SPECIFIC PERFORMANCE.

1. When a person who has contracted to pur-
chase real estate is unable, after making
proper efforts, to obtain a search of the
title to such property before the time fixed
by the contract for the completion of the
purchase, he is entitled to a reasonable ad-
journment to enable him to procure such
search; and, if such adjournment is re-
fused by the other party without a proper
reason, the first party may refuse to accept
the deed at that time; but after a reason-
able delay spent in searching the title he
may demand the completion of the con-
tract, and if it is refused by the other party
he may maintain an action, if commenced
without delay, to enforce its specific per-
formance, provided that he compensates
the other party for the delay and no cir-
cumstances have intervened affecting either
the situation of the defendant or of the
property, rendering it inequitable to afford
such relief. Willis v. Dawson, 376.

2. Specific performance will not be decreed
where the only result would be to compel
defendant to incur useless expense without
any practical advantage to plaintiff. In no
case is a party entitled to a judgment for
specific performance absolutely, but the ap-
plication is addressed to the discretion of
the court.-Murdtfeldt et al. v. The N. Y.,
W. S. & B. RR. Co., 534.

See ADVERSE POSSESSION.

STATUTES.

See OFFICE, 3-8.

STATUTE OF FRAUDS.

See CONTRACT, 11, 14, 20; FRAUD, 1, 2, 8, 9,
11, 12, 14, 15, 20.

STOCK.

See EVIDENCE, 27, 28.
STOCK EXCHANGE.

1. The provisions of the constitution and the
laws of the New York Stock Exchange are
obligatory upon its members as a contract.
- Weston v. Ives, 255.

2. The proceeds of the sale of a member's seat
cannot be appropriated to the payment of
such debts as are, by the constitution and
laws excluded from participating therein,
nor has the governing committee power to
admit a claim on such a debt.-Id.

STOCKHOLDERS.

See MORTGAGE, 6; RAILROADS, 1.
SUBROGATION.

1. One who is only a volunteer cannot invoke

the aid of subrogation; to do so he must
have paid upon request, or as surety, or
under some compulsion made necessary for
the protection of his rights.-Acer v. Hotch-
kiss, 452.

2. Defendant on taking an assignment of a
mortgage gave to the mortgagor a bond
conditioned that he should pay a prior mort-
gage held by plaintiff. The transaction was
induced by fraudulent representations.
Thereafter, with full knowledge of the
fraud, he foreclosed the mortgage, bought
in the premises and paid plaintiff an in-
stalment on his mortgage then due, claiming
that he did so as surety and claiming to be
subrogated to that amount. Held, That
under his contract defendant was bound to
pay and discharge the mortgage, and that
his claim is not tenable.-ld.

SUBSTITUTION.

See SHERIFFs, 5, 6.

SUMMARY PROCEEDINGS..

1. When summary proceedings to dispossess a
tenant are regularly prosecuted, the remedy
of the defeated party is by appeal from the
final determination, and not by an action
to restrain its enforcement.-Sheehey v.
Kelly, 78.

2. In an action to restrain the enforcement of
a final determination in summary proceed-
ings to recover the possession of real prop-
erty, adjudging the plaintiff to be wrong-
fully in possession of such property under
a lease from a third person, the subject-
matter involved is the lease and not the
property itself, although the claim of the
plaintiff is that his lessor, and not the de-
fendant, is the owner of the property, and
a perpetual injunction is asked for; and the
greatest allowance that can be granted, if
any, is five per cent. of the value of such
lease.-Id.

3. It is doubtful whether any extra allowance
can be granted in such a case.-Id.

4. Where a final order made in summary pro-
ceedings is reversed on appeal the success-
ful party is entitled to tax costs, although
the order of reversal gives none.-Harrison
v. Swart et al., 271.

5. Summary proceedings may be instituted
under § 2232 of the Code, to remove a per-
son who holds over and continues in pos-
session of real property after it has been
sold by virtue of an execution against him,
and a title under the sale has been perfected.
-Getting v. Mohr et al., 367.

See APPEAL, 1; LEASE, 8.

SUNDAY.

