the Livingston county clerk's office on the 14th day of July, 1874, in liber 94 of deeds at page 563.

The grantee to secure the purchase money executed a mortgage on the premises for $800, with a bond payable at the decease of James to his executors, administrators or assigns, with annual interest, dated December 25th, 1873, and acknowledged January 2, 1874. This mortgage was never recorded, and at the time of its execution Frederick H. Cooley delivered to James Cooley a writing binding himself to furnishi and provide for James, and for Susan E. Cooley, his sister, at all times, a comfortable home in the family of Frederick II. Cooley. James, also, executed to Frederick a bill of sale of his household furniture, farming implements, and his other personal property. Frederick performed all the conditions of his agreement until the death of Susan E. Cooley in the year 1878, and James Cooley in March, 1881.

In March, 1876, James Cooley wished to have one Archibold Kennedy draw his will, making provision for his said grand nephews, in case they should do as he wished. Kennedy was a neighbor of James, but not a lawyer. Afterwards a bond was prepared by Kennedy, together with a mortgage on said premises, to secure the payment by Frederick H. Cooley to James Cooley, his attorneys, executors, administrators or assigns, the sum of $1,600, with interest to be paid annually on the 25th day of December, in each year, during the lifetime of James, and at his death the principal sum of $1,600, with accumulations, to be paid to his grand-nephews share and share alike. No consideration passed between these grand nephews and James Cooley for the bond and mortgage. They were dated on the 25th day of December, 1873, acknowledged March 27, 1876, and recorded in the said Livingston county clerk's office on the 5th day of May, 1876. On the 18th day of October, 1876, Frederick H. Cooley delivered to James Cooley two promissory notes dated on that day, one for $420, executed by Frederick and Harlan P. Warren, and one for $276, executed by Frederick alone, both of which notes were made payable to James on the 15th day of November, 1876, with interest. Such notes were given in payment of the moneys intended to be secured by the bond and mortgage for the benefit of the said grand-nephews. James Cooley thereupon executed and delivered to said Frederick II. Cooley a satisfaction and discharge of the $1,600 bond and mortgage, which was recorded in the Livingston county clerk's office. James always remained in the possession of the mortgage until the same was discharged, when it was delivered to Frederick H. Cooley. The mortgage was taken by James as a provision for the grand-nephews in the nature of a will, in the belief that the same might be discharged or changed as he, James, thereafter desired. James had no intention to create a trust for the benefit of his grand-nephews or either of them, or make any provision which he could not, during his lifetime, change or revoke. The original plaintiff, George M. Bloodgood, died before the action was tried, and the present plaintiff, Otto Kelsey, was substituted in his place. A trial was had at an equity N. Y. STATE REP., VOL. XXXIII.

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special term in June, 1888. At the close of the proofs the complaint was dismissed; judgment was entered for the defendants, and the plaintiff appealed to this court.

The

The facts above stated were found by the trial court. plaintiff's contention is that a valid trust was created by the deed and $1,600 mortgage for the benefit of his said grand-nephews which could not afterwards be revoked, and that as against them the discharge of the mortgage was a nullity. The claim on the part of the respondents is that there was no trust, and that James did not divest himself of either title or possession so long as he lived, and that he could revoke or alter the terms of the mortgage at will. The trial court found in favor of the defendants' position. The evidence shows, with reasonable certainty, that Kennedy drew the $800 mortgage, also the $1,600 mortgage; that James Cooley was a frequent visitor of Kennedy for the purpose of consulting him in reference to the final disposition of his property and the making of a will. That when the farm was deeded to Frederick, and the $800 mortgage taken, James executed a bill of sale of all his personal property and took a written agreement to provide for himself and sister. The $800 mortgage was never put upon record nor does it distinctly appear, except by evidence the admissibility of which is questioned, what was done with it; still there can be no room for controversy as to what the mortgage was executed for and its purposes. The natural assumption is, that it was used as intended until the new arrangement was made. The $1,600 mortgage was dated on the same day as the deed, but it was not acknowledged until the 27th day of March, 1876, or recorded until the 5th day of May of that year. As Kennedy drew it and the rest of the papers, it is reasonably certain that it was not, in fact, written until the date of its acknowledgment, but was dated back. In other words, at the time of the acknowledgment it was dated back to correspond with the deed and take the place of the $800 mortgage.

