bationer, but to learn whether, on the whole, he is a satisfactory and agreeable person to have serve in the position, and one who will become a reasonably efficient officer," and also to enable the appointee to familiarize himself with the duties of his employment, so that, after becoming acquainted with them, he will be able to perform them. People v. Kearney, 49 App. Div. 125, 62 N. Y. Supp. 1097, affirmed in 164 N. Y. 64, 58 N. E. 14. And it was held in that case that both the appointing officer and the appointee were entitled to the whole of the probationary period, the one to determine whether the appointee would make a competent and efficient employé; and the other, to demonstrate that fact to the appointing officer. To accomplish this result, it is quite evident that the period must be actually spent in the service of the city, and must therefore run, not from the time when the appointing power indicates to the appointee that he is to have the position, but from the time the employé actually commenced his work under his appointment. The rule provides that every original appointment to or employment in any position in the competitive class shall be made after a probationary term of three months. The term of an employé commences from the time of his employment, and his employment commences when he actually commences work under the appointment. His discharge on February 17th, assuming that the probationary term commenced on the 18th, was proper; for that was upon the last day of the term, and the proper time for the appointing power to act.

It follows that the order appealed from should be reversed, and the application denied, with $50 costs and disbursements. All con

cur.

(74 App. Div. 336.)

In re WIDMAYER,

(Supreme Court, Appellate Division, First Department. July 8, 1902.) 1. WILLS-TESTAMENTARY CAPACITY-DECREE.

Testatrix executed a will a week after she had been adjudged, by a commission de lunatico inquirendo, incompetent to care either for herself or to take charge of her property. The only evidence offered on the probate proceeding tended to show that the mental condition of testatrix did not improve from the time of this finding until her death. Held that, as the burden of proof was on proponents to establish testatrix's mental capacity, a decree denying probate was justified.

Appeal from surrogate's court, New York county.

Proceeding to probate the will of Johanna Barbara Widmayer, deceased. From a decree denying probate (69 N. Y. Supp. 1014), proponents appeal. Affirmed. See 65 N. Y. Supp. 83.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLÍN, JJ.

T. M. Tyng, for appellants.

Michael H. Cardozo, for respondent.

MCLAUGHLIN, J. This appeal is taken from a decree of the surrogate's court of the county of New York refusing to admit to probate a writing purporting to be the last will and testament of Johan

and 111 New York State Reporter

na B. Widmayer, deceased. The testatrix died on the 30th of April, 1899, leaving her surviving, as her heirs at law and next of kin, her sons, William F., Henry E., and George A., and certain grandchildren. The alleged will was executed on the 2d of January, 1895, and the probate of the same was contested by some of the grandchildren. Upon the hearing before the surrogate it appeared that on the 7th of November, 1894, a petition was presented to the supreme court asking for the issue of a commission de lunatico inquirendo, for the purpose of ascertaining whether or not Johanna B. Widmayer, the testatrix, had sufficient mental capacity to take charge of and manage her own property; that in pursuance of such proceedings a jury was impaneled, which on the 26th of December, 1894, just a week before the execution of the alleged will, rendered a verdict to the effect that she was then incompetent to care either for herself or to take charge of her property; this finding was concurred in by each member of the jury, and also by the three commissioners appointed in the proceeding; that the findings of the jury were filed in the office of the clerk of the county of New York on the 29th of December, 1894, and two days later a motion was made, returnable on the 8th of January, 1895, for the confirmation of the same; the motion was granted, and a motion made at the same time for a new trial was denied, and on the 24th of January, 1895, an order was made confirming the findings of the jury, and appointing the United States Trust Company a committee of the estate of the decedent.