1. Defendant and two other persons were en-
gaged in playing ball on Sunday, on private

grounds, which were enclosed on all sides
by a high board fence. They made no noise
nor disturbed the peace. Held, That it was
not a violation of § 265 of the Penal Code.
-The People v. Dennan, 514.

SUPERVISORS.

See CERTIORARI, 4; ESTOPPEL, 2; POOR;
SURROGATES, 4, 5.

SUPPLEMENTARY PROCEEDINGS.

1. Under § 2435, Code, an order in supplemen-
tary proceedings is justified by the return
unsatisfied of a second execution regularly
issued on the judgment, though such order
be issued more than ten years subsequent
to the return of the first execution.-Levy
et al. v. Kirby et al., 347.

2. Under § 2447 of the Code an order directing
a third party to deliver property of a judg-
ment debtor in his hands to plaintiff can
only be made where the right to the posses-
sion of the property is not substantially dis-
puted.-Hayes v. McClelland, 393.

3. So, where the Recorder of Cohoes had in
his hands moneys deposited with him by
defendant to secure his release from jail, to
which he had been committed as a disor-
derly person, although the Statute required
a bail bond and did not recognize a deposit
in such cases; but the Recorder formally
declared the money forfeited to the city,
and now insists that he holds it for said
city, Held, That an order under § 2447
requiring him to pay over said deposit was
improper.-Id.

See DIVORCE, 3; EVIDENCE, 17; HUSBAND
AND WIFE, 2.

SURETYSHIP.

1. A surety on an undertaking given by the
plaintiff in a replevin action may be per-
mitted, where that can be justly or equitably
done, to protect himself by opening a judg-
ment obtained against the plaintiff by de-
fault and prosecuting the action in the
latter's name.-Hoffman et al. v. Steinau et
al., 122.

2. Whether the surety will be able to prose-
cute the action successfully or not is not a
matter to be considered upon an application
by him to be allowed to proceed with its
prosecution.-Id.

3. To render the sureties on an official bond
liable for a default of their principal it must
appear not only that such principal was in-
debted to the town, but that such indebted-
ness arose by reason of not accounting for
moneys actually received during the term
for which they were bound.-Kellum v.
McFarland et al., 331.

4. In an action on the bond of an overseer of
the poor it appeared that the auditing board

found a balance in his hands of $600; that
his account began with an item “balance
from last year $831.92;" that this amount
had been spent by him during the previous
year and was not on hand. Held, That
evidence to show that the auditing board
knew of this fact was admissible to im-
peach the certificate; that the item as to the
balance on hand was of no force against his
sureties and that the sureties were not lia-
ble. -Id.

5. An undertaking for judgment and costs
was given on appeal to the Court of Appeals
by defendants in an action of the defendant
B. against this plaintiff. That Court
affirmed the judgment. Plaintiff allowed
the statute of limitations to run against one
surety. In an action by him upon the un-
dertaking against the other surety, Held,
That this was no defence to the defendant,
against whom the statute had not run.—
Staples v. Gokey et al., 564.

See ABANDONMENT, 4; APPEAL, 15; IN-
DEMNITY, 2.

SURROGATES.

1. When a petitioner presented to the Sur-
rogate a petition asking for the sale of real
estate of the decedent to pay debts, where-
in it appeared that such claim had been
rejected by the executor and had not been
adjudicated, and it not appearing that
there were any other claims or debts
against the estate, Held, That under this
state of facts the Surrogate had no juris-
diction of the subject-matter; that he
had no power to adjudicate upon a claim
rejected by an executor or administrator.-
In re estate of Akin, 24.

2. A surrogate has power to entertain pro-
ceedings for the repayment of moneys
deposited by a purchaser at a sale of real
estate made pursuant to his decree and in a
proper case to grant the relief prayed for.-
In re Lynch, 62.

3. An omission or error in a final settlement
had in surrogate's court cannot be cor-
rected in a collateral proceeding.-Taylor
v. Palmer, 267.

4. The duty imposed upon Supervisors by
§ 31 of the Code is performed when they
furnish one proper room, &c., in their
county for a court of record.-The People ex
rel. Westbrook v. The Board of Suprs. of
Montgomery Co., 423.

