counsel also duly excepted, but made no request to have the facts submitted to the jury. By his request for the dismissal of the complaint and for the direction of a verdict for the defendant, the defendant must be deemed to have conceded that there were no facts in dispute, and we are therefore only called upon to ascertain whether the facts proved justified plaintiff's recovery. Winchell v. Hicks, 18 N. Y., 558; Dillon v. Cockcroft, 90 id., 649; Ormes v. Dauchy, 82 id., 443; Muller v. McKesson, 73 id, 195. And if there is any evidence justifying the verdict the judgment must be sustained. See cases cited above, and Leggett v. Hyde, 58 N. Y., 272-275; Koehler v. Adler, 78 id., 287; Barnes v. Perine, 12 id., 18; Stone v. Flower, 47 id., 566; Royce v. Watrous, 7 Daly, 87.

There is no force in defendant's contention that there was a non-joinder of parties. To have availed himself of such an objection the question should have been raised either by demurrer or answer. See Code of Civil Procedure, §§ 488 and 498. A failure to avail himself thereof by demurrer or answer precludes the defendant from subsequently making the objection. Ibid.,

489. And the court "may determine the controversy as between the parties to it, where it can do so without prejudice to the rights of others." Ibid., § 452.

And an assignee of part of a demand can maintain an action to recover the portion assigned to him. See Risley v. Phenix Bank of New York, 83 N. Y., 329, and cases cited.

Engelman's release of the defendant in terms undertook no more than to discharge the defendant from liability upon such rights, claims and demands as he had acquired under the bond. If the bond and the money to grow due thereon vested absolutely in him, defendant was discharged from all further obligation. If he had but a qualified interest, his release in plain terms discharged only such interest as he had and could not operate to release defendant from the payment of any balance remaining after payment of Engelman's demand. Necessarily, then, the validity of this objection to plaintiff's right of recovery is dependent upon the validity of defendant's contention that the assignment to Engelman was absolute. If the latter fails the former must fall with it.

The foregoing disposes of the second, third and fourth grounds urged by defendant for a new trial and for a direction of a verdict for defendant.

The fifth ground was to the effect that the facts proved were insufficient to entitle plaintiff to a recovery, and upon the argument of the appeal in support of this contention defendant's counsel maintained that it was incumbent upon the plaintiff to show that upon Cushman's death the defendant had in its death fund sufficient money to meet the claim under the bond in suit, or that an assessment, if levied by the defendant upon the persistent members, would have produced a sufficient amount. We do not concur in this view. Precisely the same contract received the careful consideration of the court of appeals in the case cited by defendant's counsel, Darrow v. Family Fund Society, 116 N. Y., 537; 27

N. Y. State Rep., 474; but that case does not go to the extent relied upon by the defendant. It was there contended by the defendant that the beneficiary, under its bond, could not recover in an action for the amount upon proof that it had refused to levy an assessment upon its members to meet the claim, and that the only remedy of the beneficiary is in a court of equity, to compel the society to levy and collect the assessment. This contention. was decided adversely to the defendant and the decision, so far as can be ascertained from the opinion, did not extend further. In Munger v. Shannon, 61 N. Y., 251, the defendant had promised to pay plaintiff's demand out of the profits of a copartnership, but he had not bound himself to supply profits, and the court held that in the absence of proof that there were profits applicable to the payment plaintiff could not recover.

So in Wharton on Contracts (vol. 1, § 598), it is stated that a promise to pay out of a particular fund cannot be enforced if it appears that the fund did not come to the promisor's hands and its non-reception is not attributable to the promisor's neglect. In O'Brien v. Home Benefit Society, 46 Hun, 426, the promise was to pay to the beneficiary "all the amount realized from one assessment, not exceeding two thousand dollars," and the court held that to establish a cause of action it was incumbent upon the beneficiary to show that an assessment had been levied and realized moneys applicable to the payment of his claim, or, that if such assessment had been levied it would have realized moneys so applicable. Such was substantially the same contract in Martin v. Equitable Accident Association, 55 Hun, 574; 29 N. Y. State Rep., 421.