A jury having found that the decedent was incompetent to take charge of her property and manage her affairs, and it appearing that the alleged will was made intermediate such finding and a motion for confirmation, a legal presumption existed which, in the absence of proof, was binding upon the surrogate, to the effect that the decedent was incompetent to make a will. It was therefore the duty of the proponents to overcome this presumption by clear and satisfactory evidence to the effect that at the time the paper was executed she not only had the mental capacity to execute the same, but that it was the result of her free will and act. Delafield v. Parish, 25 N. Y. 10; Rollwagen v. Rollwagen, 63 N. Y. 504. The finding of the jury, concurred in by the commissioners in the proceedings de lunatico inquirendo, is not only presumptive evidence of the testamentary incapacity of the decedent, but is conclusive upon that subject until overcome by satisfactory evidence. Wadsworth v. Sharpsteen, 8 N. Y. 395, 59 Am. Dec. 499; In re Coe's Will, 47 App. Div. 177, 62 N. Y. Supp. 376; In re Clark, 57 App. Div. 5, 67 N. Y. Supp. 631; Underhill, Wills, § 99. The general rule is that when it once appears that a person, prior to the making of an alleged will, has been adjudged by a court having jurisdiction to be insane or of unsound mind, a presumption prevails to the effect that the same mental condition continued until it is overcome by satisfactory evidence. This presumption was not here overcome. On the contrary, the only evidence offered tended to show that the mental condition of the decedent did not improve or change from the time of the finding of the jury until her death.

We have therefore presented a case of a person upwards of 80 years of age, in which proceedings are taken to have a committee appointed of her property, on the ground that she is mentally incompetent to take charge of it; that she has notice of the application; that she appears before and gives testimony to the jury selected to pass upon the question, and is there represented by counsel, and yet the jury reaches the conclusion that she is incompetent to manage her property; that one of the attorneys who represented her in that proceeding, intermediate the finding of the jury and a motion made for the confirmation of the verdict, draws her will, which is witnessed by two persons in his office. These facts, taken together, coupled with the further one that no satisfactory evidence whatever was offered to the effect that the deceased at the time the paper was executed was in such a mental condition that she understood what she was doing, not only authorized, but required, the surrogate to refuse to admit the alleged will to probate.

The decree appealed from, therefore, must be affirmed, with costs. All concur.

(75 App. Div. 191.)

BECKER et al. v. KRANK et al.

(Supreme Court, Appellate Division, Third Department. July 8, 1902.) 1. PLEADING AND PROOF-VARIANCE.

Where the complaint alleged that the consideration for the written promise by defendants to plaintiffs to pay the debt of C. was that plaintiffs would discontinue an action against C. therefor, testimony of C. that he had executed to defendants a chattel mortgage to secure this debt was inadmissible.

2. STATUTE OF FRAUDS-DEBT OF ANOTHer-Original UNDERTAKING.

A chattel mortgage given to indemnify the mortgagees, who had promised in writing to pay the debt of the mortgagors, did not make such promise an original undertaking between the creditor and the mortgagees, so as to take it out of the statute of frauds.

Appeal from trial term.

Action by De Witt C. Becker and another, as surviving members of the firm of Bradt, Becker & Co., against John Krank and another. From a judgment for plaintiffs, defendants appeal. Reversed.

R. J. Cooper, for appellants.

John A. Delehanty, for respondents.

FURSMAN, J. The plaintiffs are the survivors of Bradt, Becker & Co. Bradt is dead. On the 11th of August, 1897, the defendants. executed and delivered to Bradt, Becker & Co. a writing in these words:

"Schenectady, N. Y., Aug. 11th, 1897. "We, the undersigned, John Krank and John L. Mynderse, hereby agree to pay David Bradt, Becker & Company a bill of two hundred and sixty-five dollars and fifty cents ($265.50) against Church & Jones between now and Tuesday, next week.

"[Signed]

John Krank. "John L. Mynderse."

