fore us does not necessarily lead to the conclusion that the notice. contemplated by the tenth clause was a notice of election to terminate the employment. There may be many matters, as before stated, which could be the subject of a notice by one party to the other, and the clear and explicit language of the sixth clause fixing the duration of the employment and providing that the same should continue to the end of the term stated, unless the defendant had just cause of complaint, precludes the suggestion that a right to determine the employment before the expiration of the term fixed by lapse of time was intended to be reserved by the tenth clause. To carry the construction contended for by defendant into effect the interpolation of additional words into the contract cannot be avoided, which would not be within the powers and restrictions of the court above indicated as governing the interpretation and construction of contracts.

The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

DALY, Ch. J., concurs.

In the Matter of the Account of HENRY APLINGTON, as Assignee of George M. D. Littell and Marion W. Littell.

(New York Common Pleas, General Term, Filed November 7, 1890.) ASSIGNMENT FOR CREDITORS-COUNSEL FEE.

On an accounting by an assignee for the benefit of creditors, objections were made to his account, which were referred and finally disallowed. Held, that the assignee was entitled to a reasonable allowance for counsel fees on such reference, and should have been granted leave to submit proof by affidavit of the reasonableness of the counsel fee sought to be charged. APPEAL by Henry Aplington, as assignee, from that part of an order confirming the referee's report upon his accounting which disallows $250, part of the fee paid to his counsel.

Nelson Smith, for app'lt; James M. Hunt, for resp't.

BISCHOFF, J.-The assignee having filed his account, Cortlandt B. Littell, a creditor, objected thereto and insisted that the assignee should be charged with the sum of two thousand five hundred and eighty-three dollars and seventy cents ($2,583.70), the amount of certain penalties alleged to have accrued to the assignor from the Importers & Traders' National Bank, under §§ 5197 and 5198 of the Revised Statutes of the United States, it having been alleged that such bank had exacted the payment of usurious interest from the assignors.

A reference was ordered and the referee having duly made his report disallowing the creditor Littell's claim that the assignee's account should be charged with said $2,583.70, an application was made at special term for the confirmation thereof and said report was duly confirmed. Upon the hearing of the application to confirm the report the assignee asked to be allowed out of the balance remaining in his hands at the time of the filing of his account the amount of his commissions, the amount of the referee's and the stenographer's fees upon the accounting, and the sum of $500 N. Y. STATE REP., VOL. XXXIII. 83

alleged to have been paid by him for the reasonable and necessary fees of his counsel for services rendered since the filing of the account. To the allowance of the item for counsel fees, creditor Littell objected on the ground that the same was excessive, and the court disallowed $250 thereof against the protest of the assignee, and, as appellant contends, without regard to his request to be permitted, in such manner as the court might direct, to establish by proof the necessity for the employment of counsel and the reasonableness of the sum alleged to have been paid for counsel fees. Thereupon the assignee appealed from so much of the order confirming said referee's report as disallows the sum of $250, part of the counsel fee alleged to have been paid as aforesaid.

The right of an assignee to employ counsel in matters growing out of the administration of the trust estate committed to his care and to pay counsel fees out of such estate whenever the employment of counsel is reasonably necessary is unquestioned. In the Matter of Wolf & Kahn, 1 Ñ. Y. State Rep., 273; In the Matter of Levy, 1 Abb. N. C., 182.

The facts clearly justified the employment of counsel by the assignee, and I do not understand the objection on the part of creditor Littell to the allowance of the sum alleged to have been paid by the assignee for counsel fees to extend further than to the reasonableness of the sum paid. I think, however, that the learned justice at special term erred in his refusal to permit the assignee to show such reasonableness by proof of the value of the services rendered.

