with reasonable definiteness and certainty, and if the proofs furnished failed to satisfy the association of the fact of the death, the association, acting reasonably and in good faith, could require further evidence. But the insurer caunot, under guise that the requirement that "satisfactory proof" of the death of the assured should be given, demand information of the cause of the death. This would be a different subject. The information, however important it might be in its bearing upon a death from the excepted causes, nevertheless has no relation to the one fact which alone the claimant is bound to embrace in his proofs. See Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281; Insurance Co. v. Rodel, 95 U. S. 232. The guardian of the infaut plaintiff in furnishing to the defendant as part of the proofs the certificate of the attending physician of the insured did a wholly gratuitous act. If it can be treated as an admission by the infant beneficiary that the death was from the cause so certified, it is plain that the act was extremely prejudicial to the interest of his ward, for upon that assumption the infant, the real plaintiff, has substantially admitted away his cause of action. The trial judge, upon the proofs being offered in evidence by the defendant, refused to permit the certificate of the physician to be read, and this ruling presents the main question in the case. There are two aspects under which the ruling may be considered. First, was the certificate inadmissible under section 834 of the Code of Civil Procedure, which declares that "A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which is necessary to enable him to act in that capacity; and second, assuming that the statute does not apply to the case and that the certificate would be competent as an admission of the fact certified, if the proofs had been furnished by an adult claimant, can the act of the guardian in this case be treated as an admission by the infant beneficiary of the same act? Section 834 is a re-enactment of a similar section in the Revised Statutes. 2 R. S. 406, § 73. It is contained in the chapter of the Code relating to evidence, and in the article in that chapter entitled: "Competency of a Witness; Evidence in Particular Cases." The primary purpose of the section was to declare the rule governing the examination of a physician as a witness in judicial proceedings. The three sections, section 833, section 834 and section 835, relate respectively to disclosures by clergymen, physicians and attorneys, and section 836 declares that "the last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by a person confessing, the patient or the client." The disclosure by a physician of information acquired in his professional character, in attending a patient, where not made in the course of his professional duty, is a plain violation of professional propriety. But the statute does not prescribe a rule of professional conduct for the government of physicians in their general intercourse with society. The common law did not protect a physician from disclosing as a witness information acquired professionally from patients. 1 Greenl. Ev., § 248. The statute was intended to afford this protection and to protect the patient also. If a physician, disregarding the plain obligations of his situation, should in conversation disclose the secrets of his patient, he would, so far as we kuow, violate no statute, however reprehensible his conduct would be The statute should have a broad and liberal construction, to carry out its policy. By reasonable construction it excludes a physician from giving testimony in a judicial proceeding, in any form, whether by affidavit or on oral examination, involving a dis closure of confidential information acquired in attending a patient, unless the seal of secrecy is removed by the patient himself. The verified certificate of the physician which accompanied the proofs of loss, was not competent original evidence of the cause of the death of the insured, nor was it offered as testimony of the physician as to the fact. The fact that the insured died of delirium tremeus was material to the defense. The admission of a party in interest is as a general rule competent evidence against him. The presentation of the physician's certificate that the deceased died from the cause stated, operated as an admission by the guardian that the fact was stated. It derived its force from the fact that the claimant communicated to the defendant a statement of the cause of death, which if true vitiated the policy. The statement was embodied in a physician's certificate. If it had been contained in the guardian's own statement, or that of any nonprofessional person it would equally have been an admission of the fact stated. The certificate was a part of the proofs furnished. Its admission in evidence violated no confidence. The confidence had already been violated by the