curred by each of the trustees under such directions as were given to them by the will of this testator.

Nor was it in any degree improper to extend the liability back to the time of the decease of the testator. For it was from that time that his estate had in this manner been employed, and this rate of interest had been realized. That was the rate obtained by the firm which was dissolved by his decease, and by carrying the same business immediately into the firm formed the next day the same rate continued to be chargeable and collectible by it. And as the customers were responsible persons, no reason presents itself for doubting that it was, in fact, collected.

This rate of interest was allowed upon the round sum of $180,000, being within $852.08 of the appraised amount of the testator's personal estate. In the appraisement made the sum of $14,000 was the value of his undivided half of a seat in the New York stock exchange, which had not yielded any income. The sum of $10,503, the appraised value of suspended securities, also went to make up the amount of the appraisement. And so did specific articles of jewelry, silver plate, horses, vehicles and other articles, producing no income. These articles were appraised at the value of $1,891.

The referee has stated in his report that the seat in the stock exchange, and the suspended securities, and other items from what has been called the J. R. account, had not been included by him in his valuation of the personal estate. And to reach his valuation, after rejecting them, he must have considered that the remaining part of the estate so far exceeded the appraisement in value as still to be worth the amount of the appraisement. But while the evidence of the surviving partner indicated that the personal estate would finally exceed the appraisement, it was not satisfactorily proven that such was its condition when the hearing was had. Certainly not to the extent of equalling these deductions. The presumption is that the appraisement was approximately accurate, and it was the safer course to act upon that as long as the evidence left it indefinite to what extent the valuation would finally be found to go beyond that amount. The evidence before the referee was in that condition. The personal estate may considerably exceed the appraisement in value, or it may still remain nearly at that amount. And for the present purposes that should be adopted as the valuation of the personal estate. And that will reduce the amount in which the six per cent should be paid to no more than $154,458.08, instead of $180,000, assumed by the referee, and finally sanctioned by the surrogate.

The surrogate has directed the fees of the referee and stenog rapher to be paid out of the principal of the estate of the decedent. This direction should be so modified as to exclude what has been devoted to the creation of the trust. For that has been made inalienable during the continuance of the two lives for which the trust has been provided. 3 R. S., 5th ed., 22, § 84. And this section has been made applicable to a trust created in personal property. Id., 75, § 2. And a like rule previously prevailed.

The surviving partner, who was one of the executors, was asked whether he had been carrying securities for any of the other executors since the death of Mr. Myers. This was objected to as an inquiry into the private business of the executors. The objection was not sustained, and the counsel for this executor excepted. And he answered that the account which was called Harney was the account of Mr. Baring Gould, who is an executor of this estate. This was an irrelevant inquiry. But at the same time the exception is unimportant. For the right of the petitioners to the percentage allowed to the extent, or nearly to the extent, which has been mentioned was proved beyond all ground of reasonable controversy by the evidence obtained from the executors themselves. And they were in no respect injured by this answer, which did not and could not enter into the final decision of the applications.

No other objections appear to merit attention in the determination of the appeals. But the orders or decrees should be modified by reducing the amount on which the six per cent. is calculated to the sum of $154,458.08. And the referee's and stenographer's fees should be directed to be paid out of that part of the estate not included in the trust for its income directed to be maintained for the benefit of the petitioners. And neither party should have costs on these appeals.

VAN BRUNT, P. J., and BRADY, J., concur.

ANDREW ROSEBERRY, Resp't, v. KATE M. II. NIXON, App'lt. (Supreme Court, General Term, First Department, Filed October 24, 1890.) 1. TRIAL-CHARGE.

Remarks made to counsel during the submission of a case cannot be made the ground of error where they form no part of the instructions to the jury, and the jury are expressly told to disregard them.

2. SAME-DIRECTION OF VERDICT.

Although a witness for defendant testifies directly and positively to facts constituting a defense and is uncontradicted, if he may be biased by his interest the case is one for the jury, and a refusal to direct a verdict is proper.

