obtains leave to open it for re-examination as to certain items, on condition that the rest of the decree shall stand, he is not in a position to object that the Surrogate exceeded his power as regards other portions of the decree. Any injury resulting from his failure to appeal must be imputed to his own laches. Affirming S. C., 8 W. Dig., 477. the Special Term dismissing plaintiff's complaint in the above entitled action, the General Term reversed the judgment, and made an order that an interlocutory judgment be entered upon the facts found by the court, and that a referee be appointed to take and state the accounts of the respective parties, This was an appeal from a judgand that upon the filing and confir- ment of General Term, affirming a mation of his report, a further and decree of the Surrogate of New final judgment should be entered York, which, among other things, by the Special Term for the "final required the appellant to pay to his disposition of the entire contro- counsel a certain sum of money for versy between the parties." In his services out of the share of the pursuance of this order, the Special estate going to plaintiff as legatee. Term entered an interlocutory judg- It appeared that plaintiff was inment and appointed a referee to terested in the estate not only as take the accounting. Defendant legatee, but as one of two execuappeals to this court from the order tors was active in procuring the deof the General Term and the inter- cree. He did not object to it, but locutory order or judgment made or allowed the time for appealing from entered in pursuance thereof by it to expire, and afterwards desiring the Special Term. Jacob F. Miller, for applt. John A. Bryan, for respt. to have another portion of the decree re-examined, he went before the Surrogate with an application Held, That the determination of for favor, which was granted on the General Term was not a final condition that the residue of the judgment within the first subdivision of section 190 of the Code, 4 N. Y., 415; 19 Id., 534, and the appeal should be dismissed. Appeal dismissed. Per curiam opinion; all concur. PRACTICE. SURROGATES. decree, including the part objected to, should stand. Plaintiff availed himself of the permission so obtained. E. Marshall Pavey, for applt. Geo. P. Horne, for respt. Held, Under the circumstances the appellant is not in a position to object that the Surrogate exceeded his power. He must be deemed to have had notice of the original de Marsh, applt., v. Avery et al., cree, and his proper remedy was by respts. Decided April 13, 1880. Where a party allows the time to appeal from a Surrogate's decree to expire and afterwards appeal, and any injury resulting to him from a failure to take it must be imputed to his own laches, not to the court. 3 Paige, 189; 10 Id., 615; 45 N. Y., 101. N. Y. COURT OF APPEALS. The People ex rel. The Mayor, &c., of N. Y., respt., v. Nichols, impl'd, applt. Decided Jan. 27, 1880. The power given to the Mayor by the charter " ness." Reversing S. C., 8 W. Dig., 521. It appeared that in May,1876 N. was John D. Townsend, for applt. Held, That the power of removal was not an arbitrary one; it could only be exercised upon just and reasonable grounds, and after notice to the person charged. The proceeding must be instituted upon specific charges, sufficient in their nature to warrant the removal, and then, unless admitted, be proven to be true. Defendant could crossexamine the witnesses produced to support the charges, call others in his defense, and on these and other steps in the proceeding be represented by counsel. 5 C. B., 614; 5 H. of L., 636; 72 N. Y., 445. " This was an appeal from an order of the General Term, directing a writ of prohibition to issue to prohibit the Special Term of the Su- The proceeding is judicial in its preme Court, appointed to be held character, and as a necessary conin the city of New York for non- sequence is subject to review by a enumerated motions and Chamber writ of certiorari issued by the Subusiness, and the justices presiding preme Court in the exercise of its thereat, from proceeding to enter- superintending power over inferior tain any application for any judg-tribunals and persons exercising ment or order affecting the proceed- judicial function. 20 Johns., 429; ings of the relator in the removal 38 N. Y., 506; 69 id., 468; 72 id., of N., the defendant, from the office 415, 445. of Commissioner of Police, in pursuance of a writ of certiorari theretofore issued to relator, and the return thereto or either of them, and to prohibit N. from applying to any such Special Term for any judgment or order upon said writ. The writ of certiorari was granted Order of General Term, awarding writ of prohibition, reversed. Opinion by Danforth, J. All con one of the terms regularly appoint- court to hear it at any Special Term, ed, but was among these designated and upon such notice as should be "for non-enumerated motions and prescribed. Rule 44 of the SuChamber business." After some preme Court is binding only as it is delays a return was made and filed consistent with the Code, § 17, and September 15. On the 16th the the power to shorten notice is conjustice who was duly assigned to ferred by that statute. hold that term made an order requiring the Mayor to show cause at the Special Term, to be held at the Court House in the City of New York, September 22, why the relator should not have judgment on the return, vacating the judgment of the Mayor removing him, &c., and directed, for reasons shown, that service on September 17 should be sufficient. At this point, upon the application of the Mayor, the order appealed from was made. cur. STATUTE OF FRAUDS. N. Y. COURT OF APPEALS. Decided Feb. 24, 1880. Where a party, on procuring a loan, delivers in payment therefor a note of a third person, at the same time promising that the note is good and will be paid at maturity; such promise is not a promise to answer for the debt of another, and is not within the Statute of Frauds. This action was brought to recover a sum of money loaned by plaintiff to defendant. At the time the latter received the money he delivered to the plaintiff a promissory note for the amount received by him, made by one M., defendant promising that the note was good, and would be paid at maturity. Held, That there was no violation of the provisions of any statute, or unlawful exercise of jurisdiction by the justice holding the Special Term named in the order. Nor would he have transgressed by entertaining further proceedings, pursuant to the order to show cause. There was no absolute right to a notice of eight days. Code, § 180; Supreme Ct., Rule No. 73; 71 N. Y., 434. It was not improper to bring on the certiorari for a hearing at the Special Term at which the order to show cause was made returnable. Henderson & Wentworth, for respt. would be had upon the return, and Held, That defendant was liable like a motion for judgment on the for the amount of the note; that pleadings, on the ground that an his promise in regard to it, alanswer raises no issue of fact, would though not in writing, was not present a question of law only, and within the Statute of Frauds, 33 thus come within the class of non- Barb., 143; 38 id., 432; 6 Lans., 228; enumerated motions, as defined by 4 Hill, 178; 2 N. Y., 225; 21 id., Rule 38. 