gage debt. It is a well-settled rule that collaterals cannot be separated from the principal debt; and it has been distinctly held by the court of appeals in the case of Merritt v. Bartholick, 36 N. Y. 44, that the transfer of a mortgage without the transfer of the debt is a nullity. It hardly needs the citation of authority to support this proposition. That a mortgage is a mere incident to the bond has long been recognized by the courts, and the impossibility of conveying any title thereto independent of the bond well recognized. If such were not the fact, we would have the obligor of a bond, and the mortgagor in a mortgage to secure the payment of this bond, obligated to two persons to pay the same debt. As the bond is the principal security, and the mortgage is a mere incident annexed to the bond, it is clear that the mortgage cannot be separated therefrom, and a title thereto conveyed. For these reasons the judgment must be reversed, and a new trial ordered, with costs to appellant, to abide event. All concur.

BEAN v. CARLETON et al.

(Supreme Court, General Term, First Department. January 28, 1889.)

1. EVIDENCE-PAROL TO VARY WRITING-UNUSUAL CONTRACT.

In an action for an alleged breach of contract for the publication of a book of which plaintiff was author, where the written agreement did not purport to cover the entire contract between the parties, evidence that the written portion of the contract was unusual between a publisher and an author is inadmissible.

2. CONTRACTS-VALIDITY-UNREASONABLE REQUIREMENTS EVIDENCE.

In such case, testimony offered by one party as to the cost of printing such a book as plaintiff's at the time it was published by defendant, tending to show that the bargain as testified to on the other side was unreasonable, is admissible.

3. SAME-ACTIONS-PLEADING AND PROOF-BREACHES NOT Alleged.

Evidence of a breach of a particular provision of the contract, not alleged in the complaint, is not admissible as tending to show whether the contract had been carried out in other particulars or not.

Appeal from circuit court, New York county.

Action by Fannie Bean against George W. Carleton and others. Defendants appeal from a judgment for plaintiff and an order denying a motion for a new trial.

Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. Edmund Coffin, Jr., for appellants. Alfred D. Cruikshank, for respond

ent.

BARTLETT, J. This is an action to recover damages for an alleged breach of contract in regard to the publication of a book of which the plaintiff was author. On a previous appeal we held that, inasmuch as the written agreement did not purport to cover the entire contract between the parties, the omission might be supplied by oral testimony. Bean v. Carleton, 6 N. Y. St. Rep. 641. On the trial which resulted in the judgment now appealed from, such parol testimony was admitted. The court clearly erred, however, in receiving the evidence of Mr. George H. Putnam, a publisher, to the effect that the written portion of the agreement was an unusual contract between a publisher and an author. No case is cited as authority for the admission of such evidence, nor do we know of any rule of law which justifies its reception. In Carleson v. Navigation Co., 109 N. Y. 359, 16 N. Ē. Rep. 546, a Swedish peasant woman sued to recover the value of her trunk and its contents, lost on the defendant's line of steamers, and evidence was offered for the defense tending to show that the usual value of the baggage of such passengers was less than that claimed to have been lost by the plaintiff. The trial court refused to admit the evidence, and the ruling was sustained. This decision is adverse to the respondent upon the points under consideration. It is suggested in the present case that proof of the unusual character of the written agreement tends to support the testimony of the plaintiff that the writing did not

express her whole contract with the defendants; but, inasmuch as parties may, and in fact often do, enter into agreements out of the common run, we think it is going too far into the realm of mere speculation to assume that, simply because the terms of a stated contract are novel or exceptional, it is probable that the real agreement between the parties is different from that alleged. It was also error to admit evidence, against the objection and exception of the defendants' counsel, as to the failure of the defendants to illustrate the plaintiff's book in the manner agreed upon. The complaint alleged certain specific breaches of the contract, of which this was not one. It said nothing whatever about the illustrations or the omission to provide such as were promised by the defendants Carleton. The plaintiff's testimony, therefore, to the effect that he had failed to fulfill his agreement with her in this respect, was irrelevant to any issue in the case. In overruling the objection, the court conceded that no recovery could be had on this ground, but intimated that the testimony might go to show whether the whole agreement was carried out or not. This view, however, did not render it any more admissible, for proof that a contract had been violated in one particular has no tendency whatever to show that it had been violated in other and widely different particulars.

