARTNERSHIP (§ 258*)-DEATH OF PARTNER-ACTIONS.

Under Code Civ. Proc. § 758, providing that on the death of one of two or more defendants, if the entire cause of action survives to or against the others, the suit may proceed as to the others, but that the estate of one jointly liable upon contract shall not be discharged by his death, etc.. representatives of a deceased partner are not exempt from suit for a partnership debt, nor from being substituted for decedent in an action already begun, until remedy against the surviving partner is exhausted.

[Ed. Note. For other cases, see Partnership, Dec. Dig. § 258*.]

Appeal from Special Term, New York County.

Action by Henry Hentz against Louisine W. Havemeyer and others. From an order permitting plaintiff to withdraw a demurrer to a defense and to bring in new defendants, defendants appeal. Affirmed. Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Herbert Parsons, for appellants.

Barclay E. V. McCarty (Jared G. Baldwin, Tr.. on the brief), for respondent.

MILLER, J. This action was brought against Henry O. Havemeyer and Charles H. Senff upon a claim against them as copartners. The appellants contend that the representatives of a deceased partner cannot be sued for a partnership debt, or substituted in the place of their decedent in an action already begun, unless the surviving partner is insolvent, or until the remedy against him has been exhausted. It is also contended that the motion should have been denied for laches, and that the appellant Senff was prejudiced by the permission granted the plaintiff to withdraw the demurrer without previous notice to him of the application.

Prior to the enactment of section 758 of the Code of Civil Procedure, the law was in this state that the representatives of a deceased partner could not be sued at law by a creditor of the partnership, but could only be proceeded against in equity, and then only when the surviving partners were insolvent or had been proceeded against to execution at law. Voorhis v. Childs' Executor, 17 N. Y. 354; Pope v. Cole, 55 N. Y. 124, 14 Am. Rep. 198. Said section of the Code provides:

"In case of the death of one of two or more plaintiffs, or one of two or more defendants, if the entire cause of action survives to or against the others, the action may proceed in favor of or against the survivors. But the estate of a person or party jointly liable upon contract with others shall not be discharged by his death, and the court may make an order to bring in the proper representative of the decedent, when it is necessary so to do, for the proper disposition of the matter."

The effect of that section was to create a legal liability where there had formerly been liability enforceable only in equity. Potts v. Dounce, 173 N. Y. 335, 66 N. E. 4. That case decided that, though the representatives of a deceased joint debtor could now be sued at

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

law, the rule of procedure had not been changed, and that inability to collect from the surviving joint debtors must still be shown. But it did not decide that the insolvency of the surviving partners alone justified a suit against the representatives of the deceased partner.

The respondent admits that the statute of limitations pleaded by the appellant Senff is a bar to the action against him, but states facts tending to show that the statute never ran against the deceased partner because of his nonresidence, wherefore the plaintiff contends that inability to collect from the surviving partner is shown, and that therefore a suit at law may be maintained against the representatives of the deceased partner. It is unnecessary now to enter into any discussion of the theory upon which equity, to accomplish justice, allowed liability to be enforced by a creditor against the representatives of a deceased partner or joint debtor, or to inquire whether such a suit could have been maintained in equity, except in the single case of the inability of the surviving debtors to pay, because now, under the statute, the legal liability survives the death of the joint debtor, and all that Potts v. Dounce, supra, decided was that the rule of procedure had not been changed. The precise question before us was not involved in that case, and we are not aware of any case deciding it.

The statute expressly provides that the estate of a person jointly liable upon contract with others shall not be discharged by his death. That does not mean that the estate shall be discharged unless the surviving partners are insolvent, and, while the court might preserve the rule or order of procedure not changed by the statute, it cannot modify the express provisions of the statute. The liability of the estate is the same as that of the decedent, the order of its enforcement only is different. The law certainly does not require a vain thing, or the impossible, as a condition of enforcing a legal liability. If the appellant's position is sound, we would have the anomaly of a legal liability against one person which could never be enforced for the reason that the statute barred an action against another person.

The question of laches, therefore, becomes immaterial. If the executors may be sued, they are not prejudiced by being substituted as defendants in a suit already begun; and for the same reason the appellant Senff cannot complain, whatever may be the rule as to his ultimate obligation to contribute. It is usual to grant leave to withdraw a demurrer as of course, and no reason is suggested why that was not properly done in this case.

The order should be affirmed, with $10 costs and disbursements. All

concur.

SCHWEINBURG v. ALTMAN.

(Supreme Court, Appellate Division, First Department. April 23, 1909.) 1. DISCOVERY (§ 44*)-EXAMINATION OF PARTY BEFORE TRIAL-Order-WAIVER OF RIGHT TO MOVE TO VACATE.

Where, after an order had issued for examination of defendant before trial, defendant, without any intimation of an intention to attack the order, twice requested an adjournment, stipulating in writing "that the

said examination shall take place" on a designated day, he waived the right to move to vacate the order.