While the court from the proceedings before it and the intricacy of the questions raised upon the accounting could have determined the necessity for the employment of counsel, it could not have taken judicial notice of the value of services of counsel, and could not have determined the value of the same in the absence of proof, without assuming the dual character of court and witness. In the Matter of Hulburt, 10 Abb. N. C., 284; affirmed 89 N. Y., 259, the direction of the court that the value of services of counsel should be ascertained by a reference for that purpose upon the application by the assignee for the allowance of counsel fees was sustained, and the court says that "when it comes to the charge of a counsel fee upon an accounting, then the referee should have some evidence which he can submit to the court going to show that the charge in respect to the accounting is a reasonable and proper one. We think, therefore, that in that respect there should have been a reference back to the referee to take proof in regard to the value of the counsel's services upon such accounting, and that the counsel should have been allowed in this proceeding the value of such services without taking into consideration, in view of the facts of this case, any amount which he had received during the course of the administration."

In the present case the necessity for the employment or counsol did not arise until after the assignee had filed his account, and the value of the services of counsel rendered necessary by the creditor's objection to the account could not well have been

a matter for the consideration of the referee upon the accounting, since the extent of such services was not ascertainable at that time.

The court might, with propriety, have refused to direct a reference to ascertain the reasonableness of the counsel fee alleged to have been paid by the assignee and thus avoided the subjection of the trust estate to additional burdens, and this was probably all that was intended by the judge at special term, although the language of the order appealed from will bear a different construction. Leave should have been granted to the appellant to submit proof by affidavit of the reasonableness of the counsel fee sought to be charged.

That part of the order confirming the referee's report which disallows a part of the counsel fee alleged to have been paid by the assignee should be reversed, with costs, and with leave to appellant to submit to this court at special term proof by affidavit of the reasonableness of the sum alleged to have been paid, to which affidavit the respondent should be permitted to reply.

DALY, Ch. J., concurs.

GEORGE BORK, Pl'ff, v. ALEXANDER MARTIN, Def't.

(Superior Court of Buffalo, General Term, Filed October 30, 1890.)

1. DEED-STATUTE OF USES AND TRUSTS-CONVERSION.

Prior to a sale on foreclosure B., who was a tenant in common of the property, made an agreement with one Box to buy in his interest, and hold it as security for a debt, and in accordance therewith Box and the other owner, D., purchased at the sale. Subsequently D. commenced a partition suit, when it was agreed that Box and 1). should convey to defendant, who should hold the land in trust and convey the same to such persons as the owners should designate. Such conveyances were executed, but defendant paid nothing therefor. Under a further agreement plaintiff paid the debt to Box, and became the owner of B.'s interest. The last five parcels of the land defendant refused to convey unless he received half the purchase price, and subsequently refused to pay the same to plaintiff. Held, that as no consideration was paid for the conveyances to defendant, § 51 of the statute of uses and trusts did not apply, and defendant's refusal to pay over the money received constituted a conversion thereof.

2. SAME--EVIDENCE.

Parol evidence is admissible to prove the transactions out of which a trust of this character arises.

MOTION for a new trial, on a case containing exceptions, ordered to be heard at the general term in the first instance.

The evidence given upon the trial disclosed the following facts: Prior to December, 1879, Joseph Bork and David F. Day were joint owners of a parcel of land situate in the city of Buffalo, upon which the National Savings Bank held a lien, by way of mort gage. A foreclosure of this mortgage was had, and prior to the sale of the premises under the decree entered therein, Joseph Bork entered into an agreement with Henry W. Box, by which said Box was to purchase Bork's interest in said premises, in connection with said Day, and hold the same as collateral security for the payment of a debt owing by Bork to Box of about $3,500; that

in pursuance thereof said Box and Day became purchasers at said sale, and on the 24th day of December, 1879, the sheriff of Erie county executed to said last named parties a deed of said premises, which the parties procured to be recorded. Subsequently said Day commenced an action to partition said premises. There after, and in May, 1883, Bork and Day entered into a written agreement wherein it was agreed by said Day that he would convey his undivided one-half interest in and to said premises to the defendant herein, and said Bork agreed to procure from said Box a conveyance to defendant of the other undivided one half part of said premises.

