see without notice, the first lessee had no right to remove the platform.

Appeal from superior court, Suffolk county. Bill by Henry Trask and another against James C. Little. From a decree overruling exceptions to the report of a master, confirming the report, and granting plaintiffs' prayer for relief, defendant appeals. Affirmed.

The platform mentioned in the opinion was a large wooden platform supported by piles driven into the land, and was firmly nailed and fastened to the hotel building.

Frank N. Nay and Leon M. Abbott, for appellant. Edw. H. Savary, for appellees.

MORTON, J. The plaintiffs are lessees of a hotel known as the "Worcester House," in Revere. One Manning is the owner. Previous to and at the time of the lease to the plaintiffs the defendant had a lease of the premises. During his occupancy he built upon the demised premises the platform which is the subject of these proceedings. It was agreed between him and Manning that the structure should remain his property, and that he should have the right to remove it "when he got out." The plaintiffs had no notice of this agreement. The defendant's lease expired by limitation on the 1st day of April, 1901. The plaintiffs' lease is for five years from that date. In December, 1900, Manning took possession of the premises, including the platform. The reasons for this do not ap pear. In January, 1901, and on three occasions later, the defendant demanded of Manning and the persons in charge to be allowed to remove the platform, but was refused permission to do so. Subsequently he brought an action of tort against Manning, which is pending in the superior court for Suffolk county. The plaintiffs entered under their lease about April 1, 1901, and took possession of the premises, including the platform, in and to which they made various repairs and changes. The defendant has brought a suit of replevin against the plaintiffs for the platform, and this bill is for the purpose of restraining him from interfering with the platform. The case was sent to a master, and comes here on exceptions to his report, and on appeal from the final decree overruling the exceptions and confirming the report, and restraining the defendant from moving or in any way interfering with the platform during the plaintiffs' lease.

We think that the character of the platform was such that, as soon as erected, it became a part of the realty, and not a mere movable chattel. Dodge v. Hall, 168 Mass. 435, 441, 47❘ N. E 110; McIver v. Estabrook, 134 Mass. 550; Meagher v. Hayes, 152 Mass. 228, 25 N. E. 105, 23 Am. St. Rep. 819. Under the agreement between the defendant and Manning, the former could remove it at any time during the term. If he was prevented by Manning from doing so, he would have an action against Manning for any damages that

he sustained thereby. Ryder v. Faxon, 171 Mass. 206, 50 N. E. 631, 68 Am. St. Rep. 417; Lewis v. Pier Co., 125 N. Y. 341, 26 N. E 301. If the plaintiffs had taken their lease with notice of the agreement, very likely they also would be liable to the defendant if they refused, upon due demand, to allow him to enter and recover the platform. But it is expressly found that they had no notice of the agreement, and we do not see why, as between lessor and lessee, as well as between grantor and grantee and mortgagor and mortgagee, if a lessee takes without notice of the title of a prior lessee he should not hold the demised premises as against the prior lessee. Meagher v. Hayes, supra; Wentworth v. Machine Co., 163 Mass. 28, 39 N. E. 414; Stove Co. v. Way, 141 Mass. 557, 6 N. EL 714; Southbridge Sav. Bank v. Exeter Mach. Works, 127 Mass. 542.

The result is that we think that the decree should be affirmed. So ordered.

(182 Mass. 5) FLETCHER v. BASS RIVER SAV. BANK. (Supreme Judicial Court of Massachusetts. Barnstable. June 18, 1902.) MORTGAGES-REPAIR PENDING FORECLOSURE -RIGHT TO REIMBURSEMENT.

A real estate mortgagee going into possession before foreclosure, and making repairs to the property which were not needed to preserve it, or in order that it might be in as good condition at the time of the foreclosure sale as at the time of the entry, and which were not made in good faith for the purpose of occupation, but in order that the property might bring a higher price at the sale, is not entitled to be allowed the value of such repairs.

Report from superior court, Barnstable county; James B. Richardson, Judge.

Action by one Fletcher against the Bass River Savings Bank. Contract for money had and received, brought by a second mortgagee against a first mortgagee to recover a surplus of the proceeds of a foreclosure sale after amount due on prior mortgage and expenses had been deducted. The first mortgagee had entered and made repairs, and claimed the right to apply the surplus to the cost of such repairs. There was a finding for plaintiff, and the case was reported to the supreme Judicial court. Judgment for plaintiff.

Henry H. Baker, for plaintiff. Chas. C. Paine, for defendant.

