FIRST DEPARTMENT, DECEMBER TERM, 1892.

and enjoy so much of that one-half as was attempted to be assigned to him.

We cannot agree with the appellant in this contention. It seems to us very clear that Joseph R.'s interest, under this fourth clause, was contingent and not vested. There are no direct words of gift, and none from which a present gift can be implied. The intention of the testator is apparent throughout. As to the part first appropriated for the use of Joseph R. the intention is not left to inference or implication. It is expressed in plain language, namely, that such part shall not vest until he attains a certain age. Thus the vesting was to take place only when he became entitled to receive the principal of the part. In case of his death before that time the part was to go to his children. If he had no children, it was then to go as directed in the latter provisions of the third clause. The same intent pervades the fourth clause, upon which it will be perceived the third clause is engrafted. Upon the death of the widow, the executors are there, that is in the fourth clause, directed to divide the part previously appropriated to her use, and to add onehalf thereof to the part first appropriated to the use of Joseph R., subject, however, to the provisions of the third clause. We are asked to construe this direction to so divide and add upon the death of the widow, as equivalent to a direction to divide and add upon the death of the testator; and as thus effecting a present addition to the part first appropriated to the use of Joseph R., subject only to the life estate of the widow.

Such an interpretation would be contrary to the plain intention of the testator, and contrary also to well-settled rules of construction. The general intent of the testator was, as we have seen, to postpone the vesting until Joseph should become entitled to receive the principal. If he never became entitled to receive such principal, the testator provided most minutely for its disposition. It would be strange indeed if the testator's intention, so clearly expressed in the third clause, were suddenly to change when giving the directions contained in the fourth clause. No such change is suggested in this latter clause. The vesting thereunder is plainly to take place in the third clause — when Joseph R. becomes entitled to receive the added principal, namely, upon the death of the widow, and then only upon his attaining the prescribed age. If the widow had died

as

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before he had attained that age, the added part would only have vested when the original part vested, namely, upon his arrival at the prescribed age. The part to be added could not, therefore, have vested in Joseph R. at the death of the testator, nor upon his arrival at the age of forty years in the lifetime of the widow, for the reason that it was not to be added to the original part, nor was it to come under the provisions of the third clause of the will until the death of the widow. The contingency provided for in the third clause is Joseph R.'s arrival at a certain age. That provided for in the fourth clause is the death of the widow, plus the contingency contained in the third clause. This was the testator's intention, and it was in harmony with the rule that, where the only gift is found in a direction to divide at a future time, the gift is future and not immediate. (Goebel v. Wolf, 113 N. Y., 412; Warner v. Durant, 76 id., 133; Smith v. Edwards, 88 id., 92.)

This general rule is subject to the qualification that a contrary intention may be collected from particular circumstances. (Leake v. Robinson, 2 Mer., 363.) But every circumstance here points to an intention in precise accord with the rule. The gift is not to be severed instanter from the general estate for the benefit of the legatee, as in Warner v. Durant (76 N. Y., 136), nor do the terms of the bequest import a gift, and also a direction to pay at a subsequent time, as in Manice v. Manice (43 N. Y., 369).

Under this will the title was vested in the executors for the purposes of the trust in favor of the widow, and it is only upon the termination of this trust that the remainder is to be divided into two parts and added to the original parts appropriated to the use of the testator's son and daughter. This remainder, to be so divided and added, vested only upon the death of the widow, and, consequently, Joseph R.'s assignment, made prior to his mother's death, conveyed nothing to the assignee.

The judgment appealed from should, therefore, be affirmed, with costs.

VAN BRUNT, P. J., and O'BRIEN, J., concurred.

FIRST DEPARTMENT, DECEMBER TERM, 1892.

JAMES DOUGHERTY, RESPONDENT, 2. LEANDER STONE, APPELLANT.

Statute of frauds — what is a collateral promise — charging goods and rendering a bill-judge's charge.

In an action brought by James Dougherty against Leander Stone upon the latter's alleged verbal promise to pay Dougherty for certain work and materials, it appeared, upon the trial, that Dougherty knew that the houses for which the work and materials were furnished were owned by Louis M. Mowbray, for whom his father, Anthony Mowbray, was acting as agent; and that Stone was only the custodian of certain moneys which had been advanced by Charles Tiffany to Louis M. Mowbray for the completion of these houses; after the work was done by Dougherty, he charged the goods to Louis M. Mowbray, made out a bill to him and afterwards filed a mechanic's lien against the houses for work done thereon for Louis M. Mowbray.

The promise alleged to have been made by Stone to Dougherty was that Stone would pay for anything put in the houses which was ordered by Anthony Mowbray. Upon an appeal from a judgment in favor of the plaintiff:

Held, that Stone's promise was not an original obligation, but was clearly only collateral to the liability of Louis M. Mowbray.

