and villages they are common, and occasion little, if any, inconvenience, and the damage from this cause would, at best, be nominal. But I think the shifting of the road from place to place would result in inconvenience, and the evidence fairly indicates that for some considerable time the road was bad and not in accord with the contract.

The conditions, however, are temporary, and not permanent, and, when the road is restored, it cannot be said that the land of the plaintiff will be less valuable than before, or its rental value decreased.

I think $100 is ample to cover all damages sustained, and judgment may be entered for that amount, with costs. Findings may be prepared covering also the restoration of the road within one year, and the maintenance of the temporary road in the meantime.

HILLAS et al. v. FULLER.

(Supreme Court, Trial Term, Saratoga County. March, 1913.)

1. RELEASE (§ 28*)-OPERATION-JOINT DEBTORS.

Under the common-law rule that the release of the liability of one or more joint or joint and several obligors discharges the liability of all, the instrument must be a technical release, without any valid limitation or restriction, and must be under seal.

[Ed. Note. For other cases, see Release, Cent. Dig. §§ 57-62; Dec. Dig. § 28.*]

2. RELEASE (§ 6*)-"PAROL RELEASE."

Any release not under seal is a "parol release."

[Ed. Note. For other cases, see Release, Cent. Dig. §§ 12-14, 16; Dec. Dig. § 6.*]

3. RELEASE (§ 28*)-OPERATION-JOINT DEBTORS.

Under Debtor and Creditor Law (Consol. Laws 1909, c. 12) § 230, providing that a joint debtor may make a separate composition with his creditor, and that such composition discharges only the debtor making it, and section 231, providing that an instrument making a composition with a creditor does not impair the creditor's right of action against any other joint debtor, or his right to proceed against another joint debtor, unless an intent to release or exonerate him appears affirmatively on the face of the instrument, where one of 13 makers of a note for $2,600, given for the purchase price of a horse, paid the payee $200 and received a receipt, not under seal, stating that this was in full payment of his share in the horse, the other makers were not released, since, not being under seal, it would not have the effect of releasing the other makers, even at common law, and no intent to release or exonerate any one else was apparent.

[Ed. Note. For other cases, see Release, Cent. Dig. §§ 57-62; Dec. Dig. § 28.*]

4. RELEASE (§ 25*)-CONSTRUCTION AND OPERATION.

Under the equitable rule, now prevailing, a release is to be construed according to the intent of the parties, and its object, purpose, and intent will control and limit its operation.

[Ed. Note. For other cases, see Release, Cent. Dig. §§ 47, 48; Dec. Dig. § 25.*]

5. CONTRIBUTION (§ 6*)-PAYMENT OR DISCHARGE OF COMMON LIABILITY. Where 11 of 13 joint and several makers of a note paid the note, 8 of them paying their share in cash and 3 by discounting their individual *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

notes, which were accepted as payment, the original note being surrendered, those paying the note were entitled to recover, from another maker, his proportionate share of the amount, whether or not the notes given by such 3 makers had been paid, since the defendant was no longer liable on the original note, which had been surrendered.

[Ed. Note.-For other cases, see Contribution, Cent. Dig. §§ 10-12; Dec. Dig. § 6.*]

Action by Robert R. Hillas and others against William G. Fuller. Judgment for plaintiffs.

Robert Frazier, of Mechanicsville, for plaintiffs.

Leary & Fullerton, of Saratoga Springs, for defendant.

WHITMYER, J. A joint and several promissory note in the sum of $2,600 was made and delivered by plaintiffs, together with one Herbert B. Brown and defendant, to Otto Hoag Importing Company, on August 13, 1910, for the purchase price of a horse. One-third of the amount thereof, with interest at 6 per cent., was payable on March 1st in each year, until fully paid. It contained an agreement that the whole amount should become immediately due and collectible, if any payment or part payment, or if any interest, should become due and remain unpaid for 30 days. The said Brown made a payment of $200 thereon on the day of and immediately after its delivery to the payee. This was indorsed generally, but the receipt given to Brown stated that the amount was in full payment of his one share in the horse. The receipt was not under seal. The note was thereupon discounted for the payee, without recourse, by the Manufacturers' National Bank at Mechanicsville, which then became the owner and holder thereof, and so remained until it was paid. No payment, other than that by Brown, was made prior to March 1, 1912, and the one then due was not made on that day, nor was it made within 30 days thereafter, but the whole amount unpaid, having become due, was paid by plaintiffs April 2, 1912, each one paying one-eleventh thereof. Eight paid in cash and three by discounting notes, made and delivered to and by the bank, accepted in payment of their several proportionate shares of the joint and several note, which was thereupon surrendered to the plaintiffs. The teller of the bank believes that the individual notes were subsequently paid, but is not entirely clear about it. Defendant refused to pay any portion of the joint and several note, although demand for the payment of his share was duly made upon him.

