of referee.

Action between co-tenants of real

estate, for money alleged to have been received by defendant in excess of his just proportion of rents. The parties had a local agent who managed the property and collected rents, and on whom the parties drew for their shares. Plaintiff testified to a verbal settlement with defendant, in which the parties agreed to call everything square, but that he, plaintiff, was at that time ignorant of the

fact that defendant had drawn and retained a certain sum for services about the common property. Defendant denied any settlement, but the referee found in accordance with plaintiff's testimony.

Chas. B. Wheeler, for respt.
Wm. Tyrrell, for applt.

Held, That the settlement is binding on both parties until impeached and opened on the ground of fraud or mutual mistake, while the com

alleged. There is no pretense of a fraudulent concealment; each party had access to the agent's books, in which charges for defendant's services were made.

Held also, That, as the case now stands, there is room for grave doubt as to whether the neglect of plaintiff to inform himself of the contents of the agent's books before entering into the settlement would

not be a bar to an action to correct the settlement on the ground of mistake. A man's ignorance of his own affairs, under ordinary circumstances, is the result of gross negligence, and ignorance which is the result of such negligence is prejudicial to him in an action to correct a mistake caused thereby. Kerr on Fraud and Mistake, 405, 406.

Judgment reversed, and new trial ordered.

REPORT D

Carpenter v. The City of Cohoes, V, 227, Affirmed.....

..X, 333

.X, 103 Carr v. Breese, VIII, 284, Reversed...X, 518 Catlin v. The Adirondack Co., IX, 180, Appeal dismissed.... Catlin v. The Adirondack Co., IX, 314, Reversed, June 8, 1880. No opinion. Clements V, Yturria, VI, 360, Affirmed. X, 310 Coffin v. McLean, VII, 436, Affirmed. .X, 96 Coit v. Marshall, VIII, 171, Affirmed, June 1, 1880. No opinion. Coman v. Lakey, VII, 161, Reversed. .X, 152 Comins v. Hetfield, V, 450, Affirmed..X, 102 Cook v. Horwitz, VII, 268, Affirmed...X, 95 Davidson v. Alfaro, VII, 451, Affirmed. X, 56 Drinkwater v. Dinsmore, VII, 374, Reversed...... .X, 136 Edgerly v. Bush, VII, 420, Reversed.. X, 308 Eggleston v. The Pres't, &c., of the Columbia Turnpike, VIII, 323, Reversed...... .X, 561 Ferrer v. Pyne, IX, 50, Affirmed, .X, 334 Fischer v. Raab, IX, 115, Reversed....X, 285 Fisher v. Gould, IX, 44, Appeal dismissed. .X, 259 Flannagan v. Maddin, V, 176, Affirmed... ..X, 198 Gruman v. Smith, VII, 440, Reversed. X, 63 Hall v. Hall, VI, 358, Affirmed. . . . . . . .X, 414 Hatfield v. Lasher, VIII, 31, Affirmed. X, 337 Vol. 10.-No. 25.*

PAGE.

Hawley v. The Northern Cent. RR. Co.,
VIII, 140, Affirmed, Oct. 15, 1880.
Heckman v. Pinckney, VIII, 20, Affirm-
ed....
X, 335
Heeg v. Licht, VII, 378, Reversed....X, 169
Heerman v. The Merchants' Ins. Co.,

VIII, 19, Affirmed.....
X, 233
Hun v. Cary, IX, 495, Affirmed.......X, 514
Indig v. The National City Bank, VII,
575, Reversed..

.X, 44 In re accounting of Reiser, IX, 252, Affirmed, June 1, 1880, on opinion below. In re Eldredge, IX, 6, Affirmed.......X, 566 In re Livingston Street, X, 235, Affirmed, Oct. 15, 1880.

In re The Kings Co. Elevated R. Co, IX, 290, Appeal dismissed..

.X, 474 Jagger v. Littlefield, VIII, 170, Affirmed X, 429 Jones v. Jones, IX, 53, Appeal dismissed. . X, 40 Jones v. Seligman, VII, 354, Affirmed. X, 226 Jones v. The People, IX, 551, Affirmed,

June 1, 1880, on opinion below. Kain v. Smith, V, 156, Reversed......X, 176 Knapp v. Roche, X, 187, Affirmed, Oct. 15, 1880.

