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smaller sum, nor as applying only to the report with the clerk in order to have it
note specifically mentioned in it. The fair preserve its validity.-- Little v. Lynch, 375.
import of its terms is that the parties had
made a mutual settlement of their respective 4. Where a referee had made his report, al.
claims, and the payment of $250 was for the though judgment has not been entered upon
balance found in favor of one of them. it, he has no power to make additional
Peck v. Peck, 83.

findings. So held, where the referee had

found the facts in question but, by inad2. The giving of a receipt which specifies a vertence, had omitted them from his report.

particular claim only, raises no legal pre The facts were material and necessary to sumption against the existence of another

support the conclusions of law.-Gardiner claim.- Maxfield v. Terry, 99.

et al. v. Schwab et al., 415. RECEIVERS.

5. On an appeal from a judgment entered up

on the report of a referee when the evidence See CORPORATIONS, 11 ; Costs, 1 ; LEASE, 3, is not spread upon the record every pre4.

sumption is in favor of the referee's report,

and the court will, in reviewing the judg. RECORD.

ment, intend that the referee found such 1. A record of the assignment of a written

facts in favor of the party recovering as are instrument preceded by a memorandum

essential to support it. —Talcott v. Smith et referring to tbe book and page where such

al., 562. instrument has been previously recorded is

See ATTORNEYS, 13; OFFICE, 2. a sufficient compliance with the statute and is admissible in evidence.-Putnam Stewart, 332.

REFORMATION. 2. If conveyances are properly recorded

See CONTRACT, 21, 22. memoranda made by the clerk in the proper places, renderivg the records intelligible. RELIGIOUS CORPORATIONS. are within the incidental powers conferred upon the recording officer.-Id.

1. In the absence of any action by the con

gregation fixing the salary of a minister, the

trustees of a Methodist Church have no REFERENCE.

power to enter into a contract of employ. 1. In an action on a draft plaintiff testified

ment of a minister at a stated salary.that defendant was accustomed to overdraw

Landers v. The Frank St. J. E. Ch., 20. his account to purchase cheese for R. & S. and would make it good by drafts on said

2. Under the laws and regulations of the firm ; that when he began to draw time

Methodist Church the minister renders serdrafts security was demanded and he was

vice, not on an agreed salary, but on an distinctly told that he would be held first allowance for support to be raised by vol. as drawer, and that after the failure of R. untary contributions. The entire policy of & S. defendant said that he was abundantly

the church is opposed to the existence of a able to pay these drafts. Defendant testified

contract relation between the minister and that R. & S. gave plaintiff their bond with

the society.-Id. surety conditioned to pay these drafts, and that defendant told plaintiff's cashier' that

REMEDIES. he could not afford to take any risk on the drafts. Held, That the referee's finding in

See SALE, 10, 11. favor of plaintiff being on evidence both contradictory and admittivg of contradic

REPLEVIN tory inferences must control. The Herkimer Co. Natl Bk. v. Rust, 149.

1. Where in an action brought in a justice's

court to recover the possession of a chattel, 2. Where the referee's findings cover all the the value as fixed by the pleadings exceeds

issues and are sustained by the evidence a fifty dollars, the appellant is entitled to a refusal to make other or additional findings new trial in the county court, although no is correct. The Bank of Attica v. The value was fixed or assessed by the justice Metropolitan Nat'l Bk., 156.

in the judgment rendered. - Reynolds v.

Suick, 476. 3. When a referee makes his report within

the statutory time and notifies the attorneys 2. A defendant who, in an action to recover that it is ready and at their disposal and a chattel, obtains a verdict for the return also of the amount of his fees, it is a sutti. of a portion of the goods replevied, excient delivery of such report to prevent the cceding $50 in value, as assessed by the forfeiture of his fecs by the termination of jury, is entitled to costs under $ 3234 of the reference under $ 1019 of the Code of The Code, although the plaintiff may also Civil Procedure, and in such a case it is be entitled to costs, and although there was not necessary for the referee to tile his but one count in the complaint and but one


cause of action set forth.-Ackerman et al. 6. The sale, by written agreement not under
v. De Lude, 544.

seal, of standing timber, with the intention

that the vendee should cut and remove the
See SALE, 10, 11 ; SURETYSHIP, 1.

same, is sufficient to pass title to the grow-

ing trees, and changes them from real to

personal property as between the parties.-

Lyon v. Wing et al., 144.