The testimony introduced in behalf of the plaintiff as to the cost of printing such a book as hers at the time it was printed by the defendants was properly received. Cornell v. Markham, 19 Hun, 275. It was relevant to the disputed question whether the memorandum embodied the entire agreement between the parties; and, as in the case cited, it tended to prove that the bargain as testified to on the other side was unreasonable.

The appellants insist that the complaint should have been dismissed for the plaintiff's failure to prove any damages at all, or that, in any event, the jury should have rendered a verdict for nominal damages only. It is not necessary to express any opinion on these points, as we must reverse the judgment on account of the erroneous rulings already considered, and it may very well be that the plaintiff on another trial will be able to offer more certain and satisfactory proof of the damages she sustained. The difficulties of fairly estimating the injury done to an unknown author by the breach of a contract to publish that author's first book are manifestly very great, but they are not necessarily insuperable; and "a person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain." Wakeman v. Manufacturing Co., 101 N. Y. 205, 209. 4 N. E. Rep. 264. Judgment reversed, and new trial granted, with costs to appellant to abide event. All concur.

VON STADE et al. v. LE COMPTE et al.

(Supreme Court, General Term, First Department. January 28, 1889.) MORTGAGES-FORECLOSURE-RESALE-DISCRETION-APPEALABLE ORDERS. Where an application is made for the resale of premises sold on foreclosure on the ground that the price obtained at the sale was inadequate, and an affiant swears in behalf of the applicant that he is willing to purchase the premises at a much larger sum than they were sold for, but it does not appear that he is prepared to give any more than the amount realized, and affidavits are presented to the effect that the price realized is not much less than would have been obtained at a private sale, an order refusing the application shows no abuse of discretion, and is not appealable.

Appeal from special term, New York county.

Action by Frederick W. Von Stade and others against Sarah Le Compte and others. A decree of foreclosure was entered, and sale made, and from an order denying an application for a resale the defendant Le Compte appeals. Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. Edward M. Lee, for appellant. Edward Goldschmidt, for respondents.

BARTLETT, J. The application to the special term to order a resale of premises sold under the decree herein was based chiefly upon the claim that the price realized at the sale was inadequate, and that the appellant, knowing that a stay of proceedings had been obtained by her attorney, notified intending bidders that the sale would not take place at the time advertised, in consequence of which these bidders did not attend at that time, although in fact the stay was subsequently vacated, and the sale went on. But we are not satisfied that the price was inadequate. The premises sold for $8,350. The affidavit of an agent who has charge of three neighboring houses in the same street, and of a precisely similar character to the house which was sold, shows that the highest rent ever obtained from any of them since October, 1883, has been $700. He is familiar with the value of property in that vicinity, and expresses the opinion that houses of this character would not bring more than $8,750 at a private sale; while, if sold under foreclosure, he thinks the price would be $300 or $400 less. One George F. Wellman makes an affidavit in behalf of the appellant, in which he says he is willing to purchase the premises in suit at the sum of $9,500, and to bid said sum at the sale; but it does not appear that either he or any one else is now prepared to give any more than the premises were actually sold for, or would bid above that amount if a resale was ordered. It should be observed that two affidavits are printed in the appeal-book which do not properly belong there, an affidavit by George Marshall, and an affidavit by Sarah Le Compte. Neither of these affidavits is recited in the order to show cause, nor in the order entered in the appeal papers. We do not think that there was any abuse of discretion in denying the motion for a resale. Hence the order is not appealable, (White v. Coulter, 1 Hun, 357, 363,) and the appeal should be dismissed, with costs.

DANIELS, J. I think the order appealable, but that a case for setting aside the sale was not presented, and therefore agree to the result.