conjoint action of the physician and the guardian. It was not offered as independent evidence of any fact in the case, but in connection with the circumstances of its transmission to the company, as an admission that the fact alleged was true. It was held in Insurance Co. v. Newton, 22 Wall. 32, that preliminary proofs presented to an insurance company under a provision in a policy, as to the proof of death, substantially like that in the present case, were inad missible as prima facie evidence of the facts stated therein against the insured and in behalf of the company. The case of Goldschmidt v. Mutual Life Ins. Co., 102 N. Y. 486, is not in conflict. In that case the question was, whether the record and verdict of a coroner's inquest, finding the fact of suicide, furnished by the claimant with the proofs, at the request of the company, but which was accompanied with a protest that the fact found was not true, was an admission by him that the insured died by his own hand, and the court very properly held that it was not. We think the admission in the case was not incompetent because made through the medium of the certificate of the attending physician. The other ground for excluding the certificate, viz.: that the infant was not bound by the admission of the guardian is, we think, well taken. The defendant, upon the request of the guardian, furnished blanks for the proofs, including a blank certificate of the attending physician as to the cause of the death, which were filled in by the guardian and signed and verified by the several persons whose certificates were required, and returned to the company. The office of a guardian is one of trust. He is empowered to act for the ward in the matters confided to him as guardian, in furtherance of his interests. Under the law of agency the admission of an agent, made within the scope of his powers, are admissible in connection with some res gestæ, to bind the principal. But the admission must be relevant to the matter in hand and accompany the trans action to which it relates. Thallhimer v. Brinckerhoff, 4 Wend. 394. The power of a guardian to bind his ward by his admissions Is more limited than that of au agent acting for an adult principal. The court will not permit the rights of a ward to be prejudiced by the admission of a guardian. His interests are under the protection of the court and it will intervene to relieve the ward from prejudicial conduct on the part of the guardian. It is a settled rule in chancery that where the infant defends by guardian, his rights are submitted to the court and he is not bound by admissions in the answer, and the court will not render a decree against the infant solely upon such admissions. Wrottesley v. Bendish, 3 P. Wms. 235; Bank U. S. v. Ritchie, 8 Pet. 128; Cooper v. Mayhew, 40 Mich. 528; In the present case the guardian in furnishing the physician's certificate did an act not required by the contract of insurance. Whatever was necessary to be done to enable the guardian to put himself in a position to prosecute the claim, he was authorized to do. There is no ground for impeaching the good faith of the guardian in furnishing the certificate. He probably supposed that the company had the right to exact it. The company in remitting the blanks requested him to fill them up, and what he did was in compliance with its request. In procuring the physician's certificate, the guardian misapprehended his duty. It was an act tending to defeat the claim which he had undertaken to collect. The fact asserted in the certificate may have been the truth. But the guardian had no right to foreclose inquiry upon the subject, nor to prejudice the case by changing the burden of proof by an inconsiderate, unnecessary and prejudicial admission. See Serle v. St. Eloy, 2 P. Wms. 386; Flight v. Bolland, 4 Russ. 298; Hanna v. Spott's Heirs, 5 B. Monr. 362; Whart. Ev., § 1208; McPherson Infants, 83. The offer of the defendant to show that by the rules and regulations of the defendant the certificate of the attending physician of the insured, in case of death, was required to be furnished as part of the proofs, was properly rejected. There is nothing in the contract or in the by-laws of the defendant requiring this, nor was it claimed that if such a rule existed it ever came to the knowledge of the assured. In the absence of any usage known to him, or of any requirement in the policy that the certificate of the attending physician should be furnished as part of the proofs of death, it could not be required. Taylor v. Ætna Life Ins. Co., 13 Gray, 434. | John M. Gearin, for appellaut. W. W. Cotton and Zera Snow, for respondent. LORD, J. The question presented by the contention for the plaintiff is, that if a loss under a policy of fire insurance is caused by the wrongful act of a third person, the insurer, upon making payment to the insured pro tanto, is subrogated to the rights and remedies of the insured, and