Johnson agt. Williams.

Levi A. Fuller and L. Gross, for plaintiff.

J. H. Hayward and Isaac L. Egbert, for defendants.

LARREMORE, J.-It is shown by the evidence that one Peter Williams died in the city of New York, in March, 1880, leaving a will which contained, among others, the following bequest:

66

Eighthly. I give and bequeath to my nephew, William Williams, son of my brother Isaac Williams, deceased, fifty (50) shares of the capital stock of the Third Avenue Railroad Company of the city of New York, or so much or such portion thereof as I may own or be possessed of at the time of my decease."

William Williams, the legatee above-named, died intestate May 10, 1880, having previously executed and delivered to the plaintiff an instrument in writing as follows:

"I, William Williams, of Orange county, of the state of Florida, now at present residing at No. 53 East One Hundred and Twelfth street, of the city of New York, do give and bequeath to my friend John B. Johnson, in return for all kindness and attention I received from him in this, my last sickness, all the Third Avenue Railroad stock-50 sharesthe same that was bequeathed to me by my uncle Peter Williams, now deceased, and request that my aunt Catharine Williams see that the same is paid over to him as soon as practicable after my death; this being my dying request. "In witness whereof I have hereunto set my hand and seal this 7th day of May, 1880.

"WILLIAM WILLIAMS. [L. 8.] "EDMUND ROBESON, 122 East One Hundred and Fourteenth

street.

"SAMUEL H. GOODENOUGH, No. 200 East One Hundred and Twenty-fourth street."

The testator above-mentioned owned the said fifty shares of stock at the time of his death, and, upon the probate of his

Johnson agt. Williams.

will, May 27, 1880, the defendant, as his executrix, took possession thereof, and now holds the same in opposition to plaintiff's claim, the nature and extent of which is now submitted for adjudication.

Independent of the instrument of May 7, 1880, the testimony established the fact that it was the intention of William Williams to give this stock to the plaintiff; but the transaction cannot be upheld as a gift, either inter vivos or donatio mortis causa.

There was not, and could not have been, any delivery of the stock, of which the alleged donor had either actual or constructive possession at the time (Harris agt. Clark, 3 N. Y., 113; Bedell agt. Carll, 33 N. Y., 585; Young agt. Young, 80 N. Y., 422).

The evidence will not support a declaration of trust, as in Martin agt. Funk (75 N. Y., 134), and the plaintiff must recover, if at all, upon the instrument in question as a valid assignment. The language employed is that ordinarily used in testamentary disposition of property, but the intention of the author of the instrument may be sought, for by extrinsic evidence of all the surrounding circumstances which may aid in its interpretation (Knapp agt. Warner, 57 N. Y., 66). It was prepared by a layman who failed to use apt words of present transfer, but, as has been observed, the intention to assign for the consideration expressed is fully sustained by the proof.

The plaintiff was a trusted friend of the deceased, who desired to make recompense "for all kindness and attention" received during his last sickness. No proof was offered of undue influence, and the intention of the author of the instrument must control its phraseology ut res magis valeat, quam pereat.

In this and like cases parol evidence is admissible not to vary or contradict, but to explain the contract (2 Parsons on Contracts, 549, 533).

Field agt. The Mayor (6 N. Y., 187) is an authority for the assignment of a claim in expectancy, and, as the rights of

Brown agt. Genet.

creditors have not intervened, I think upon the whole testimony that the plaintiff should have the relief sought.

Judgment is, therefore, rendered in his favor, but without

costs.

N. Y. COMMON PLEAS.

EDWARD F. BROWN, respondent, agt. MARIANNA GENET, appellant.

Liability of borrower for fees and charges of an attorney who searches title at the request of the party proposing to make the loan.

An attorney who searches title for a person desiring to borrow money on bond and mortgage, in the absence of an express agreement is not enti tled to maintain an action against such borrower for his fees and charges for such services.

In the absence of such express agreement there is no privity of contract existing.

General Term, March, 1882.