VAN BRUNT, P. J., concurs.

PALEN v. BUSHNELL et al.

(Supreme Court, General Term, First Department. January 28, 1889.)

1. RECEIVERS-ACTIONS-REVIVAL-IRREGULARITY IN APPOINTMENT.

An irregularity in an order appointing a receiver in supplementary proceedings is no ground of objection to the revival, against the executor of a deceased defendant, of an action by the receiver for an accounting of property conveyed to decedent by the debtor, with intent to defraud creditors.

2. ABATEMENT AND REVIVAL-DEATH OF PARTY-SUPPLEMENTAL SUMMONS.

In such an action, against the fraudulent grantor and grantee as the only defendants, a revival will be ordered against the executor of the latter without any supplemental summons, under Code Civil Proc. N. Y. § 757, which provides that, upon the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, on motion, allow or compel the action to be continued by or against his representative or successor in interest.

3. SAME-REFERENCE-OBJECTIONS WAIVED,

After such an action has been referred, it is too late, on a motion to revive against defendant's executor, to raise the objection that plaintiff is a non-resident of the state, that his bond is void, or that the plaintiffs in the supplementary proceeding are dead, and have no personal representatives, as all such questions will be assumed to have been determined before the reference was ordered.

4. SAME-LEAVE TO SUE.

Nor will such revival be prevented after issue joined, because the plaintiff has not obtained leave of court to sue, as under Code Civil Proc. N. Y. § 499, an objection to plaintiff's capacity to sue is waived, if not made by demurrer or answer.

5. JUDGMENT-ENFORCEMENT-LIMITATION.

Code Civil Proc. N. Y. § 376, providing that, after the lapse of 20 years from the rendition of a judgment, it is conclusively presumed to be paid, does not apply to a judgment for the collection of which special proceedings were instituted before the expiration of that period.

Appeal from special term, New York county.

Action by William Palen, receiver in supplementary proceedings of the estate of Henry Bangs, an insolvent debtor, against said Bangs and one Ezra L. Bushnell, to whom said Bangs had conveyed property in fraud of his creditors. Bushnell having died, the proceeding was revived against his executors, on motion, and defendants appeal from the order of revivor.

Argued before BRADY and DANIELS, JJ.

H. M. Whitehead, for appellants. W. C. Holbrook, for respondent.

BRADY, J. The plaintiff was appointed receiver of Henry Bangs in October, 1862, on proceedings supplementary to execution, by a judgment creditor, and this action was commenced in December, 1863, for an accounting between the plaintiff as such receiver and the defendants, as to certain real and personal property fraudulently transferred by Bangs to Bushnell, on the eve of insolvency, without consideration, and with intent to hinder, delay, and defraud judgment creditors. The defendant Bushnell died June 13, 1887, leaving a last will and testament, in which he appointed Adelaide E., his wife, executrix, and Ezra D. Bushnell and Albert Van Der Werken executors. The will was admitted to probate, and letters testamentary issued to the persons named. At the time of Bushnell's death this action was pending before a referee, and the defendant, after a motion had been made to dismiss the complaint, which was denied, was about to enter upon his defense.

It is hardly necessary to say that the action is one which may be continued, in the exercise of the discretion of the court. Coit v. Campbell, 82 N. Y. 509; Holsman v. St. John, 90 N. Y. 461; 1 Rumsey, Pr. 663. The reasons assigned for a reversal of the order made permitting the continuance are ingenious, but not meritorious.

The first suggestion is that the order should be reversed, for the reason that the plaintiff has no title to the cause of action, and this is predicate of a supposed irregularity in the order appointing the receiver. It is sufficient to say that this is not a subject which will be disposed of upon affidavits, and especially as it is necessarily before the referee, and, if any benefit shall arise out of any incident of that kind, the defendant will be entitled to it.