may maintain against the wrong-doer an action in his own name, and need not prosecute it in the name of the insured. This action is brought by the plaintiff in its own right upon the assumption that the effect of the insurance was to create in the plaintiff a pecuniary interest in the property insured, and that when it was destroyed by the wrongful act of the defendants, whereby it became liable and was required to pay for the loss to the extent of the insurance to the insured, it became entitled to a legal remedy against the defendants in its own independent right to the extent which it was compelled to pay for such loss occasioned by the defendant's wrongful act. This involves an inquiry into the nature of the rights which the insurer acquires upon the payment of the insurance for a loss caused by the wrongful act of a third person. The right of the insurance company that has paid a loss to recover of the wrong-doer after payment of such loss rests upon the doctrine of subrogation, in its application to insurance companies. "Every day," said Lord Mansfield, "the insurer is put in the place of the insured." Mason v. Sainsbury, 3 Doug. 63. Sub The court also properly excluded the records of the board of health of Buffalo and the certificate of the at-rogation is purely an equitable result. It is the creatending physician filed with the board, stating the cause of the death of the insured. The statute, Laws 1870, chapter 519, title 12, section 10, subdivision 5, makes it the duty of the board of health of Buffalo to supervise the registration of deaths and causes of death in the city, and prescribes that no burial of a deceased person shall take place until a certificate shall have been made and presented of the death and its cause, if known, and that a refusal on the part of any person whose duty it is to make out and file for registration any such record shall be a misdemeanor. The ordinances of Buffalo also make it the duty of the attending physician to furnish a certificate setting forth the cause, date and place of death of any person in the city, and file the same in the office of the board of health. The statute and ordinance were police regulations, and the records were required for local and specific purposes, and are not public records in such sense as makes them evidence between private parties of the facts recorded. We have found no case which would justify their admission in a controversy between private parties as evidence of the cause of death where that became a material inquiry. We find no error in the judgment, and it should be affirmed. All concur. INSURANCE-FIRE SUBROGATION OF IN SURER-ACTION-PARTIES. Where property is Insured for less than its value and is de- tion of equity, is not dependent on contract, and is enforced for the purpose of attaining the ends of justice. It grows out of the relation which the parties sustain to each other; the party subrogated acquires no other or greater rights than those of the party for whom he is substituted. As the contract of insurance is one of indemnity, when a loss occurs by the negli gent or wrongful act of a third party, and the insurer pays the insured, he is entitled upon equitable principles to be subrogated to the rights of the insured against the wrong-doer. Hence the general rule that when property which has been insured is lost or destroyed by the negligent or willful act of another an action accrues in favor of the insured, and if the insurer pays the loss he is subrogated to the rights of the insured as against the wrong-doer, with all his rights as well as his remedies. "Where the property insured," says Mr. Wood, "is destroyed by the negligence of a third person, so that the assured has a remedy against him therefore, the insurer by payment of the loss becomes subrogated to the rights of the assured to the extent of the sum paid under the policy. The assured becomes trustee for the insurer, and by necessary implication the payment of the loss operates as an equitable assignment to the insurer to the extent of the sum paid under the policy." Wood Ins., § 499. The owner and insurer, in respect to the ownership of the property and the risk incident thereto, are considered but one person, having together the beneficial right to an indemnity against the wrong-doer whose negligent act occasioned the loss or destruction of the property. The liability of such wrong-doer to the owner is first and principal, and that of the insurer secondary; not in order of time, but of ultimate liability. Hart v. Railroad Corp., 13 Metc. (Mass.) 99; Hall v. Railroad Cos., 13 Wall. 370. The insurer standing in no relation of insurer, must be in the name of the person whose contract or privity with those who are responsible for the loss, his rights arise out of his contract of indemnity, and are derived from the assured alone, and can only be enforced in the right of the latter. "In any form of remedy," says