power from the assignment, which is both the guide and measure of his duty. Beyond that, or outside of its terms, he is powerless and without authority. The control of the court over his actions is limited in the same way, and can only be exercised to compel his performance of the stipulated and defined trust, and protect the rights which flow from it. He distributes the proceeds of the estate placed in his care according to the dictation and under the sole guidance of the assignment, and the statutory provisions merely regulate and guard his exercise of an authority derived from the will of the assignor. The courts, therefore, cannot direct him to pay a debt of the assignor, or give it preference, in violation of the terms of the assignment and the rights of creditors under it. To hold the contrary would be to put the court in the place of the assignor, and assert a right to modify the terms of the assignment, after it had taken effect, against the will of its maker, and to the injury of those protected by it. We agree that the assignee is merely the representative of the debtor and must be governed by the express terms of his trust." We are of the opinion that neither the assignee nor the court was justified in rejecting the debts in question, but that they were debts of the new firm; that the holders thereof were entitled to share pro rata with the other unpreferred creditors of that firm; and that the appellant had a right to insist that they should be so paid.

The assignee claims that the appellant was not interested in the proceeding, and therefore not entitled to prosecute this appeal. We think otherwise. We think he was a party in interest, and that this appeal was properly taken. It follows that the order appealed from should be reversed.

Order reversed, with costs to the appellant payable out of the funds in the hands of the assignee.

HARDIN, P. J., and MERWIN, J., concur.

FRANK D. CRIM, Ex'r., et al., Resp'ts, v. RUFUS G. STARKWEATHER et al., App'lts.

(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) 1. REFERENCE.

Where the findings of a referee are fairly sustained by the evidence this court will not interfere.

2. SAME-REFUSALS TO FIND.

Where a referee has found the main issue against the appellant, the refusal of the referee to make certain findings of fact requested by him and justified by the evidence, but which would not have changed the result, is not ground for a reversal of the judgment.

APPEAL from a judgment, entered in Herkimer county on the report of a referee, in favor of the plaintiff for $16,919.06.

John D. Kernan, for resp'ts; George W. Smith, for app'lts.

MARTIN, J.-This action was to recover the amount of five drafts sent to the National Park Bank of New York by the plaintiff's testator and credited to the firm of Crim & Starkweather. With interest the drafts amounted to the sum of $16,213.81. That

the plaintiff's testator advanced the amount represented by these drafts and that that amount was placed to the credit of the firm of Crim & Starkweather at the National Park Bank and used by the firm is not disputed by the appellant. The defendant was a member of the firm of Crim & Starkweather. William T. Crim was also a member of that firm and was a son of the plaintiff's testator. The claim of the defendant was, that the deposits which were placed to the credit of the firm of Crim & Starkweather were not loaned or advanced to that firm, but were loans or gifts to William T. Crim. This was the principal issue litigated on the trial.

The evidence on the part of the plaintiff tended to show that the money in question was advanced upon requests made by telegrams signed by the firm of Crim & Starkweather, and that the money was advanced to that firm and not to William T. Crim individually. On the other hand, the defendant introduced evidence of the admissions and statements of the testator and other evidence which tended to show that the moneys in question were loaned or advanced to William T. Crim individually.

As upon this issue there was a conflict in the evidence, a question of fact was presented for determination by the referee. He found that this money was advanced and loaned to the firm at its request and deposited to its credit. We think that finding was fairly sustained by the proof and have no reason to suppose that the referee was not guided in his decision by a conscientious and intelligent judgment based upon the evidence given before him. In reviewing the determination of a trial court on questions of fact, where the evidence is conflicting, an appellate court is not warranted in reversing, even when in its opinion a contrary conclusion should have been reached. Baird v. Mayor, 96 N. Y., 567. We think the finding of the referee was justified by the evidence, and that it should be sustained.