[Ed. Note. For other cases, see Discovery, Cent. Dig. § 57; Dec. Dig. $44.*]

2. STIPULATIONS (§ 6*)-CONCLUSIVENESS AND Effect-WRITTEN STIPULATIONS OF PARTIES.

General Rules of Practice, rule 11, providing that no private agreement as to proceedings in a cause shall be binding unless reduced to the form of an order by consent and entered, or reduced to writing and subscribed by the party against whom it shall be alleged, or by his attorney, will not be extended to written stipulations.

[Ed. Note. For other cases, see Stipulations, Cent. Dig. § 5-13; Dec. Dig. § 6.*]

3. DISCOVERY (§ 40*)-DISCRETION OF COURT.

Under Code Civ. Proc. §§ 870, 872, 873, relating to depositions of parties, and providing (section 872, subd. 4) that an affidavit therefor must state that the testimony is material and necessary, and General Rules of Practice, rule 82, that the affidavit must state facts showing the deposition is material and necessary to the applicant, the court may grant an order for the examination before trial of a defendant on plaintiff's application, where a defense has been set up which, established, would destroy the cause of action, and the affidavit asks the examination for the purpose of affirmatively sustaining his cause of action, the deposition in such case being material and necessary, plaintiff, in an action for money due under a contract, where the defense pleaded was a cancellation of the contract, was entitled upon a proper showing to an examination of defendant before trial, to show that the alleged cancellation was ineffective.

[Ed. Note. For other cases, see Discovery, Dec. Dig. § 40.*]

Appeal from Special Term, New York County.

Action by Emil Schweinburg against Benjamin Altman. From an order vacating an order for examination of defendant before trial, plaintiff appeals. Reversed, and motion denied.

Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

Nathan Ottinger, for appellant.

S. Hanford (Henry B. Pogson, of counsel), for respondent.

CLARKE, J. The complaint sets up a contract under which defendant was to pay plaintiff $7,500 a year, that defendant paid for five years, that he has not paid since October 1, 1906, and demands judgment for $7,500, the amount so unpaid. The answer alleges a cancellation of the contract by the defendant in accordance with the terms thereof. Plaintiff obtained an order for the examination of the defendant before trial. Defendant moved to vacate said order, which motion was granted, the learned justice stating in his memorandum: "The examination sought relates to the defense, and not to the plaintiff's cause."

From said order the plaintiff appeals.

We are of the opinion that the order should be reversed, upon the ground that the defendant was estopped from moving to vacate the order for his examination. The original order required the defendant to appear for examination on February 16, 1909. On February 15th the following stipulation was signed by the attorneys for both parties:

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

"The defendant, having requested an adjournment of his examination before trial herein, pursuant to the order of Mr. Justice Gerard, dated February 5, 1909, herein, it is hereby stipulated that the said examination shall take place on Wednesday, the 24th of February, 1909, at the same time of day and place, in lieu of February 16, 1909, the date originally set, and it shall not be necessary to serve any new subpoena upon the defendant, but the supœna heretofore served and the order aforesaid shall for all purposes be deemed to be related to the adjourned date specified herein." On February 19th the said attorneys for both parties entered into a further written stipulation:

it

"The defendant having requested a further adjournment, is hereby stipulated that the said examination shall take place on Tuesday, the 2d day of March, 1909, at the same time of day and place. Defendant agrees that no further adjournment will be applied for."

On the 2d of March, on attending at court to take the examination as stipulated, the plaintiff's attorney was met with a notice of motion, dated March 1st, to vacate the order for examination. This was argued before the justice sitting at Special Term, Part 2, who, in view of the fact that in the course of the argument the defendant served plaintiff's attorney with the aforesaid notice, directed that the motion should be brought on at Part 1, Special Term, and to that end signed an order to show cause at the instance of the defendant, returnable at said part.

We think that when the defendant, without any intimation of intention to attack the original order, twice requested the favor of an adjournment and twice in writing stipulated "that the said examination shall take place" on a designated day, he waived the right to move to vacate, and should not be allowed to do so. The stipulations are too clear to require interpretation or discussion. Rule 11 of the General Rules of Practice provides that:

"No private agreement or consent between the parties, or their attorneys, in respect to the proceedings in the cause, shall be binding unless the same shall have been reduced to the form of an order by consent and entered, or unless the evidence thereof shall be in writing subscribed by the party against whom the same shall be alleged or by his attorney or counsel."

It is humiliating to the profession that the exigencies of practice in a large city with a numerous bar should have required a rule making oral stipulations and agreements unenforceable. The court will not, by strained construction, extend the rule to written stipulations and agreements, but will enforce them as they find them.

A word should be added as to the ground stated in the memorandum for vacating this order. It is urged that in certain recent cases upon the subject of examinations before trial this court overlooked the case of Herbage v. City of Utica, 109 N. Y. 81, 16 N. E. 62. That point is not well taken; but, as it has been stated in the briefs which have been submitted to us in a number of cases, we proceed to consider it. In that case the Court of Appeals said:

"The cases cited by the respective counsel show that the practice in relation to the subject is not uniform throughout the various departments of the Supreme Court; but we are of opinion that a party litigant may, in the discretion of the judge to whom application is made, under the