the existence of the trusts, payment against him in his individual capaof principal and interest except the city. sum sued for herein, and rested, whereupon the complaint was dismissed. John L. Hill, for applt. Carlisle Norwood, for respt. Held, That it it nowhere As the plaintiff left the case upon the trial we think the decision made. by the court was correct. Judgment affirmed. Opinion by Davis, P. J.; Barrett, J., concurring. ap pears in the pleadings or evidence why the residue of this trust fund ASSESSMENT. was not paid, except so far as that N. Y. SUPREME COURT. GENERAL is shown by a recital in the assignments, which was, of course, noț evidence of the fact recited. The defendant is sued in his individual capacity. In that capacity he was not liable without proof that he had become individually responsible by reason of some illegal or improper conduct in retaining the moneys and refusing to pay the same over. Nothing of that kind was shown. It was alleged in the complaint that defendant had retained the sum sued for after demand, and had converted the same to his own use. This was denied by the answer, and was not proved on the trial. It is asserted by appellant's counsel that the balance was retained by defendant under a claim that he was entitled to it for commissions, but no proof of that kind was given on the trial, or that he claimed any title to it. If there had been, another question would have been presented. It is a mere naked case of a failure by an executor to whole of the legacies. pay the Such a failure did not, we think, amount to a wrongful conversion of When a party purchases land from seven to ten years after the lien of an assessment sale attached, he will not be allowed to attack the validity of such assessment or sale, without showing to the court that he was not in any way indemnified by his vendors against such liens. Appeal from order denying petition to vacate sale. The petitioner purchased the property in question in 1870. In 1853, 1854 and 1856, respectively, certain assessments were imposed upon it for improvements. The assessments not having been paid, the lot was sold in 1860, 1862 and 1863, respectively. The petitioner now moves to vacate the sale on the ground of certain alleged irregularities in the assessment and sales. His motion was denied. Moody B. Smith, for applt. Held, That the purchase of the petitioner was made ten, eight and the fund to his own use, and, there- seven years after the respective fore, did not subject him to an action sales. If the petitioner had exercised "And I hereby guarantee the ordinary care in making the pur-payment of said bond and mortchase, he must have known of the gage for five thousand dollars, and sales and the liens thereby created. interest from May 5, 1874, by due He has not by any evidence rebutted course of foreclosure and sale." the presumption, which must have Judgment was perfected against great force, that he was in some way defendant for deficiency. indemnified by his vendor against John L. Lindsay, for applt. these liens. T. M. Tyng, for respt. If any allowance were made to Held, That the material question him in the purchase of the property presented seems to be, whether the in consequence of these liens, by di- guaranty is to be construed as of minution of the price, or in any payment or collection. If the former, other mode, he would not be a party a right of action became complete aggrieved, which is a necessary against Schreyer, by a failure upon element in proceedings of this character, and one which should be required, especially when the application is so long delayed. The order should be affirmed without prejudice to another appli cation. Opinion per curiam. GUARANTY. the part of the mortgagors to pay the mortgage; if the latter, no right of action would accrue against him until, by a foreclosure and sale, it should be ascertained that the premises were insufficient to pay the debt. We feel constrained to regard the provision referred to a guaranty of collection, and, in legal effect, an undertaking to pay such an amount of the mortgage debt as should remain unsatisfied by a foreclosure Peter J. Vanderbilt, respt., v. John and sale of the mortgaged premises. N. Y. SUPREME COURT. GENERAL Schreyer, impl'd, applt. Decided July 1, 1880. A guaranty of payment of a mortgage "by due course of foreclosure and sale," is a guaranty of collection, not of payment. Appeal by defendant, Schreyer, from judgment entered against him for deficiency on foreclosure of a mortgage. This action was brought to foreclose a mortgage executed by one. James Dunseith and wife to the defendant, and by him assigned to the plaintiff by a written instrument, which contained the following guaranty: Presumptively the premises would SO ex He evidently intended not to become liable to a prosecution until, by due course of law, in the form of a foreclosure of the mortgage, his liability, or at least the extent of it, should be ascertained. The foreclosure and sale was made, by the agreement of the parties, a condition precedent to any right of action against defendant, and such, in our judgment, must be the legal effect. Judgment reversed. LEASE. ORAL AGREEMENT N. Y. SUPREME COURT. GENERAL Mary C. Snyder, respt., v. Oliver Decided June, 1880. An agreement, by which the owner of land, who has verbally transferred it to his daughter, and put her in possession, takes an oral lease back to himself, creates no valid claim against his estate for rent received on a formal lease of the premises by him to a third person. from plaintiff, for the term of three or five years, at his option, to begin April 1, 1875, at $450 per year, and immediately went into possession. The evidence on this point was that defendant's intestate, being dissatisfied with plaintiff's arrangement, and desirous of retaining the right to use part of the premises occasionally, said "he would pay Mrs. Snyder for the use of the place, and then he could rent to whom he pleased," and Mrs. Snyder said nothing against this proposition. In November, 1874, defendant's intestate executed a formal lease of the premises to one Elvira Briggs, for the term of three or five years, to commence April 1, 1875, reservover by him they operate as gifts, but the ing to himself the annual rent of agreement is a nudum pactum, and, it seems, would not have been enforceable even if in writing. So far as installments of such rent are paid Appeal from an order confirming a referee's report and denying a new trial, and from the judgment entered thereupon. $450. In December, 1874, plaintiff removed to Michigan. Defendant's intestate died in September, 1876, and had paid over to plaintiff the whole or a part of the rent received from Elvira Briggs in the meantime. The case was a claim against the estate of defendant's intestate, The referee omitted to find the Cleveland, made by Mrs. Snyder, fact