dissenting. This action was brought to set aside certain instruments bearing date 10th and 15th October, 1868, and was tried at Steuben Special Term in June, 1869.
It appeared upon the trial that on the 3d day of October, 1868, the defendant having drawn, the plaintiff executed an instrument of that date, employing terms of conveyance to defendant all of plaintiff’s estate, real and personal, in the States of Hew York, Pennsylvania, Michigan, Wisconsin, Indiana, Ohio, Illinois and West Virginia, in trust, to sell the lands, &c., and pay over all proceeds and avails of the property, real and personal, to the plaintiff during his life, and after his death the residue (if any) to be distributed, as directed, in writing, to be subscribed and executed by the plaintiff; and in case writing was not executed, then the residue to be distributed to the heirs of the plaintiff, according to the laws of the State of Hew York.
On the 10th day of October, 1868, the defendant having drawn another instrument as a substitute for that of the 3d October, the plaintiff executed that, in which, in addition to those in the previous one, were inserted provisions for renting land until sold, and for compromising disputed and doubtful claims, whereupon the first instrument was canceled.
On 15th October, the defendant having prepared a supplementary instrument of that date, the plaintiff also executed that, containing provisions simply for distribution after his death of any residue there might then be.
At the time these papers were executed the plaintiff had reached the age of eighty-seven years, and his property waa *248large, amounting to several hundred thousand dollars. And he then understood that he had, and would at any time thereafter, have the right and power to revoke and terminate all the authority vested by those instruments in the defendant, and render them entirely inoperative. He testified on that subject: That his expectation and intention was that he could resume the entire control of the property whenever he chose to do it. That he understood that he could do it by revocation. He would not have made these papers if he had been advised that he had not the power to revoke them. His opinion was that he had full power to revoke them at any time; also that he did not intend to give defendant the entire control and management of his property. He expected that whatever was done would be done with his privity and consent. And the court found the fact that when he executed the papers the plaintiff entertained the idea and belief that he could revoke.
It appeared that up to the time at which the papers were executed and for several years previous the defendant (who was his nephew) had been engaged for the plaintiff in his office as clerk, having charge of his books, and was with the plaintiff daily aiding him generally, and had acquired the confidence of the latter. That for the purpose of procuring the plaintiff’s promise to make the papers, and the execution of them, the defendant induced the plaintiff to leave his own house and office, and go to the dwelling of the defendant on the 29th day of September. The defendant testifies that he invited him there for the purpose of consulting with him on this subject, and wanted a private interview because he wanted him to fix something. That when he took him to his house he contemplated having a paper executed for the purpose of getting control of the property if he would do it. And defendant added that he did not want to undertake his purpose in any room at the house or office of the plaintiff, because somebody would be sure to bolt in, and he didn’t want anybody to hear. He was not afraid of everybody in general, but of somebody in particular, and of one Joseph F. Hill. Hill was not *249about there; that he was not afraid of him, but the danger was apprehended from the sister of plaintiff who had lived with and kept house for him over twenty years. The defendant’s brother, Edmonds, of Scranton, Pennsylvania, appeared there on business at just about that time, who says that he was consulted by the plaintiff on the subject. The defendant also trusted his son George with the secret, and therefore took the plaintiff from his house to the foundry and machine shop of his son George (with whom one Preston was a partner) to have the papers of 10th and 15th October executed and witnessed.
Immediately after the interview on the 29th September, the defendant prepared a paper of that date, as he says, pursuant to the arrangement, and the plaintiff refused to execute, and repudiated it. A will was also drawn, which appears in the handwriting of the defendant of date of 30th September, which was also witnessed by the said George and his partner Preston, and the defendant testified that it was made as a temporary instrument, and he kept it. The defendant continued to draw papers for the plaintiff to execute, and the latter not being satisfied, prepared and executed a will on the 2d day of October, 1868. But, in the meantime, the defendant had drawn up a paper which the plaintiff reduced to a will by alterations.
Immediately after the papers of the 10th and 15th October were made, the defendant caused them to be recorded without the consent of the plaintiff, who made that a subject of complaint as soon as it came to his knowledge. And not long after this the defendant claimed the right to assume control and management of the property and business in defiance of the plaintiff. And thereupon the plaintiff distinctly declared his right to revoke and terminate, and did revoke all the power of the defendant under the instruments, and claimed to resume the entire and exclusive control and management of his property and business.
