cur, except Folger and Rapallo, J.J., dissenting, on the ground that the act requires the report not only to be made, but also filed and published, within twenty days from Jan. 1st, in each year. REFERENCE. RECEIPTS. Decided September, 1877. When there is a conflict of evidence on an issue of fact, and a question of veracity between witnesses is to be settled, the findings of a referee conclude the parties and must be accepted as final by the Court on appeal. Receipts given for payments made on an engineer's estimates under a contract and purporting to be in full, are not in the nature of contracts, and are open to explanation on both of these points by parol proof. ed percentage. Defendants claim that there was a full settlement, and introduce the estimates and receipts, as well as other evidence, to show it. Plaintiff claims that the monthly estimates were ex parte and incorrect in fact, that he protested against them and only accepted of payment on the assurance that they would be made right, and he expressly denies that there ever was a final settlement. The referee finds in favor of the plaintiff on these points and that there was 3122.58 cubic yards of rock excavation that remained unpaid for as rock, but had been paid for as earth, and that plaintiff was entitled to the difference in price thereon. E. F. Bullard and Henry Smith, for applts. Matthew Hale, for respt. Held, That the parol contract was Appeal from judgment in favor of a binding one, whether it be considerplaintiffs on report of a referee. ed as a modification of the written This action is for a balance due on one, or as a waiver of it and a substia contract for excavating and grad-tution of the verbal one in its place. ing certain sections of a railroad. The original contract was in writing, and the excavations contemplated by it were earth excavations only. Soon after plaintiff commenced work it was discovered that there was rock to be excavated, and plaintiff refused to proceed with the work at contract prices. A parol agreement was then made, that plaintiff should go on with the contract, and should have an extra price for rock excavation. Monthly estimates were made by the engineer, payments in accordance therewith were made to plaintiff, and receipts given. Some of the receipts were for ninety per cent. of the estimates, others were in full, and the last was for the amount of the retain Jenks v. Robertson, 58 N. Y., 621; Monroe v. Perkins, 9 Pick., 298; Lawrence v. Doll, 11 Vermont, 549. This defendants do not deny, but they insist that they have paid in full, and that there was a final settlement. The evidence on this point is very conflicting, and there is a question of veracity to be settled. In such case it has often and uniformly been held that the decision of the referee will conclude the parties on the questions in dispute. The referee has found the issue of fact in favor of the plaintiff, and his conclusion must be accepted as final by the Court on appeal. It is urged that the receipts of payments were given on recognized and acknowledged estimates and were in full, hence are absolutely conclusive an appointment made by the justice, of the plaintiff's claim. and occupied the same until March 1, 1874, receiving the salary therefor up to December 1, 1873, when plaintiff again came into possession of the office by virtue of a judgment of ouster obtained by him against K. in an action in the nature of quo warranto. Plaintiff while excluded from the Held, That they were open to explanation on both of these points by parol proof. They were not in the nature of contracts in any respect, and it is the well-settled rule of law that mere receipts may be explained as to the consideration when the explanation is not contradictory to, but consis-office was ready to perform the tent with the instrument. Eggleston v. Knickerbocker, 6 Barb., 458; Coon v. Knapp, 8 N. Y., 402-405; Bonested v. Flack, 41 Barb., 435; Busnell v. Poineer, 37 N. Y., 312; Boardman v. Gaillard, 8 N. Y. Sup. Ct. R. (1 Hun), 217. Judgment affirmed. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur. SALARY. DE FACTO OFFI- N. Y. COURT OF APPEALS. Decided Jan. 30, 1877. The An officer de jure cannot recover salary for the time during which an officer de facto performed the duties of the office and received the salary therefor. The salary follows the true title to the office, and where the intruder obtains the salary, he is liable therefor in an action by the officer de jure for money had and received. Disbursing officers are not bound to investigate duties of it, and proffered his services to the clerk, which were refused. This action was brought after the judgment of ouster to recover of defendant the salary of the office while K. held it. The judgment in the ouster action proceeded on the ground that by the act under which plaintiff was appointed (chap. 