HAMMOND, J. The only evidence at the trial was the auditor's report, and the only question before us is whether the court was warranted in its finding for the plaintiff. Upon the evidence the court might properly have found that at the time the defendant entered to foreclose, on September 7, 1898, it intended to advertise the property immediately for sale under the power contained in the mortgage; that at that time the house was somewhat out of repair, "in that the chimney needed repairing, the roof of the ell leaked,

one of the gutters was decayed, the piazza was broken, and some of the window glass was out, trees and vines had grown too near the house, and the paint was badly worn"; that the repairs were of the kind for the expense of which an allowance should be ordinarily made to a mortgagee, but that the nouse would not "have been of any less value at the time of the sale if the repairs had not been made than it was at the time of the entry"; and that the repairs were not "necessary in order that the house might be in as good a condition at the time of the sale as at the time of the entry." The court might also have found that from the time of the entry it was the intention of the defendant to purchase the property at the sale if necessary to protect itself, and that it did purchase it in accordance with that intention, and that the repairs were not made in good faith for the purpose of occupation, nor were they necessary for the preservation of the property while the defendant was mortgagee, but in order that it might present a more attractive appearance and bring a higher price at the sale, or, in other words, that the repairs were not made in good faith to protect the interests of all concerned in the property of a mortgagee in possession, but solely for the purpose of enabling the mortgagee to make a better sale. Upon such findings, can the plaintiff recover? It is contended by the defendant that since these repairs, so far as respects their nature, were such as a mortgagee in possession may properly make, and for the expense of which he may be allowed, the general rule applies, and that it is im material whether the mortgagee intended to foreclose by holding possession for three years, or by the more summary process of a sale under the power, or whether the repairs were needed to preserve the property so that it would be in the same condition at the sale as at the entry. A mortgagee who has entered for foreclosure is not yet the owner of the land. He holds it as trustee for the Owner. As a rule, he has no authority to make the estate better at the expense of the owner. The mortgagor, as the owner, is the only person who has the right to exercise his judgment as to whether the estate shall be made more valuable by an outlay of money. Yet the mortgagee, while in possession, is bound to use reasonable means to preserve the estate from loss or injury; and those means he may use even although, as in a case where at the entry the property is In a dilapidated condition, the result is that the condition of the estate is made better than at the time of entry. Woodward v. Phillips, 14 Gray, 132. We should be slow to say that where a mortgagee, in good faith, for the purpose of preserving the estate from loss or injury while in his possession, had made repairs like those in this case, he should not be allowed therefor, although the result was that its condition was better at the time of foreclosure than at the time of entry, and

although he subsequently foreclosed by a sale, rather than by possession for three years. But the mortgagee is to be held to good faith. If, not intending to keep possession, but entering upon the estate simply and solely for the purpose of more effectually foreclosing by an immediate sale to himself or to some third person under the power contained in the mortgage, he makes repairs which are not needed to preserve the estate from loss or injury while he is in possession, and are not made for that purpose, but solely that a higher price may be obtained at the sale, then It may be fairly said that he has gone beyond his duty and his right as mortgagee.

We cannot say that the finding of the court was not warranted by the evidence. According to the terms of the report, there must be judgment for the plaintiff for $174.77, with interest from January 12, 1899.

(181 Mass. 546)

HUME v. WALKER. (Supreme Judicial Court of Massachusetts. Essex. June 17, 1902.) ACCOUNTING-INJUNCTION-AGREEMENT FOR SALE OF INTEREST IN PARTNERSHIP.

Plaintiff alleged that he purchased defendant's interest in a business in which they were formerly copartners under an agreement that merchandise which the partnership had in the hands of dealers to be sold should be regarded as debts owing to the partnership, and that, on failure to collect for such goods, the transaction was to be counted as a loss to be borne by plaintiff and defendant equally. After the purchase of defendant's interest, plaintiff replevied some of such merchandise, there by incurring expense, and sued for an accounting and to enjoin an action by defendant to recover under the terms of the contract without deduction of the expense incident to the replevin. Held, that the matter of the replevin was contemplated in the contract stipulation as to loss, so that plaintiff was not entitled to equitable relief.

Appeal from superior court, Essex county; Elisha B. Maynard, Judge.

Suit by William Hume against George Walker. From an order dismissing the bill, plaintiff appeals. Affirmed.