The court at Special Term concluded :
*2501. That the plaintiff’s misapprehension respecting the instruments in question, related to their legal effect; and, therefore, no relief from the consequences, however serious, could be afforded on that account.
2. That the instrument was made without undue influence of fraud.
3. That the relation between the parties was that of master and servant.
4. That the instrument of the 10th October, 1868, created a valid trust.
5. That the instrument of 16th October, 1868, also created a valid trust.
A judgment was entered upon the decision, and the plaintiff appealed.
One of the principal questions to be determined in this case is, whether the instrument executed by the plaintiff to the defendant, bearing date the 10th day of October, 1868, created a valid trust, within the provisions of the Revised Statutes in regard to uses and trusts. They are abolished, except as authorized and modified by the statute. (1 R. S., 127, §45.) According to the statute, express trusts may be created for certain purposes therein named, and, among other purposes, “to receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter time, subject to the rules prescribed in the first article of this title.” (1 R. S., 728, § 55, subd. 3.) The instrument in question provides for a sale and conveyance of the lands by warranty deeds, and, until they are sold, authorizes the defendant to rent such of them as can be rented for the best prices which can be obtained. The whole avails are then to be distributed, after deducting commissions, by paying over the same to the plaintiff, or under his direction.
It is evident that the main object to be accomplished by the instrument was to sell the real estate and pay over the avails, and the renting of the property was merely incidental and collateral to that object. It simply provided for its use while waiting for a sale, and for the disposition of *251such sums as might be realized from rents during that period.
Pending the negotiations for a sale, and while engaged in disposing of so large an amount of property, some portion of it would necessarily lie idle, and, therefore, as a financial matter, dictated by sound judgment, the provision appears to have been made for the renting of those portions which could thus be disposed of, until a sale was had. Upon a fair interpretation of the statute, it would seem to be quite apparent that such a renting of property as is thereby authorized was not contemplated by the instrument, for it makes no provision for the receiving of the rents and profits, and the application thereof for the use of the plaintiff for life or a shorter term, as the statute requires in order to create a trust. The object of the instrument was to sell, and not to rent, the property; to pay over the avails of sales and all moneys received, and not to apply them to the use of the plaintiff. This construction of the instrument is supported by the principles laid down in numerous adjudicated cases. (Wright v. Delafield, 23 Barb., 516 ; Hotchkiss v. Elting, 36 id., 44; Downing v. Marshall, 23 N. Y., 379.) If no trust was created under section 55, then no title vested in the trustee. (1 R. S., 729, § 60.)
Another, and, in my opinion, a strong and unanswerable ground for holding that no trust was created within the third subdivision of section 55 before cited is, that, when such is the case, although title is vested in the trustee for the purposes named, the power of alienation is suspended, and every sale or conveyance is absolutely null and void. (1 R. S., 730, §65; Boynton v. Hoyt, 1 Denio, 53; Cruger v. Jones, 18 Barb., 471; Hawley v. James, 16 Wend., 164; Coster v. Lorillard, 14 Wend., 303.) In the instrument of the 10th of October, unlimited authority is given to sell and convey the property, and there is no restraint whatever upon the alienation thereof at any time or under any circumstances. The power of sale is in no respect restricted by the direction to rent, but entirely independent of it. The duty to sell is *252absolute and imperative, and the plaintiff could compel its execution if there was a valid and lawful power to sell. (1 R. S., 734, § 96; Hotchkiss v. Elting, 36 Barb., 46; Arnold v. Gilbert, 5 id., 190.)
2sTo one but the plaintiff is interested in the price to be obtained. The parties named in the instrument of October 15th are not in any event entitled to any property except such as may remain in the hands of the trustee after the death of the plaintiff. They have no interest in the sales or collections, and ho equitable rights to obstruct or delay them for any purpose.
It is said that the power to sell was not inconsistent with the trust to receive the rents and profits, and apply them to the use of any person who was entitled to the same. Conceding that this position may be a sound one, where the power to sell is incidental to the receipt of the rents and profits and their application; yet when the sale is the main object of the trust designed to be established, and this is evi dent from the instrument itself, I think that the rule contended for has no application, and is in conflict with the principle established by the authorities to which I have before referred.
