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correct the settlement on the ground of shows neither fraud nor mutual inistake.

mistake. For aught that appears, Appeal from judgment on report defendant would not have agreed of referee.

to call everything square if he had Action between co-tenants of real

not been allowed to retain the sum estate, for money alleged to have alleged. There is no pretense of been received by defendant in excess

a fraudulent concealment; each parof his just proportion of rents. The ty had access to the agent's books,

in which charges for defendant's parties had a local agent who man

services were made. aged the property and collected rents, and on whom the parties drew for

Held also, That, as the case now their shares. Plaintiff testified to

stands, there is room for grave a verbal settlement with defendant,

doubt as to whether the neglect of in which the parties agreed to call plaintiff to inform himself of the

contents of the agent's books before everything square, but that he, plaintiff, was at that time ignorant of the entering into the settlement would fact that defendant had drawn and not be a bar to an action to correct retained a certain sum for services

the settlement on the ground of about the common property. De

mistake. A man's ignorance of his fendant denied any settlement, but own affairs, under ordinary circumthe referee found in accordance with stances, is the result of gross neg

ligence, and ignorance which is the plaintiff's testimony.

result of such negligence is prejuChas. B. Wheeler, for respt.

dicial to him in an action to correct Wm. Tyrrell, for applt.

a mistake caused thereby. Kerr on Held, That the settlement is bind- Fraud and Mistake, 405, 406. ing on both parties until impeached Judgment reversed, and new trial and opened on the ground of fraud ordered. or mutual mistake, wbile the com- Opinion by Smith, J.; Hardin, J., plaint in this action is not framed concurring, Talcott, P. J., not sitfor that purpose. Besides, the proof ting.

END OF VOLUME TEN.

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Babcock v. Libbey, VIII, 182, Affirm- Hawley v. The Northern Cent. RR. Co., ed....

......X, 573 VIII, 140, Affirmed, Oct. 15, 1880. Bacon v. Frisbie, VII, 152, 297, Revers- Heckman v. Pinckney, VIII, 20, Affirmed.. ..X, 134

.X, 335 Bayliss v. Cockroft, VIII, 153, Affirmed, Heeg v. Licht, VII, 378, Reversed....X, 169 June 8, 1880.

Heerman v. The Merchants' Ins. Co., Carpenter v. The City of Cohoes, V, 227, VIII, 19, Affirmed......

.X, 233 Affirmed. .X, 103 Hun v. Cary, IX, 495, Affirmed..

X, 514 Carr v. Breese, VIII, 284, Reversed...X, 518 Indig v. The National City Bank, VII, Catlin v. The Adirondack Co., IX, 180, 575, Reversed.

.X, 44 Appeal dismissed.....

..X, 333 In re accounting of Reiser, IX, 252, AfCatlin v. The Adirondack Co., IX, 314, firmed, June 1, 1880, on opinion below.

Reversed, June 8, 1880. No opinion. In re Eldredge, IX, 6, Affirmed.......X, 566 Clements v, Yturria, VI, 360, Affirmed.X, 310 In re Livingston Street, X, 235, Affirmed, Coffin v. McLean, VII, 436, Affirmed..x, 96 Oct. 15, 1880. Coit v. Marshall, VIII, 171, Affirmed, In re The Kings Co. Elevated R. Co, IX, June 1, 1880. No opinion.

290, Appeal dismissed..

.X, 474 Coman v. Lakey, VII, 161, Reversed..X, 152 Jagger v. Littlefield, VIII, 170, Affirmed X, 429 Comins v. Hetfield, V, 450, Affirmed..X, 102 Jones v. Jones, IX, 53, Appeal dismissCook v. Horwitz, VII, 268, Affirmed...X, 95

X, 40 Davidson v. Alfaro, VII, 451, Affirmed.x, 56 Jones v. Seligman, VII, 354, Affirmed. X, 226 Drinkwater v. Dinsmore, VII, 374, Re- Jones v. The People, IX, 551, Affirmed, versed....

.X, 136 June 1, 1880, on opinion below. Edgerly v. Bush, VII, 420, Reversed..X, 308 Kain v. Smith, V, 156, Reversed......

