it appearing that plaintiff refused to give the stipulation, the order was changed to one of affirmance, and plaintiff appealed therefrom. The proceeding was not instituted on the part of the referee but of the defendants. It was not alleged, and did not appear, that the referee's report was in any way important to defendants. Samuel Hand, for applt. Pleadings cannot be amended on appeal to the ment.. This was an action upon an alleged account stated. There was no evidence from which a jury could find or infer that defendants ever assented, expressly or impliedly, that they were indebted to plaintiff in the amount claimed, or undertook, by express or implied promise, that they would pay it. Nelson Smith, for applt. Jas. R. Marvin, for respts. Held, That no cause of action was established. J. C. Julius Langbein, for respts. Held, That as it did not appear, and was not adjudicated that the alleged misconduct of plaintiff defeated, impaired, impeded, or prejudiced any right or remedy of de- An account stated is an account fendants in a civil action, it could balanced and rendered with an asnot be punished and treated as a sent to the balance, express or imcontempt. Before a party can be plied, so that the demand is essenimprisoned for a contempt a reason- tially the same as if a promissory ably clear case upon the law and note had been given for the balthe facts should be made. Defend- ance. 8 Pick., 187. An account ants could pay the referee his fees closed is not an account stated. 5 and take his report, and have the Cranch, 15. There must be an asfees taxed against plaintiff upon the sent by the party to be charged, final judgment, whether such judg- either express or fairly implied. 54 ment was in their favor or against N. Y., 480. The emphatic words of them. a court upon an account stated were, in former days, insimul computassent, that they, the plaintiff and defendant, accounted together, and the court went on to say that on such accounting the defendant was found in arrear and indebted to plaintiff in a sum named, and being so found in arrear, he undertook and promised to pay the same to the plaintiff. 2 Chitty Pl., 90; 1 id., 358. Order of General Term, affirming order of Special Term adjudging plaintiff in contempt, reversed. Opinion by Earl, J. All concur. ACCOUNT STATED. AMEND- N. Y. COURT OF APPEALS. Volkening, applt., v. De Graaf et al., respts. Decided June 1, 1880. To constitute an account stated, there must be an assent by the party to be charged, either express or fairly implied, Pleadings cannot be amended on an appeal to this court so as to reverse a judgment. Bate V. Graham, 11 N. Y., 237; Pratt v. H. R. R.R. Co.; 21 id., 3.5, and Haddow should bear. After the loan was v. Lundy, 59 id., 320, distinguished. agreed upon, the parties met at R.'s Judgment of General Term, af- office, and the bond and mortgage firming judgment for defendants, in suit were executed. A statement, affirmed. showing the amount due on the Opinion by Folger, Ch. J. All notes to be $172.45, an attorney's concur. USURY. N. Y. COURT OF APPEALS. Guggenheimer, applt., v. Geiszler, adm'r, et al., respts. Decided June 1, 1880. Defendants' intestate being indebted to plaintiff, procured a loan from him, on mortgage, nothing being said about the rate of interest. A statement of the indebtedness, a receipted attorney's bill and a check for the balance were handed to intestate as covering the loan. He objected to an item in the attorney's bill of $150 for commissions for procuring the loan, and plaintiff said it was all right; that he could not do any better. Held, that while intestate was deprived of the $150 by false pretence, it was not done by virtue of any agreement, and, therefore, there could be no usury. bill made out to G., in items, amounting in the aggregate to $230.45, and receipted by the attorney, and a check drawn by S. for $1,097.10 were handed to G. as covering the $1,500. G., when the bill was given to him, questioned the correctness of a charge of $150 in the attorney's bill for "commissions for obtaining loan." He testified that he spoke to S. about it, and said he did not expect that he would have to pay that, and S. said "it was all right, it was cheap enough, he could not do any better." Defendant claimed that this was usurious. not by virtue of any agreement, and therefore there can be no usury. Amasa J. Parker, for applt. Charles Wehle, for respts. Held, Untenable, as there was no intent on the part of G. to pay usury, and no expectation on his This action was brought for the part that S. should have usury; foreclosure of a mortgage executed that either the attorney, without by one G., defendants' intestate, right, or S., by false pretence, deand her husband, to S., through prived G. of the $150, but it was whom plaintiff