This agreement was subsequently modified by conveying to Mary Bork a house and lot mentioned therein. In other respects the said agreement was performed, and a deed of the premises was executed by Box and wife to defendant, September 17, 1883, and by Day and wife October 15, 1883. After the agreement between Bork and Day was executed, Bork entered into an arrangement with the plaintiff whereby plaintiff was to pay to said Box his debt, and become the owner of Bork's interest in the property. This agreement was performed by plaintiff, and he thereby became entitled to all of Bork's interest therein. The partition action and all accounts between Bork and Day were settled, and said action discontinued. No consideration for the conveyances was paid by defendant, but prior to their execution a parol agree ment was made between said parties, wherein it was agreed that defendant should take the title, and hold the same in trust for the benefit of plaintiff and said Day, and should, whenever requested, make conveyances of said premises to such person cr persons as the parties should designate. The land was cut up into city lots and so sold. In pursuance of this arrangement defendant, at plaintiff's request, executed, from time to time, deeds of convey. ance to various persons of said property. Upon none of these sales did defendant receive any part of the purchase money, and mortgages, to secure the purchase price, were taken in the name of plaintiff or Day. The land conveyed to defendant was all conveyed by him as above statel, except five lots; as to these, defendant was requested to execute deeds to the parties entitled, but refused to execute them unless he was paid one-half of the purchase price, and in order to procure the execution of the deeds, plaintiff caused to be paid the one-half demanded, and thereupon defendant executed the conveyances. At the time defendant refused to convey he assigned no reason for the refusal, made no claim for compensation, had been put to no expense in the matter, and did not claim to own the land. Day having been paid his share of the last sale, plaintiff caused to be demanded of the defendant the money received by him, and upon his refusal to pay this action was brought.

David F. Day, for pl'ff; Adelbert Moot and W. C. Killhoffer, for def't.

HATCH, J.-The defendant gave no proof upon the trial, and does not now dispute the fact that he took title to the land, pay

ing therefor nothing, under an agreement to convey the premises as he should be thereunto requested by the persons interested, paying to such persons all moneys which should come to his hands; he was, therefore, under a high moral obligation to deal fairly and in good faith with the plaintiff, who had trusted him, and to pay over all moneys coming from such source. The position of the defendant now is, that although he has so agreed, and notwithstanding his moral obligation, yet he is under no legal obligation to respond to plaintiff's demand, and may retain the moneys which have thus come to his hands. In support of this position the learned counsel for defendant relies upon and invokes 51 of the statute of uses and trusts, which provides "where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section." The exceptions to this section are without application here. This section has been the subject of construction many times, and certain rules have been formulated, among which none is more firmly settled than that which provides that this statute, aimed to prevent frauds, cannot be used or construed to perpetrate a fraud. Carr v. Carr, 52 N. Y., 251; Ryan v. Dox, 34 id., 307. And this result is to be reached, where the fraud appears, notwithstanding the statute. Wood v. Rabe, 96 N. Y., 423.

We think, however, that the statute is without application to the present case. So far as the conveyance to defendant made by Day is concerned, it is quite clear that no question can arise; he was the owner at the time, no consideration was paid by him or any one else for the conveyance, it was a mere naked grant, and nothing of value was parted with to secure it. The same is true with respect to the conveyance by Box. He was not the owner of the premises; it is true he held the legal title, but only as collateral security for the payment of his debt; he recognized that the equitable title was in Bork, and that his title was simply a lien, which it would have been impossible for him to enforce against Bork when his debt was paid. Carr v. Carr, 52 N. Y., 251, 260.

Bork received nothing and paid nothing. Box was paid his debt, but that cannot be treated as the consideration for the conveyance; it was simply discharging a lien, like the paying of a mortgage, as it was, it freed the land from the lien so that a clear title could vest in the grantee, but it did nothing more; it was an equity entirely independent of the statute, and is not such payment of consideration as the statute contemplates, as was said by Judge Allen, in Carr v. Carr, supra, "But the plaintiff claims an absolute title in himself, discharged of all trusts and equities * * * under the statute which abolishes resulting trusts for the benefit of the party paying the consideration, when the consideration has been paid by one and the grant has been made to another.

*

* *

If there was no other equity than such as grows out of the payment of the consideration for the grant, the claim would be un