438, Laws of 1872) he was entitled to hold his office for a fixed term, which had not expired when K. was appointed. The Court held that plaintiff could only recover of defendant the salary unpaid to K., viz., from December 1, 1873, to March 1, 1874, and directed a verdict for that amount. Both parties appealed to the General Term, and from an affirmance there to this Court. Nelson J. Waterbury, for respt. Held, That the verdict was proper; that plaintiff was the de jure officer; that defendant was in no way responsible for the unlawful appointment of the title to offices before paying the salaries K.; that although K.'s appointment thereof, but have a right to rely on the apparent title. Affirming S. C., 3 W. Dig., 396. Plaintiff, who was an assistant clerk of one of the District Courts of the city of New York, on January 1, 1873, was excluded therefrom by one K., who claimed the office by virtue of was illegal, yet when joined with possession of the office it constituted him an officer de facto, 5 Wend., 234; 8 Paige, 428, 295; 7 J. R., 549; 3 Wend., 438; 24 Id., 540; 3 Den., 381; that K., being only an officer de facto, could not maintain an action. against defendant for the salary, 1 Den. 579; 46 N. Y., 382; 30 Barb., 193; 6 Abb. Pr., 296; 1 Taunt., 112; 42 N. H., 56; 7 S. and R., 392; the right to the salary follows the true title to the office; that if the intruder obtains the salary, he is liable therefor in an action for money had and received by the officer de jure, 2 Lev., 245; 20 Ind., 1; that payment of the salary by defendant to K. while he was in possession of the office is a good defence to this action pro tanto. Disbursing officers charged with the payment of salaries have a right to rely upon the apparent title, and treat the officer who is clothed with it as the officer de jure, without inquiring whether another has the better right. such additional restrictions and burdens as the public good requires. The relator applied for an order for a peremptory mandamus, requiring defendant to build a bridge with approaches, &c., for the use of a turnpike company at a place where defendant's tracks crossed its road, as provided by Chapter 648, Laws of 1874. Defendant having failed to construct the bridge within the time specified by said Act, the application was granted. Defendant was incorporated under Chapter 917, Laws of 1869, by the consolidation of other companies. Samuel Hand, for applt. Amasa J. Parker, for respt. Held, That the order was properly granted; that defendant took its charter under the Constitution and laws, subject to the right of the Legislature to alter or amend, 1 R. S., 600, In an action like the present, the amount of the salary, sought to be recovered, if not the fixed measure, proper for the consideration of the jury in assessing the damages. 28 8; Const., Art. 8, § 1; Laws of How. (U. S.), 174; 24 Mich., 459; 20 Ind., 1. is Judgment of General Term, affirmning judgment at Circuit, affirmed. Opinion by Andrews, J. All concur, except Rapallo, J., not voting. 1850, Chap. 140, § 48; that under this reserved power the Legislature could impose such additional restrictions and burdens as the public good requires. 24 N. Y., 345, 351. Order of General Term, affirming order of Special Term granting a mandamus, affirmed. Opinion by Earl, J. All concur. MANDAMUS. CONSTITUTION AL LAW. N. Y. COURT OF APPEALS. A mandamus will lie to a railroad company to A railroad company takes its charter subject to the right of the Legislature to alter or amend it, and the Legislature may impose UNDERTAKING ON APPEAL. N. Y. COURT OF APPEALS. Porter, applt., v. Kingsbury et al., respts. Decided October 2, 1877.. The complaint in an action upon an undertaking on appeal must allege that ten days' notice of the order affirming the judgment appealed from has been given as required by § 348 of the Code of Procedure. (§ 1309 Co. Civ. Pro.) assignment of the mortgage to him is uct sufficient. made an agreement with a junior mortgagee that the lien of the judgment shall be postponed and considered subsequent to that of the mortgage, the lien of a purchaser under the sheriff's deed on an execution sale on said judgment is subsequent to such mortgage. Plaintiff recovered a judgment in Where the holder of a prior judgment has 1871, against one K. in the Supreme Court. Upon an appeal to the General Term, K. gave an undertaking signed by defendants. The judgment was reversed and plaintiff appealed to this Court, and here the order of Reversing S. C., 3 W. Dig., 262. General Term was reversed, and the judgment appealed from by K. affirmed. Plaintiff then brought this action against defendants on the undertaking. They demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The only objection made was that the complaint did not allege that plaintiff had given, as required by § 348 of the Code, ten days' notice of the entry of the order affirming the judgment appealed from. The demurrer was overruled. 