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the bank defendant as collateral security for a precedent indebtedness. It appeared that while plaintiff and J. were partners one P. obtained a judgment against them for an infringement of a patent.

An appeal was taken therefrom, and while it was pending plaintiff bought of J. his interest in the firm and gave him his promissory notes in payment. It was agreed between plaintiff and J. that the former should attend to defending the suit brought by P. against them, and the latter pay one-half of the expenses and the recovery therein.

J. subsequently sued plaintiff on his notes, and while the action was on trial assigned his claim therein to the bank defendant. At that time J. was insolvent, and has continued to be so. In the action upon the notes plaintiff was allowed, by way of set-off, onehalf the costs and expenses incurred by him in the suit brought by P. up to the time J. commenced the suit upon the notes; those incurred subsequently were rejected, and J. obtained judgment against plaintiff for the balance due on the notes after deducting the set-off allowed. The P. suit was subsequently settled by plaintiff, and the bank defendant threatening to enforce the judgment recovered by J. against plaintiff, the latter brought this action to have onehalf the sum paid by him on the settlement with P., and of the costs and expenses not allowed to him set off against and applied in satisfaction of J.'s judgment.

Isaac Lawson, for applt. Hamilton Harris, for respt. Held, That plaintiff was entitled to the relief sought.

Whoever takes the assignment of an over-due debt or obligation takes it subject to all the equities of the person who makes the assignment, and the debtor has against him the same equities he would have against the assignor.

Equity requires that when two claims are connected, although one is unliquidated, set-off should be compelled when by reason of the insolvency of either debtor satisfaction cannot be obtained. 10 Paige, 369; 80 N. Y., 660.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Danforth, J. All

concur.

CHATTEL MORTGAGE.
N. Y. COURT OF APPEALS.
Ball, applt. v. Slafter, respt.
Decided Jan. 20, 1885.

A chattel mortgage on a stock of goods which provides that the mortgagor may retain and sell the goods, provided he does not reduce the stock below a certain amount, given under an arrangement that he is to sell the goods and pay the indebtedness as fast as possible, is fraudulent as to creditors and void.

This was an action for the conversion of personal property. Plaintiff claims under a chattel mortgage dated November 7, 1878, and executed November 29, 1878. This mortgage was retained by the mortgagee and not filed until March 19, 1879, at 11 A. M. It

contained a provision allowing the
mortgagor to retain possession of
the mortgaged property, which
consisted of a stock of goods, with
the privilege of selling therefrom
provided he did not reduce it to
less than $6,000. The mortgage
was given to secure the mortgagee
for indorsements. Plaintiff, the
mortgagee, testified that at the
time the mortgage was given it
was arranged that the mortgagor
was to sell the goods and pay the
notes as fast as possible. Defend

ant is assignee of the mortgagor
for the benefit of creditors under
an assignment dated March 18,
1879, and recorded March 19, 1879,
at 9.30 A. M. At the close of the
evidence defendant moved for a
nonsuit on the ground that the
the ground that the
mortgage was fraudulent as to him,
and the motion was granted.
M. M. Waters, for applt.
R. H. Duell, for respt.
Held, That the mortgage was as
matter of law fraudulent and void
as to creditors, and the assignee of
the mortgagor could assail it upon.
that ground.

Judgment of General Term, affirming judgment of nonsuit, affirmed.

the owners of property advertised for taxes, and not an authority to the Treasurer to subject the property to expenses for advertising beyond the sum fixed by Chap. 831, Laws of 1869. The two acts are to be construed together.

▲ contract entered into by a County Treas. urer for the publication of the tax list at $2 for each piece of land to be sold is beyond the scope of his authority and not binding upon him in his official character nor upon the county.

Affirming S. C., 14 W. Dig., 528.

This action was brought against defendant in his official character, as county treasurer of Ulster county, to recover the contract price for certain advertising done by plaintiff, a newspaper publisher, in the publication of the advertisement of the sale of lands for taxes in 1879. The price under the contract was two dollars for each and every of the several pieces of land to be sold, and was fixed under the provisions of Chapter 65, of the Laws of 1878, section 6, which provides that the county treasurer shall sell certain lands, "to discharge the taxes, interest and expenses aforesaid, which may be due thereon at the time of sale, the publishing of the said notice not to exceed the sum of two dollars for each newspaper so pub

Per curiam opinion. All con- lishing each of the several no

cur.

TAX SALE. PUBLICATION.

N. Y. COURT OF APPEALS. Crouch, applt., v. Hayes, Treasurer, respt.

Decided Feb. 10, 1885.

The provision of § 6, Chap. 65, Laws of 1878, is a limitation for the protection of

tices."

William Lounsbery, for applt. J. Newton Fiero, for respt. Held, That the compensation to which the plaintiff is entitled for publishing the advertisement of the tax sale is governed by Chapter 831, of the Laws of 1869. The provision of Chapter 65, of the Laws of 1878 (§ 6), above set forth, is a limitation for the protection of

John D. Townsend, for motion. Edward W. Crittenden, opposed.

the owners of property advertised | demnity company, with no other for taxes and not an authority to sureties. the treasurer to subject the property advertised to expenses for advertising beyond the sum fixed by the act of 1869. The two acts are not inconsistent and are to be construed together.

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Held, That the undertaking was insufficient; that an undertaking upon an appeal to this court must be executed by at least two sureties.

Code Civ. Proc., 1334. The appellant cannot himself sign as a surety. 10 Abb. N. C., 407. Chapter 486 of the Laws of 1881, which provides for the acceptance of guarantee or indemnity companies as sureties, does not repeal § 1334 of the Code, and is not inconsistent with it. The Act of 1881 applies only to bonds or undertakings which are to be accepted or approved by a head of department, surrogate, judge, sheriff, district attorney or other officer, and it merely authorizes any officer who is required to ap

Nichols, admrx.. respt., v. Mac- prove any such bond or under

Lean, applt.