It will be seen from an examination of the bond upon which the present claim is founded, that its provisions differ essentially from the contracts sued upon in the cases cited. Here the defendant was bound to create and maintain a death fund and from time to time to replete it by a contribution of eighty per centum of the amount realized from assessments levied upon the persistent members, and its obligation was to pay $5,000, absolutely and unconditionally, out of the death fund at the time of the insured's death to his beneficiary, within sixty days after receipt of satisfactory evidence of the death of the insured. The promise way not to pay out of assessments to be levied and collected from persistent members for the express purpose of meeting the claim of the particular beneficiary, but out of a fund which it had contracted to create and maintain for the purpose of such payment. In such a case, failure of proof of the existence of a death fund applicable to the claim of the beneficiary can furnish no excuse for its non-payment, unless it be conceded that the defendant may do what in Freeman v. The National Benefit Society, 42 Hun, 252; 5 N. Y. State Rep., 82, approved by this court in Fitzgerald v. Equitable R. F. L. Association, 24 N. Y. State Rep., 493, the court say it should not be permitted to do, "lie by and omit to put into operation the means possessed by it to obtain the fund, and omit payment because of its own neglect of duty. This would be to take advantage of its own wrong, and it would

operate as a fraud on the beneficiary under the certificate." La Manna v. National Security Life & Accident Co., 10 N. Y. Supp., 221; 32 N. Y. State Rep., 347, is directly in point and the beneficiary was held to be prima facie entitled to recover the amount stated in the policy. See also Harl v. Pottawatomie Co. Mutual Fire Ins. Co., American & English Corporation Cases, vol. 22, p. 629; Risley v. Smith, 64 N. Y., 582.

We are, therefore, of the opinion that the liability under the obligation in the present case is radically different from that in O'Brien v. Home Benefit Society, above cited, and similar cases, and that it was incumbent upon the defendant to show that the death fund was depleted, with a sufficient excuse for its maintenance in that condition, and that in the absence of such proof the defendant was liable for the face value of its bond. It was said in O'Brien v. Home Benefit Society, above cited, that in the absence of proof of the levy of an assessment for the purpose of meeting the claim presented, "and in view of the failure of the defendant to make the assessment, and of the defendant's ability to show what would have been realized from such assessment, and plaintiff's inability to do so, it might be presumed that the assessment would have realized the full amount" of the obligation.

In the present case, however, there is some evidence to support the claim that defendant, at the time of the death of Cushman, its member, did have sufficient funds applicable to the claim which had accrued to the beneficiary under the bond issued to him. The facts of the payment to Engelman, when he asserted his claim, and of the payment of one-third of the remainder to Annie Cushman, the widow of the insured, we think are sufficient to support an inference that the amount requisite to meet the obligation of the defendant under its bond had been properly appropriated, and that the other two-thirds remaining after payment to Engelman were, at the time of Cushman's death and the presentation of the claims under the bond to him, in the possession of the defendant. So, also, while there may not be ample evidence that at the time of the assignments to Engelman the latter distinctly and explicitly received the instruments as collateral security only, still the fact that the attorney and agents employed by him in the collection of his demand at the time of the payment thereof asserted only the qualified interest of a creditor of the obligee in the money due on the bond, sufficiently shows that the assignments were not intended to vest the absolute ownership of the bond and the money due and to grow due thereunder in Engelman. These assertions amount to declarations against the pecuniary interest of Engelman, made by him or those representing him, and are therefore admissible to prove his interest. Livingston v. Arnoux, 56 N. Y., 507; Chenango Bridge Co. v. Paige, 83 id., 178, 192; Low v. Hart, 90 id., 457.

The only remaining ground urged on the motion for a nonsuit and on this appeal for reversal of the judgment is that the city court did not have jurisdiction of this action as it involved the determination that the assignment of the policy to Engelman which was absolute on its face was intended merely as security, a

determination which it is urged could only be had in a court possessing equity jurisdiction. The answer to the objection is, that the plaintiff did not invoke the exercise of equity powers or jurisdiction. She sued at law for a money judgment for the sum remaining in the hands of defendant after satisfying Engelman's demand under his assignment. It is competent to show in an action at law that a conveyance absolute on its face was made as security. Resort to equity is not necessary unless equitable relief is demanded. If the defendant had not paid Engelman and the latter claimed as against his assignor the whole proceeds of the policy under form of his assignment, an action in equity might be proper to declare his rights thereunder. But if Engelman had collected the whole proceeds of the policy and was sued for money had and received over and above his debt, it could be shown in such an action that the assignment was security for a debt, and that his debt had been satisfied. So it may be shown now in an action against the company for the balance of the policy unpaid after satisfying Engelman; for "a deed or conveyance absolute on its face if really only intended to secure a debt is deemed in equity and at law a mortgage.' Murray v. Walker, 31 N. Y., 399; Barry v. H. B. Ins. Co., 110 id., 4, 5; 16 N. Y. State Rep., 634.