The evidence shows that Cooley saw Kennedy early in March, 1876, about his will, instead of drawing which he wrote the $1,600 mortgage and dated it back as above stated. After that a new plan was adopted and on the 28th day of October, 1876, two promissory notes, one for $420 and the other for $276, payable on the 15th of November of the same year, were executed and delivered to James, and the $1,600 mortgage was discharged. It thus appears that when the farm was sold the $800 mortgage was taken, including the agreement for support. After that the $1,600 mortgage was taken, which always remained in the possession of James; and still later a new arrangement was made and the $1,600 mortgage cancelled.

The case shows that the $1,600 mortgage was executed "for the purpose of settling his estate and making distribution thereof among such of his relatives as he desired should share the same before his own decease, duly executed, acknowledged and delivered various deeds and instruments in writing, whereby his property was amicably divided and distributed among such of his said relatives as he desired should share in the same."

This alleged purpose shows that he intended after his death. that his grand-nephews should receive certain portions of his property, but it never occurred to him that he was creating a present interest or trust in their favor which would prevent him from exercising dominion over it, or changing his mind during his lifetime. His subsequent discharge of the mortgage shows that such were his views. The evidence does not show that he was imposed upon or over-reached when he executed the discharge. The form of the $800 mortgage discloses the same purpose on the part of James, for the principal was made payable to his execurors, administrators or assigns. The trial court was therefore correct in holding that the $1,600 mortgage in favor of his grandnephews was executory and in the nature of a will; that he had power to change it in his lifetime, and that he had no intention to create a trust in their favor. The conclusions of the trial court were the logical result of the findings of fact.

McPherson v. Rollins et al., 107 N. Y., 316; 12 N. Y. State Rep., 488, was based upon Martin v. Funk et al., 75 N. Y., 134, where it was held that "to constitute a valid gift, the transfer must be consummated and not remain incomplete, or rest in mere intention; this is so whether the gift is by delivery only, or by the creation of a trust in a third person or in the donor; enough must be done to pass the title."

In the McPherson case, as well as the one upon which that decision was based, the transaction was complete. But in the case at bar no notice was given to the grand-nephews. The mortgage remained in the possession of James, and it was never intended by him that it should pass out of his reach or beyond his control.

But it is insisted on the part of the learned counsel for the appellant that the trial court fell into errors in admitting incompetent evidence under § 829 of the Code of Civil Procedure; but the testimony to which exception was taken, even if incompetent, would not change the result. The evidence outside of that objection abundantly sustains the findings of the trial court, and this action being in equity, there can be no reversal because of errors which would not have changed the result. King v. Whaley, 59 Barb., 71; Matter of Application of N. Y. C. & H. R. R. Co., 90 N. Y., 342.

But the witness, although a party, was not examined on her own behalf, nor was she interested in the subject upon which she testified. She was, therefore, competent. Children's Aid Society v. Loveridge, 70 N. Y., 387; Loder v. Whelpley, 111 id., 239-245; 19 N. Y. State Rep., 631; Allis v. Stafford, 14 Hun, 418. The judgment must be affirmed.

DWIGHT, P. J., concurs.

HENRY F. HART et al., Ex'rs, Resp'ts, v. GEORGE A. RILEY,

Impl'd, App'lt.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) BILLS AND NOTES-PRESUMPTION OF SETTLEMENT OF ACCOUNTS.

On the margin of the note in suit was a computation by which its

amount was arrived at. It was claimed that certain payments on a land contract received by the payee of the note had not been accounted for to the maker thereof. The last of such payments was made more than two years before the note was given. Ield, that the presumption arising from the giving of the note, that any previous indebtedness of the payee to the maker had been paid or settled, was strengthened by the evidence of a careful computation on the face of the note, and that such alleged payments could not be allowed.

APPEAL from a judgment of the county court of Monroe county, entered on the report of a referee.

Messrs. Durand, for app'lt; William E. Edmonds, for resp'ts.