In support of the doctrine contended for, the learned judge before whom the case was tried cites the case of Belmont v. O’Brien (12 N. Y., 394), which ease, it is insisted by the counsel for the defendant, overrules any authorities cited by the plaintiff which can be regarded as holding that a trust estate is inconsistent with an ultimate power of sale, and thereby rendered invalid.
In the case last cited, it was held that where, in contemplation of marriage, lands were conveyed to trustees, to receive the rents and profits and apply them to the separate use of the wife during life, and the trust deed contained a power to the trustees to sell the lands and reinvest the proceeds, and hold them so reinvested to the same use, that the power was valid, and that a conveyance by the trustees passed a good title. The opinion of the court cites the case of Haw*253ley v. James (5 Paige, 444, 445), where the chancellor held that the mere exchange of one piece of property for another by a trustee under a valid power in trust is not considered as an alienation of the estate, and it was not important whether the exchange was made directly or by means of a sale or a new purchase, and that this was not a power of alienation, within the intent and meaning of the Revised Statutes on the subject. The decision of the case is also put upon the ground that the trust created was an ante-nuptial agreement / and as powers of sale and exchange have been considered usual and proper in marriage settlements, if'the sale was simply an alienation, it was not prohibited by sections 63 or 65 of the statutes in regard to uses and trusts.
Tt will be seen that the case cited is entirely different from the one- at bar. The power to sell was incident to the main object of the trust created, which was to receive the rents and profits, and apply the avails; while here the renting of the property is incident to the main object, which was the sale and disposition of the avails. Hor is there anything in the instrument executed by the plaintiff which presents an exceptional case, similar to an ante-nuptial agreement which prevents the application of the statute prohibiting a sale in cases of trusts under the third subdivision of section 55. I cannot, therefore, consider this case as establishing any new doctrine in conflict. with the cases before cited.
The other cases relied upon do not sustain the doctrine contended for. In The Matter of the Petition of Livingston (34 N. Y., 555), it was held that where the rents and profits of the real estate were, by the terms of the trust, to be paid over to the grantor or creator of the trust himself, the trust was valid, and that so far as the deed requires the trustee to assign and convey the legal estate to those entitled to the remainder, his services would be useless; as the transfer would be made, if at all, by operation of the statute of uses, and his office of trustee would then cease. There is nothing in this case which sustains the position that a trust to receive *254the rents and profits and apply the same, with a power of sale, is valid.
In Wright v. Miller (4 Seld., 9), the trust deed was made in 1809, and the Revised .Statutes have no application to it. Ho question of trust under the statute was presented. It may also he remarked that the power of sale conferred by the deed was consistent with and incidental to the trust, as it provided for the payment of so much as was necessary for the support of the cestui que trust and the accumulation of the surplus for the purposes of the trust.
There is no reported case which goes to the extent of holding that where the principal object of the trust is to sell lands and pay over the avails, .the authority .to rent in the mean time can .take the ease out of the statute. If such was the law, then the statute might be easily evaded, and its purpose entirely set at naught. The true question is, what was the main and principal object of the trust ? If to sell lands and pay oyer the proceeds, then clearly it is not yd thin the statute. It is no answer, in my opinion, to the invalidity of the authority to sell lands and pay oyer the avails, that a further and subordinate purpose, which was valid, is added, to carry out. the main object. The two purposes are not in conformity with the spirit of the statute, and the subordinate one must-yield to the greater, and .be considered as merely auxiliary to it. I think it cannot be maintained, upon any sound principle, that an instrument authorizing a sale of lands in express violation of the statute of uses and trusts is saved from the operation of the statute, because, until the lands are sold, authority is given to rent the same. It -is plain that the statute never was intended to confer any such authority, and would be of no practical utility if it could be thus perverted from its purpose. If the real object of the instrument in question was to create a trust for the sale of real estate and the payment of the avails arising therefrom, then the clause which provides for the renting of the premises until sold is a mere appendage attached to it for the purpose of carrying into effect the principal object in view. It cannot save the *255invalidity of the conveyance, or render it effective in any way. It is entirely different from a trust created to receive the rents and profits and pay over the avails where a power to exchange lands is granted, as incidental to the main object. (5 Paige, 444, 445.) As was said by Walwobth, Chancellor, in the case last cited, “ The rules of law on the subject of rendering estates inalienable have reference to the substance and not merely the shadow. And for any substantial purpose the land received in exchange for that of which the testator died seized can be considered in no other light than the same estate.” The “ substance ” in the case cited was the receipt of the rents, and their appropriation, while here it is the sale of the property and the payment of the avails. If the instrument of the 10th of October did not create a trust, then the instrument bearing date the 15th day of October, 1868, which was executed to carry out the purpose of the first instrument, is of no avail, and both of them must be set aside.