Mr. Justice Gray, "the insurer can take nothing by subrogation but the rights of the assured. Phoenix Ins. Co. v. Erie, etc., Trans. Co., 117 U. S. 321. The reason for the doctrine that the insurer must enforce his rights in the name of the owner against the wrong-doer, or party first liable as principal, Tenney, J., said, was "wholly inconsistent with the principle that the insurer can in his own name recover for money paid on the contract of insurance in an action against the wrong-doer, for the insurer and assured being in effect one person, each cannot maintain an action at the same time and for the same loss where there can be but one satisfaction." Insurance Co. v. Bosher, 39 Me. 256. "It has long been settled," said Dyer, J., "both in England and in this country, that such a cause of action is single and indivisible, and that in a case like the present the insurer could not at common law sue the wrong-doer in his own name to recover the amount paid the assured, but must bring this action in the name of the assured." First Presbyterian Society v. Goodrich Trans. Co., 7 Fed. Rep. 258. Where the insurance company has paid the owner for the destruction of his property by fire occasioned by the fault of a railroad company, and afterward the owner receives the amount from the compauy in satisfaction of his damages, he holds it in trust for the insurance company, and it may recover it from him by a suit in equity. So too if the railroad company has not paid the owner his damages for the loss, or has paid it to him, knowing that he had received the amount of the insurance from the insurance company, the railroad company is liable to the insur-terest in the present controversy, and hence they are ance company in an action at law, which it has a right to bring in the name of the owner, without his con sent, to repay it the damages to the amount of the sum paid by it, and that a release from the owner would be no defense to such an action. Monmouth, etc., Ins. Co. v. Hutchinson, etc., Trans. Co., 21 N. J. Eq. 108. The subrogation of the insurer to the remedies of the insured for the destruction of the insured property upon the payment of the loss operates as an equitable assignment to the insurer to the extent of the amount paid. "It is in the nature," said Shaw, C. J., "of an equitable assignment, which authorizes the assignee to sue in the name of the assignor for his own benefit." Hart v. Railroad Corp., supra. not necessary parties." The opinion is however expressed in that case, if the value of the property destroyed exceeds the insurance money paid, that the insurer might join or be joined with the owner in the action to recover for its loss, and would not be required, as held by Judge Dillon, supra, in such case, to prosecute the action in the name of the insured. A like view was sustained in Crandall 7. Transportation Co., 16 Fed. Rep. 75, where Dyer, J., held that in au action to recover the value of a building destroyed by a fire caused by the alleged negligence of the defendant, the owner of the building and an insurance company that has paid the amount of the insurance of such building, and taken an assignment of the claim from the owner to that extent, may join as parties to the action when the value of the house exceeds the amount for which it was insured. In Swarthout v. Railway Co., several insurance companies united with Swarthout, to whom they had paid the amount of their policies for property destroyed by the negligence of the defendant, in an action to recover for the value of such property. The defendant demurred on the ground that the plaintiffs could not sue in one action, but each must sue separately. The demurrer was overruled, and the correctness of this ruling was the subject of the controversy. The court say: "It is said, if the defendant is liable at all, it is separately and distinctly liable to each insurance company to the amount paid on its policy. But it seems to us that it would be an intolerable rule to allow each insurance company to bring a separate suit. The railroad company might well say, were this attempted: 'The claim is indivisible. There is but one wrongful act com It results then that the right, resting on the doctrine of subrogation and not depending upon the contract or privity, must be worked out through the right of the insured or the owner of the property destroyed; that the remedy must be prosecuted in his name, unless the Code of Procedure, which permits an action to be brought in the name of the real party has changed this rule. The case of Connecticut Fire Ins. Co. v. Erie Ry. Co., 73 N. Y. 399, is relied upon to support this position. But in that case the owner had fully settled his claim against the railroad company, but the contract showed that the amount of the policy was deducted from the amount of the loss in the settlement, so that the insurance company was the only remaining party in interest. The action