That where the person to whom the goods were furnished was liable at all, the promise of another person to pay for them was collateral and must be in writing. That while the charging of the goods and the rendering of the bill to Louis M. Mowbray were not conclusive evidence that Dougherty intended to hold Mowbray, they were facts which were not explained, and which, in connection with the mechanic's lien, showed that Stone's alleged promise was not an original obligation.

That a verdict should have been directed for the defendant.

The court read to the jury from a text-book a statement as to the law where credit was given both to a principal and a surety. The defendant's counsel objected to this, stating that there was no question of a joint obligation in the case, to which the court answered that the proposition was an abstract one, and that if the jury should find that there was no joint contract the proposition would amount to nothing.

Held, that, although there was no issue as to a joint obligation, the effect of the charge was to allow the jury to find whether there was such an obligation or not, and then to apply the law stated to the facts found.

That this was an error calculated to mislead the jury.

APPEAL by the defendant Leander Stone from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 21st day of December, 1891, upon a verdict for the plaintiff for $1,534.57, rendered on a trial at the New York Circuit before the court and a jury; and also from an

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order of the same court, entered in the same clerk's office on the 18th day of December, 1891, denying a motion for a new trial made upon the minutes of the court.

The action was brought upon an alleged verbal promise made by Leander Stone to James Dougherty that Stone would pay Dougherty for work, labor and materials furnished by the latter to certain buildings owned by Louis M. Mowbray. The answer alleged that Charles Tiffany had agreed to advance to Mowbray certain moneys to complete the buildings in question, which moneys had been placed in Stone's hands. Upon the trial of the action the court read to the jury the following passage from a text-book relating to the statute of frauds, and its effect upon the rights of a principal surety and third person: "If, however, the credit is given to both (principal and surety) jointly, as neither can be said to be surety for the other to the creditor their enagagement need not be in writing."

George S. Hamlin, for the appellant.

William W. Niles, for the respondent. BARRETT, J.:

The sole question here is whether the defendant's promise was original or collateral. There are certain undisputed facts which seem to be controlling upon this question-facts testified to by the plaintiff Dougherty himself.

It appears from this testimony that Dougherty knew that the title to the houses in which the materials were to be used was in one Louis M. Mowbray. Anthony Mowbray, Louis' father, told Dougherty that a mortgage upon the houses had been foreclosed, and that as he, Anthony (who was formerly the owner), could not take the title in his own name (he being insolvent), they had been put in his son Louis' name. Dougherty negotiated with Anthony Mowbray about estimates and price before he saw the defendant. His testimony on this head is as follows:

"I undertook the work at this place in this way: Mr. Mowbray asked me to go in and measure the houses. I asked him about what he calculated to spend on glass for the houses, the same as I have been doing work for him for years. He said he thought he ought to get it done for $1,500-$300 a house. I went and measured all the work in the houses at the time, and I told him I would do it for $1,500."

FIRST DEPARtment, DecemBER TERM, 1892.

He was also asked whether there was an agreement between himself and Anthony Mowbray - "a talk as to limiting the cost to $1,500" to which inquiry he answered as follows:

"A. He said about $1,500; we had a conversation about it; he told me he thought he ought to get glass good enough for $300 a house, and asked me to go in and measure it up, and see if I could do it for that; I told him I could do it for that, all that was there." Subsequently the following questions were put to him, and the following answers given:

"Q. Had any agreement been made at that time? (The time here referred to was that of the defendant's alleged promise.) A. He only said he was satisfied with the estimate, and he was in a hurry for the work; that there were people there looking at the houses.

"Q. And you said you would do it for that estimate? A. Yes, sir." He also stated, on cross-examination, that he was employed by Anthony Mowbray on his son's behalf.

Dougherty made the estimates in Louis Mowbray's name, and he also arranged with Anthony Mowbray that the bill for his work and materials should also be made out to Louis.

Accordingly, he did the work upon the houses, furnished the materials, charged the goods upon his books and made out the bill therefor to Louis. When the work was finished, he took the bill himself to Anthony, who gave him an order on the defendant for $350, which was paid. Subsequently he filed a mechanic's lien against the property, in which he stated, under oath, that the name of the person by whom he was employed, and to whom he had furnished the materials, was Louis M. Mowbray.

The defendant came into the matter as a mere custodian of certain moneys which were put into his hands to be disbursed. It appears that, prior to the time of the alleged promise, Louis Mowbray had given a mortgage to one Tiffany with the understanding that the latter was to make advances thereon for the completion of the houses. Tiffany made these advances directly to Louis, who turned the money over to the defendant to be disbursed upon Anthony Mowbray's orders. Dougherty understood all this, and, when the alleged promise was made, he knew just what Stone's position in the matter was. He testified that Anthony Mowbray told him that "Mr. Tiffany