Ho valid trust being created under the Revised Statutes, the question arises whether a power in trust is not created under section 58, of the title referred to, which provides: “ When an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the thud article of this title. (1 R. S., 729.) The next section (59) declares that when the trust is valid, as a power, the lands to which it relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power. By the third article of the Revised Statutes referred to, powers are abolished, as they then existed (1 R. S., 782, §73), and certain kind of powers were authorized. These were general or special, and beneficial, or in trust. (§ 76.) A power is general when there is a general authority to convey, in fee, to any alienee. (§ 77.) Special powers are limited to persons designated, and any alienation authorized of an estate *256ór interest less than a fee. (§ 78.) It is beneficial when no other person but the grantee has an interest in the execution (§79.)
A general power is in trust when any other person than the grantee has an interest in the proceeds, or the benefits to be derived from it. (§ 94.) Under these provisions, if any power was created by the instrument it was a general power. The statute also provides in what manner a power may be created, and that it may be granted : “ 1. By a suitable clause contained in a conveyance of some estate in the lands to which the power relates. 2. By a devise contained in a last will and testament.” This provision excludes all other methods of creating a power; and as the instrument in question, as we have seen, conveys no estate, and it is still vested in the grantor, it does not contain the requisites of a power in trust.
A power in trust is defined to be a mere authority, or right; to limit a use. (F. L. and T. Co. v. Carroll, 5 Barb., 652. Sterricker, v. Dickinson, 9 Barb., 519.) In case of a power in trust, the beneficiary must be some person besides the grantor. There must be some third person besides the devisee or grantee of the power, who is called the appointee. The parties concerned in creating a power in trust, are the donor who confers the power, the appointee or donee who executed it, and the appointee or person in whose power it is executed. (4 Kent, 316.) The grantor is not a third person who has an interest in the performance of the stipulations and provisions of the agreement. (5 Barb., 653.)
An appointee is wanting to constitute a power in trust, unless the donor or grantee can be considered as such, which is in conflict with the rules laid down in the cases cited: It may also be observed that the appointee, under the power, derives his title from the instrument by which the power of appointment was created; and the statute expressly provides that no person can take under an appointment, who would not have been capable of taking, under the instrument by which the power was granted. (1 R. S., 737, § 129 ; 4 Kent, *257Com., 327, 328.) In Dempsey v. Tylee (3 Duer., 73, 98), this provision of the statute was held to apply to estates which may be lawfully created, when the appointee of a power is incompetent to take by deed directly from the person creating or reserving the power. The appointee here is the grantee; and as he could not convey to himself, and was incompetent to take, by deed, from himself, it follows that he could not be the appointee.
If it be conceded that a trust may be created by a grantor for his own benefit, yet the doctrine that the grantor of a power in trust may be himself the appointee or beneficiary, cannot be sustained either upon principle or authority. In Wright v. Delafield (23 Barb., 498), which is cited' by the defendant’s counsel to sustain a different principle, the judgment of the Supreme Court was reversed by the Court of Appeals ; and the point now considered was not material in the decision of the case. So far as the opinion of the Supreme Court can be considered as upholding the doctrine contended-for by the defendant’s counsel, it is decidedly adverse to the general current of authority, and in conflict with the principles of law applicable to powers.
The instrument of October 10th being insufficient to create a power in trust, because it failed to designate an appointee, and being invalid of itself, the deficiency is not supplied by the provision for the distribution to be made after the decease of the plaintiff; and the instrument, executed on the 15th of October, which designated the persons to whom the property was to be distributed after the decease of the plaintiff.
As it was originally invalid and void on its face, it could not, I think, be resuscitated and rendered effective by the instrument subsequently executed, even if that had been legal and valid.