.X, 176 Eggleston v. The Pres't, &c., of the Co- Knapp v. Roche, X, 187, Affirmed, Oct. lumbia Turnpike, VIII, 323, Revers- 15, 1880.

.X, 561 Lafond v. Deems, VII, 541, Afirmed..X, 463 Ferrer v. Pyne, IX, 50, Affirmed, .X, 334 Leopold v. Herzig, VII, 438, Modified, Fischer v. Raab, IX, 115, Reversed....X, 285 April 20, 1880. No prevailing opinion. Fisher v. Gould, IX, 44, Appeal dis- McCombs v. Allen, VIII, 337, Affirmed. X, 518 missed.

.X, 259 McCormick v. The Pennsylvania Cent. Flannagan v. Maddin, V, 176, Affirm

RR. Co., VIII, 466, Reversed........X, 142 ed.....

..X, 198 McKeage v. The Ins. Co., VII, 563, AfGruman v. Smith, VII, 440, Reversed.x, 63 firmed...

.X, 194 Hall v. Hall, VI, 358, Affirmed........X, 414 McKenna v. The People, VIII, 518, ReHatfield v. Lasher, VIII, 31, Affirmed.X, 337 versed..

.X, 342 Vol. 10.-No. 25.*

ed.

ed.......

xii

TABLE OF CASES AFFIRMED, &c.

PAGE.

PAGE.

Marsh v. Avery, VIII, 447, Affirmed..X, 41 The People ex rel. Eagan v. The Justices Matter of Mahan, IX, 521, Affirmed, of the Marine Court, VIII, 386, ReApril 13, 1880. No opinion.

versed..

.X, 418 Mayer v. The People, IX, 228, Affirm- The People ex rel. Hart v. The Fire ed..

.X, 172 Com'rs, IX, 390, Reversed, Oct. 15, Olcott v. Low, VIII, 176, Affirmed, Oct. 1880. 15, 1880. No opinion.

The People ex rel. Kenyon v. SutherPontius v. The People, X, 357, Affirmed, land, VIII, 2, Reversed.... ..X, 371 Oct. 15, 1880.

The People ex rel. Roberts v. Bowe, IX, Reynolds v. Robinson, VIII, 438, Affirm

312, Reversed....

.X, 174 ed...

..X, 520 The People ex rel. Thurston v. The Robertson v. Robertson, IX, 348, Appeal Board of Town Auditors, IX, 432, Afdismissed, June 8, 1880. No opinion. firmed

.X, 470 Robinson v. The National Bank, IX, 265, The People's Bank v. Bogart, VII, 387, Affirmed.. ..X, 397 Affirmed...

.X, 307 Russ v. The T. & B. RR. Co., VIII, 309, The Trustees of the Forestville Soc. v.

Affirmed, June 1, 1880, on opinion Farnham, VII, 354, Reversed, Oct. 12, below.

1880. Sherwood v. Verplanck, IX, 553, Appeal Van Gelder v. Van Gelder, VII, 169, Apdismissed, Oct. 15, 1880. No opinion. peal dismissed....

X, 234 Shiff v. The N. Y. C. & H, R. RR. Co., Ward v. Warren, VII, 505, Affirmed, Oct. VII, 520, Affirmed, June 8, 1880. No

5, 1880. opinion.

Whipple v. Christian, VII, 308, AffirmSpinetti v. The Atlas SS. Co., VI, 556, ed.....

..X, 99 Reversed....

.X, 1 Whitehead v. Smith, VII, 133, AffirmThe City of Rochester v. The Town of ed....

..X, 198 Rush, VII, 325, Reversed ..........X, 115 Woodmansee v. Rogers, IX, 474, AfirmThe People v. Cronin, X, 16, Affirmed. X, 565 ed....

..X, 484 The People v. Dennison, IX, 48, Affirmed, Woodward v. Fuller, VII, 177, AffirmApril 6, 1880. No prevailing opinion.

ed...

