tees of the estate, as well as guardians of his daughter. Almira Brien, the mother, died in May, 1890, intestate. Mr. Morrison never qualified as guardian and has declined to act. On the death of the mother, the infant having no guardian, the maternal grandmother, Mary A. Beebe, petitioned the surrogate to be appointed guardian of the child's person and estate. Objections were filed by Mrs. Anna Van Ness, the infant's aunt, on behalf of herself and other relatives, the objectors asking specifically for the appointment of a trust company as guardian of the estate. The surrogate referred the matter to his assistant to take proofs and on the proofs so taken appointed the petitioner, Mrs. Beebe, as guardian of the person and the State Trust Company as guardian of the estate. Appellant contends that by our Revised Statutes the grandmother became a general guardian, with the rights, powers and duties of a guardian in socage, and that the surrogate had no power to remove the petitioner under the application as presented. The most he could have done was a denial of her motion, and to leave her where she was before she applied to him for additional relief. J. G. Flammer, for app'lt; F. S. Bangs, for resp't. VAN BRUNT, P. J.-An examination of the papers seems to show that the action of the surrogate was eminently proper. Whatever the rights of the petitioner were, as guardian, in the absence of an appointment, they ceased upon such appointment. The appellant asked for the appointment of a guardian, and the surrogate, upon ascertaining the relations of the petitioner to the property of the infant, refused to appoint her, but did appoint a trust company. We see no reason for interfering with this action. The petitioner had interests antagonistic to those of the infant. She was living in one of the houses of the infant, had but little property of her own, and evidently had hopes of being partially supported out of the property of the infant. This condition of affairs would undoubtedly have led to grave complications had she been appointed guardian, which should be avoided if possible. The order should be affirmed, with ten dollars costs and disbursements. BRADY and DANIELS, JJ., concur. BENJAMIN BARKER, JR., Assignee, v. ERASTUS CRAWEORD, Resp't. ANSON O. STEVENS, App'lt, and ALBERT J. ADAMS, Resp't. (Supreme Court, General Term, First Department, Filed October 24, 1890.) JUDGMENT SATISFACTION-PAYMENT. Application to satisfy a judgment recovered upon undertakings was made by one of the sureties on the ground that it had been paid by C., who was primarily liable. This was denied by C., and by the other surety, who swore that he purchased it for the accommodation of C., to secure equality of liability between himself and the other surety. Held, that the application was properly denied. APPEAL from order denying motion to satisfy judgment. DANIELS, J.--The judgment was recovered on undertakings, or bonds given in an action in the courts of the United States. The application to satisfy it was made on the affidavit of the defendant's attorney, and on behalf of one of the sureties, Anson O. Stevens, that it had been in fact paid by the defendant, Erastus Crawford, who was primarily liable to discharge the obligations. And the affidavit of Mr. Shoudy, one of the plaintiff's attorneys, confirmed this statement. And But the affidavit of Mr. Crawford positively denies these statements. And so does that of Mr. Adams, who swears that he purchased the judgment with his own money, and as an accommodation to the defendant Crawford, for the object of securing equality of liability between himself and the other surety. the affidavit of Mr. Fromme sustains the fact that the purchase was made by Mr. Adams, and that the judgment was not paid. Upon this evidence the court could not order the judgment to be satisfied. And the motion was therefore denied without prejudice to an action. The order was right and should be affirmed, with ten dollars costs and the disbursements on the appeal. VAN BRUNT, P. J., and BRADY, J., concur. FRANK WORK et al., Resp'ts, v. CYRUS W. REXFORD, Impl'd, App'lt. (Supreme Court, General Term, First Department, Filed October 24, 1890.) PLEADING AMENDMENT-PLEDGE. In an action to foreclose a lien on certain securities pledged to plaintiffs by a firm, this defendant denied that plaintiffs were bona fide holders and demanded judgment for certain of the securities claimed by him, but subsequently asked leave to amend by claiming superior equities to the owners of other securities which were included in the foreclosure. Held, that the motion was properly denied, as the answer did not show that all the parties in interest were before the court so that their rights could be determined and the assets marshalled. APPEAL from order denying motion for leave to serve an amended answer. W. H. Sheppard, for app'lt; F. F. Marbury, for resp'ts. VAN BRUNT, P. J.