It is said that a valid trust was created in respect to the personal estate, which constitutes the largest portion- of the property of the plaintiff. It is held that statutes in regard to trusts, except as to the limitation of future or contingent interests, relate to real estate only; and that trusts in respect *258to personal property are now allowable as before, as no prohibition or restriction is imposed by the statute, except as above stated. (Brown v. Harris, 25 Barb., 135; Kane v, Gott, 24 Wend., 641; De Peyster v. Clendenning, 8 Paige, 295; Gott v. Cook, 7 id., 521.) This is, no doubt, the rule where .a trust is created which is complete of itself, and can be carried into effect. It must, however, be such a trust as is capable of being enforced. Such is not the case here. The instrument in question provides, as to the personal property, that the debts shall be collected, and that the avails of both real and personal property shall be paid and distributed as provided. It will be observed that no provision is made for the collection of the principal of any security held by the plaintiff, or of any interest thereon, or of any dividends on stock, or for a reinvestment of money, where a security is paid, or for the assignment of the same if necessary, as required by circumstances which might thereafter arise. Nor is any power given for the sale of any stocks or securities, where, in the exercise of a sound judgment in the management of the estate, it might be absolutely necessary. In the changes and fluctuations of financial matters, and to save from depreciation and loss, it might be of great importance to the security and safety of stocks and other investments to sell and dispose of the same in the market. According to the terms of this instrument, the defendant would have been utterly powerless to make a sale, and thus save the estate from severe pecuniary losses. He must stand by and witness, perhaps, the entire sacrifice of the security, with no authority whatever to remedy the difficulty, which never could have been intended. So far as the personal estate is concerned, the instrument is destitute of the requisite elements to create a trust, and confers no sufficient authority for any such purpose. To constitute a valid trust, there must be not only adequate power to hold the property, but authority to dispose of the same for the benefit of the cestui que trust, and to carry out the purposes intended. In this respect, the instrument was entirely defective, and cannot stand as a trust of the personal estate. The authority to col*259tect debts owing the plaintiff was, at most, a power of attorney as to this portion of the personal property, and upon no sound principles can be construed into anything beyond this. The instrument was neither a trust nor a power in trust, as vO the real or personal property, but a simple power of attorney, which could be revoked at the pleasure of the plaintiff. He so understood it at the time of its execution, as the judge has found; and, upon the execution of the revocation by the plaintiff of both the instruments executed by him, they were annulled, and the property granted became restored to him, the same as if they had never been made.
Although the instruments executed by the plaintiff are null and void for the reasons already stated, there is, I think, another ground which is fatal to their validity. At the time of the execution of these papers, the defendant occupied a position of trust and confidence with the plaintiff, in reference to the subject-matter of the transaction, which obligated him to impart proper advice and information as to the plaintiff’s rights, and the legal effect of the instruments which were executed. The defendant had been employed as plaintiff’s clerk and assistant in his business for a number of years, occupying the office of the plaintiff, with him at his residence, and in the habit of daily intercourse with the plaintiff. He was a favorite nephew and confidential friend and adviser, in whose integrity, honesty and fairness, the plaintiff had the most implicit confidence. The plaintiff confided to him the execution of the power conferred, and he was largely interested in the profits arising from the employment, furnished by the papers executed, as well as in the residuary portion of the defendant’s estate. According to the defendant’s own version of the manner in which the transaction was accomplished, he apprehended that another relative might interfere with him; and if this person was tolerated in the office, he states that he knew that it would be so uncomfortable for him that he would not stay, and he invited the defendant to his house for the purpose of consulting with him on the subject, intending, at the time, to have a paper executed that would give him the *260control of the property, and put him in a position which would be permanent. He avoided the plaintiff’s house because he was apprehensive that some one might come in, and particularly the sister of the plaintiff, who had lived with and kept house for him for a period of twenty years. Thus secretly, and where he was not likely to be interrupted, he made a proposition that the plaintiff make .a conveyance to him, in trust, which was assented to. The defendant prepared a deed accordingly, which was examined and altered, but was not executed. The plaintiff then prepared and executed a will. Another paper was drawn, which was altered to a will, but not executed. .Then followed the instrument of October 3d, which was executed and abandoned; and, at last, the papers in question were executed.