Lafond v. Deems, VII, 541, Affirmed.. X, 463 Leopold v. Herzig, VII, 438, Modified,

April 20, 1880. No prevailing opinion. McCombs v. Allen, VIII, 337, Affirmed. X, 518 McCormick v. The Pennsylvania Cent. RR. Co., VIII, 466, Reversed........X, 142 McKeage v. The Ins. Co., VII, 563, Affirmed.. .X, 194 McKenna v. The People, VIII, 518, Reversed... .X, 342

ACCOMMODATION PAPER.

See BONA FIDE HOLDER; USURY, 5, 6.
ACCORD.

1. A mutual agreement to settle a pending suit, where neither party tulfills or performs either of the mutual promises, is no bar to the suit, and cannot constitute the basis of an action. An accord executory is no bar.-Panzerbeiter v. Waydell et al., 107.

2. In the case of mutual and concurrent promises there must be reciprocity of obligation.—Id. 3. An accord executory, with tender of performance, is no bar to an action.-Id.

ACCOUNT.

1. To constitute an account stated, there must be an assent by the party to be charged, either express or fairly implied.- Volkening v. De Graaf et al., 286.

2. Plaintiff's testator had placed moneys in the hands of defendant, for investment. On application made by plaintiff, defendant admitted that he owed a balance to the estate, and also sent a written statement showing such balance. Held, that his giving this statement, coupled with his admissions, established a cause of action against him.— Stephens v. Waite, 421.

3. Plaintiffs, in 1870, drew upon their account in defendant bank, and received its check upon another bank, which they invested in a bond and mortgage made by one H. The check was given to H.'s attorney, who endorsed H.'s name upon it without authority, and deposited it in his own bank. The check was paid and charged to defendant's account by the bank on which it was drawn, and defendant charged same to plaintiffs on settlement of their account. Subsequently, in 1876, H. discovered the fraud of her attorney and procured the cancellation of the bond and mortgage. Held, that as it did not appear that defendant had lost its right of action against the other bank, and plaintiffs' account having been settled under a mistake of fact, it was proper to allow the settlement to be opened and to permit plaintiffs to show

that the check was returned to defendant without a valid payment; that such other bank having paid the check on a forged indorsement was the party who should sustain the ultimate loss, and as defendant is the only party to whom it is liable, defendant should make good the payment charged to plaintiffs, and seek reimbursement from such other bank.-Thompson et al. v. The Bk. of British N. America, 477.

4. Where, in an action for money had and received, a settlement between the parties has been proved, it cannot be avoided by testimony that one party was ignorant of certain material facts at the time. The settlement is binding until impeached and opened for fraud or mutual mistake on pleadings framed for that purpose.-Brisbane v. Brisbane, 575. 5. When a party to such settlement had previous opportunity to acquaint himself with the facts, quære, whether his neglect to inform himself would not be a bar to an action to correct the settlement on the ground of mistake.-Id.

ACTION.

See ACCORD, 1; ACCOUNT, 2; ASSESSMENTS, 7; BANKS, 1, 7; CLOUD ON TITLE, 1; CONTRACT, 7, 10, 11; DECEIT; EXECUTORS, &c., 1; MALICOUS PROSECUTION, 3; MORTGAGE, 10; NEGLIGENCE, 13; NEW YORK CITY, 2, 3, 5; PARTNERSHIP, 11; RAILROAD COMPANIES, 2; SERVICES, 1; TAXATION, 8.

ADVANCEMENTS.

1. Where a father conveyed a farm to his sons, and the question was whether it was a sale to them or an advancement, it was held that entries in a book of the father made by a sister of the grantees more than a year after the transaction, and so far as appeared without his direction, were not evidence against the sons to show that it was not a sale. Declarations of the father, made years after the transaction, and in the absence of the grantees, that he gave them the farm upon condition that they should pay the mortgage upon it, were not sufficient to show this a gift or an advancement, especially where the weight of evidence went to prove a sale.- Weatherwax v. Woodin et al., 83.

AFFIDAVIT.

See ATTACHMENT, 1, 6, 9; InsolvENCY, 1; MALICIOUS PROSECUTION 5; PLEADING, 5, 6; SUPPLEMENTARY PROCEEDINGS, 1.

AGENCY.