Plaintiff and defendant were partners, and plaintiff purchased defendant's interest in the partnership. Certain goods had been placed by the partnership in the hands of dealers to be sold, and it was agreed that the value of these goods should be regarded as debts owing to the partnership for the purpose of invoicing and calculating the value of the partnership property. It was further agreed that, if any debts due the partnership should be uncollectible, the loss should be borne equally by plaintiff and defendant. Plaintiff replevied a part of the goods in the hands of dealers, and alleges that defendant has failed and refused to pay any part of the expense incident to replevying the goods and has commenced an action to recover under the agreement of sale without making any allowance for the

expense incurred by plaintiff in replevying the goods. The bill prayed an accounting and for an injunction restraining defendant from prosecuting his action at law against plaintiff.

John C. Coombs and Chas. H. Hanson, for complainant. Wm. H. Niles, for defendant.

HOLMES, C. J. This bill is not like those where there has been a mistake in settling partnership accounts and a note given for the balance. The plaintiff alleges no mistake either in the substance of the contract or in the invoice, and he seeks no reforma tion of either document. On the contrary he says that it was part of the understanding that carriages in the hands of commission houses, although not sold, should be included in "bills owing us." No note has been given and no mistake of any kind is alleged, except that in estimating the amount due to the defendant under his contract and invoice as agreed they forgot to deduct five per cent as stipulated on finished carriages. If the plaintiff is right, that sum will be

deducted from the amount remaining due

under the contract. The plaintiff alleges in the bill that this is matter which may be proved by parol, and this may be true, because the express statement of the mode of computation and the invoice must make the mistake in the figured total apparent; but at all events no reformation is asked.

The real grievance is something which the plaintiff himself alleges to have been contemplated when the contract was made. The plaintiff and defendant have had to replevy from commission men carriages which are charged for under "Bills owing us." This, the plaintiff says, was contemplated and was to be counted as a "loss" under the contract. If so, it will be allowed for in the defendant's suit for the balance alleged to be due to him. The bill prays among other things for an account but discloses no need of equitable relief on that ground. Taking the bill on demurrer, we must assume that it expresses the plaintiff's case as he is content to leave it. not asked to amend, and the bill has been dismissed. It is only fair that he should be held exactly to his pleading, and, as the case stands, we are not prepared to say that the judge of the Superior Court was wrong. Bill dismissed.

(171 N. Y. 516)

He has

In re CORBETT'S ESTATE. (Court of Appeals of New York. June 17, 1902.)

TRANSFER TAX-EXEMPTIONS-AGGREGATE LESS THAN $10,000.

Under Laws 1896, c. 908. § 221, relating to taxable transfers, as limited and defined by section 242, where the aggregate amount of personal property exceeds the sum of $10,000, 64 N.E.-14

a tax must be imposed on each and all of the estates which are exempted therefrom when the aggregate amount of personal property does not exceed the sum of $10,000, except on legacies to a bishop or a religious corporation.

Appeal from supreme court, appellate division, Third department.

In the matter of the estate of James F. Corbett, deceased. From an order of the appellate division (67 N. Y. Supp. 46) reversing the decree of the surrogate's court revoking a tax imposed on the interest of Ellen Corbett and James Corbett on the prosecution of the comptroller of the state of New York, Cornelius Corbett, administrator, and others, appeal. Affirmed.

Lewis E. Carr and Edgar Hull, for appellants. J. A. Kellogg, for respondents.

PARKER, C. J. The appraisal of the estate of James F. Corbett discloses that the amount of the personal estate for final distribution is $11,880.69, of which amount, under the statute of distributions, a brother and sister are each entitled to one-third, while two nieces are entitled equally to the re

maining third. Under the statute relating to

taxable transfers a tax of 5 per cent. was imposed upon the share of each niece, which is not questioned. A tax of 1 per cent. was imposed upon each of the shares of the brother and sister, but this tax is challenged on this review upon the ground that the aggregate amount to which the brother and sister are entitled is less than the sum of $10,000. If the parent of the two nieces had lived, then, it is conceded, such a tax could have been properly imposed, for a sum exceeding $10,000 would, in that event, have passed to the class to which the appellants, the brother and sister, belong; but, such parent having died, and the share passing to the nieces belonging to a class upon which the statute requires a tax of 5 per cent. to be imposed, the appellants contend that the share coming to them may not be taxed at all; in other words, the contention is that the statute must be so construed as to permit a tax of 1 per cent. to be imposed upon a sum passing to brothers and sisters in the event only that the total amount passing to them as a class is equal to the sum of $10,000, however large the estate may be.