DWIGHT, P. J.-The action was for the foreclosure of a mortgage of real estate made by the defendant Riley to one George D. Stillson. The bond was conditioned for the payment of $1,000, for money to that amount deposited by Stillson in bank for the benefit of Riley, and also for the payment of "all other indebtedness now due and unpaid or which may hereafter be created and agreed to be paid," etc. The bond and mortgage were made in

1875.

Among the items of indebtedness concededly secured by the mortgage was a promissory note made in 1868, and saved from the statute of limitations by an endorsement of moneys and a new promise, made thereon in 1874. The only question in this case arises upon a plea of payment applicable to a portion of this note.

In 1861, Riley sold a piece of real estate in Rochester to one Malloy, and gave him a contract for a deed, upon which quarterly payments were to be made by the purchaser. That contract, with its endorsements, was put in evidence by the defendant, and it appeared that several of the payments, made thereon in 1863 and 1866, had been received by Stillson, and there was no direct evidence to show that he had ever accounted to Riley for the money so received.

Of course the evidence of the receipt of these sums before the note was given was not admissible under a plea of payment; but objection to the sufficiency of the answer in this respect was expressly waived, and it thereupon became a question merely whether the giving of the note was presumptive evidence that any previous indebtedness of the payce to the maker had been paid or settled. It was no doubt prima facie evidence to that effect, though subject to explanation. De Freest v. Bloomingdale, 5 Denio, 304; Lake v. Tysen, 6 N. Y., 461. And what appeared on the face of the note, in this case, so far from indicating the contrary, had the effect, we think, to strengthen the presumption of an accounting and settlement between the parties up to that time. The note was in the following terms:

ROCHESTER, May 15, 1868. Good to G. D. Stillson for four hundred twenty-three eightyone-hundredths dollars cash borrowed and received to-day and heretofore.

(Signed),

GEO. S. RILEY.

And on the margin of the note was a computation by which the amount of the note was arrived at. In this computation there was

first set down the sum of $150, from which the sum of $80 was deducted, and to the balance of $70 there were added three other sums, making up a total of $423.80, which was the amount of the note. No dates were attached to any of these items, but the credit of $80 corresponds in amount with the largest of the sums receipted for by Stillson on the back of the land contract. The remaining sums so receipted for, which, with the $80, are claimed as off-sets to the note in question, amount to only $45, and the latest of them was received nearly two years before the date of

the note.

In the face of this evidence of a careful computation of debit and credit, by which the amount was arrived at for which the note should be given, there is no reasonable probability that any indebtedness from the payee of the note to the maker remained unaccounted for or unsettled at that time, and the finding of the referee to the contrary was well supported.

The judgment must be affirmed.
Judgment affirmed, with costs.

MACOMBER and CORLETT, JJ., concur.

WILLIAM W. DUDLEY, App'lt, v. THE PRESS PUBLISHING COMPANY, Resp't.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) 1. DEPOSITIONS-PARTY EVADING SERVICE OF ORDER WILL NOT BE HEARD TO VACATE IT.

Where a party avoids service of an order and practically declines to obey its mandate, the court will not entertain his application to vacate it. 2. SAME.

Sever orders for the examination of plaintiff before trial have been granted, but could not be served upon him personally in this state because he could not be found therein. The last order was directed to be served on h's attorneys, and also on plaintiff wherever he could be found, and he was served out of the state. It appea ed that he had been several times in the city of New York about the dates appointed for the examination to take place, but did not appear, although he had knowledge of the orders, nor did defendant's officers nor its attorney know or suppose that he was within the state. Held, that under these circumstances the court would not listen to his application to set aside the order.

APPEAL from an order denying a motion to vacate an order for the examination of the plaintiff as a witness before trial, and from an order permitting, in addition to the service of the order to appear and be examined upon the plaintiff's attorney, service of a copy also to be made upon the plaintiff himself personally, wheresoever he might be found, before the 31st of January, 1890.

George Bliss, for app'lt; De Lancey Nicoll, for resp't.

DANIELS, J.-This action is for the recovery of damages for the publication of an alleged libel, and it was commenced in November, 1888. On the application of the defendant an order was thereafter made directing the plaintiff to appear and submit to an examination, for the purpose of supplying the defendant with such information as was sworn to be necessary to enable it to frame and serve its answer, and an order was made extending the