42 N. Y., 217. If it had 336; 67 id., 237; that the note was been otherwise, it would have been delivered to and received by plainstill within the jurisdiction of the tiff as a mode of paying the money It H. M. Herrick, for applt. loaned to defendant; that defend- dorsers upon it; and it was placed ant's promise may be regarded in effect, not as a collateral promise to answer for the default of M., but as a promise to pay plaintiff the money loaned in case M. did not pay him. Such a promise is not within the Statute of Frauds. Order of General Term, affirming judgment for plaintiff, affirmed. Opinion by Earl, J. All concur, except Rapallo, J., absent. BANKS. NEGOTIABLE PAPER N. Y. COURT OF APPEALS. Decided Feb. 24, 1880. in the hands of defendant, a bank in W. H. Hollis, for applt. Plaintiff delivered to defendant, for collection, a note payable at the Bank of L. Defendant no damage; that where a note is forwarded it to L., where it arrived the day it was due, and received a draft on N. Y. in payment thereof; but the draft was not paid as the Bank of L. had failed after sending it. Held, That defendant was not liable to plain tiff as plaintiff had sustained no damage; that the attempt of the bank to pay by draft was no payment, and plaintiff could have tendered it back and demanded the note, or have sued on the note. When a note is payable at a bank an entire failure to present it for payment does not dis charge the maker. If the bank fails with the funds to pay the note in its hands, this is no defense to the note. payable at a bank, an entire failure to present it for payment does not discharge the maker. 17 Johns., 248; 7 Barb. 652; 8 Cow., 271. If the maker has not sufficient funds in the bank, the omission to present the note is of no consequence. If he has funds there, he can plead it by way of tender, and is relieved from liability only for interest and costs; and even if the bank fails with the funds in its hands, this is no defense to the note. 8 Mass., 480; 13 East, This action was brought to re- 473; 4 B. & C., 1. In such case cover the sum of $1,009.90, the the bank is regarded simply as amount of a note the defendant the agent or depository of the agreed to collect at maturity, and maker of the note, or acceptor of which plaintiff claimed had been the bill, and he alone suffers by its lost through its gross and culpable failure, and his promise to pay is negligence. Plaintiff claimed for not discharged. The attempt of the damages the amount of the note. bank to pay the note by a draft The note in suit was payable at the which was not good was no payBank of L. There were no en-ment; and, on notice of its non Reversing S. C., 7 W. Dig., 575. payment, plaintiff could have ten- ment in execution of the above named Frank F. Fowler. dered it back, and demanded his note, or could have sued upon the note. The application for discharge was made under the provisions of ArtiOrder of General Term, reversing cle 6, chapter 5, title 1, part 2 of the judgment of non-suit, reversed, and Revised Statutes, relating to Voljudgment of non-suit affirmed. untary assignments by debtor imOpinion by Rapallo, J.; Church, prisoned in execution in civil Ch. J., Folger and Andrews, JJ., causes." 2 R. S., 31, generally concur; Miller, Earl, and Danforth, known as the "Stilwell Act." JJ., dissent. The debtor is a prisoner confined within the jail limits of the County of New York, upon an execution against his person issued out of the Supreme Court for said County, in a civil action brought against him N. Y. COMMON PLEAS. GENERAL by Riley A. Brick and William W. TERM. In the matter of Frank J. Fowler, an imprisoned debtor, applt. Decided April 5, 1880. On an application for the discharge of a person from imprisonment in custody upon final process in a civil action, what is required is that the proceedings of the debtor have been just and fair, in respect to the matters that he is required to swear to in the affidavit, upon presenting his petition-that the statement made in his affidavit is true. There is nothing in the statute that would authorize holding that a debtor cannot be discharged because he made a false and fraudu lent representation as to the solvency of a person to whom credit was given by the person who has recovered a judgment for damages against the prisoner, for the injury thus sustained. Now, is the fact that the prisoner applied for his discharge as a bankrupt any such dispo. sition of the property as is contemplated by the act. The case of Roberts overruled; J. F. Daly, J., dissenting. Campbell, to recover damages by reason of certain alleged fraudulent representations concerning the solvency of a corporation known as the Peekskill Iron Company, whereby, sell to said corporation certain as they claim, they were induced to goods and merchandise, the value of which, as they allege, they lost. It did not appear in the action that said Fowler received any benefits from said representations or any portion of said property. Judgment was recovered in said action against the debtor April 21, 1879, for $17,369.85 upon which an execution against his person was afterwards issued, and upon which-May 28, 1879-he was arrested, since which time he has been confined within the jail limits of said county, and now is so confined, as aforesaid. After the period of three months Appeal from an order made by from the time of his arrest and imhis Honor Judge Van Hoesen, Jan-prisonment, the debtor applied for uary 28, 1880, denying the applica- his discharge under the provisions tion for a discharge from imprison- of the Revised Statutes above re |