FIFTH DEPARTMENT, JANUARY TERM, 1893. the receiver was directed to sell all the pulp manufactured, and in process of manufacture in said mill, and hold the proceeds of such sale separate from all other moneys coming into his hands as such receiver, subject to the further order of the court. Pursuant to that order the receiver sold the pulp, realized as the net proceeds thereof the sum of $2,393.42, which he holds subject to the order of the court, and this submission was agreed upon to obtain an adjudication by the court of the question of the title to the property, and, therefore, to the fund. In addition to the facts above stated, the following are among those agreed upon for the purposes of the submission: "That a small portion of the straw, out of which the pulp covered by said order was made, was straw purchased by the said company, and stored by it upon its premises after the execution and filing of said chattel mortgage, and was paid for by the said company in its regular course of business; that the amount of said straw was about onesixth of the amount of straw used in the manufacture of the said pulp; that the remainder of the straw used was straw which was covered by the chattel mortgage." "That the value of said pulp, as manufactured, was represented by about one-third straw, and the remainder by chemicals and labor sold and furnished to said company after the execution and filing of said chattel mortgage, and which have not been paid for, and there are now no funds in the receiver's hands applicable to pay ment of said chemicals or labor. That said pulp, as manufactured, was composed of the straw used, none of the said chemicals used remaining as constituent parts thereof." Upon the foregoing statement we can have no doubt that the plaintiff's contention must prevail to the full extent. Though the mortgage, as such, and as to third persons whose rights might have intervened, could not be upheld as to that portion of the pulp, which was, in any sense, "after acquired property" (Coats v. Donnell, 94 N. Y., 177), yet, as between the parties to the mortgage, that instrument was to be construed as a contract to give a lien upon straw to be thereafter purchased, and upon the pulp to be made therefrom, which took effect as soon as the property of either kind came into the ownership of the mortgagor (Kribbs v. Alford, 120 N. Y., 519; Deeley v. Dwight, 132 id., 59.) This contract was FIFTH DEPARTMENT, JANUARY TERM, 1893. without suggestion of fraud, and was given as security for an actually existing indebtedness to an amount greatly in excess of the total value of the property then or thereafter to be covered thereby. But it is not by virtue of the lien merely, created or to take effect under the provisions of the contract, that the plaintiff's claim the fund in question. The contract, besides its provisions for a lien, gave to the plaintiffs the right to take possession of all the pulp, manufactured or in process of manufacture, at any time in possession of the debtor company, for the purpose of applying it to the payment of the debt; and this they did, in all respects, in accordance with the contract before any rights of the defendant had intervened. They were in possession of the pulp under their contract, and entitled to sell it for the payment of their debt before any steps even were taken for the appointment of a receiver. It was no longer, therefore, a question of lien, but of title to property actually vested in the plaintiffs; and there was nothing in the appointment of the receiver which could operate to divest that title. By his appointment he became vested with title only to such property as was then in the company, and he took no interest in or control over the property which had been actually reduced to possession by the plaintiffs under their unquestioned contract with their debtor. The wrongful act of the latter in forcibly ejecting the custodian of the plaintiffs from the mill could have no effect to divest them of their absolute title which they had acquired by taking possession under their contract. We are clearly of the opinion that the plaintiffs are entitled, under the submission, to judgment for the whole of the fund arising from the sale of the pulp. MACOMBER and LEWIS, JJ., concurred. Judgment ordered for the plaintiffs, on the submission, for the fund in question. 66 588 83 405. FIFTH DEPARTMENT, JANUARY TERM, 1893. MARY HENNING, RESPONDENT, v. LIBBIE MILLER, AS Evidence of an oral agreement that land conveyed should revert to the grantor is not Evidence of an oral agreement on the part of a person, since deceased, that, APPEAL by the defendant, Libbie Miller, as executrix of Catharine Barbara Nestel, deceased, from a judgment of the Supreme Court, entered on the report of a referee in favor of the plaintiff in the Erie county clerk's office July 13, 1892; and, also, from an order of the Erie Special Term, entered in the Erie county clerk's office July 8, 1892, denying her motion to set aside the report of a referee, and for a new trial, on a case and exceptions, in the case of a reference under the statute of a disputed claim against her testatrix's estate. H. S. Heath, for