[1] It is the rule under the common law that the release of the liability of one or more joint or joint and several obligors discharges the liability of the other or others; but the rule requires for its full operation that the instrument should be a technical release, without any valid limitation or restriction. Hood v. Hayward, 124 N. Y. 12, 26 N. E. 331; Whittemore v. J. L. & S. O. Co. et al., 124 N. Y. 573, 27 N. E. 244, 21 Am. St. Rep. 708.

[2] A release by parol, which is any release not under seal, of one joint debtor, does not discharge the other, and can be pleaded only by the one to whom it was given. Marx v. Jones, 36 Hun, 292; Morgan

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

v. Smith, 70 N. Y. 537. Equity gives to a release operation according to the intention of the parties and the justice of the case.

[3] Section 230 of the Debtor and Creditor Law expressly provides that a joint debtor may make a separate composition with his creditor and that such composition discharges only the debtor making it. And section 231 of that law provides that an instrument making a composition with a creditor does not impair the creditor's right of action against any other joint debtor, or his right to take any proceeding against the latter, unless an intent to release or exonerate him appears affirmatively upon the face of the instrument.

[4] The equitable rule now prevails, and a release is to be construed according to the intent of the parties and the object and purpose of the instrument, and that intent will control and limit its operation. Whittemore v. J. L. & S. O. Co. et al., supra. The receipt to Brown was not under seal, so that its effect, even at common law, is to release him and no one else. It was for "$200 in full payment of his one share in horse." It was merely a release of Brown "for his one share," and no intent to release or exonerate any one else is apparent, so that defendant cannot claim a discharge on this account.

[5] Eight of the plaintiffs paid their shares of the joint and several note in cash, and three of them by discounting their individual notes at the bank, which held the joint and several note. There is some evidence that these individual notes were paid, but the teller of the bank was not absolutely certain about it at the trial. However, they were given and accepted in payment, and the joint and several note was sur-. rendered, so that defendant is no longer liable thereupon. The case, under these circumstances, is distinguishable from Lee v. Larkin, 125 App. Div. 303, 109 N. Y. Supp. 480, where the renewal note was made as a renewal, without any agreement as to its effect.

The action, therefore, is not premature, and plaintiffs are entitled to judgment, with costs.

Findings may be prepared accordingly.

EQUITABLE TRUST CO. OF NEW YORK y. CHILDS et al.

(Supreme Court, Special Term, Orleans County. July, 1913.)

1. KECEIVERS (§ 142*)-SALES-PAYMENT OF BID-LIABILITY OF PURCHASER. Where, on a judicial sale of the property of a gas company, the purchaser was directed to pay a specified amount to the company's receiver, with which to pay certain items of indebtedness, including taxes, which were liens on the property, in order that it could be turned over to the purchaser free from claims and incumbrances, and it subsequently appeared that the receiver, in computing the amount necessary for this purpose, made a mistake, and that a larger amount was required, the purchaser, who had paid all that he agreed to pay, could not be charged with the deficiency, and it would be charged against the party who made the mistake.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. §§ 248-251; Dec. Dig. § 142.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

143 N.Y.S.-2

2. RECEIVERS (§ 204*)-DISCHARGE.

Under such circumstances the receiver would not be discharged, or his bond canceled, until he had made the payments as required by the order directing the purchaser to pay such sum to the receiver.

[Ed. Note. For other cases, see Receivers, Cent. Dig. §§ 319, 407, 408; Dec. Dig. § 204.*]

Action by the Equitable Trust Company of New York against Milford W. Childs, as permanent receiver of the Medina Gas Company, and another. On application to open and modify an order previously made. Motion denied.