7. Where plaintiff's possession of a lot of

land was such only as was necessary to

enable him to take off the standing trees,
See DEEDS, 8.

Held, That such possession was not notice

of plaintiff's rights to a subsequent pur-

chaser of the lot.-Id.
See EASEMENT, 5–7.

8. An agreement to sell personal 'property,

followed by delivery and acceptance, passes

title unless by some express condition title
1. Under the charter of the city of Rochester is retained by the vendor.-Ely v. Phelps,

the common council may increase the sal 147.
ary of the police justice for the remaining
portion of a parily expired fiscal year. —

9. Upon a contract for the purchase of a.
Truesdale v. The City of Rochester, 218.

horse, it was agreed that the purchaser

should take and use the horse, and if it

drove to suit him he was to keep her and

pay therefor a certain sum. Before the
1. Where a farmer is unable to deliver all the purchaser had signified, or expressed, to

barley raised upon his farm according to the seller, his satisfaction with the horse
the contract, but agrees to purchase and and his determination to keep it, the horse
deliver barley of the same quality to make became sick and died. Held, That no
up the deficiency, it will be presumed that property in the horse had passed to the
a delivery in the mode and manner intended purchaser, and he was not liable
under the original contract was contem for the price. Carter v. Wallace, 539.
plated by the parties, and when a delivery
by the wagon load was acquiesced in, the 10. Where a vendor has brought action of
seller cannot be required to deliver the replevin on the ground that the goods were
whole of the deficiency in bulk.- Van obtained from him by fraud, and while
Sickle v. Nester, 46.

such action is pending he cannot divide

his action and sue upon contract to recover
2. If the seller tender a load of barley corre the value of the goods not taken in the

sponding in all respects with that required replevin proceedings.— Wile et al. v. Brown-
by the contract, and the buyer refuses to

stein, 559
accept, such refusal dispenses with the
necessity of any further tender of other

11. Section 1719, Code Civ. Pro., furnishes

no authority for such procedure.-Id.
3. Where a seller tenders three loads of

barley and the buyer examines them, and
one load is of the quality required by the
contract, but the buyer refuses to accept it

except upon a condition that he has no

1. The Board of Education of a school dis-
right to impose, the seller is excused from

trict organized under Title 9, Chap. 555,
making a separate tender of that load.-Id.

Laws of 1864, has power to employ legal
4. Under such a contract the seller is not counsel. - Gould v. The Board of Education

required to have the whole amount of of Union Free School Dist. No. 9, 133.
barley on hand ready for delivery, and the
wrongful refusal absolves him from pur-

See Taxes, 5, 6.
chasing any further.-Id.

5. Where plaintiffs purchased certain barrels

of sugar of defendant at a specified price 1. Proof which merely shows discrepancy in
per pound, to be weighed and taken the the othicer's return of service of a summons,
following morning, and during the night which discrepancy does not invalidate the
the same were damaged by rain, Held, service but shows that it was properly
That defendant continued to be the owner made, is no impeachment of the service. —
and the loss by rain fell on him ; that Huntley v. Baker, 226.
plaintiffs could refuse to receive the sugar
and recover the amount paid by them on

the contract. — Fogerty et al. v. The Conti-
nental Ins. Co., 61.



order the payment of fees previously ad-

justed. --Hall et al. v. The U. S. Reflector
1. In ascertaining the amount to be paid to Co., 425.

the assignee of all the interest of a legatee
under a will, the claim of the executor