Judgment should be affirmed, with costs.

DALY, Ch. J., and PRYOR, J., concur.

THE DAVIDSON STEAM PUMP Co., Resp't, v. THE PEERLESS MANUFACTURING Co., App'lt.

(New York Common Pleas, General Term, Filed February 2, 1891.)

1. APPEAL-POWERS OF COURT OF COMMON PLEAS.

The court of common pleas of the city of New York has no jurisdiction, upon an appeal from a judgment of affirmance by the general term of the city court, to consider objections put upon the grounds that the verdict was against evidence, or the damages excessive.

2. EVIDENCE-PROOF OF DAMAGES.

When all the proof upon the question of damages has been given which, in the nature of the case, is possible, the good sense of the jury must provide the answer; and it is no defense that such judgment involves more or less of estimate or opinion, having very little to guide it.

APPEAL from judgment of general term of the city court, affirming judgment on a verdict. Action for breach of warranty on sale of goods.

Artemus B. Smith, for app'lt; George W. Miller, for resp't.

PER CURIAM.-Counsel for appellant urges a reversal of the judgment on the grounds, that the verdict was against the weight of evidence, and the damages excessive; but he should know that on appeal from a judgment of affirmance by the general term of the city court, this court has no jurisdiction to entertain the question he proposes for our consideration. Schwarz v. Oppold, 74 N. Y., 307, 310; Walsh v. Schulz, 67 How., 186; Rowe v. Comley, 2 Civ. Pro., 424; Bell v. Bartholomew, 12 Wk. Dig., 33 We

have authority to review only errors of law arising upon the trial, and presented here by proper exception.

The case was submitted to the jury by a charge, not only unexceptional, but actually not excepted to; and counsel's withdrawal was not only of exceptions to the charge but to refusals to charge, for otherwise the withdrawal was meaningless, as no exception had been taken to the charge itself.

Appellant's chief complaint is, that the damages were not proved with sufficient explicitness; but, "it is often the case that damages cannot be estimated with precision, and the basis of accurate calculation is wanting. When all the proof which, in the nature of the case is fairly possible has been given, the good sense of the jury must provide the answer, and it is rc defense that such judgment involves more or less of estimate or opinion having very little to guide it." Drucker v. R. R. Co., 106 N. Y., 157, 164; 8 N. Y. State Rep., 599. The verdict is for one-fourth only of the sum claimed, and which on the evidence might have been awarded.

On a critical examination of the exceptions we are satisfied that none is tenable; and the judgment and order must be affirmed, with costs.

ALLEN, BISCHOFF and PRYOR, JJ., concur.

RICHARD FLATOW, Pl'ff, v. THEODORE VON BREMSEN, Def't. (New York Common Pleas, General Term, Filed February 2, 1891.)

1. JUDGMENT-ENTRY OF FINAL, AFTER FAILURE TO COMPLY WITH TERMS OF INTERLOCUTORY JUDGMENT OF GENERAL TERM OF CITY COURT.

A judgment for defendant, on demurrer, was reversed by the general term of the city court and an interlocutory judgment was ordered entered, dismissing the complaint unless plaintiff complied with certain terms. He did not do this; and upon proof of his failure the defendant procured from a special term of the city court an order for final judgment dismissing the complaint and entered said judgment. Held, error. judgment which should have been entered was the final judgment of the general term of the city court.

2. APPEAL WHEN IT CANNOT BE TAKEN TO THE COMMON PLEAS.

The

No appeal can be taken, under Code Civil Procedure, § 3191, to the common pleas, from an order entered at a special term of the city court. APPEAL from a judgment reversing an interlocutory judgment overruling a demurrer to the complaint herein.

John P. Schuchman, for app'lt; George W. Stevens, for resp't.

PER CURIAM.-The action was commenced in the city court of New York to recover damages for alleged slander. The defendant demurred to the complaint. The demurrer was overruled at the special term, and an interlocutory judgment entered accordingly. From this judgment an appeal was taken by the defendant to the general term of the city court, where it was reversed and an interlocutory judgment ordered, that the complaint be dismissed, with costs to defendant, unless within six days from the service of a copy of the interlocutory judgment plaintiff should pay to the defendant the costs of the demurrer and of the appeal, and amend his complaint.