-This action was brought to foreclose a lien on certain securities pledged to the plaintiffs by the firm of Ogden, Calder & Co., the complaint alleging that the defendant, appellant, as well as some other defendants, have or claim some right to the property. By the original answer, the defendant, appellant, set up that the plaintiffs were not bona fide holders of the stock and bonds mentioned in the complaint as pledgees, or otherwise, in good faith or for value, and denied that the securities claimed by him were ever pledged by said Ogden, Calder & Co. to the plaintiffs, and claimed judgment for the value of certain of said securities which he alleged belonged to himself. N. Y. STATE REP., VOL. XXXIII. 126 Prior to the commencement of this action, the defendant, appellant, commenced an action in this court in the county of Saratoga against the plaintiffs to recover damages for the alleged conversion of these securities. This action was tried, and judgment recovered by the plaintiffs against the appellant, dismissing his complaint upon the merits. Thereupon the defendant, appellant, made this motion for leave to serve an amended answer, claiming superior equities to the owners of other securities pledged to the plaintiffs and which were included in this action of foreclosure. This motion was denied, and from the order thereupon entered this appeal is taken. The order was properly made, if for no other reason, because there are no allegations in the defendant's amended answer which show that there can be any marshalling of these securities in this action. There is no allegation that all of the parties in interest are before the court, or that the owners of the other securities pledged to Ogden & Co. are before the court so that their rights could be litigated. It is undoubtedly true that in an appropriate action the rights of ultimate owners of securities which have been unlawfully pledged may be fixed and determined and the order in which such securities shall be sold to pay the liens thereon may be determined. But it is necessary in order that such an inquiry shall be entered into that all the parties who may be affected by the adjudication shall be before the court, and there is no allegation in the defendant's answer that the owners of the other securities upon which it is sought to impress this lien can be heard in this action to refute the allegations of the defendant, appellant. The plaintiffs have no interest in this controversy as far as this appellant is concerned. They are entitled to hold all these securities for the payment of their lien; and whether other securities shall be sold before those claimed by the appellant or not is a question between the owners of such securities; and whether or not they are before the court we are not informed. The allegation upon which the appellant founds his right to have the other securities sold first is that the stocks and bonds mentioned in the complaint in the hands of the plaintiffs other than those claimed by the appellant were and are the property of the firm of Ogden Calder & Co., or of persons who are or were at the time the same were pledged and delivered to the plaintiffs indebted to Ogden, & Co., in sums greater than the value of their res pective stocks and bonds and to secure which indebtedness the said stocks and bonds were by their respective owners pledged to said firm. This allegation is clearly insufficient to justify the court in entering upon the consideration of the equities of the owners of the various securities sought to be sold to pay the lien of the plaintiffs. The order should be affirmed, with ten dollars costs and disbursements. DANIELS, J., concurs. ROBERT F. FARRELL, as President, App'lt, v. LOUIS COOK et al., Resp'ts. (Supreme Court, General Term, First Department, Filed October 24, 1890.) 1. ASSOCIATIONS. The constitution of an organization provided that no member thereof should remain a member of another local union or similar organization under penalty of expulsion. Held. that this acted only on that organization, and was without effect on the other bodies referred to, and in no way interfered with the official position or membership therein of a member of such organization. 2. SAME-ELECTION OF OFFICERS. Defendant C., while president of a voluntary association, became a member of the above mentioned organization. After the adjournment of a meeting of the association, at which he presided, and while he was attending a meeting of the other body, a meeting was held at which plaintiff was elected president on the ground that the office was vacated. Subsequently C. was re-elected, and on the same evening another meeting was held, at which plaintiff presided, and an election was held, under which he claims the office. Held, that the election of plaintiff was irregular; that C. continued to hold the office of president, and that an action could not be maintained by plaintiff to recover the property of the associat.on. APPEAL from a judgment of the special term. J. Delahunty, for app'lt; Titus & Dowling, for resp'ts. DANIELS, J.