From this brief history of the proceedings, prior to the execution of these instruments, it is apparent that the defendant was a prominent actor in the transaction. He instigated and procured the private interview, advised what should be done; either drew or advised as to the drawing of all of the papers; and those which were executed are in his handwriting. He acted, throughout, as the confidential adviser and attorney, and not as a mere agent of the plaintiff, to carry out his views. The plaintiff was in the decline of life, being eighty-six years of age, pressed with bodily infirmities, with his sight, memory, and hearing impaired, although of great intelligence for a man who had passed so far beyond the allotted period of human life. He entertained the idea, as the court has found, that he was merely conferring upon the defendant a power of attorney, revocable at his pleasure, and thus the sales of his property might be continued until he choose to change it. He testifies that he had confidence in defendant’s integrity and skill in business, and it is apparent that he trusted him, not only as a friend and relative, but as his legal adviser.
Under such circumstances, the defendant having assumed the responsibility of procuring the plaintiff to execute the ^papers, he was bound to know, and to advise the plaintiff, *261as to tlieir legal operation, and effect, and that, thereafter, to a large extent, the property would be beyond his control, if such was the fact.
The courts regard, with jealousy, all transactions which involve confidential relationship and the dependence of one party upon another. They seek to protect the weak and infirm, the aged and helpless, who, intrusting confidence, rely upon the advice and assistance of others, from all improper influence which they may possibly exercise, over the acts and conduct of these persons in the disposition of their property. It does not allow an individual to take advantage of confidence reposed in him, either in professional or friendly relations.
A court of equity will exercise its jurisdiction to set aside instruments executed between parties, where one party is so related as to exercise a controlling influence over the conduct, will and interests of another. The nature of the transaction itself is often such, that undue influence may be inferred. In other cases it appears from the transaction, and the exercise of occasional or habitual influence. The authorities which uphold this principle are abundant. In Newton v. Atkyns (3 M. & K., 140), it was held that when the relation is only that of friendly habits or habitual reliance on advice and assistance, accompanied with partial employment in doing some sort of business, care must be taken that no advantage be had of the influence thus acquired.
In Huguein v. Baseley (14 Vesey, Jr., 273), a voluntary settlement by a widow upon a clergyman and his family was set aside as obtained by undue influence and undue confidence in the defendant. The lord chancellor, Eldox, says: “If the proposition (to execute her purpose) was her own, yet the transaction, in a court of justice, has this character, at least, that it was a demonstration to Baseley that she placed confidence in him as high as one individual ever placed in another.” He further remarks: “ And the language of a court of justice has at all times been, that, if a man does not choose to act upon the confidence, appearing in the course of the *262transaction, to be so reposed in him, he ought to reject it as soon as proposed.” In this case -the court .also held, that, even although the defendant and his attorney, who were instrumental in procuring the deeds of settlement, did not communicate that knowledge of their effect, nature and consequences which they were bound by their duty to do, before she was suffered to -execute them, because they were not aware of the duties which the court required of them in the situation in which they stood, yet, when the decision rests upon the ground of public policy and utility, for the purpose of maintaining the principle, it is necessary to impute knowledge -which the party may not have actually had. (See, also, Pickering v. Pickering, 2 Beavan, 31; Lady Ormond v. Hutchinson, 13 Vesey Jr., 58; Willan v. Willan, 16 id., 72; Purdy v. Disbourrie, 3 P. W., 315; Sears v. Shafer, 2 Seld., 268-272; Crispell v. Dubois, 4 Barb., 393; Story Eq. Jur., §§307, 308; Jeremy's Eq. Jur., 395., 396; Willard’s Eq. Jur., 169; Tiff. & Bull on Trusts, 153.)
The authorities are uniform in their tendency, and lead to -the irresistible conclusion that the instruments in question cannot be upheld. I have examined the -cases cited by the defendant’s counsel which are supposed to sustain a different doctrine:; but I think -that none of them are in conflict with those to which I have referred.
Some other -questions are raised by the plaintiff’s counsel; but, as those already discussed dispose of the case, it is not necessary to discuss them.
After a careful examination I am satisfied that the instruments in question cannot be sustained upon any of the grounds taken by the counsel for the defendant, and the judgment must be reversed, with costs.
As the defendant is not entitled to judgment under any state of facts applicable to the ease, I -think that judgment should be ordered in favor of the .plaintiff, in accordance with the prayer of the plaintiff’s -complaint.
Judgment affirmed.