The next proposition is that the judgment in the action in which the plaintiff is appointed receiver is paid and satisfied, and this is founded upon the presumption arising from the recovery of the judgment in August, 1862, which is more than 25 years ago. Section 376 of the Code provides that after a lapse of 20 years the presumption of payment of judgments shall be conclusive. But that section does not apply to a remedy founded upon the judgment instituted long before the period mentioned had expired, and, indeed, within two years after the judgment was recovered.

The next point presented is that the motion should not be granted because the action was brought by the receiver without leave of the court, and that to authorize him to continue would be a judicial sanction of a proceeding commenced without authority. It is sufficient in answer to this point to say that it is too late after issue joined to urge successfully such an objection. Section 499, Code.

The next suggestion is that the plaintiff is not now a resident of this state, and that the plaintiffs in the action in which the receiver was appointed are both dead, and have no personal representatives, and there are no persons in existence who would be entitled to the moneys to be collected in this action. There is also an assertion that the bond given by the receiver is void, and that

the obligee is dead. None of these suggestions are of the slightest consequence on an application of this kind. The case seems to be regularly in court, and, having been sent to a reference, it must be assumed that every obstacle to that procedure was encountered and overcome.

It is further contended that a simple order of continuance was all that the plaintiff was entitled to, which would enable the plaintiff to avail himself of all the pleadings and proceedings; and, again, that the testimony upon the trial should not be permitted to stand. It is only necessary to say, in answer to these propositions, that it was purely a matter of discretion, to be exercised by the court below, and that there is nothing in the case which in our judgment indicates that the discretion was erroneously exercised.

Again, it is urged that the executors can only be brought before the court by a supplemental summons, and the action continued by supplemental pleadings, and reference is made to Code, §§ 755-760, inclusive. It will not be necessary, in disposing of this appeal, to consider these provisions in detail. It is sufficient to say that, as there were two defendants in this case, the continuance was provided for by section 757; the court of appeals having decided in Coit v. Campbell, supra, that if there were originally more than one defendant in the action, and all but one have died, that one is a sole defendant within this section. The cases upon this subject are collated and well stated in 1 Rumsey, Pr. 663 et passim. The order should be affirmed, with $10 costs and disbursements. All concur.

KEENAN . O'BRIEN et al.

(Supreme Court, Special Term, New York County. January 14, 1889.) DEPOSITION-ABSENT PLAINTIFF-DISCRETION OF COUrt.

Code Civil Proc. N. Y. §§ 887, 888, provide that, where an issue of fact has been joined in an action, a commission may be issued to take the testimony of a witness not within the state, where the applicant therefor makes affidavit that such testimony is material. Section 889 provides that where in such case a commission is applied for the application must be granted on satisfactory proof of the facts authorizing it, unless the court has reason to believe that such application is not made in good faith. Held, where an issue of fact was joined, that the court had no discretion to refuse an application for a commission to take the testimony of an absent plaintiff, in the absence of a showing that there was any lack of good faith; and that an allegation that plaintiff was absent from the state on account of a threatened criminal prosecution did not show such lack of good faith.

At chambers. Application by plaintiff for the issuance of a commission to take testimony in Canada, in an action by John Keenan against John O'Brien and Heman Clark.

George Bliss, for plaintiff. E. T. Lovett, (Leslie W. Russell, of counsel,) for defendant.

ANDREWS, J. Section 887 of the Code provides that in a case specified in section 888, where it appears by affidavit, on the application of either party, that the testimony of one or more witnesses not within the state is material to the applicant, a commission may be issued. The case specified in subdivision 5 of section 888 is where an issue of fact has been joined in an action pending in a court of record, and the testimony is material to the applicant in the prosecution or defense thereof. Section 889 provides that in a case specified in either of the subdivisions of section 888, except the third, the application for a commission must be granted upon satisfactory proof of the facts authorizing it, unless the court or judge has reason to believe that the application is not made in good faith, or unless an order for an open commission, or for taking depositions, is made as prescribed in the Code. It appears by the moving papers that an issue of fact has been joined in this action, that the plaintiff is not within the state, and that his testimony is material to himself in the prosecution thereof. Under these circumstances, the court has v.4N.Y.s.no.1-5