-The plaintiff sued as the president of a voluntary association, known as Lodge No. 6, of the United Order of American Carpenters and Joiners, to recover possession of the bank deposit book and a deposit amounting to the sum of $350 in the Union Dime Savings Bank to the credit of the association. The right to maintain the action depended upon proof that the defendant, Louis Cook, who had been elected president of the association, had vacated his office and become a member of another association called the Brotherhood of Carpenters and Joiners of America, and intended appropriating the money to the use and benefit of this latter association. The fact that the plaintiff had become the president of Lodge No 6 was put in issue by the answer, which alleged that the defendant, Louis Cook, had throughout continued to be the president of that association, and it also denied other allegations of the complaint essential to the support of the action. The By 3, of article 2 of the constitution, the elections of the officers of the association were to take place at the last regular meeting in June and December, and by § 1 of the same article they were to hold their offices for the term of six months. defendant, Louis Cook, was elected as the president at the last meeting in June, 1888, and was entitled to hold the office until and including the last meeting of the following December. But at a meeting held on the 1st of December, 1888, it was alleged that he had vacated his office by identifying himself as a member and officer of the Brotherhood, and that the plaintiff was thereupon elected to fill the office in that manner vacated. Section 4 of the same article of the constitution authorized this election if, in fact, the office had been vacated. There was proof tending to estab lish the fact that the defendant Louis Cook had, in this manner, become identified with the Brotherhood, but neither the constitution nor the by-laws vacated his office as president of the lodge on that account. But it did appear from the evidence that he and other members of the lodge were present attending a meeting of the Brotherhood during the evening of the first of December, and it was while they were so absent that the plaintiff's election took place. But the evidence, though not free from conflict as to the fact, was that a meeting of the lodge had been held in the earlier part of that evening, which was presided over by the defendant, Louis Cook, and that such meeting, on regular motion, had been adjourned before this election of the plaintiff. The evidence given by the plaintiff, as well as that of the defendant's witnesses, tended to prove that to be the fact. The preponderance was decidedly with the defense, and from this fact the court could very well conclude as it did, that the plaintiff had not been elected president of the association. For an election held after the adjournment of the meeting was not an election at all, and conferred no right to the office to the plaintiff. It also appeared from the evidence of the plaintiff that the election proceeded upon the sole fact that the defendant Cook and the persons acting with him had previously vacated the room in which the meeting of the association had been held. But it is quite clear that this absence furnished no authority for electing the plaintiff president, for it did not prove that the office in this manner attempted to be filled had been vacated. There was no resignation of the president, and even this witness testified that it was necessary to have the president send in his resignation, while he had done no more than to leave the room in which the meeting had already been held. The constitution of the Brotherhood was stated to contain the provision that no member of that organization could remain a member of another local union, or of any other organization of carpenters and joiners, under penalty of expulsion. But this acted only upon the Brotherhood organization. It was without effect on the association of lodge No. 6, and in no way interfered with the official position or membership of the defendant Cook in that lodge. But he remained the president of that association and continued to act in that capacity. On the last meeting in December, 1888, at which, as the num ber has been variously stated, there were from thirty to sixty members present, the defendant Cook was again elected the presi dent of the association. This election was by a formal vote cast by one of the officers, which was stated to be the practice when there was no dissent, and there was none at that time. And the minutes of the meeting record the fact of this election, at which the other officers were, in the same manner, again elected. At another meeting, at which other members of the association were present, held under the presiding action of the plaintiff on the same evening, Philip Dunn was elected president, and the |