It is urged by the appellant that the referee erred in refusing to find several of the requests proffered by him. Many of those refused were requests to find mere evidentiary facts. If, however, we were to assume that the requests were proper and should have been found, still, if the refusal was not prejudicial to the appellant, the judgment should not disturbed. Matter of Hicks, 14 N. Y. State Rep., 320; Woodman v. Penfield, 6 N. Y. Supp., 803, 804; 25 N. Y. State Rep., 297. It is quite manifest that when the referee had found the principal issue against the defendant that his refusal to find the defendant's requests, so far as he was required by the evidence to do so, could not have been prejudicial to him. We think the judgment appealed from should be affirmed. Judgment affirmed, with costs.

HARDIN, P. J., and MERWIN, J., concur.

IRA PORTER, Resp't, v. THE NEW YORK, LAKE ERIE & WESTERN R. R. Co., App'lt.

(Supreme Court, General Term, Second Department, Filed February 9, 1891.) NEGLIGENCE-CARRIERS-RELEASE.

One S. shipped live stock over defendant's road, and in consideration of

reduced rates and a free pass executed a contract releasing defendant from all damages attending the transportation, custody and delivery of the stock except such as might arise from its fraud or wilful misconduct. Plaintiff was employed by S. to take charge of the stock and was named in the contract and way bill as in charge free. While so in charge he was injured by a concussion between two of the cars. Held, that the contract related wholly to the live stock and did not release the company from liability for plaintiff's injuries.

APPEAL from judgment in favor of plaintiff, entered upon a verdict.

Lewis E. Carr, for app'lt; W. F. O'Neill, for resp't.

DYKMAN, J.-This is an appeal from a judgment entered upon a verdict in favor of the plaintiff against the defendant and from the order denying a motion for a new trial in an action for damages sustained by the plaintiff on the defendant's railroad.

The plaintiff was riding on a freight train in charge of a carload of cattle belonging to James Schoonmaker, who shipped the cattle over the defendant's railroad from Cochecton to Newburgh.

In consideration of a reduced rate for transportation and a free pass Schoonmaker entered into a written contract in which he released the railroad company from all damages attending the transportation, custody and delivery of the stock, except such as might arise from the fraud or wilful misconduct of the company. The plaintiff was employed by Schoonmaker to go in charge of the stock, and he was designated by name in the contract and in the way bill as in charge free.

At Otisville, on a descending grade, the train was detached from the caboose to take in some other cars, and the plaintiff remained in the caboose. When the other cars were attached the caboose car was permitted to run down to the train, and the defendant claims that the concussion caused by the impingment of the two cars when they came together to be coupled was the cause of the plaintiff's injury, and that such shock was not severe or unusual, and was not the result of negligence but of the ordinary operation of the train, and that the brakeman made the coupling in the usual way, and the train proceeded on its

way.

On the other hand, the plaintiff claims there was then, or immediately afterwards, a collision of some kind which threw him from his seat and caused his injuries.

It did not appear with much precision how the shock was caused which resulted in the injury to the plaintiff, but the jury must have found negligence against the defendant in the management of the train.

It is not important for us to decide between the two theories of the parties, for if the shock resulted from the rapidity with which the caboose car was permitted to move and the severity with which it struck the car to which it was to be coupled, that fact.would be sufficient to justify the verdict.

The serious question in the case has relation to the effect of the contract of Schoonmaker with the company, and it is to be ob

served that such contract relates exclusively to the transportation of the live stock, and in consideration of reduced rates and the issuance of a free pass to accompany the same the corporation is released from all damage to the stock which shall not result from fraud or wilful misconduct. But the contract contains no release for personal injuries, and all the way-bill contains on the subject is a statement that Ira Porter is in charge, free, and yet Porter was not in the eye of the law a gratuitous passenger. The contract stipulated for a pass and reduced rates, and as a consideration for those the company received a release from certain legal liabilities. The plaintiff was, therefore, a passenger with all the rights which that relation towards the company under the law gave him. Waiving that view, however, for a moment, and conceding to the contract the scope for which the defendant contends, it can have no binding force or legal effect upon the plaintiff. He neither made the contract nor assented to it, and he made no agreement to assume any risk, and the defendant could not avoid responsibility to him by any contract with Schoonmaker. Such a contract to be obligatory upon him must have been made by him or some one on his behalf.

