First Department, May, 1906. [Vol. 113. of that State, had been suing to recover her debt and now holds the judgment for her benefit. He is her representative. So the cause of action and the parties are in reality the same in the two jurisdictions. In Sulz v. Mutual Reserve Fund Life Assn. (145 N. Y. 563) the insured died in the State of Washington. His wife was then residing in Brooklyn. She was appointed administratrix in Brooklyn, and subsequently one Thomas was appointed administrator of the estate of her husband in the State of Washington. Thomas at once commenced an action in that State to recover upon the policy. Within a few days thereafter the wife commenced an action in this State to recover the amount due under the same policy. The defendant set up the pendency of the action against it in Washington and claimed that the plaintiff had no right to maintain the action here because of those facts. Judge PECKHAM said: "In such a case as this we think that the principle of comity between the States calls for the refusal on the part of the courts of this State to entertain jurisdiction." It was claimed, in addition, that the plaintiff might recover in another aspect and in her own right, irrespective of her character as administratrix. The court said: "We cannot, therefore, see any way by which the plaintiff ought to be permitted to maintain her action either as administratrix or as the widow and alleged sole beneficiary covered by the policy. We confess that we do not see how the money arising from the payment under this policy or certificate can be made liable for any of the debts of the deceased any more in the State of Washington than in case the action was brought here. The statute under which the company is organized makes provision upon that subject, but as the courts of Washington have jurisdiction of that question, it will be matter for them to decide, which they will do in a manner consistent with their views of the law. The judgment in this action ought not to stand, and it must, therefore, be reversed, and as the plaintiff cannot in any event succeed upon a new trial, her complaint should be dismissed." The Sulz case was followed in Traflet v. Empire Life Ins. Co. (64 N. J. Law, 387), where an administrator having been appointed in New York and another in New Jersey, the action on the policy in New York was first brought and went to judgment, the court App. Div.] saying, "the jurisdiction of the court which is first in time will prevail," and "when the suit in another State has proceeded to final judgment, the judgment may be pleaded in bar," and, therefore, held the New York judgment a bar to the New Jersey suit. It seems to me, therefore, that the order appealed from should be reversed and leave granted to serve the supplemental answer upon. payment of costs to the time of trial, and that the judgment and order denying the motion for a new trial must be reversed and a new trial ordered, with costs to the appellant. O'BRIEN, P. J., concurred. PATTERSON, J. (concurring): I agree with Mr. Justice CLARKE that the appeal from the order denying defendant's motion for leave to make and serve a supplemental answer may be regarded as a direct appeal from that order, the notice having been served within the time allowed by law for such an appeal. INGRAHAM, J. (concurring): I agree with Mr. Justice CLARKE that the appeal from the order denying the motion for leave to serve a supplemental answer is now before us, the defendant having in due time taken an appeal directly from that order. I also agree that the court should have allowed the service of the supplemental answer so that the questions as to whether an action brought by the personal representative of the insured in the State of Vermont, where the person insured resided at the time of his death, is a bar to an action in this State by an assignee of the policy, can be formally determined upon the trial of the action. The defendant having been refused permission to serve this supplemental answer, the action was tried and the evidence offered to sustain the defense set up in the supplemental answer excluded. If we reverse the order denying the motion for leave to serve the supplemental answer we are justified in reversing the judgment. I do not concur in what Mr. Justice CLARKE has said in respect to the validity of the defense or that Sulz v. Mutual Reserve Fund Life Assn. (145 N. Y. 563) is at all decisive of this question. In APP. DIV.-VOL. CX11 13 First Department, May, 1906. [Vol. 113. that case the policy was payable to the estate of the insured, and the personal representatives of the insured commenced an action in the State of Washington, where the insured resided. Subsequently the personal representatives of the deceased appointed in this State commenced an action in this State to recover upon the same policy, and it was held that the representatives of the estate of the deceased appointed by the State of the testator's domicile having first acquired jurisdiction over the cause of action, a recovery in an action in that State was a good defense to the cause of action brought by the personal representatives appointed in this State to recover upon the same cause of action. An entirely different question is presented here. The plaintiff sues, not as representative of the estate, but to enforce a contract which she is entitled to enforce for her own benefit. I concur, therefore, in the result of Mr. Justice CLARKE's opinion upon the ground that the defendant was entitled to have the facts set forth in this supplemental pleading before the