5. And although by § 2505 of the Code a
Surrogate must also execute the duties of
his office at such other places within his
county as the public convenience requires,
he cannot (after a room has been furnished
as aforesaid in a certain town) order the
Sheriff to provide him another room in
another town and make the expense a
county charge.-Id.

See EXECUTORS, 2.

TAXES.

1. Personal property of plaintiff was levied
on to satisfy his taxes; before sale plain-
tiff offered to pay the taxes, and the col.
lector refused to take the money unless
plaintiff paid other taxes, which plaintiff
was not bound to pay. Held, A sufficient
tender to discharge the lien of the levy,
even though plaintiff did not actually offer
enough money to pay the tax and the
collector's fees; and one who, with knowl-
edge of such tender, purchased at the sale
got no title.-Jewett v. Lamphier, 222.

2. The tax for 1874 on certain premises was
assessed to a resident of the town in which
they were situated, and was returned un-
collected. Held, That the tax was, in 1875,
chargeable only against the land assessed.
-Id.

3. The County Treasurer has no authority to
determine what sum is applicable for in-
vestment as a sinking fund under § 4, Ch.
907, Laws of 1869, as amended by Ch. 283,
Laws of 1871. That sum must be fixed
before the money is paid over to the treas-
urer.-In re petition of Clark v. Sheldon,
274.

4. A petition asking that the treasurer be re-
quired to invest for a sinking fund under
said act a sum less than the amount of all
taxes paid over and above school and road
taxes will not be granted.-Id.

5. An incorporated seminary of learning does
not waive or forfeit the exemption from
taxation given by the statute by leasing the
premises during the usual summer vacation
for a boarding house.-Temple Grove Sem-
inary v. Cramer et al., 382.

6. Unless the term of a lessee of such prem-
ises is outstanding when the tax is imposed
and the sale can take effect on his interest
in the unexpired term no tax can be im-
posed on the premises.-Id.

7. To entitle a party to a mandamus under
Chap. 388, Laws of 1884, to compel the
Comptroller of the City of Brooklyn to re-
pay to him moneys paid by him on account
of void sales for non-payment of taxes, he
must show affirmatively that the sale was
void for the failure of the assessors to
verify the roll, and that the payments
were made on account of the purchase.-
The People ex rel. Andrews v. Brinkerhoff,
391.

8. The provision of § 6, Chap. 65, Laws of
1878, is a limitation for the protection of
the owners of property advertised for taxes,
and not an authority to the Treasurer to
subject the property to expenses for ad-
vertising beyond the sum fixed by Chap.
831, Laws of 1869. The two acts are to be
construed together.-Crouch v. Hayes, 491.
Vol. 20-No. 26d.

9. A 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.-Id.

10. The decision of the assessors of the city
of Albany, under Ch. 284, Laws of 1881, is
not conclusive as to the value of property,
and an appeal lies to the Supreme Court,
under Ch. 269, Laws of 1880. The con-
trolling consideration, in estimating the
value of a business structure, like a bridge,
is its earning capacity.-The People ex rel.
The A. & G. Bridge Co. v. Weaver et al.,
565.

11. So far as taxation for State purposes is
concerned, § 3, of Chap. 471, Laws of
1853, is repealed by Chap. 361, Laws of
1881.-The People v. The Gold & Stock Tel.
Co., 566.

12. In an action to recover a tax levied under
the act of 1881 interest is not recoverable;
the penalty given by the statute as damages
is a substitute for interest.-Id.
See ASSAULT,

2;

CERTIORARI, 4; CORPOR-
ATIONS, 4; DISCOVERY, 4.

TELEGRAPH COMPANIES.

See TAXES, 11.

TENANTS IN COMMON.
See LEASE, 5, 6; PARTITION, 2,
TENDER.

See SALE, 2-4; TAXES, 1.
TITLE.

1. Presumption of title to real estate arises
from actual possession, and to make prima
facie proof of the fact it is necessary to
show title derived through some person
in such actual possession. - Gooding v.
Richards et al., 543.

2. The fact that certain wild lands adjoin
plaintiff's farm, in the absence of evidence
that they were made subservient to the uses
of the farm, does not, by relation, extend
plaintiff's actual possession to the wild
lands.-Id.