that defendant's intestate was said intestate's daughter, and re- the owner of the farm during all the ferred under the statute. above transactions, but the fact was conceded. There was no finding of any equitable title in plaintiff, but simply that defendant's intestate. leased from her, and his estate was liable for the rent reserved, after crediting payments. From March, 1870, to October, 1874, plaintiff, Mrs. Snyder, was in possession of a certain farm, which was conceded to be owned by the intestate, under an oral agreement or understanding that the farm and everything on it was to belong to her. In October, 1874, plaintiff being about to remove to Michigan, and to lease the premises to one Legg, de The findings of fact and conclusions of law were all excepted to. J. Mc Guire, for applts. Ralph T. Wood, for respt. Held, error; the report was obfendant's intestate, as the referee viously based on the assumption found, leased the premises himself that the supposed arrangement be tween the intestate and Mrs. Snyder created a legal liability to her for the rent reserved in his lease to Elvira Briggs. We do not understand upon what legal principle this proposition could be sustained, even if there had been an absolute and clear written agreement to that effect. Defendant's intestate was the undisputed owner, and entitled to possession of the farm, and to all rents, issues and profits thereof. His payments to plaintiff would take effect as gifts, but his promise to continue such payments for the future would be a mere nulum pactum, and cannot be enforced against his representatives in law or equity. Order of confirmation and judgment reversed, and new trial ordered, costs to abide the event. Opinion by Talcott, P. J. PRACTICE. JUDGMENT, AMENDMENTS. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Jonah D. Decker, respt., v. James Kitchen, applt. Decided June, 1880. Where an answer containing several defenses is demurred to, and demurrer sustained with leave to amend the several defenses, defend ant may answer, setting up correctly one of his previous defenses, and may serve as such answer a pleading which has been served before, and which was then properly rejected and returned to him. To enter judgment as upon default, when there is an issue joined in the action, is not an irregularity within Rule 37 of the Supreme Court, but an error, and is to be corrected as such. Appeal from an order of Monroe Special Term, which denied an application for leave to renew a motion to set aside a judgment entered as upon default of defendant in answering, and in case such application was granted then to renew the said motion. The proceeding was commenced against defendant, Kitchen, by a summons to show cause why he should not be bound by a judgment in an action where he was sued with one Dorn, but was not served. Kitchen answered the summons and affidavit, and his answer having been demurred to amended it within the proper time, and set forth four defenses. Plaintiff moved to strike out the second defense as sham, &c., and demurred to the other three. Both motion and demurrer were successful. Pending the argument, defendant served a second amended answer, in which he set forth more correctly the third defense in his previous answer, which was a discharge in bankruptcy. Plaintiff rejected this anSwer, and returned it as unauthorized, being a second amendment, without leave of the court or payment of costs. In sustaining said demurrer, the court allowed defendant to amend Where a pleading is thus served in due time the said first, third and fourth deand form, the other party may not reject fenses in twenty days, upon payment and return it and enter judgment as upon of costs. Defendant paid the costs default in pleading, but must apply to the court or a judge for his remedy, however and served again the answer setting up correctly said third defense bad the pleading may be in fact. which he had previously attempted to serve, and which had been returned to him. Plaintiff again returned it September 20, 1878, endorsing upon it as his grounds for doing so that it had once before been served and properly returned; that it was not a compliance with the leave to amend granted by the court, and that it was void and nugatory. From this order defendant appealed. Theodore Bacon, for applt. Held, The fundamental error under which the judge who heard both motions at Special Term labored was in considering and treating the entry of judgment by the plaintiff as merely irregular, and thus being within rule 37 of this court, which Nothing further was done until provides that when a motion is for December 26, 1878, when plaintiff irregularity the notice shall specify filed an affidavit setting forth the the irregularity complained of. The above proceedings, and that no motion to set aside the judgment in other answer had been received, this case was not founded on a mere and entered judgment as upon a de- irregularity, but there was a total fault. Defendant at once moved to absence of authority to enter it, and set aside this judgment and compel it was absolutely void between the plaintiff to receive his answer nunc parties when attacked in proper pro tunc, on affidavits showing the form. The judgment was entered facts, but without specifying any in violation of law, and "no quesirregularity in his notice of motion. This motion was finally denied with costs, on the ground that, being founded on alleged irregularities, they should have been specified in the notice of motion, but it was denied without prejudice to an application for leave to renew the motion. This application was made upon a notice which did specify the supposed irregularities, and was denied absolutely, the court saying: "The sole ground upon which the defendant now stands is the alleged irregularity of the plaintiff in enteringjudgment.... There is not a word of explanation of the omissions in the original motion papers, by which the court was precluded from granting the relief sought in any form, so that if the decision of that motion was correct, this motion ought to effectually endeavored to interpose be denied." tion of mere practice is involved in such an act, but a substantial grievance which the defendant was entitled to have remedied without regard to forms or technicalities." See 16 Abb., 201; 30 Barb., 185; 62 Barb., 280; 9 How. Pr., 460. The order appealed from, though in form a denial of an application to renew the motion, in fact involved. the entire merits of the motion to set aside the judgment, and considering the motion merely as an application for leave to renew the motion to vacate the judgment, it should have been granted. None of plaintiff's objections to the answer last served on him were well founded. It made no difference if it was the same copy of an answer which defendant had in at a previous stage of the case, as |