.X, 156 The People ex rel. Cooper v. Nichols, Young v. Young, IX, 73, Reversed. .X, 137 VIII, 521, Reversed

..X, 42

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ACCOMMODATION PAPER.

that the check was returned to defendant See BONA FIDE HOLDER; USURY, 5, 6.

without a valid payment; that such other

bank having paid the check on a forged inACCORD.

dorsement was the party who should sustain

the ultimatu loss, and as defendant is the only 1. A mutual agreement to settle a pending suit,

party to whom it is liable, detendant should where neither party tulfills or performs either make good the payment charged to plaintiffs, of the mutual promises, is no bar to the suit,

and seek reimbursement from such other and cannot constitute the basis of an accion.

bank.— Thomp-on et al. v. The Bk. of British An accord executory is no bar.–Panzerbeiter

N. America, 477. v. Waydell et al., 107.

4. Where, in an action for money had and re2. In the case of mutual and concurrent promises

ceived, a settlement between the parties has there must be reciprocity of obligation.— Id. been proved, it cannot be avoided by testi3. An accord executory, with tender of per- mony that one party was ignorant of certain formance, is no bar to an action.-Id.

material facts at the time. The settlement is

binding until impeached and opened for ACCOUNT.

fraud or mutual mistake on pleadings framed

for that purpose.—Brisbane v. Brisbane. 575. 1. To constitute an account stated, there must 5. When a party to such settlement had previous be an assent by the party to be charged,

opportunity to acquaint himself with the either express or fairly implied.- Volkening

facts, quære, whether his neglect to inform v. De Graaf et al., 286.

himself would not be a bar to an action to 2. Plaintiff's testator had placed moneys in the

correct the settlement on the ground of mishands of defendant, for investment. On ap

take. Id. plication made by plaintiff, defendant ad

ACTION. mitted that he owed a balance to the estate, See ACCORD, 1; Account, 2; AssessMENTS, 7; and also sent a written statement showing

BANKS, 1, 7; Cloud ON TITLE, 1; CONTRACT, such balance. Held, that his giving this

7, 10, 11; DECEIT; EXECUTORS, &c., 1; MAstatement, coupled with his admissions, es

LICOUS PROSECUTION, 3; MORTGAGE, 10; tablished a cause of action against him.

NEGLIGENCE, 13; New YORK CITY, 2, 3, 5; Stephens v. Waite, 421.

PARTNERSHIP, 11; RAILROAD COMPANIES, 2; 3. Plaintiffs, in 1870, drew upon their account in SERVICES, 1; Taxation, 8. defendant bank, and received its check upon

ADVANCEMENTS. another bank, which they invested in a bond and mortgage made by one H. The check | 1. Where a father conveyed a farm to his sons, was given to H.'s attorney, who endorsed and the question was whether it was a sale H.'s name upon it without authority, and to them or an advancement, it was held that deposited it in his own bank. The check entries in a book of the father made by a siswas paid and charged to defendant's account ter of the grantees more than a year after the by the bank on which it was drawn, and de transaction, and so far as appeared without fendant charged same to plaintiffs on settle- his direction, were not evidence against the ment of their account. Subsequently, in sons to show that it was not a sale. Declara1876, H, discovered the fraud of her attorney tions of the father, made years after the transand procured the cancellation of the bond action, and in the absence of the grantees, and mortgage.

Held, that as it did not ap- that he gave them the farm upon condition pear that defendant had lost its right of that they should pay the mortgage upon it, action against the other bank, and plaintiffs’ were not sufficient to show this a gift or an account having been settled under a mistake advancement, especially where the weight of of fact, it was proper to allow the settlement evidence went to prove a sale. – Weatherwax to be opened and to permit plaintiffs to show v. Woodin et al., 83.

AFFIDAVIT.