See ADVERSE POSSESSION ASSIGNMENT FOR
CREDITORS, 2; COMMON CARRIER, 4;
CONTRACT, 1: DEEDS, 9; SALE, 5-9.

TOWN BONDS.

1. An action cannot be maintained by a tax-
payer under Chap. 161, Laws of 1872, or
§ 1925 of the Code, against a bondholder
who is a mere private individual doing or
threatening no special injury to the town.
-Alcord v. The Syracuse Sargs. Bk. et al.,
153.

2. A statement in a petition under the General
Bonding Act of 1869 that "the under-
signed, representing a majority of the tax-
payers," accompanied by a verification
stating the signers are a majority, is suffi-
cient to confer jurisdiction on the county
judge. The Town of Solon v. The Williams-
burgh Sargs. Bk., 524.

3. The adjudication is based on the signatures
to the petition and the consents given dur-
ing the pendency of the proceedings, and
if at the close of the proceedings a major-
ity have consented the county judge must
so adjudge. Id.

4 The statute does not require that the order
for publication of the notice shall be in
writing or be entered.-Id.

5. The words "assessment roll" as used in
the act have reference to the roll as verified
by the assessors, and not to the assessment
as equalized.-Id.

6. Bonds issued under that act are not invalid
because not sealed; nor are they rendered
so by the addition of seals by some inter-
mediate owner without fraudulent intent;
nor by the fact that they are payable within
thirty years from the date of delivery.—Id.
7. Where a town continues for several years
to levy and pay the interest on its bonds,
takes no steps to review the determination
of the county judge and permits innocent
purchasers to become owners thereof, it is
estopped from requiring the bonds to be
surrendered for alleged defects in the mode
in which they were issued.-Id.

TOWN INSURANCE COMPANIES.

1. Where different parties claim an award
made for the same loss and there is a
reasonable doubt as to which party is en-
titled to it the refusal of the directors to
make an assessment and pay the award to
one of them is not a "wilful refusal" with-
in Chap. 739, Laws of 1857.-Smith v.
Robbins et al., 301.

2. Before the making of such an assessment
could be claimed as a duty plaintiff must
show, under § 7, that the loss exceeded the
cash funds of the company.-Id.

3. The decision of the committee of reference
appointed under § 6 by the county judge is
final only as to the amount of the loss and
does not preclude the company from any
defence it may have or take away the right
to a jury trial.— Id.

TOWNS.

See HIGHWAYS, 4, 5, 13.

TRADE SECRET.

1. A cosmetic, made and sold by defendant's
agency, being an infringement of plaintiffs'

rights, defendant is liable, notwithstanding
he assumed to carry on the business in his
firm's name on his partner's account.-
Champlin et al. v. Stoddart, 223.

2. In such case the measure of damages
adopted was the price realized by defend-
ant from his sales, less what it would have
cost plaintiffs to make and vend the same
quantity. Held, No error.-Id.

3. Proof of advertising done by plaintiffs is
admissible.-Id.

TRESPASS.

1. In an action of trespass plaintiff made a
prima facie case by proving his recent im-
provements and acts upon the land, and
defendant's offer to prove that he had been
in exclusive possession of the premises for
the last 19 years was excluded, on the
ground that the inquiry must be confined
to the last year. Held, Error.—Burk v.
Quinn, 211.

2. It is the duty of the owner of land when
he discovers cattle trespassing to drive
them out, so as to prevent all avoidable in-
jury, and if he neglects to do so he cannot
recover for damage subsequently commit-
ted.—Woodmansee v. Kinnicutt, 512.

3. The measure of the damages is the value
of the grass destroyed in the condition it
was in at the time of the injury, not the
value of the hay. And, therefore, it is not
proper to ask the plaintiff what rowen or
second crop hay was worth that fall per
ton.-Id.

4. A party for whom work is being done-
under a contract is not liable for a trespass
by a sub-contractor on adjoining lands
under the direction of the contractor where
he himself does not authorize or direct the
act.-Murdtfeldt et al. v. The N. Y., W. S.
& B. RR. Co., 534.