claims. It appeared that, in April, 1872, G. was indebted to S. upon two notes, which, at that time, with interest, amounted to $172.45. They were past due, and he was unable to pay them, and S. had placed them in the hands of R., an attorney, for collection. A loan of $1,500 from S. to G. was agreed upon, and it was agreed that out of that sum the indebtedness to S. should be paid. Nothing was said about the rate of interest the loan While one may waive a tort sometimes and imply an agreement, one cannot from a fraud imply or import a tort into a valid agreement for the purpose of rendering that agreement void. Judgment of General Term, affirming judgment for defendants, reversed, and new trial granted. Opinion by Danforth, J. All concur, except Earl, J., not voting. USURY. PLEADING. N. Y. SUPREME COURT. TERM. FIRST DEPT. GENERAL than seven per cent., viz., nine per cent., &c. The answer, however, distinctly alleged facts showing that the note Theodore Leon v. Leopold Bern- was an accommodation note, made heimer. Decided June 29, 1880. It is enough that the facts making out usury are stated with sufficient certainty in the pleading to enable the other party to know what he would be called upon to meet. Where a complaint omits to state a material fact to constitute a cause of action, and the answer alleges such fact, the omission in the complaint is cured in so far that the complaint cannot be dismissed upon the trial for insufficiency, as the court will regard the complaint amended by inserting such omitted allegation, same appearing on the record before it, by the answer. Where, from facts stated in the complaint, a material fact, not stated in the complaint, is plainly inferable, the complaint ought not to be dismissed at the trial for insufficiency. Appeal from judgment on dismissal of the complaint at Circuit. for the purpose of being discounted. B. W. Huntingdon, for applt. Held, That, from the facts stated in the complaint, the fact that the note was an accommodation note was plainly inferable. It is enough that the facts making out usury are stated with sufficient certainty to enable the other party to know what he would be called upon to meet. 23 N. Y., 492, 494; 49 N. Y., 639. Action to recover money paid for a promissory note alleged to be If, however, this view is erroneous, tainted with usury, in that same was it is quite clear that the answer supmade for the purpose of being dis- plied the deficiency, because it is counted, and was, at its inception, distinctly alleged that the note was discounted at an illegal rate of in- made for the express purpose of terest. The complaint did not di- being discounted, and the defect rectly state facts showing that the thus supplied was a sufficient annote was an accommodation note, swer to the defendant's motion to and that same had an usurious incep- dismiss upon the ground stated. 6 tion. But the complaint did state T. & C., 255; 11 N. Y., 237. There that the paper writing purporting to is no force in the point that the be a promissory note was not, in makers might have waived the usury fact, a promissory note, but was and paid the note, if suit had been void for usury at the inception brought for that purpose. 49 N. Y., thereof; and, further, that defend- 583. ant was a party to the usury, and that the paper writing was, in the first instance, corruptly and usuriously negotiated to him by the concurring. makers at rate of discount greater Judgment reversed; new trial ordered; costs to abide event. Opinion by Brady, J.; Barrett, J., RECEIVER. ATTORNMENT. N. Y. COMMON PLEAS. GENERAL TERM. James J. Nealis, as receiver, &c., v. Charles F. Bussing. Decided June 7, 1880. Where a receiver of a lessor, in foreclosure proceedings, is appointed, he is entitled to all the rents then due, and to grow due, to the lessor under the lease, and the latter has no authority to accept a surrender of the lease, and the lessee will still be liable if, after notice of the receiver, he pays rent or attempts to nullify the lease. order of the court, was entitled to all the rents of the mortgaged premises. His possession was that of the court. Wiswall v. Samson, 14 How., U. S., Rep., 64, 65. And the lessor had no authority to accept a surrender of the lease in question, and thus defeat the purpose of the order of August 15, 1877, appointing plaintiff receiver. That the defendant had notice of the plaintiff as such receiver is established by the testimony and undisputed; and the payment by the defendant to The plaintiff, a receiver in fore- the receiver of the rent of said closure proceedings of premises premises for the months of August corner of Twenty-second street and and September was in the nature of Second avenue, sued defendant in an attornment to the plaintiff, and a the Marine Court, to