APPEAL from judgment entered upon verdict at circuit.
E. Bartlett, for app'lt; Cornelius Fiske, for resp't.

VAN BRUNT, P. J.-This appellant claims a reversal of this judgment upon two grounds: First, because the court refused to direct a verdict, and second, because of some remarks which the court made in submitting the case to the jury.

The last objection is clearly untenable, because the judge expressly told the jury to disregard what he had said to counsel and that which is objected to formed no part of his instructions to the jury.

The court was right in refusing a direction. It is undoubtedly true that the general rule is that where a witness testifies distinctly and positively to a fact and is uncontradicted, his testimony should be credited; but this rule is subject to many qualifications.

One is that where a witness may be biased by his interest, the case is one for the jury. Elwood v. The Western Union Telegraph Co., 45 N. Y., 549.

The same principle has been held in numerous other cases. This interest need not necessarily be pecuniary; it may arise from the relationship of the witness to one of the parties. The only witness to prove the defendant's case was the husband and agent of the defendant, having an interest in the success of the defense; in fact a party to it. The court was bound under this condition of the evidence to submit the question to the jury.

The judgment appealed from should be affirmed, with costs.
BRADY and DANIELS, JJ., concur.

NELLIE ARNETT, Adm'rx, Resp't, v. EZEKIEL M. HILL et al,

App'lts.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) MORTGAGE-PAYMENT.

Evidence sufficient to sustain a claim of payment of principal on a mortgage.

(DWIGHT, P. J., dissents.)

APPEAL from a judgment entered in Monroe county February 11, 1890, upon the report of a referee for the foreclosure of a mortgage and a sale of the mortgaged premises.

William E. Edmonds, for app'lts; George M. Murphy, for resp't.

MACOMBER, J.-This action was brought for the foreclosure of a real estate mortgage bearing date the 1st day of April, 1887, given as collateral security for the payment of a bond in the sum of $2,200, with interest payable December 1, 1887, and in each year thereafter. The principal sum was payable in eleven equal annual instalments, with the privilege to the mortgagor of paying a sum not less than $100 of principal at any time when interest was payable.

The controversy arises out of a difference between the mortgagor and the plaintiff, who is the executrix of the last will and testament of Benjamin Arnett, the mortgagee, touching the amount of money paid to the deceased on the 1st day of December, 1887, the defendant claiming that such payment was $888, being $800 of principal and $88 of interest, the plaintiff claiming that the same was the sum due for interest only.

The learned referee has accepted the version of the transaction favorable to the plaintiff, holding that only the sum of eightyeight dollars was paid at the time mentioned, and that consequently the plaintiff was entitled to the usual decree of foreclosure and sale. In this conclusion we think he is not sustained by a preponderance of the evidence. An examination of the case convinces us that the clear weight of the evidence was in favor of the contention of the defendant, and that he should have been credited with the amount of money in dispute.

A receipt is produced by the defendant upon the trial which

reads as follows:

"ROCHESTER, Dec. 1, 1887. "Received of E. M. Hill eight hundred and eighty-eight dollars to apply on bond and mortgage held by me.

(Signed.)

"B. ARNETT."

In support of the defendant's contention, four classes of evidence are set forth. The first is that of himself, that he actually paid the sum of $888 and took this receipt therefor, the body of which, he says, is in his own handwriting, and the signature to it is that of the mortgagee, which he saw him actually append thereto. Secondly, a witness by the name of John Outterson testified to admissions made by the plaintiff's testator, that the sum of $800 of principal had been paid upon the mortgage, and in this the witness was corroborated by the defendant, Mary A. Hill. Neither of these witnesses was impeached nor their evidence in any respect impaired. Thirdly, the witnesses, George Elliott, Noyes Williams, Adelbert M. Hitchens and William E. Edmonds, who had had business transactions with the deceased, testified that the signature to the receipt is genuine. Fourthly, expert testimony to the same effect was given by the witnesses, Charles F. Pond, Thomas B. Husbands and Andrew J. Taylor.