1. The defendant was toll-collector and agent of the proprietor of a ferry; as such, he exacted from the plaintiff more than the legal fare. Held, That he was liable to refund the excess, although he might have, before action brought, paid it over to his principal.— Edmunds v. Abeel, 84.

2. A principal is liable for a wrong of his agent, committed in the course of his employment, and for the benefit of the principal, although no express command or privity is proven.The Fishkill Savings Inst. v. The National Bk. of Fishkill et al., 230.

3. H., without any authority, purchased certain goods from A., C. & Co. for his own use, on the credit and account of O., who paid the bill therefor when rendered. Held That O. ratified the transaction, and H. having converted the goods to his own use, the transaction amounted to a sale of such goods by O. to H., for when O. paid A., C. & Co. for the goods, he paid his own debt, and not that of H.-Quell v. McCue et al., 236.

4. Where an agent has honestly or dishonestly appropriated the goods of his principal, with out his consent, the law implies a promise by the agent to pay his principal for the same. -Id.

5. There is no presumption that an agent acts within the scope of his authority in endorsing the name of the payee of a check thereon. — Robinson et al v The Chemical Natl. Bk, 315.

6. What evidence on the question of agency is sufficient for submission to the jury-Harrington et al. v. Clark, 471.

7. As to whether an agent's uthority to receive payment is of itself sufficient to authorize him to indorse his principal's name on a check received in payment, quære.-Thompson e al v. The Bk. of British N. America, 477. See BAR, 4; LIFE INSURANCE, 3; 14, 15.

AGREEMENT.

TAXATION,

See AccoRD, 2; AGENCY, 4; CONTRACT; DECEIT.

ALIENS. See WILL, 7, 8. ALIMONY.

See CONTEMPT, 5, 6, 8; DIVORCE, 1.

AMENDMENT.

See APPEAL 30, 31; Costs, 2; INDICTMENT, 3; JUDGMENT, 57; JUSTICE OF THE PEACE, 2; LEAVE TO SUE, 2; PLEADING, 5, 6, 10, 11; PRACTICE, 30; STRAYS, 1.

APPEAL.

1. An order sustaining a demurrer and dismissing complaint was affirmed on appeal by the General Term. Before defendant could tax costs of appeal or enter judgment, plaintiff appealed to the Court of Appeals. Held, That the appeal was premature and unauthorized.-Kilmer v. Bradley, 22.

2.

3.

4.

5.

An order of General Term, reversing a judgment and directing an interlocutory judgment to be entered and a referee appointed to take and state the accounts between the parties, and on confirmation of his report, that a final judgment be entered, is not a final judgment, and no appeal lies therefrom to the Court of Appeals.-Jones v. Jones, 40.

On appeal from an order granting a new trial. which does not show that it was granted on a question of fact, the contrary will be presumed.-Reitz v. Reitz, 55.

Before

Plaintiffs brought action on contract against defendant A. and recovered judgment for $636.81 damages, and $421.67 costs. In the meantime A. sued plaintiffs on the same contract and recovered judgment for $500, which he assigned to his attorneys, and which was collected by execution. trial of plaintiffs' action they brought action to have their claims set-off against defendants' judgment, on the ground that A. had become insolvent. Judgment was rendered for plaintiff for $50, the attorneys being allowed a lien for their costs. On appeal from as much of the judgment as limited the set-off to $500 Held. That the appeal, involving less than $500, would not lie to the Court of Appeals.-Davidson et al. v. Alfaro et al., 56.

Where the defendant appeals from an order of reference, and afterwards applies for leave to serve an amended answer, and is permitted to do so upon condition that the order of reference stand, and that the new issues be heard and determin d by the referee. Held, That by complying with the terms of the order and proceeding with the reference he waives the appeal, and that the same should be dismissed.-Egbert v. O'Connor. 84.

6. An appeal cannot be withdrawn by the mere service of a notice, and by the tender of the costs of the appeal to that date. In order to make the withdrawal effectual an order must be entered by direction of the court declaring the appeal abandoned. Weinman v. Dilger, 85.

7. An order of a county court denying a motion for a new trial, where the action has been commenced in a court not of record, and an appeal had for a new trial to the county court where such trial is had, is not appealable to the General Term. The appeal should be from the judgment, and not from the order denying a new trial.-Fish v. Thrasher et al., 98.