APPEAL. See ATTACHMENT, 1, 6, 9; INSOLVENCY, 1; MA. 1. An order sustaining a demurrer and dis

LICIOUS PROSECUTION 8; PLEADING, 5, 6; missing complaint was affirmed on appeal SUPPLEMENTARY PROCEEDINGS, 1.

by the General Term. Before defendant

could tax costs of appeal or enter judgment, AGENCY.

plaintiff appealed to the Court of Appeals. 1. The defendant was toll-collector and agent of

Held, That the appeal was premature and the proprietor of a ferry; as such, he exacted unauthorized.-Kilmer v. Bradley, 22. from the plaintiff more than the legal fare. 2. An order of General Term, reversing a judgHeld, That he was liable to refund the excess, although he might have, before

ment and directing an interlocutory judg; action

ment to be entered and a referee appointed brought, paid it over to his principal.-

to take and state the accounts between the Edmunds v. Abeel, 84.

parties, and on confirmation of his report, 2. A principal is liable for a wrong of his agent, that a final judgment be entered, is not a

committed in the course of his employment, final judgment, and no appeal lies therefrom and for the benefit of the principal, although to the Court of Appeals.-Jones V. Jones, 40. no express command or privity is proven.The Fishkill Savings Inst. v. "The National | 3. On appeal from an order granting a new Bk. of Fishkill et al., 230.

trial. which does not show that it was

granted on a question of fact, the contrary 3. H., without any authority. purchased certain

will be presumed.— Reitz v. Reitz, 55. goods from A., C. & Co. for his own use, on the credit and account of O., who paid the 4. Plaintiffs brought action on contract against bill therefor when rendered. Helde That (), defendant A. and recovered judgment for ratified the transaction, and H. having con. $636.81 damages, and $421.67 costs. In the verted the goods to his own use, the trans- meantimo A. sued plaintiffs on the same action amounted to a sale of such goods by contract and recovered judginent for $500, 0. to H., for when 0. paid A., C. & Co. for which he assigned to his attorneys, and the gooils, he paid his own debt, and not that which was collected by execution. Before of H.-Ouell v. McCue et al., 236.

triul of plaintiffs' action they brought action 4. Where an agent has honestly or dishonestly

to have their claims set-off against defendappropriated the goods of his principal, with

ants' judgment, on the ground that A. had out his consent, the law implies a promise by

become insolvent. Judgment was rendered the agent to pay his principal for the same.

for plaintiff for $50, the attorneys being

allowed a lien for their costs, On appeal -Id.

from as much of the judgment as limited the 5. There is no presumption that an agent acts set-off to $500 Held. That the ap.peal, in

within the scope of his authority in endorsing volving less than $500, would not lie to the the nanie of the payee of a check thereon. - Court of Appeals.- Davidson et al. v. Alfaro

Robinson et al v The Chemiral Natl. Bk , 315. et al., 56. 6. What evidence on the question of agency is 6. Where the defendant appeals from an order sufficient for submission to the jury: --Har.

of reference, and afterwards applies for leave rington et al. v. Clark. 471.

to serve anı amended answer. and is permit7. As to whether an arent's uuthority to re- ted to do so upon condition that the order of ceive payment is otiiseli sutficient to authorize reference stund, and that the new issues be himio indorse bis principai's name on i check

beard and determin. d by the referee. Held, received in pisment, quært.-Thompson e al.

That by complying with the terms of the v. The Bk. of British N. Americu. 477.

order and proceeding with the reference he

waives the appeal, and 'hat the same should See Bar, 4; LIFE INSURANCE, 3; TAXATI NA

be dismissed. - Egbert v. O'Connor. 84. 14, 15.

6. An appeal cannot be withdrawn by the AGREEMENT.

mere service of a notice, and by the tender See Accord, 2; AGENCY, 4; CONTRACT; DECEIT.

of the costs of the appeal to that date. In

order to make the withdrawal effectual ALIENS.

an order must be entered by direction of the

court declaring the appeal abandoned See WILL, 7, 8.

Weinman v. Dilger, 85.
ALIMONY.

7. An order of a county court denying a moSee CONTEMPT, 5, 6, 8; DIVORCE, 1.

tion for a new trial, where the action has

been commenced in a court not of record, AMENDMENT.

and an appeal had for a new trial to the

county court where such trial is had, is not See APPEAL 30, 31; Costs, 2; INDICTMENT, 3; appealable to the General Term. The ap

JUDGMENT, 0.7; JUSTICE OF THE PEACE, 2; peal should be from the judgment, and not LEAVE TO SUE, 2; PLEADING, 5, 6, 10, 11; from the order denying a new trial.-Fish v. PRACTICE, 30; STRAYS, 1.

Thrasher et al., 93.

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