0. Porter, for applt. M. M. Waters, for respts. Plaintiff was the assignee of a fourth mortgage upon a piece of real estate, two mortgages intervening between it and a mortgage held by defendant. There was a judgment prior thereto. Before plaintiff's mortgage was assigned to him, the holder of said judgment agreed with plaintiff's assignor that the lien of the judgment should be postponed and considered subsequent to his mortgage. After the assignment of the mortgage to plaintiff the premises were sold under the judgment and bid in by defendant, who had no noHeld, Error; that the notice re- tice of the agreement postponing the quired was a condition precedent to lien of the judgment. Defendant the maintenance of this action; that afterwards foreclosed its mortgage, the giving of the notice should have making plaintiff a party defendant. been alleged in the complaint. Plaintiff, after the notice of sale unJudgment of General Term, revers-der the foreclosure judgment, made a ing order of Special Term overruling tender of the amount due on the fore demurrer, affirmed. Opinion by Earl, J REDEMPTION. LIEN. N. Y. COURT OF APPEALS. Decided September 25, 1877. he may redeem from such prior mortgage. He must make an actual tender of payment; a tender accompanied by a request for an closure judgment and demanded an Held, That defendant's lien under the sheriff's deed was subsequent to plaintiff's mortgage, and plaintiff had a right to redeem from defendant's mortgage, and have the same assigned to him without also paying or redeeming from the judgment, but that the tender made by plaintiff did not cancel or discharge the lien of the mortgage or judgment. When the holder of a junior mortgage is so situated that by a sale under a foreclosure of a prior mortgage he will be subjected to great loss and damage, he may redeem from the prior mortgage. 2 Story's Eq. Jur., § 1023. 4 Kent's Com. (11th ed.), 177; 1 Hil. on Mort., 221; 3 Ed. Ch., 106; 1 Paige, 284; 3 Barb., 554; 42 N. Y., 89; 7 Hun, 522. He must make, however, an absolute tender of payment, which, if received, will discharge the mortgage; a tender of payment accompanied by a request that the prior mortgage shall be assigned to him is not sufficient. Order of General Term, modifying judgment of Special Term for plaintiff, so far as it reverses that judgment, reversed, and so far as it affirms it, affirmed. Opinion by Earl, J. All concur, except Allen, J., not voting. SUMMARY PROCEEDINGS. N. Y. COURT OF APPEALS. ordered to take and state the account of rents received. Declarations of the landlord's attorney, while he was acting as such, and in the course of the proceeding as part of the rès gesta, are competent. This action was brought to set aside and avoid a judgment obtained by defendant in summary proceedings to recover possession of land, whereof plaintiffs who claimed as assignees of a lease were dispossessed by a warrant issued in such proceedings, and to have plaintiffs restored to possession of the demised premises and an execution by defendant of a new lease for the unexpired portion of the term. The complaint alleged such proceedings to be a mere fraudulent device to enable the defendant, as lessor, to get for himself possession and control of the premises, free from the lease, and to have the lease cancelled and annulled. That at the time of taking such proceedings defendant stated and represented that he would, after issuing the warrant, hold the premises to the use of plaintiffs and account to them, as owners of the lease, for all rents and profits collected by him of undertenants, and pay and apply such rents for their use. That after the warrant was issued he, for a time, paid Elverson et al., respts., v. Vander- over certain balances, reserving the poel, applt. rent accruing under the original lease and fees for collecting, but afterwards ceased making such payments and refused to recognize any right or interest of plaintiffs in the premises, claim Decided April 3, 1877. Where the landlord has recovered possession of the premises from the assignees of the lease by summary proceedings, and, at the time of commencing the proceedings, represented that after issuing the warrant he would holding to hold them absolutely in his own the premises to their use and account for, right, free from any claim of plaintiffs, and apply to their use all rents collected by and insisting that the original lease to him of undertenants, which he afterwards plaintiffs' assignor had, by virtue of refuses to do, claiming that the lease had the summary proceedings, been canbeen annulled, the judgment in such proceedings may be set aside in celled and annulled. The Court found brought for that purpose, and a reference the facts to be substantially as charged; an action |