Prior to the act of 1892 the statute then in existence received such a construction from the hands of this court. In re Cager's Will, 111 N. Y. 343, 18 N. E. 866; In re Howe, 112 N. Y. 100, 19 N. E. 513, 2 L. R. A. 825. Then came the act of 1892 (chapter 399), which was a revision of the whole law on the subject, and under that act the question was presented upon the appraisal in Re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311, whether a mother's life estate, which was less than $10,000, but formed part of an estate of $50,000, was to be taxed. The surrogate held that the life estate of the mother was taxable. The general term held otherwise, and

modified the decree in that respect, but in this court the general term was reversed, and the surrogate sustained, on the ground that the word "property," as used in section 2 of the act, means the property of the testator passing or transferred, not that portion of it received by an individual legatee; thus making the limitation of the statute apply to the aggregate value of the property transferred, not to the separate value of each several transfer. It was not held that section 2, considered alone, is capable of such construction, but that when it is read in connection with section 22, which provides that "the words 'estate' and 'property' as used in this act shall be taken to mean the property or interest therein of the testator, or intestate," etc., "passing or transferred to those not herein specifically exempted from the provisions of this act," it becomes evident that it was the intent of the legislature to provide that all of the testator's property not specifically exempted from taxation is to be included in determining whether the amount of the personal estate passing is of the value of $10,000. To give a concrete illustration of the working of this feature of the statute as construed by this court: An estate of $15,000, in which $6,000 was given to a bishop or religious corporation, which are specifically exempted from taxation by the statute, and $9,000 given to a brother and sister, would not be taxable because the aggregate amount passing to persons not specifically exempted would not be of the value of $10,000; but if only $5,000 were given to the bishop or religious corporation, and $10,000 were given to the next of kin, whether in different classes or not, all would be taxed at the rate provided in the statute, because the aggregate amount thus given is equal to the sum of $10,000. This was the construction given to the section in Re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311, in which the history of the development of the subject was carefully considered, Judge Finch writing, and the conclusions reached that the enactment of section 22, from which we have quoted, was undoubtedly due to the construction placed. upon the statute by this court, and was obviously intended to compel the court to reach a different conclusion in some respects, notably so far as it had been held that the aggregate amount of the estate should not be considered in determining whether a tax should be imposed, but instead the specific share passing to the individual. In 1896 the sections of the act of 1892 above referred to were re-enacted as part of the tax law, section 2 becoming section 221 of the latter act, and section 22 becoming section 242. The only change in either is the substitution of the word "article" for "act" in section 242. The decision which this court made in the Hoffman Case, therefore, is in point, and controlling here, and a further review of the question, occasioned by the able argument of counsel for the appellants, has convinced us that the rea

sons for that decision were accurately stated, and compelled the conclusion reached.

The order should be affirmed, with costs. GRAY, O'BRIEN, HAIGHT, VANN, and WERNER, JJ., concur. CULLEN, J., not voting.

Order affirmed.

(171 N. Y. 520)

TINDLE et al. v. BIRKETT. (Court of Appeals of New York. June 17, 1902.)

FRAUD-FALSE REPRESENTATIONS TO MERCANTILE AGENCY-ACTION.

A member of a firm knowingly made false statements to a mercantile agency as to its financial condition in order to obtain a favorable rating in the reference books furnished to the subscribers of the agency. Held, that a subscriber who sells and delivers goods to such firm on credit, relying solely on such rating, and without any further knowledge, where the members are adjudged bankrupt on their own petition before the goods are paid for, may maintain an action for obtaining the goods by fraud, though the statements were made to the agency, and not to the vendor personally.

Vaun, J., dissenting.

Appeal from supreme court, appellate division, Fourth department.

Action by Thomas Tindle and others against Clarence T. Birkett. From a judgment of the appellate division (67 N. Y. Supp. 1017) affirming a judgment for defendant entered on dismissal of the complaint, plaintiffs appeal. Reversed.

Frank Gibbons, for appellants. J. Murray Downs and Thomas Carmody, for respondent.

O'BRIEN, J. The plaintiffs sought to recover, in an action based upon allegations of fraud and deceit practiced upon them by the defendant, the price of three bills of goods which they were induced by such fraud to sell to a firm of dealers of which the defendant was a member. The firm was composed of the defendant and another person, who died before the trial, and by an order of the court the action was continued against the defendant. At the trial before the court and a jury the plaintiffs were nonsuited, and their counsel excepted, and this exception presents the question of law in the case. The judgment was affirmed on appeal.

