facts which constitute them as effectually as they were prior to the Code, and judgment must be rendered secundum allegata et probata. An action at law for damages on sale and conveyance of real property, when there is no covenant, can be supported on the ground of fraud only. The court is not required to dismiss a complaint on the counsel's opening on the ground that it fails to state a particular cause of action; it is only when it fails to state any cause of action, and the motion is made on that ground, that motion must be granted. When such objection is not made on the trial, and no objection to the sufficiency or reception of the evidence is made, necessarily involving the consideration of the character of the complaint, or of the cause of action alleged by it, such objection is treated as waived, and the complaint will be deemed amended to conform to the facts proven, if necessary to support the verdict. Appeal by defendant from a judgment entered on verdict and from order denying a new trial. Plaintiff alleges that defendant, to induce her to purchase a house and lot, represented that the house was plastered inside throughout and double sheeted; that the lot had a frontage of ninety-one feet on the street named, and was pointed out and its lines described to her by defendant, and that relying on his representations so made and believing them to be true she purchased and paid therefor the sum of $1,200; that the house was not so plastered nor was it double sheeted, and that defendant did not own the land so pointed out, except a strip thirty-five feet in width on such street; that defendant made a deed purporting to convey the land so pointed out, having ninety-one feet in front on the street, etc., and that by reason of the premises plaintiff sustained damages in the sum of one thousand dollars, for which she demanded judgment. Plaintiff's counsel in his opening to the jury represented it to be a cause of action for fraud, and repeated on inquiry made that he claimed the cause of action alleged was fraud. Whereupon defendant's counsel moved that the complaint be dismissed on the ground that no fraud was alleged in the complaint. The motion was denied by the court and exception taken; the trial proceeded and plaintiff had a verdict. P. B. Case, for applt. James G. Johnson, for respt. Held, That causes of action are designated by the facts which constitute them as effectually as they were prior to the Code, so that judgment must be rendered secundum allegata et probata. 87 N. Y., 370; 51 id., 108. Intent to deceive is an important fact which characterizes an action for fraud. The complaint in this action neither charges that the representations were fraudulently made or with intent to defraud, nor does it allege that defendant knew them to be false or untrue, and wholly fails to allege a cause of action in fraud. 11 Wend., 374; 26 Hun, 273. That the complaint failing to state a cause of action in fraud stated no cause of action. A right to recover upon contract did not arise out of the facts alleged because no covenant is implied. 1 R. S., 238, § 140. An action at law for damages arising out of a transaction for the sale and conveyance of real property when there is no covenant can be supported on the ground of fraud only. 2 Kent Com., 473; 48 N. Y., 253. If, therefore, the motion had been to dismiss the complaint on the ground that it did not state any cause of action it must have been granted unless it had been amended. The court is not required to dismiss a complaint on plaintiff's opening because it does not state a particular cause of action. It is only when it does not state any cause of action, and the motion is made on that ground, that the motion must be granted. The attention of the court was not called to the situation that no cause of action was stated, and was not required to determine that question. And it cannot be said that if the objection had been made that the complaint stated no cause of action that objection might not have been obviated by an amendment, and as no motion was made for a nonsuit, and no objection was taken to the admission of evidence on any ground relating to the character of the complaint, and no objection to the sufficiency of the evidence necessarily involving the consideration of the character of the complaint or the cause of action. alleged by it, such objection is treated as waived, and if necessary the complaint may be deemed amended to conform it to the facts proven in support of the verdict if warranted by them. The evidence in this case was sufficient to support the verdict. Judgment affirmed. Opinion by Bradley, J.; Haight, J., concurs. NEGOTIABLE PAPER. N. Y. SUPREME COURT. GENERAL Decided Jan., 1887. Where a note given for money loaned is at maturity surrendered by the payee to the maker upon his promise to give a new note in renewal, and the maker delivers to the payee an unsigned new note, the payee has a right of action at law upon the original loan and note given therefor. His right of action does not depend on the unsigned note; that creates no new liability. The surrender of a note under such circumstances is not a discharge of the liability, but it places the burden of proof upon the payee to show that the note was not paid when surrendered. Appeal from judgment entered on a verdict and from order denying a motion for new trial. Action to recover the amount of money loaned by plaintiff to defendant, for which he gave his promissory note at three years for $1,350, which matured the 12th of April, 1882. This note about the | time of its maturity was surrendered by plaintiff to defendant, and he alleges and his evidence was that at that time the full amount of the note was paid. The evidence on the part of plaintiff is that he then paid the interest and none of the principal, but that she consented to take and he promised to give his renewal note due in two years; that he drew a two years' note, which she took and put away with her papers; that defendant did not add his signature to this note so drawn and she did not observe the omission until about the time for it to mature in April, 1884. He refused to pay, saying he did not owe her anything. This action was brought and plaintiff recovered. It was contended on the part of defendant that as the renewal note was not signed by defendant the only remedy of plaintiff was in equity to enforce the unexecuted note or to charge him upon his undertaking to make the renewal note. S. Hubbard, for applt. Held, That the liability of defendant at law does not depend upon the unexecuted note. He borrowed of plaintiff the sum of $1,350, and gave to her his note as evidence of his liability to pay and specifying the credit and time of payment. This note at maturity was surrendered upon the condition and understanding, in view of the finding of the jury that it was not paid, that he should give his renewal note payable in two years. This he failed to do, and created no new obligation to pay. The right of action rested upon the loan and the surrendered note. That the surrender under the circumstances was no discharge of the then existing cause of action resting upon the original consideration, evidenced by the surrendered note. 39 N. Y., 325; 56 id., 214; 65 Barb., 304. That defendant having testified that the note was paid when surrendered, the burden of proof was on plaintiff to show that the note surrendered had not been paid, and the evidence on the part of plaintiff was sufficient to justify the finding of the jury in that respect. Judgment affirmed. Opinion by Bradley, J.; Haight and Angle, JJ., concur. MANDAMUS. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. The People ex rel. Charles R. Johnston, applt., v. The Board of Supervisors of Ulster Co., respt. Decided Feb., 1887. Where the relator, janitor of an armory, was entitled to monthly payment under Laws of 1883, Chap. 299, § 64, for his services, which were made a county charge, but the supervisors had made no provision for such payment and the relator procured his bills to be discounted, Held, That his claim for such discounts was not a county charge; that his claim for repayment was at least doubtful and a peremptory mandamus would not lie. Appeal from order denying application for a writ of peremptory mandamus. Relator was employed as janitor of an armory under Laws of 1883, Chap. 299, § 64. The act provides that the janitor be paid monthly and his compensation shall be a county charge to be audited, etc., like other county charges. Defendant had made no provision for monthly payments. Relator had his bills discounted by a bank; these discounts amounted to $42.45. The claim for discounts was presented to de- C. A. Fowler, for applt. Held, That the sum paid for discounts was not a county charge. It was not for the benefit of the county. The claim is in the nature of damages for delay in payment. No statute authorizes such a charge. If interest ought to be allowed it would attach to the bills themselves and be a claim of the present holder. The propriety of the allowance of the claim is doubtful; certainly relator has no clear legal right to it. Order affirmed. Opinion by Landon, J.; Learned. P.J., concurs; Parker, J., not acting. MUNICIPAL CORPORATIONS. BONDS. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Decided Feb., 1887. By Chap. 298, Laws of 1886, a city was authorized to borrow not exceeding $25,000 to erect a school building and the board of education was to certify how much of this sum would be necessary. The board certified that the whole sum would be necessary. Bonds were issued and sold and produced a premium. Held, That the premium was not the property of the board, but belonged to the city as profit on a lawful transaction and would go in reduction of the interest hereafter accruing on the bonds. peremptory mandamus under Code Cady & Hoysradt, for applt. * Held, That the position of the city treasurer was correct. The amount which the common council could borrow was only $25,000. The amount which the board of education could lawfully certify to be necessary could not exceed the sum which the common council could lawfully borrow. The act provides that "the moneys so borrowed * * shall be paid to the city treasurer and by him placed to the credit of the board of education." These moneys were only the principal sum. The bonds were at five per cent. Because of its good credit it has had (the premium) this amount of interest which it has agreed to pay already returned to it. This is not money borrowed to build a school house, but is the excess of interest promised, over and above the interest required. This construction makes the whole loan lawful. If not adopted it would be difficult to Appeal from order awarding a justify the city in not stopping the Decided Jan., 1887. Where the terms of the contract are not such as preclude the presumption that the parties intend to continue the business initiated thereunder after the expiration of the term limited by the con tract, and the parties in fact continue such business after the term limited, the presumption is that they continued under the terms expressed in the contract until something appears to the contrary. Appeal by plaintiff from judgment entered upon the report of a referee. Action for alleged conversion by defendant of plows, castings, etc., to which plaintiff claims title as assignee for the benefit of creditors of one Harris. In Feb., 1883, defendant made a contract in writing with Harris to furnish him plows and other things to be used in connection with them at stipulated prices to be paid by him, for a portion of which he should give defendant his notes, and the title of the property to remain in defendant until paid for, and "the contract not to be binding and in force longer than the first of Jan., 1884." Vol. 25-No. 24a. Under this contract goods were furnished to Harris in 1883, and in 1884 defendant furnished to him goods upon order without further agreement made between them, and Harris in like manner gave his notes. Some of the notes made by Harris in 1884 for goods remained unpaid when he made a general assignment for the benefit of creditors to plaintiff, April 10, 1885. The property in question was included in his schedule filed of property assigned; and defendant thereafter took possession of it, and refused to redeliver it to plaintiff on demand, and this action was brought. The referee found that defendant had title to all the property except three plows furnished to Harris in 1883, which had been paid for, of the value of $26.85, and directed judgment for defendant for costs less that amount to be deducted from the costs. Plaintiff appealed. A. P. Rich, for applt. W. H. Beach and J. S. Garlock, for respt. Held, That the terms of the contract are not such as to preclude the presumption that they intended to continue upon the same terms as those they had initiated by their written contract, and the implication or presumption is that they did so proceed after the expiration of the period defined by it for its operation until something appears to the contrary. 32 Barb., 564; 38 N. Y., 182; 79 id., 84; 29 Penn. St., 184; 36 id., 367. The evidence fairly permitted the inference to that effect and supported the conclusion of the referee that the terms of the |