3. When the plaintiff in an action in which
against the legatee on a note made to the

an attachment has been issued has served
testatrix by a partnership of which said notice upon the sheriff releasing the attach-
legatee is survivor may be set-off or re ment from the property seized, he is not
tained against the legacy, the note, at the

liable for the fees and expenses of the
time of the assignment, being in the exec-

sheriff incurred while retaining the prop-
utor's hand and past due.- Ferris v. Bur. erty for the purpose of maintaining lien
rows et al., 296.

upon it for fees previously accrued.-1d.
2. Where an answer sets up facts which are 4. A sheriff who has commenced an action to

not available as a defense but establish an foreclose a lien upon property attached for
equitable right of set-off, defendant is en fees upon the attachment under which he
titled to the benefit of such facts so far as seized it, on which he has made the plain-
to discharge plaintiff's claim, although the tiff in the attachment a party for the pur.
same are not alleged as a counterclaim. pose of holding him liable for any defi-
Baker et al. v. Hotchkiss, 449.

ciency, cannot avail himself of the remedy

provided by Chap. 462, Laws of 1884, and
3. Whoever takes an assignment of an over.
due debt or obligation takes it subject to

procure an order directing such fees to be

all the equities of the person who makes
the assignment, and the debtor has against 5. To authorize the granting of an order under
him the same equities as against the as $$ 1421-1427 of the Code, substituting the
signor. - Littlefield v. The Albany Co. Bk., indemnitors in place of the sheriff, it must

affirmatively appear in the motion papers

that the applicants became indemnitors be-
4. Plaintiff on buying out his partner J.'s fore the commencement of the action. -

interest in the firm gave him certain prom Hayes v. Davidson, 467.
issory notes in payment, on the agreement
that plaintiff should attend to the prosecu 6. As to whether an order can be granted
tion of an appeal from a judgment against where the property taken was seized under
the firm, and that J. would pay half the separate and distinct levies at different
expenses and of the judgment if affirmed. times, as to some of which only indemnity
J. became insolvent and assigned the notes has been given, and where the indemnity
to defendant after maturity and judgment refers to different seizures, the penalties
was recovered upon them. Plaintiff was vary largely in amount and some of the in-
compelled to pay the judgment against the demnitors do not apply, quære.Id.
firm. Held, That he was entitled to have
half of the amount paid by him on the See ATTACHMENT, 5–7; CONVERSION, 1, 2;
judgment and for expenses thereon set off INDEMNITY, 2; PERJURY, 5.
against the judgment recovered on the


1. The defendant, who was a partner in bus-

iness of plaintiff, said of the latter to a
third person :

“He is a thief. When I

came down town this morning my book-

keeper reported to me that he had gutted

the drawer." In an action for slander.
1. Ordinarily a sheriff who is sued for taking,

lleld, That the words first uttered imputed
on process, a stock of goods from the pos-
session of an assignee for the benefit of

a crime, and that whether the qualification
creditors, and removing them from his pos-

added so reduced the charge as not to in-
session, is not entitled to demand a bill of

clude the crime of theft, was properly sub-
particulars of the items of the stock of

mitted to the jury.- McGibbon v. Young,

goods so seized and taken; but if, after the
commencement of the suit a portion of the 2. It is slanderous per se to falsely assert that
goods remaining undisposed of in the hands

a person has scuttled a ship to get the in-
of the sheriff is returned by him to such as-

surance -Id.
signee, the latter may be ordered to furnish
the sheriff with a bill of particulars of the 3. In an action for slander consisting in the
goods so returned. - Hayes v. Davidson, 38. two charges above referred to a verdict

for $3,000 damages is not excessive.-Id.
2. The authority given by Chap. 462, Laws

of 1884, to a judge adjusting the fees of a 4. The husband is a proper party defendant
sheriff upon an attachment to order the with his wife in an action for slander
payment of such fees is prospective in its spoken by the wife.- Fitzgerald v. Quanu,
character and does not give authority to 138.


the aid of subrogation ; to do so he must SPECIFIC PERFORMANCE.