Decided Jan. 27, 1885. An undertaking on appeal to the Court of Appeals must be executed by at least two sureties; the appellant cannot himself be one of the sureties, nor can the approval by a judge of a guaranty company under chap.

486, Laws of 1881, take the place of the two sureties.

An appellant is only required to file the return and serve the printed cases. The respond

ent may, if he so desires, place the case on the calendar and notice for argument.

This was a motion to dismiss an appeal on the ground of the insufficiency of the undertaking filed, and also for want of prosecution. The undertaking was executed only by the appellant and an in

taking to accept and approve the same, in his discretion, when its conditions are guaranteed by a duly incorporated guarantee company. The undertaking on an appeal in this court does not require the approval of any judge or officer, Code, § 1335, and the approval of a judge cannot be substituted for the two sureties required by law.

Also held, That the appellant was bound only to file the return and serve the printed cases. The respondent, if he wished to expedite the case, could himself put it upon the calendar and give notice of argument.

Motion granted, unless within

thirty days appellant files a proper | citation, upon request of respondundertaking and pays the costs of motion.

Opinion by Rapallo, J.

concur.

WILLS.

ent, the Surrogate ordered the widow to file an account showing All the items of the $850 expended by her. This was done. The Surrogate allowed her $658, declined to order $300 paid to her semi-annually, but gave her permission to apply to the court from time to time to be reimbursed for moneys. expended. She appeals from this order.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

In re estate of C. S. Dickerman.

Decided Jan., 1885.

A testator gave his wife the income of his estate for life and in addition authorized her to use such part of the principal as she might from time to time, in her judgment, require to maintain her in a manner suita ble to her station in life. This provision was stated to be in lieu of dower. He then gave the remainder of his real and personal, after her death, to certain nephews and nieces. Held, that the wife might use if necessary in her judgment, the whole principal; that a Surrogate could not require her to account for her expenditures made under the above clause, and that for such expenditures she was not accountable

to the remaindermen.

The will of C. S. Dickerman first gave his executor power to sell his real estate for debts, legacies or for final settlement and distribution. Then follow the clauses substantially as stated in the head note. The widow petitioned the Surrogate under Code, § 2717, that the respondent, executor of the estate, pay her $850, moneys already expended for her support, and that thereafter he pay her $300 every six months. The personal estate was about $2,300, its income $170. The real estate was worth $3,000 and produced little or no income; the widow was 63 years old. On the return of the

R. H. McClellan, for applt.
Irving Haynes, for respt.

Held, Error; that the wife might use, if necessary in her judgment, the whole principal, and that the Surrogate could not require her to account for her expenditures. The executor may be correct in stating that the widow did not take a fee and that there was a valid remainder over. But as to this see 91 N. Y. 464. The will leaves it to the judgment of the widow what she shall expend, and there is nothing. in the will inconsistent with this. The clause stating the provision to be in lieu of dower is important to relieve the real estate.

The provision for the widow was highly proper. The husband had confidence in her, she was old and the parties in remainder are only nephews and nieces. The question whether the widow can dispose of the whole estate (or what remains) by will is not before us. It was manifestly improper for the Surrogate to require her to account. She is entitled to have of the estate what she needs to use. She is not entitled simply to be reimbursed for what she has spent.

The decree of the Surrogate must

be reversed; the executor must be required to pay the widow $850, and $300 semi-annually, costs here and in the Surrogate's Court are charged on the executor person

ally.

by defendant King, to enable plaintiff to frame its complaint herein, and to prepare for the trial of the action, the petition stated that the assessment roll and warrant for the collection of the taxes

Opinion by Learned, P. J.: of plaintiff's school district is in Landon, J., concurs.

DISCOVERY.

N. Y. SUPREME COURT, GENERAL TERM. FIFTH DEPT.

The Board of Education of Union Free School, No. 1, of Olean, respt., v. John King et al. applts.

Decided Jan., 1885.

In an action against the principal and sureties on a tax collector's bond, to re

cover the amount of taxes collected and not paid over, the plaintiff is entitled to a discovery and inspection of the assessment roll and warrant in the possession of the principal, for the purpose of ascertaining the amount collected, and to enable plaintiff to frame its complaint, etc.

Appeal from order requiring defendant, John King, to deposit with the Clerk of the Court, for plaintiff's inspection, the assessment roll and warrant for the collection of plaintiff's taxes held by him.

Action was brought to recover of defendants as principal and sureties upon a collector's bond the amount of money which, it was alleged, defendant King, as collector of plaintiff, had collected upon the assessment roll and warrant, and which he refused to pay over. Upon an application for a discovery and inspection of the assessment roll and warrant held

the possession of said King; that it was received by him as plaintiff's collector; that he had collected the taxes thereon, and that the time within which he was authorized to collect the taxes and

return the warrant has expired ; that his term has expired and his successor elected and qualified; that there are moneys collected by him upon such assessment roll and warrant which he has refused and neglects to pay over to plain-. tiff or its treasurer, although requested so to do, etc.

George H. Phelps, for applts. J. R. & M. B. Jewell, for respt. Held, That the statements contained in the petition were sufficient to bring the case within the provisions of the Code, §§ 803-4-5, and the rules of the Court. Rules 14 and 15. Rules 14 and 15. It is quite apparent, from the nature of the action, that plaintiff ought to be permitted to inspect the assessment roll and warrant. It should contain information as to the amount of taxes collected by the defendant K., and the persons from whom collection was made. This information could not be ascertained by plaintiff from any other source, unless it should cause each taxpayer in the district to be personally interviewed upon the question. This, we think, cannot be required.

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