being under the Code of that State, which requires the action to be brought in the name of the real party in interest, by this settlement, the owner having no iuterest, it was held that the insurance company might properly bring the action. In Etna Ins. Co. v. Han-plained of, one loss and one liability.' It might well nibal, etc., Ry. Co., 3 Dill. 1, it was held by Dillon, J., that in a case where the property destroyed exceeded in value the amount insured, the rule of law had long been settled that the insurance company, on the payment of the loss, cannot sue the wrong-doer in his own name, saying: "The suit, though for the use of the insist that the whole matter should be litigated in one action. And what objection there can be to allowing the owner to unite with the insurance companies in bringing one action to determine the liability of the defendant, we fail to perceive. Under the old practice the action would probably have been brought in the name of the assured for the benefit of all concerned; but the Code requires the action to be brought in the name of the real party in interest. Now it appears that Swarthout has made an assignment in writing to each insurance company of a part of his claim against the railroad company for the alleged wrongful destruction of his property. It is obvious, if one of the insurance companies may bring a separate suit for the amount of its claim, each may; and as the aggregate amount of the policies falls short of the actual loss, Swarthout may sue for the balance. As we have said, a rule of law which would allow this to be done would operate most oppressively upon the railroad companies. For a single wrongful act, which gave rise to but one liability, it might be harassed with a dozen different actions." In a later case (Pratt v. Radford, 52 Wis. 118) the court, after citing the section of their statute which provides that "every action must be prosecuted in the name of the real party in interest," and the further section, that "of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants, but if the consent of any one who should be joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint," say: "Under the statutes above cited the insurance companies could maintain an action against such wrongdoer in their own names, or be joined with the insured as plaintiff in such action. * * * Where the common-law procedure prevails, the action of the insurance companies would necessarily be brought in the name of the insured. It could be so brought without his consent, and he would have no control over it. But under our Code of Procedure the companies would sue in their own names, joining the insured as plaintiff or making him defendant, according to the exigencies of the case." It would appear then from these last cases that where the property is insured for less than its value, and is destroyed by the negligence of a third party, the insurance companies, who have paid the owner the insurance money, must be joined with him in an action to recover damages for the destruction of such property, and that upon a refusal of such parties to join as plaintiffs, they must be made defendants. The action though would be brought in their own name, joining the insured as plaintiff or making him defendant, accordingly as he stood related to the facts. From all this the conclusion results, that where the wrongful act is single and indivisible, there can be but one liability or cause of action. Since the Code, the cause of action remains as before, single and indivisible; and the insurer acquires only a right or interest with the owner of the property in the cause of action or liability, and not a new and separate cause of action. He cannot therefore sue in his own name alone, in any case, under the Code, except where the amount paid by him has exceeded or equalled the value of the property destroyed, and no interest remains in the owner. When the amount of the insurance money paid is less than the value of the property destroyed by the negligent act, all the authorities agree that the insurer must either sue in the name of the insured or join with him in bringing an action against the wrongdoer. None allow that in such case he can sue in his own name alone, for the reason that the wrongful act is single and indivisible, and gives rise to but one liability or cause of action. In that cause of action he acquires a joint right with the owner therein, and not a new and separate right of action, and therefore must prosecute it jointly with him. They have a joint interest in a single liability, and united, are the real parties in interest. Now the facts disclosed by this record concede that the property destroyed by the wrongful act of the defendant greatly exceeded in value the amount of the insurance money paid by the plaintiff. To the extent of that payment the plaintiff became subrogated to the right of the owner in the property, but the cause of action remained single and indivisible, and the plaintiff acquired only a joint right with the owner therein, and not a new and independent right of action, and could not therefore prosecute the action in his own and separate right. Yet this is exactly what the plaintiff has done, and claims it has a right to do. If this were so it would establish an intolerable rule, and expose the defendant to be harassed by a dozen different actions, which it seems to us would be contrary to legal principles, and be productive of mischief and oppression. The judgment must be affirmed. UNITED STATES SUPREME COURT AB- JUDGMENTS-OF ANOTHER STATE-EFFECT.