have paid upon request, or as surety, or 1. When a person who has contracted to pur

under some compulsion made necessary for chase real estate is unable, after making

the protection of his rights. -Acer v. Hotchproper efforts, to obtain a search of the kiss, 452. title to such property before the time fixed

2. Defendant on taking an assignment of a by the contract for the completion of the

mortgage gave to the mortgagor a bond purchase, he is entitled to a reasonable ad

conditioned that he should pay a prior mortjournment to enable him to procure such search ; and, if such adjournment is re

guge held by plaintiff. The transaction was

induced by fraudulent representations. fused by the other party without a proper

Thereafter, with full knowledge of the reason, the first party may refuse to accept

fraud, he foreclosed the morigage, bougbt the deed at that time; but after a reason

in the premises and paid plaintiff an inable delay spent in searching the title he

stalment on his mortgage then due, claiming may demand the completion of the con

that he did so as surety and claiming to be tract, and if it is refused by the other party

subrogated to that amount. Held, That he may maintain an action, if commenced

under his contract defendant was bound to without delay, to enforce its specific performance, provided that he compensates

pay and discharge the mortgage, and that

his claim is not tenable.-ld. the other party for the delay and no circumstances have intervened affecting either

SUBSTITUTION. the situation of the defendant or of the property, rendering it inequitable to afford

See SHERIFFS, 5, 6. such relief. – Willis v. Dawson, 376.

SUMMARY PROCEEDINGS.. 2. Specific performance will not be decreed

where the only result would be to compel | 1. When summary proceedings to dispossess a defendant to incur useless experise without tenant are regularly prosecuted, the remedy any practical advantage to plaintiff. In no of the defeated party is by appeal from the case is a party entitled to a judgment for final determination, and not by an action specific performance absolutely, but the ap to restrain its enforcement. --Sheehey v. plication is addressed to the discretion of Kelly, 78. the court. Murdtfeldt et al. v. The N. Y., W. S. & B. RR. Co., 534.

2. In an action to restrain the enforcement of

a final determination in summary proceedSee ADVERSE POSSESSION.

ings to recover the possession of real prop

erly, adjudging the plaintiff to be wrong. STATUTES.

fully in possession of such property under

a lease from a third person, the subjectSee OFFICE, 3-8.

matter involved is the lease and not the

property itself, although the claim of the STATUTE OF FRAUDS.

plaintiff is that his lessor, and not the de.

fendant, is the owner of the property, and See CONTRACT, 11, 14, 20; FRAUD, 1, 2, 8, 9, a perpetual injunction is asked for; and the 11, 12, 14, 15, 20.

greatest allowance that can be granted, if

any, is five per cent. of the value of such STOCK.

lease.-Id. See EVIDENCE, 27, 28.

3. It is doubtful whether any extra allowance

can be granted in such a case. Id. STOCK EXCHANGE.

4. Where a final order made in summary pro1. The provisions of the constitution and the

ceedings is reversed on appeal the successlaws of the New York Stock Exchange are

ful party is entitled to tax costs, although the order of reversal gives none.

:-Harrison obligatory upon its members as a contract. · Weston v. Ives, 255.

v. Swart et al., 271. 2. The proceeds of the sale of a member's seat

5. Summary proceedings may be instituted cannot be appropriated to the payment of

under $ 2232 of the Code, to remove a persuch debts as are, by the constitution and

son who holds over and continues in poslaws excluded from participating therein,

session of real property after it has been nor has the governing committee power to

sold by virtue of an execution against him, admit a claim on such a debt.-Id.

and a title under the sale has been perfected.

-Getting v. Mohr et al., 367.

See APPEAL, 1 ; LEASE, 8.