and 111 New York State Reporter

The action has been three times tried. On the first trial this paper was treated as a promissory note, and a verdict was directed for the plaintiffs. From the judgment entered thereon an appeal was taken to the appellate division of the Third department, where the judgment was affirmed by a divided court. 54 N. Y. Supp. 1096. On appeal to the court of appeals the judgment was reversed; that court holding that the paper was not a promissory note, and that the recovery was not in conformity with the complaint. That court, however, refused to decide whether the terms of the instrument were sufficient under the statute of frauds. Bradt v. Krank, 164 N. Y. 515, 58 N. E. 657, 79 Am. St. Rep. 662. On the second trial the case was presented on the theory that the paper was a written promise to pay, based upon a valuable consideration. The consideration proved was that plaintiffs had obtained a judgment against Church and Jones, and, in consideration of the giving of this instrument by the defendants, had agreed to withhold the entry thereof, and to discontinue that action. The trial court again directed a verdict for the plaintiffs, and from the judgment entered thereon an appeal was taken to this court, where the judgment was reversed. Becker v. Krank, 62 App. Div. 514, 71 N. Y. Supp. 78. That decision is placed upon the ground that the contract between the parties was executory; that the writing does not express the entire agreement, and for this reason is insufficient under the statute. On the third trial some new evidence was given, and the trial court again directed a verdict for the plaintiffs. From the judgment entered thereon, this appeal is taken. The respondents insist that this new evidence shows that the defendants had been indemnified by Church and Jones against their liability expressed in this writing, and that the promise contained in the writing is not, therefore, within the statute. The claim of the plaintiffs is that the new evidence establishes that Church and Jones gave to the defendant Mynderse a chattel mortgage, with the knowledge and consent of Krank, to secure the defendants, among other things, against the payment to the plaintiffs of their debt to them. The chattel mortgage ran to Mynderse only as mortgagee, and not to Mynderse and Krank, the defendants, and, on its face, was given to secure him "for moneys advanced" and "for goods sold and delivered." It appears that Church and Jones owed Mynderse about $800. Church, the new witness, testified, in substance, that the mortgage was to secure this debt, and for indorsements, and also that the claim of the plaintiffs was included in it. I think this evidence was not admissible under the complaint. The complaint sets out the paper given by defendants, and alleges that the consideration for it was an agreement by plaintiffs to withhold entry of the judgment they had obtained against Church and Jones, and to discontinue the action. The tenor of the complaint is that the defendants gave a written promise to pay the debt of Church and Jones to them, which was supported by the consideration stated. As alleged, this was a mere promise to answer for the debt of another, and, as the writing does not contain the whole agreement, the promise is void. There is no hint in the complaint that the defendants

had received anything from Church and Jones, either by a transfer of property, or by way of security or indemnity, so as to convert the writing, which on the face of the complaint is a collateral undertaking to answer for the debt of another, into a promise of defendants to pay their debt to Church and Jones by paying the debt of Church and Jones to the plaintiffs. It is a settled rule that recovery must be had, if at all, according to the allegations of the complaint. Day v. Town of New Lots, 107 N. Y. 148-154, 13 N. E. 915; Wright v. Delafield, 25 N. Y. 266. It was said by Judge Earl in Southwick v. Bank, 61 How. Prac. 170, that:

"Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action, and then recover upon another, his complaint will serve no useful purpose, but, rather, to ensnare and mislead his adversary."

See Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. 698.

The evidence was objected to as inadmissible under the pleadings. I think the objection was well taken, and that the court erred in admitting it. But assuming that the evidence was admissible under the complaint, I do not think it sufficient to establish the writing as an original promise. The cases relied on by the plaintiffs' counsel (Bank v. Chalmers, 144 N. Y. 432, 39 N. E. 331, and kindred cases cited upon the points) simply confirm the long-established rule that where a debtor transfers property to a third person in consideration of his agreement to assume and pay the debt, and he thereupon promises the creditor to pay, he makes the debt his own. No case is cited, nor have I been able to find any, holding that a mere security, by way of mortgage or otherwise, given to indemnify one who promises to pay the debt of another in case he does pay it, makes such promise an original undertaking between the creditor and promisor, so as to take the case out of the statute of frauds. And that is all that can be said of this chattel mortgage. It was at most a mere security by which the defendants could indemnify themselves in case they were compelled to pay, or did voluntarily pay, the debt of Church and Jones to the plaintiffs. The plaintiffs were not parties to the instrument, nor was it made for their benefit. Root v. Wright, 84 N. Y. 72, 38 Am. Rep. 495. If the defendants had paid the plaintiffs, they might have resorted to the mortgage for their indemnity; but having refused to pay, their liability is to the mortgagors only, and is purely personal. Cole v. Cole, 110 N. Y. 632, 17 N. E. 682. See, also, Roe v. Barker, 82 N. Y. 435.

The judgment must be reversed, and a new trial granted, with costs to the appellants to abide the event.

Judgment reversed on law and facts, and new trial granted, with costs to appellants to abide event. All concur; PARKER, P. J., in result.