We have examined the exceptions and find no error, and we cannot say the damages are excessive.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

BARNARD, P. J., and PRATT, J., concur.

WILLIAM P. O'CONNOR, Agent of the Sisters of Charity of St. Vincent De Paul, Resp't, v. WILLIAM SCHMITZ, Impleaded, App'lt.

(Supreme Court, General Term, Second Department, Filed February 9, 1891.) 1. SUMMARY PROCEEDINGS-SUB-TENANT.

In proceedings to remove a tenant and under-tenant as holding over after expiration of the lease, the alleged under-tenant answered that he was the tenant and had paid the rent. The evidence showed that he was the tenant of the lessee and that the lease had expired. Held, that a verdict in favor of defendant was against the weight of evidence and was properly reversed by the county court.

2. JUSTICE'S COURT-APPEAL.

The fact that the defeated party in justice's court paid the costs and serve notice of appeal before the entry of the judgment does not render the appeal ineffectual.

APPEAL from order of the county court of Westchester county, reversing judgment in favor of defendant entered upon verdict of a jury in justice's court.

Summary proceedings to remove Hugh Lunny, as tenant, and William Schmitz, as under-tenant, as holding over after expiration of lease of the premises to Hugh Lunny.

Defendant Schmitz answered, setting up that he was the tenant and had paid rent to the petitioners.

Seward Baker (Edward Blankman, of counsel), for app'lt; Joseph E. Owens, for resp't.

PRATT, J.-There is no merit in this appeal. The defendent Schmitz was an under-tenant of one Hugh Luuny, who held a written lease of certain premises in Westchester county.

The lease had expired and the plaintiff commenced these proceedings to eject the tenant who was holding over. A trial was held on the 16th of May, 1890, and a verdict rendered for the defendant.

Judgment and verdict entered in the justice's docket on the 5th of July, 1890, and plaintiff appealed and the judgment was reversed in the county court.

The fact that plaintiff paid the costs and served a notice of appeal before the entry of judgment had no legal effect and the judgment in the county court was right.

The defendant was the tenant of Lunny and not the tenant of the plaintiff, and Lunny's lease had expired.

These facts appeared before the jury in the justices' court, and the verdict was against the evidence.

Judgment affirmed, with costs.

BARNARD, P. J., and DYKMAN, J., concur.

THE PEOPLE ex rel. CHARLES H. WILLSON, Resp't, v. THE BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT VERNON, App'lt. (Supreme Court, General Term, Second Department, Filed February 9, 1891.) 1. VILLAGES-TRUSTEES-LAWS 1890, CHAP. 163.

Chapter 163, Laws 1890, which requires police officials, etc., to take an oath that they are not interested in the manufacture or sale of liquors, applies only to excise commissioners, excise inspectors, police officials and their subordinates, and was not intended to apply to a trustee of a village under such a law as chap. 544, Laws 1887.

2. SAME.

Failure to take the oath does not create a vacancy, but at most only furnishes a cause for forfeiture, and a vacancy can only be created by a direct proceeding for that purpose.

APPEAL from order directing that a peremptory mandamus issue to the defendant commanding it to convene and fill an alleged vacancy in the office of trustee.

Norman A. Lawlor, for app'lt; Close & Robertson, for resp't.

PRATT, J.-This was an application by Charles H. Willson, an elector of the village of Mount Vernon, for a peremptory mandamus to compel the defendant to fill a vacancy in the office of trustee of said village, occasioned by the failure of Bartholomew McGrane to take the oath required by chap. 163 of the Laws of

1890.

McGrane was duly elected trustee of the village of Mount Vernon on the 21st day of May, 1889, for the period of two years from the 28th day of May, 1889: took the oath of office in due time and entered upon the duties of his office as such trustee when said chap. 163 of the Laws of 1890 took effect.

McGrane did not take the oath required by said act within the time prescribed therein, nor has he since taken it. It is claimed