—(1) Testator gave plaintiff certain property, conditioned that she release his estate from all claims for trust property. She sued the executrix in New York for the trust property, and prayed that the condition be declared void, and the devise freed therefrom. Defendant denied the trust, alleged that the funds had been paid to plaintiff, etc., and prayed that plaintiff take the devise with the condition. Both prayers were denied, and judgment was rendered that plaintiff recover the trust money. Held, that the court having jurisdiction of the parties and the subject-matter, and having in effect denied the prayers as to the condition, a court in Tennessee, in a suit where the parties, subject-matter and issues were the same, could not disregard such judgment, and hold that plaintiff could not recover as a creditor because she had elected to claim under the will. (2) The judgment of the New York court declaring a deed of real estate, made by the testator, of land in Tennessee, to be void and inoperative as against plaintiff's claim, is not binding on the courts of the latter State. May 25, 1891. Carpenter v. Strange. Opinion by Fuller, C. J. NATIONAL BANKS--SUBSCRIPTIONS TO STOCK --STOCKHOLDERS.-(1) Where a subscriber for a proposed increase in the capital stock of a National bank pays and receives a receipt therefor, and is entered on the stock books as a stockholder, she becomes a stockholder, though her certificate of stock, which was made out for her when she should call for it, was not called for or sent to her. (2) Her position was not affected by the fact that subsequently thereto, by due proceedings but unknown to her, the amount of the proposed increase was reduced. May 25, 1891. Pacific Nat. Bank of Boston v. Eaton. Opinion by Bradley, J. RES ADJUDICATA-JUDGMENT OF STATE COURTSEFFECT OF REVERSAL ON APPEAL.-While in an action in a United States Circuit Court by the receiver of a National bank to recover the one hundred per cent for which a stockholder is liable, under the Revised Statutes of the United States, § 5151, a judgment of the Supreme Court of the State, in an action by defendant against the bank to recover the money paid for said stock, that defendant was not bound by her subscription, is admissible in bar of the receiver's title to recover, when the judgment of the State court is reversed by the United States Supreme Court on error, the judgment of the Circuit Court based thereon will also be reversed. May 25, 1891. Butler v. Eaton. Opinion by Bradley, J. NEW YORK COURT OF APPEALS AB- ATTORNEY AND CLIENT-COMPELLING ATTORNEY TO PAY MONEY TO CLILNT-DISCRETIONARY.-The peti tioner is the assignee of Robert Schell, who recovered a judgment against the mayor, etc., of the city of New York, on the 25th of July, 1885, for $5,507.16. He states in his petition that the whole amount of this judgment was paid over in the month of August, 1885, by the defendant in the action, to Peter A. Hargous, the attorney for the plaintiff and who prosecuted the claim. It appears that the attorney was to receive and retain, as compensation for his services in the action, a certain percentage of the recovery. The petitioner admits that this sum was to be twenty-five per cent and the attorney claims that, by the agreement, he was to have more, though no claim beyond twenty-five per cent seems to have been made by him till after these proceedings were instituted. The court at Special Term made an order, upon the petitioner's application, directing the attorney to pay to the petitioner the sum of $3,251.31, that being the amount found due, or in default of such payment within five days, that a commitment issue against him. The General Term has reversed this order and denied the application, and the petitioner appeals to this court from the order of reversal. The usual and ordinary remedy of a party, for the enforcement of a claim against another, is an action in a court of law or equity; but, as between attorney and client, it has long been settled that a proceeding of this character, to compel the attorney to pay over money received by him, and which belongs to the client, may be entertained and is within the power of the court. The principle upon which this exceptional remedy in such cases is based, is the power which the court has over its own