Before VAN BRUNT, J. F. DALY and VAN HOESEN, JJ.

APPEAL from judgment of the general term of the marine court, affirming a judgment of the trial term in favor of the plaintiff by direction of the presiding judge.

The plaintiff was an attorney. The defendant desired a loan of money on bond and mortgage and applied to one Mrs. Ketcham, who agreed to loan $5,500 on bond and mortgage on a lot of land in West One Hundred and Twenty-fourth street.

At request of Mrs. Ketcham the plaintiff searched the title and rejected it. He sued defendant upon an alleged retainer of defendant for his services in searching.

No special contract of retainer was proven beyond the fact that defendant desired the loan and Mrs. Ketcham desired the title searched to ascertain if the security was ample.

Plaintiff supposed that an implied retainer sprung out of this state of affairs.

Lane agt. Van Orden.

Charles Blandy, for appellant, argued that no privity of contract existed between plaintiff and defendant, and cited Norwood et al. agt. Barcalow (6 Daly, 117).

Joseph D. Fay, for respondent, cited same case.

PER CURIAM.

The court is of the opinion that the case of Norwood et al. agt. Barcalow (6 Daly, 117) presents precisely the same question as the one at bar, and it necessarily controls the decision of the case at bar.

There is no proof in this case of either retainer or of any custom by which any liability would be fastened, under the evidence as established, upon the defendant.

In the absence of that proof there would be no implied liability for the reason that the duty which was performed by the plaintiff was performed for his client, namely, Mrs. Ketcham, and under the circumstances no recovery should be had unless there was some retainer or some custom on which an implied liability might be founded.

Judgment reversed, with costs to appellant to abide event.

SUPREME COURT.

LEAVITT LANE agt. HENRY S. VAN ORDEN and WILLIAM A. KENNEDY.

Costs-When defendants who sever in their defense, appearing by different attorneys and all succeed, are entitled to separate bill of costs - Extra allowance-When entitled to Code of Civil Procedure, sections 3228, 3229.

In an action brought by plaintiff to recover from defendants, who were at the time of the alleged contraction thereof copartners, a debt which he claimed had been incurred by their fraudulent misrepresentations as to their ability to pay. They appeared by separate attorneys and a verdict was rendered in favor of both defendants. On motion to be allowed separate bills of costs, and for an extra allowance:

Held, that under the Code both defendants are entitled to costs, and such claim can only be disallowed upon the ground that the appearance by

Lane agt. Van Orden.

separate attorneys was in bad faith and for the sole purpose of incurring

costs.

Held, further, that the burthen of proving this rests upon the plaintiffs, and the facts do not justify such a conclusion. The attorneys have no connection in business, their offices are separate, the undertakings upon the arrest were separate, and as one of the defendants may have been guilty of fraud and the other not, they were justified in making a separate defense by different attorneys, and having done so and succeeded they are both entitled to costs.

Held, also, that the case was “a difficult and extraordinary one," and under section 3253 an extra allowance should be made.

Ulster Special Term, February, 1882.

MOTION by defendants to be allowed separate bills of costs, and for an extra allowance.

J. I. & F. Werner, for defendants.

S. G. Young, for plaintiff.

WESTBROOK, J.-This action was brought by the plaintiff to recover from the defendants, who were at the time of the alleged contraction thereof copartners, a debt which he claimed had been incurred by their fraudulent misrepresentations as to their ability to pay.

The cause was tried at the Ulster circuit in January, 1882, and the verdict was in favor of both the defendants, who, as they appeared by separate attorneys, ask for the allowance of separate bills of costs and for an extra allowance.

This motion was argued as if the granting of costs to each defendant rested in the discretion of the court, but I do not so understand the Code. Very clearly, under subdivision 4 of section 3228, if the plaintiff had recovered "fifty dollars or more" he would have been entitled to costs. The next section (3229), in its first sentence, declares: "The defendant is entitled to costs, of course, upon the rendering of final judg ment, in an action specified in the last section, unless the plaintiff is entitled to costs as therein prescribed." Having