1. Defendant and two other persons were en1. One who is only a volunteer cannot invoke gaged in playing ball on Sunday, on private

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grounds, which were enclosed on all sides found a balance in his hands of $600 ; that by a high board fence. They made no noise his account began with an item “balance nor disturbed the peace. Tield, That it was from last year $831.92 ;" that this amount not a violation of 265 of the Penal Code. had been spent by him during the previous - The People v. Dennan, 514.

year and was not on hand. Held, That

evidence to show that the auditing board SUPERVISORS.

knew of this fact was admissible to im

peach the certificate ; that the item as to the See CERTIORARI, 4 ; ESTOPPEL, 2; POOR; balance on liand was of no force against his SURROGATES, 4, 5.

sureties and that the sureties were not lia


5. An undertaking for judgment and costs 1. Under 8 2435, Code, an order in supplemen was given on appeal to the Court of Appeals

tary proceedings is justified by the return by defendants in an action of the defendant unsatisfied of a second execution regularly B. against this plaintiff. That Court issued on the judgment, though such order

affirmed the judgment. Plaintiff allowed be issued more than ten years subsequent the statute of limitations to run against one to the return of the first execution.- Levy surety. In an action by him upon the unet al. v. Kirby et al., 347.

dertaking against the other surety, Held,

That this was no defence to the defendant, 2. Under 8 2447 of the Code an order directing

against whom the statute had not run.a third party to deliver property of a judg

Staples v. Gokey et al., 564. ment debtor in his hands to plaintiff can only be made where the right to the posses See ABANDONMENT, 4; APPEAL, 15; INsion of the property is not substantially dis

DEMNITY, 2. puted. -Hayes v. McClelland, 393.

SURROGATES. 3. So, where the Recorder of Cohoes had in

his hands moneys deposited with him by 1. When a petitioner presented to the Sur. defendant to secure his release from jail, to rogate a petition asking for the sale of real which he had been committed as a disor estate of the decedent to pay debts, where. derly person, although the Statute required in it appeared that such claim had been a bail bond and did not recognize a deposit rejected by the executor and had not been in such cases; but the Recorder formally adjudicated, and it not appearing that declared the money forfeited to the city, there were

any other claims or debts and now insists that he holds it for said against the estate, Held, That under this city, Held, That an order under $ 2447 state of facts the Surrogate had no juris. requiring him to pay over said deposit was diction of the subject-matter ; that he improper.-Id.

had no power to adjudicate upon a claim

rejected by an executor or administrator.-. See DIVORCE, 3 ; EVIDENCE, 17; HUSBAND In re estate of Akin, 24. AND WIFE, 2.

2. A surrogate has power to entertain proSURETYSHIP.

ceedings for the repayment of moneys

deposited by a purchaser at a sale of real 1. A surety on an undertaking given by the estate made pursuant to his decree and in a

plaintiff in a replevin action may be per. proper case to grant the relief prayed for.-
mitted, where that can be justly or equitably In re Lynch, 62.
done, to protect himself by opening a judg.
ment obtained against the plaintiff by de-

3. An omission or error in a final settlement fault and prosecuting the action in the

had in surrogate's court cannot be corlatter's name. -Hoffman et al. v. Sleinau et

rected in a collateral proceeding.–Taylor al., 122.

v, Palmer, 267. 2. Whether the surety will be able to prose

4. The duty imposed upon Supervisors by cute the action successfully or not is not a

§ 31 of the Code is performed when they matter to be considered upon an application

furnish one proper room, &c., in their by him to be allowed to proceed with its

county for a court of record.— The People ez prosecution.-Id.

rel. Westbrook v. The Board of Suprs. of

Montgomery Co., 423. 3. To render the sureties on an official bond liable for a default of their principal it must

5. And although by $ 2505 of the Code a

Surrogate must also execute the duties of appear not only that such principal was in

his office at such other places within his debted to the town, but that such indebted.

county as the public convenience requires, ness arose by reason of not accounting for

he cannot (after a room has been furnished moneys actually received during the term

as aforesaid in a certain town) order the for which they were bound.

Kellum v. McFarland et al., 331.

Sheriff to provide him another room in

another town and make the expense a 4. In an action on the bond of an overseer of

county charge.--Id. the poor it appeared that the auditing board See ExECUTORS, 2.

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