recover $700 recognition of his right to all rents. for rent, from October 1, 1877, to due, or to become due, under said May 1, 1878. The defendant set up lease. Noe v. Gibson, 7 Paige, 513; that he was not a party to the ac- Sea Ins. Co. v. Stebbins, 8 Paige, tion in the Supreme Court, in which 565; Steele v. Sturgis, 5 Abb. Pr., the receiver was appointed, was not 442. And a payment to and receipt served with a copy of the order of from any person other than defendhis appointment, and had no knowl-ant himself must, in the absence of edge thereof at the time of the pay- proof to the contrary, be regarded ment of the rents for August and as a payment and receipt on his acSeptember, and had not at any time count. attorned to the plaintiff; that on October 4 he surrendered the premises to Terence J. McCahill, the mortgagor, who accepted the demised premises, releasing defendant from all covenants in the lease, and thereupon relet them, and that defendant was thereby discharged from all liability. A judgment on a verdict directed for plaintiff for $512.50 was reversed by the General Term of the Marine Court. The plaintiff appealed to this court. James Clark, for plff. R. H. Channing, for deft. Held, That the receiver, by the Vol. 10-No. 13. Judgment of General Term reversed, and judgment of Special Term affirmed. Opinion by Larremore, J.; Van Brunt, J., concurred. SURETIES ON APPEAL. U. S. SUPREME COURT. James C. Babbitt, assignee, plff. in error, v. John Shield et al. (Oct., 1879.) Sureties upon a bond conditioned to prosecute an appeal to effect, become liable if the judgment is affirmed in the appellate court, and such liability is not discharged by an appeal resort. It is not necessary, in order to charge the sureties, that an execution should be issued on the judgment in the appellate court. Error to the Circuit Court of the United States for the Eastern District of Missouri. to a higher court, and the giving of a new was made, and certain proceedings bond to prosecute the second appeal, if the followed that it is not important to judgment is affirmed in the court of last notice, subsequent to which the defendants filed an answer, in which they set up the defence that the defendant in that suit, by writ of error, removed the judgment of the Circuit Court into the Supreme Court, and gave a new supersedeas bond, Plaintiff, as assignee, recovered with good and sufficient sureties, to judgment in the district court against prosecute the appeal to the lastEdward Burgess in the sum of four named court to effect, and the dethousand two hundred and thirty- fendants here aver that, by force six dollars and twenty-eight cents and effect of said last-named writ of debt, and costs of suit. Exceptions were filed by the defendant, and he sued out a writ of error and removed the cause into the Circuit Court for the same district to reverse the judgment. Sureties to the bond were required to perfect the removal of the cause, and the defendants in the present suit signed the bond as sureties of the principal, who is the party that sued out the writ of error. error and bond, the judgment of the Circuit Court was superseded, rendered inoperative, and vacated, and that the defendants in that bond thereby became released and discharged from any and all liability on the bond which they signed as sureties for their principal, it appearing that the sureties on the lastnamed bond are solvent, and that the bond is sufficient in amount to answer all damages and costs. Failing in The Circuit Court affirmed the Responsive to those affirmative judgment of the District Court, with defences, the plaintiff filed a decosts. Payment of the judgment murrer to the affirmative defences having been refused, and it appear- set up in the answer, which was ing that the debtor had no property overruled by the court. wherewith to satisfy the execution, that, the plaintiff filed a replication the judgment creditor, as plaintiff, denying the new matters set up in instituted the present suit against the answer, and the court, on motion the defendants as the sureties of the of the defendants, rendered judgprincipal, counting on the said bond ment in their favor. as the cause of action. Held, error. Judgment was afNone of these facts are contro- firmed in the Circuit Court, and the verted, and it appears that the plain- rule is universal that the affirmance tiff, in his declaration, assigned as a of the judgment in the appellate breach of the bond that the prin- court fixes the liability of the surecipal in the same did not prosecute ties, as it shows conclusively that his writ of error to effect, nor answer the principal obligor did not proseall or any damages or costs on fail- cute his appeal to effect. 6 Har. & ing to make his plea good. Service John., 134, 139. |