There is practically no dispute about the facts, and the question presented by the appeal is whether the plaintiffs' proof did not sustain, or tend to sustain, the action. The three bills of goods were sold and delivered by the plaintiffs to the firm at the following dates, respectively: November 30, 1898, January 24, 1899, and March 25, 1899,-and amounted in the aggregate to $901.86. On the 15th day of April following the last sale, both of the members of the firm were adjudged bankrupts, on their own petition, in

the federal court. About 18 months prior to filing the petition, and on the 16th of September, 1897, the defendant, for the purpose of securing a rating by the mercantile agency of R. G. Dun & Co., made and delivered to that agency a statement in writing as to the financial condition of the firm, which showed net assets of $152,858.22. More than a year thereafter, and on the 2d day of November, 1898, in reply to a request from the agency, the defendant wrote a letter in which he practically reiterated his former statement, and added that the business of the firm was "large, increasing, and profitable." Still later, and on March 9, 1899, just before the purchase of the last two bills of goods from the plaintiffs, a representative of the agency called upon the defendant personally, and received from him a verbal statement that there had been no material change in the financial condition of the firm. The agency gave the firm a rating of from $125,000 to $200,000, which was maintained, and never changed. Substantially the same rating was given to the firm by the Bradstreet agency, upon like statements and representations, though made at an earlier date, and the defendant at all times knew that the credit of the firm was so rated in the reference books sent by these agencies to merchants and business people. The plaintiffs had and used these reference books of both agencies in their business, and when defendant applied for credit they consulted these books, and in reliance on the correctness of the rating, without any other knowledge, sold and delivered the goods in question upon credit. The statements upon which these ratings were given, at least as to the Dun agency, were grossly false. The learned court below correctly described this phase of the case in these words, which we can very well adopt: "That the statements upon which the rating of the defendant's firm was based by the mercantile agency of R. G. Dun & Co. were grossly false, and that the plaintiffs relied upon such rating in giving the firm credit for the goods purchased upon the several occasions mentioned, are facts concerning which there is, and can be, no serious dispute; and had such statements been made directly to the plaintiffs, under circumstances which would fairly warrant the assumption that they were so made by way of inducing credit, there would, of course, be no question as to the right of the plaintiffs to maintain an action of this character." But the learned court held that since these false and fraudulent statements were not made to the plaintiffs personally, and directly by the defendant, but to the agencies, and since the plaintiffs never saw the statements themselves, but only the result of them in the reference books, the action could not be maintained.

That one merchant may defraud another, under modern business methods, just as effectually by a false and fraudulent state

ment to a commercial agency as in any other way, no one can doubt. That the defendant did actually deceive and defraud the plaintiffs by thus putting into circulation in the business world a false, fraudulent, and fictitious rating, purporting to express his true commercial standing and financial ability, is equally clear. Disregarding mere forms and methods, it cannot be doubted that the defendant spoke false and deceitful words to the plaintiff's through the agency just as effectually as if they had met face to face, and the statements had been made directly and personally. The buyer of goods may become liable to the seller in fraud, although they have never met or seen each other, and no personal communication that is false or fraudulent has passed between them. If the former does just what this defendant did, and procures a fraudulent rating, intending that it should be published to the business community and taken as true, that is a fraud upon the person who relies and acts upon it to his damage. But it is not necessary to argue this question as an original one, since it has been deliberately decided by this court. In Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31, 38 Am. Rep. 389, it was held that when a member of a firm makes statements to a commercial agency, which he knows to be false, as to the financial condition of the firm, with the intent that the statements shall be communicated to persons interested in ascertaining the pecuniary responsibility of the firm, intending thus to procure credit and to defraud such persons, and such statements are communicated to one who in reliance thereon sells goods to the firm on credit, an action for deceit may be maintained against the buyer of the goods, in favor of the seller, who has suffered by the fraud. That decision is controlling in the case at bar, since the two cases are almost identical in their facts, and all the objections urged by the learned court below to a recovery in this case were fully answered upon principle and authority. The court states that the case was new in its facts, but old in the principle involved, and the cases cited sustain the statement. The same principle was decided in a more recent case. Bliss v. Sickles, 142 N. Y. 647, 36 N. E. 1064.

The objections urged to a recovery in a case like this are quite untenable. It is said that it would put business men at the mercy of commercial agencies. No one need have any fears of that, since no business man can be affected unless he makes use of such an agency to give information to the business world of his financial condition in order to show that he is worthy of credit, and then it is impossible to harm him unless he makes statements that he knows to be false, for a fraudulent purpose; and, if he does, there is no reason why he should not respond to one who has suffered thereby. So, also, it is said that these agencies procure information. from other sources than the statement of