officers to prevent them from, or punish them for, committing acts of dishonesty or impropriety calculated to bring contempt upon the administration of justice. In such case the court, in vindication of its own dignity or for the relief of the client when clearly wronged, may entertain summary proceedings by attachment against any of its officers, and may, in its discretion, direct the payment of money or punish them by fine or imprisonment. When an application is made to the court for the exercise of its powers to compel an attorney to pay over money received for and belonging to the client, the ground of the jurisdiction is the misconduct of its own officer. It has been said that this power should always be exercised with great prudence and caution, and a sedulous regard for the rights of the client on the one hand aud of the attorney on the other. not an absolute right that the client has to invoke this severe and summary remedy against the attorney, but one always subject to discretion. It is for the court to say when, and under what circumstances, it will entertain such proceedings against its officers upon the application of the client, and a refusal to proceed in that way is not the denial of any legal right. Bowling Green Savings Bank v. Todd, 52 N. Y. 489; In the Matter of Knapp. 85 id. 284; In the Matter of H., an It Attorney, 87 id. 521; In re Paschal, 10 Wall. 483. does not appear from the order appealed from that the application was refused for want of power to grant it, and we must therefore assume that it was denied for the reason that the court, in the exercise of its discretion, did not consider the case one, under all the facts and circumstances, for the exercise of the extraordinary jurisdiction invoked. If we were permitted to look into the opinion of the General Term for the ground of reversal and denial of the relief, it would appear that the court was of the opinion that an assignee of the client was not entitled to this remedy. While it would, we think, be difficult to show that the Supreme Court has not the power to entertain the proceedings, even upon the application of an assignee, it certainly could, in the exercise of its discretion, decline to use it, and that may have been the ground of the decision appealed from. The order of the General Term was therefore one resting in discretion, and we It is have no power to review it. June 2, 1891. Matter of Schell. Opinion by O'Brien, J. 38 N. Y. State Rep. 442. EVIDENCE-EXPERT TESTIMONY-OBJECTIONS.- In an action to recover damages for injuries caused by ant's counsel objected to the question as incompetent In EXECUTORS AND ADMINISTRATORS-ANCILLARY LETTERS-BOND-CODE CIV. PRO., § 2699.-(1) The exception in section 2699 of the Code of Civil Procedure, allowing the penalty in the bond given on the granting of ancillary letters to be fixed at double the amount of debts, was intended to give the surrogate a discretion to modify the general rule declared in section 2698 and to accept a bond less in amount than that prescribed in ordinary cases of administration, if by reason of adequate security having already been given, additional security for the protection of the general interests was not in his judgment required, or where the next of kin had consented to waive secure security, and in a case of domestic creditors where their protection was the only interest involved, to prescribe a limit beyond which security should not be exacted. (2) But said section does not restrict the power of the court under section 2698 to require a bond in double the amount of the personal property in this State, especi ally where the bond given in the foreign State on the original letters was limited to double the amount in that State and ignored the much larger amount in this. June 2, 1891. Matter of Prout. Opinion by Andrews, J. 38 N. Y. St. Rep. 257, affirming 34 id. 318. FRAUD-DISAFFIRMANCE OF CONTRACT FOR DELAY. -Where in an action brought for an accounting of partnership matters, the injured party has realized nothing, and in January learned facts tending to stamp the transaction as fraudulent, and charged it upon defendant, who seemed surprised and assumed not to have heard that such was the situation, and plaintiff did not commence his action until May, shortly after defendant's return from a trip to Europe, in was not such a delay in disaffirming the contract as would confine him to an action for damages. The fact that plaintiff continued in the service of the corporation to which by fraud he had been induced to transfer his property, after discovering the fraud and after the commencement of this action for an accounting, did not necessarily prejudice his right to disaffirm the contract by which he transferred it. Second Division, June 2, 1891. Hasberg v. McCarty. 38 N. Opinion by Bradley, J. Y. St. Rep. 266. MASTER AND SERVANT-DUTY OF MASTER TO SUPPLY PROPER TOOLS.-Plaintiff's intestate was killed while |