5. In an action to recover damages for injury
committed by cattle trespassing upon plain-
tiffs' land, plaintiffs and other witnesses
were permitted to testify, in the absence of
defendant, after describing the nature and
extent of the injury, that I would put or
assess the damage to the oats at from $6 to
$8," and the justice rendered judgment for
the smaller sum. Held, That this was not
legal proof of the amount of damages
plaintiffs were entitled to recover.-Dimick
et al. v. Haskins, 567.

TRUST.

1. If the declarations of a party may be re-
ceived to raise a trust or create an interest
in lands in another they must be clear and
explicit, and point out with certainty the
subject-matter and extent of the beneficial
interest.-Crouse et al, v. Frothingham et
al., 22.

2. If both parties to a deed, apparently de-
signed as a voluntary settlement, are pres-
ent, and the usual formalities of execution
take place, and the contract is to all appear-
ances consummated without any conditions
or qualifications, it is a complete and valid
deed, although it be left in the custody of
the grantor.
If such a deed has been
actually delivered to the grantee the rights
of the cestui que trust attach and the effect
of the delivery cannot be impaired by any
mental reservation or any oral condition
repugnant to the terms of the deed.- Wal-
lace v. Berdell et al., 170.

3. Such a deed is irrevocable after taking
effect, and no act of the grantor or omis-
sion of the trustee to perform his duties
can affect its operation.—Id.

4. To constitute a declaration of trust the
acts or words relied on must be unequivo-
cal. The question is mainly one of intent.
-Butler v. Duprat, 350.

5. As a rule the remittance of funds with
instructions to pay them over will not
be construed as constituting an irrevocable
trust so long as the funds are at the risk
of the remitter. The treasurer of a corpora-
tion cannot so remit funds as to constitute
an irrevocable trust without special au-
thority.-Id.

6. Funds remitted to a trust company, with
instructions to pay them to the holder of a
negotiable obligation of the remitter, which
is by its terms payable there, remain at the
latter's risk.-Id.

7. An appropriation not amounting to a dec-
laration of trust will not be held irrevo-
cable, except to protect some one who has
parted with value on the faith of it.-Id.

8. The testator bequeathed his half of the
partnership business carried on by himself
and his brother C., to said C., in trust to
keep the same and the proceeds thereof
invested in the same business and to pay
one-half the net income and profits thereof
to his brother W. until he should attain
the age of 25 years, and at that time to pay
over to said W. the said trust property,
provided said W. should be or become en-
gaged in said business immediately after
the death of testator, and should continue
in said business until he should attain the
age of 25 years, and in the event of said
W.'s not becoming engaged in said busi-
ness, or of ceasing to continue in it, or of
dying before he arrived at the age of 25,
the will directed that the trust property
should fall into and become a part of the
residuary estate. Held, That the trust
created was conditional and depended upon
the fact of W.'s immediate and continued
engagement in said business, and that his
failure to so continue, caused by sickness
which permanently incapacitated him for

so doing, defeated the trust.-Welsh v.
Welsh et al., 369.

9. Testator by his will devised the use and
income of his house and lot to his wife in
lieu of dower and provided on her death
they should become a part of the residue
of the estate. The residue was devised to
the executor in trust to receive the rents,
&c., and pay them to beneficiaries named
during the lives of two persons who
were strangers to the trust. Held, That
the trust was valid and did not unduly
suspend the power of alienation; that no
trust was created during the life of the
widow in the property devised in lieu of
dower, and that on a refusal by the widow
to accept the devise it became inoperative.
-Bailey v. Bailey et al., 465.

See WILLS, 2, 4, 9, 12.

1. The plaintiffs had been accustomed for
two years frequently to send to the de-
fendant notes and drafts upon a merchant
residing in the town where it did business
for collection, and when they were pre-
sented to the said merchant he had almost
invariably drawn upon merchants in Cin-
cinnati for the amount, and such drafts
had been accepted by the defendant in pay-
ment of the notes, &c., presented, and for-
warded to the plaintiffs, who had never
returned any of them. Held, That the
defendant was relieved by this custom from
any liability for accepting in payment of
a note sent it for collection such a draft
which was not accepted or paid -Espy et
al. v. The Bank of America, 25.

VARIANCE.

See FORGERY, 5.

VENUE.

1. A motion made under § 319 of the Code of
Civ. Pro. to remove a cause from the City
Court of New York to the Supreme Court,