Opposed to this evidence is the expert testimony of the witnesses C. Henry Amsden, Frederick P. Allen, Fred A. Cole, William H. Farrand, and the testimony of the following witnesses, not experts, but who claim to be familiar with the handwriting of the deceased: Frank Kingsley, Charles H. Sheldon, John S. Pruyn, Fred W. Zoller and Harry A. Olmstead. Such testimony consists, not of facts, but of expressions of opinion, which, as one of the witnesses says, is much of a matter of speculation.

The plaintiff herself, who was also a witness, being called several times upon different matters, while testifying that she was present when the money was paid by the mortgagor to the mortgagee, and that she subsequently endorsed the sum of eighty-eight dollars as a payment of interest upon the bond, and that her husband signed a receipt which was produced by the defendant, does not testify that the signature to this receipt is not that of her husband.

A reason is given by the defendant, as coming from the mouth of the deceased, why he did not wish his wife to know of the payment of the $800 of principal. Moreover, the defendant has, in his testimony, given in detail the sources from which he obtained moneys which he claims to have paid to the plaintiff's intestate.

The judgment substantially convicts the defendant of forgery. Such a conclusion ought to be reached in the case of a person of unimpeached character only where the evidence unerringly points that way.

On the whole, we think that the judgment should be reversed on questions of fact, and a new trial granted before a jury upon issues to be framed on application to the special term, with costs of this appeal to abide the final, award of costs.

CORLETT, J., concurs; DWIGHT, P. J., dissents.

In the Matter of the Estate of ANNA KNOOP.

(Surrogate's Court, New York County, Filed June, 1890.)

JURISDICTION-OF CITY COURT OF NEW YORK OF ACTIONS AGAINST EXECUTORS AND ADMINISTRATORS,

Since chap. 441 of the Laws of 1889, the city court of New York has had jurisdiction of actions against executors and administrators.

APPLICATION for leave to issue executions on certain judgments of the city court of New York, recovered against the executors of Anna Knoop.

Peter Cook, for motion; Frederick H. Ernst, opposed.

RANSOM, S.-Section 316 of the Code of Civ. Pro., as it stood previously to the enactment of chap. 441 of the Laws of 1889, prescribed that its third subdivision should operate as a limitation and restriction upon the first subdivision of § 315, and thus plainly recognized that said first subdivision would have conferred by its terms jurisdiction upon the marine (now city) court to entertain an action against an executor or administrator in the absence of such limitation or restriction. The limitation has been removed by the chapter mentioned, and I have no doubt that since the city court, which has succeeded to the jurisdiction of the marine court, had complete power to render the judgments which have been attacked.

Application granted.

JOHN E. ACKERMAN et al., App'lts, v. THE ASTORIA VENEER MILLS & LUMBER Co., Resp't.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) CONTRACT-BREACH.

Defendant contracted in writing to sell to plaintiffs certain lumber to be shipped from time to time, the price to be a specified rate per thousand feet, f. o. b., Louisville, Ky. After three consignments were made, a disagreement arose, plaintiffs claiming to be entitled to ten days after delivery to make payment, while defendant claimed that payment was due when the lumber was loaded on the cars at Louisville. After some negotiation defendant's manager refused to deliver any more lumber unless the cash was paid in Louisville, but plaintiffs continued to treat with defendant's agents for a further delivery on their terms, but finally, not succeeding, refused to receive any more unless they had the ten days' credit. Held, that plaintiffs, by continuing to treat with the agents, invoking performance on their understanding of the contract, after the prior refusal of defendant, lost their right to complain thereof as a ground of damages. APPEAL by plaintiffs from a judgment dismissing the complaint, entered upon a verdict by a jury in favor of defendant.

The action was one for breach of contract, it being alleged by plaintiffs that defendant having refused to furnish lumber according to contract, that plaintiffs were obliged to go into the open market and buy other lumber to supply their orders, and that plaintiffs then commenced this action for damages for breach of contract, having first tried in vain to get the lumber from defendant by offering to extend its time for delivery.

Ewing, Southard & Fairchild, for app'lts; George W. Stephens, for resp't.