court upon the trial, in which case there could be a determination of the validity of the defense which can be properly reviewed upon appeal. LAUGHLIN, J., concurred. Order reversed and leave granted to serve supplemental answer on payment of costs to the time of trial; judgment and order reversed and new trial ordered, costs to appellant to abide event. Settle order on notice. MINERS AND MERCHANTS' BANK OF LONACONING, Respondent, v. ARDSLEY HALL COMPANY, Appellant. First Department, May 18, 1906. Evidence - when error to read deposition of officer of corporation who is sworn as witness- bills and notes when corporation liable on note issued and converted by officers. In an action to recover on the note of a corporation it is error to allow the deposition of the treasurer of the defendant, taken before trial, to be read in evidence, when the deponent has been produced on trial and sworn as a witness. Such a deposition (except that of a party taken at the instance of an adverse party or pursuant to stipulation) cannot be read in evidence unless it is proved tha App. Div.] First Department, May, 1906. the witness is dead or unable to attend through sickness, etc., or is imprisoned, or absent from the State, so that his attendance cannot be compelled by subpoena. (Code Civ. Proc. § 882.) O'BRIEN, P. J., dissented on this point, with opinion. As to whether the holder of a promissory note issued by the treasurer of a business corporation to his own order without authority of the directors or countersigned by the president, as required by the corporate by-laws, which is delivered to and converted by the president of the corporation, can recover against the corporation, the majority of the court, under the facts stated, Held, that but for the foregoing error in receiving the deposition of the treasurer a direction of a verdict for the plaintiff would have been proper. LAUGHLIN, J., contra, on this point. APPEAL by the defendant, Ardsley Hall Company, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of October, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk's office on the 4th day of October, 1905, denying the defendant's motion for a new trial made upon the minutes. John A. Stephens, for the appellant. J. H. Caldwell [Robert R. Reed with him on the brief], for the respondent. LAUGHLIN, J.: The action is upon two promissory notes purporting to have been made by the defendant. Each note is for $2,500, bears date the 31st day of March, 1903, was written, with the exception of the day of the month in the date and the words "with interest," by Thomas Cochran, Jr., who was the treasurer of the company and was signed by him, "Ardsley Hall Co. by Thomas Cochran, Jr., Treas.," was made payable to his order as treasurer four months after date and was indorsed by him as treasurer. The defendant denied the making of the notes and alleged as defenses that they were not signed or executed according to the by-laws or authorized, and that it never received any of the proceeds thereof. The defendant corporation owned and conducted an apartment house in the city of New York, and in the month of March, 1903, First Department, May, 1906. [Vol. 113. it became necessary for it to borrow money to pay certain pressing obligations. The notes were made by the treasurer and delivered to the president, Frank J. Kohler, to be negotiated for the purpose of raising the money required. Kohler was also secretary and treasurer of the City Trust and Banking Company of Baltimore, Md., which for brevity will be referred to as the trust company, and spent most of his time in that city. The defendant had an account with the trust company and tlre interest coupons on its second mortgage bonds were payable there. The plaintiff, as its name implies, conducted a banking business at Lonaconing, Md. The plaintiff frequently purchased negotiable paper of the trust company with which it had an account and which was its correspondent and had been for several years. In these business transactions it had correspondence with Kohler almost daily. It appears that this letter was signed by Kohler individually, but that he was accustomed to sign sometimes individually and sometimes in his official capacity. On the 20th day of April, 1903, which was before maturity, the plaintiff received the notes inclosed with a letter written by Kohler from Baltimore on the stationery of the trust company, which letter related to other business between the plaintiff and the trust company and requested that it discount the notes, stating in the body of the letter that he, Kohler, was going to charge the notes to plaintiff's account, and that if it was not all right he would take them up when he returned from New York; but in a sentence at the end of the letter he said he would not charge them to plaintiff's account, and requested it to send a draft to him for them if it was all right. The plaintiff immediately discounted the notes and forwarded a draft on the trust company, addressed to Kohler at the office of the trust company, but payable to him individually. The draft was paid the next day. Kohler received the money, but it does not appear what he did with it. The plaintiff's cashier says that ordinarily drafts were drawn payable to Kohler in his official capacity with the trust company, but that this one was drawn payable to him individually because he inferred from the letter that Kohler desired it so drawn. The plaintiff knew that Kohler was president of the defendant; but counsel for defendant showed by the cross-examination of the cashier of the plaintiff, who dis |