the appellant. C. W. Sickmon, for the respondent. DWIGHT, P. J.: In the lifetime of the defendant's testatrix, Catherine Barbara Nestel, the plaintiff united with her two sisters in a quit-claim deed to their mother (the testatrix) of all their and each of their right, title and interest in and to a piece of land of six acres, in the town of Hamburg, for a consideration expressed in the deed. The three grantors were the owners of the land in fee simple, subject only to the dower right of their mother, the grantee. Since the death of the latter the plaintiff has preferred a claim against her estate for the value of an undivided one-third of the land so conveyed, alleging as the ground of such claim an oral agreement on the part of the FIFTH DEPARTMENT, JANUARY TERM, 1893. deceased, in consideration of their conveyance, that the property should all come back to the three heirs in equal shares if she should die. The claim, being disputed, was referred under the statute. On the trial evidence was received of the alleged oral agreement under the objection of the defendant, and the referee reported in favor of the claim. We think the defendant's exceptions to the admission of the evidence objected to and to the findings of the referee were well taken, and furnished incontrovertible ground for the defendant's motion to set aside the report. The admission of the testimony was in violation of the elementary rule of evidence which excludes evidence of an oral agreement in contradition of a written instrument — in this case a deed under seal; and the finding was in equal violation of that provision of the statute of frauds which declares that no estate or interest in lands shall be created or assigned unless by a deed or conveyance in writing. In this case, if the effect of the oral agreement upon the deed executed by the plaintiff be considered, it is manifest that it cuts down an estate in fee to an estate for life merely. And the finding gives effect to an alleged agreement to create or assign an estate or interest in remainder, in lands, without a deed or conveyance in writing, but by an oral agreement only. The suggestion is that the oral agreement sought to be enforced was the consideration of the deed executed by the plaintiff. But this suggestion is without force upon the question here involved. Every agreement, whether oral or written, unless nudum pactum, is made upon some consideration, and the character of the consideration is not a test either of its admissibility in evidence or of its • competency to create or convey an estate or interest in lands. Neither the ancient rule of evidence nor the ancient statute have been abrogated by recent decisions of the courts. (See Woodard v. Foster, 45 N. Y. St. Rep., 77; Hutchins v. Hutchins, 98 N. Y., 56, and the cases cited in both.) The order appealed from must be reversed. MACOMBER and LEWIS, JJ., concurred. Judgment and order appealed from reversed and a new trial granted, with costs to abide the final award of costs. 66 590 139a 1:0 139a 251 FIFTH DEPARTMENT, JANUARY TERM, 1893. THE PEOPLE OF THE STATE OF NEW YORK, RESPOND- Conspiracy-association of retail coal dealers to regulate prices. An association was formed of the retail coal dealers of a city, the main purpose of which was to fix prices below which coal should not be retailed in the city and vicinity, and the scheme of which organization, if fully carried out, would practically compel, under prescribed penalties, every coal dealer in the city to join it and regulate his business by its constitution and by-laws, which prohibited soliciting business, except as provided therein, and the taking of club orders of associated buyers at reduced prices, and provided for keeping the retail price of coal uniform, so far as practicable, and required a certain vote of the association to change the price. Held, that the association constituted a combination in restraint of trade, and that membership in such association would support a conviction on an indictment for conspiracy to commit acts injurious to trade. That this was so, although the constitution of such association also provided that no price was to be made at any time, amounting to more than a fair and reasonable advance over wholesale rates, or than the current prices of the coal exchanges at certain designated neighboring cities when figured upon corresponding freight tariffs, and although the rental price of coal actually fixed by the association was a fair price. APPEAL by the defendants, Carson J. Sheldon and others, from a judgment of the Niagara County Sessions, rendered on the 28th day of June, 1892, upon a verdict convicting the defendants of the crime of conspiracy, with notice of an intention to bring up for review, upon such appeal, an order of that court denying the defendants' motion for a new trial. E. M. Ashley, for the appellants. P. F. King, for the respondent. LEWIS, J.: The defendants were convicted in the Niagara County Sessions of the crime of conspiring together to commit acts injurious to trade. They were retail dealers in coal in the city of Lockport, and with eight or ten other dealers in coal in that city, they organized an |