BISSELL, J. [1, 2] This is an application by the defendant Milford W. Childs, as receiver, etc., for an order to open, amend, and modify an order heretofore made in the above-entitled action by Hon. Warren B. Hooker, Justice presiding, on the 10th day of January, 1913, which provided for the payment of a specified amount in cash to the said Milford W. Childs, as receiver, by the purchaser at a public sale of the property of the Medina Gas Company, the said specified amount of cash to be used by the said receiver for the payment of certain specified items of indebtedness, including taxes, which were liens upon the property of the Medina Gas Company, for the purpose of turning the plant of the Medina Gas Company over to the said purchaser free from all claims and incumbrances, except a mortgage securing certain bonds.

It appears that a mistake was made in the proofs of amounts actually due for certain taxes, and that the total amount specified in the order made by Mr. Justice Hooker was not sufficient to pay all of the items of the taxes in full, for the reason that additions had been made to such amounts through the existence of tax sales which were not ascertained and added to the amounts at the time the proofs were made, and therefore the said amounts were not correctly proved before the referee, and that an item of $36.41, ordered to be paid to Thomas A. Kirby, one of the attorneys has not been paid, because the funds in the hands of the receiver were not sufficient to pay said amount and the taxes in full, as aforesaid.

The purchaser at the public sale should not, and cannot, be charged with these items. He has paid all that he agreed to pay when he purchased the property at the public sale. Whatever loss there may be, due to a mistake in computation, or in ascertaining and proving the amounts due, should be charged against the party who made the mistake. The failure to ascertain and prove the amount due was apparently due to the receiver above named, and he cannot, therefore, be discharged, and his bond canceled, until he has performed the duties devolved upon him pursuant to the said order of Mr. Justice Hooker. As soon as he has paid in full the taxes, so that the property shall be free from the lien of those taxes as ordered, and the item to the attorney above mentioned, he will be entitled to an order discharging him as receiver, and canceling his bond.

The motion to open, amend, and modify said order is denied, with $10 costs.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

(158 App. Div. 192.)

RICHIE v. SHEPARD et al.

(Supreme Court, Appellate Division, Second Department. July 25, 1913.) 1. INSANE PERSONS (§ 26*)—INQUISITION-CONCLUSIVENESS.

In an action on notes executed about two months before the presentation of a petition for an inquisition into the mental competency of the maker and within the period covered by the finding of incompetency, such finding was presumptive evidence of the maker's incompetency at the time of the making of the notes.

[Ed. Note. For other cases, see Insane Persons, Cent. Dig. §§ 35, 36; Dec. Dig. § 26.*]

2. APPEAL AND ERROR (§ 203*)-RESERVATION OF GROUNDS OF REVIEW-NE

CESSITY.

In an action against executors, where no formal objection was made to the testimony of a legatee concerning the testator's physical and mental condition on the ground that she was incompetent to testify, such objection was unavailing upon appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1064; Dec. Dig. § 203.*]

3. APPEAL AND ERROR (§ 1052*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. A judgment for defendant would not be reversed for technical errorsin the admission of questions asked defendant's witnesses, where there was a complete failure of proof on plaintiff's part.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4171– 4177; Dec. Dig. § 1052.*]

4. INSANE PERSONS (§ 97*)—ACTIONS-PLEADING.

In an action on notes in which the answer alleged that the maker was incompetent at the time of making the notes, the record of proceedings. instituted and carried out by plaintiff shortly after the execution of the notes to have the maker declared incompetent, in which it was found that she had been incompetent for seven years, was admissible against plaintiff, although not specifically pleaded.

[Ed. Note. For other cases, see Insane Persons, Cent. Dig. §§ 169–171; Dec. Dig. § 97.*]

Burr, J., dissenting.

Appeal from Trial Term, Kings County.

Action by William N. Richie against Winifred K. Shepard and another, as executors of Lottie N. Palmer, deceased. From a judgment for defendants and an order denying a new trial, plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and PUTNAM, JJ.

Adolph Ruger, of Brooklyn, for appellant.

Burt D. Whedon, of New York City, for respondents.

CARR, J. The plaintiff in this action sued the defendants, who are the executors of the last will of Lottie N. Palmer, deceased, to recover on two promissory notes, alleged to have been made by the decedent in favor of the plaintiff, each in the sum of $4,000, payable six months after date, and dated respectively June 11, 1907, and August 23, 1909. The answer set up various defenses, together with a denial of the making of the notes by the decedent. There was no proof of

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes.