ment creditors to set these conveyances

aside, the referee was requested to find that 1. A purchaser of land at sheriff's sale is en

Mrs. L. paid to her grantor ten dollars and titled to his deed at the expiration of fifteen assumed a mortgage of one thousand dolmonths unless a valid redemption is made in lars, which request was refused. Held, This the meantime. He cannot be deprived fact being established by uncontradicted evi. thereof by the mere deposit with the sheriff dence, a refusal to find the same was error. of the amount of his bid by a person not The fact was material and entitled Mrs. L. entitled to redeem.--In re opening Eleventh at least to protection to the extent of the avenue, 534.

liability assumed by her.--Davis v. Leopold

et al., 266. REFEREE.

6. The referee was also requested to find that 1. A referee, before whom a trial had been com- the title to said property vested in Mrs. L.

menced, was subsequently appointed a for the purpose of paying her a debt which Justice of the Supreme Court. After enter

her husband owed her. The referee refused ing upon the discharge of his duties as such to find that fact, "as stated in the request." justice he made his report as referee. Held, Such qualified refusal implies that this Held, That under section 21, of article VI of fact, in some other form of statement of it, the Constitution he could not act as referee; existed. that all proceedings by and before him as 7. The referee did not reject the testimony by referee after he took the oath as a justice of this court are coram non judice and void,

making such a finding, and the court does not

feel justified in rejecting it. Mrs. L. should and that such provision of the Constitution cannot be waived by a party to an action.

not be deprived of the protection due her as Countryman v. Norton, 143.

a grantee without a distinct finding which

disentitles her to assume that position.--Id. See PRACTICE, 25, 26.

8. A compulsory reference may be granted in REFERENCE.

any controversy respecting a debt in favor of

or against an insolvent corporation.--In re 1. After a case had been finally submitted to a

Crosby & Day, 282. referee for decision, an order was made 9. The jurisdiction of the court to order such a bringing in additional parties defendant and reference does not depend upon the nature of requiring them to accept the referee who the defense to the claim.-Id. had been appointed and the evidence taken before him. The action did not appear to 10. The fact that the receiver of the corporation be one which could be referred without has brought an action at law upon the claim consent. Held, That even if the court had does not conclude him from applying for a power to bring in new parties, it could reference under the statute.--Id. not compel them to accept the referee and the evidence taken, even with the right of 11. An order rerersing a judgment entered on cross-examination.-- Wood et al. v. The Equit

a referee's report, and granting a new trial,

does not of itself vacate the order of referable Life Ass. Soc. et al., 140.

ence; that stands, unless otherwise specific2. Two facts must be shown to authorize the ally provided.--Catlin et al v. The Adiron

court to direct a trial of issues of fact by a dack Co., 333. referee, viz.: 1st, that the trial will require the examination of a long account; 2d, that 12. An appeal will not lie to the Court of Apit will not require the decision of difficult

peals from such an order.-Id. questions of law. There is no distinction 13. Findings of fact in a referee's report cannot between different kinds of actions, nor be- be reviewed without a case duly settled, &c., tween those of a legal and those of an equit. and when the conclusions of law are fairly able cognizance, but any action presenting sustained by such findings, the judgment these features may be referred.--Dane v. The must be affirmed. -Brown v. Grupp et al., 357. Liverpool, L. & G. Ins. Co., 206.

14. An action by an attorney for services and dis3. The power vested in the court is, however, a bursements which involves the examination

permissive one merely, and it should not be of a long account, extending over two years, exercised except in cases where the litigation on which payments are claimed to have arises chiefly upon the items of an account been made, and which does not require the deon one or both sides.--Id.

cision of any difficult questions of law, is re4. The only affect of the last clause of $ 1013 of

ferable.- Carr v. Bedell et al., 419. the Code of Civil Procedure is to authorize 15. There is no impropriety in referring such an a reference to decide some of the issues less action to a lawyer as referee.--Id. than the whole of them.-Id.

16. On appeal from an order of reference in an 8. L. and wife conveyed certain property to S., action for services, a stipulation to admit the

who conveyed the same to Li's wife, and services and their value, provided the deshe subsequently gave a mortgage thereon to cision of the appeal is favorable to appellant, one W. În an action brought by L.'s judg- cannot be allowed.--Id.

17. This action was brought for services as at- and that the defendant should pay, without
torney and counsel for defendant.

The an-

recourse, the referee's fees, and any additional
swer, on information and belief, alleged the stenographer's fee, and also limited the de-
services were rendered under a contract for fendant as to his defense. Held, The court
a stipulated sum contingent on plaintiff's was not authorized to make such an order,
success, and also set up mis-performance by and moreover, the other pro visions thereof
plaintiff. A reference was moved for by were unwarrantable.--Id.

, on a showing that the examination See Appeal, 21; CONTEMPT, 7; Guardian, 11 ;
of a long account would be required, and

that no difficult questions of law were in-
volved, and on denial of the agreement

alleged. Defendants denied that a long
account was involved, and reiterated the

See Contract, 21; DEED, 6.
existence of the contract alleged in the an-
swer, the affiant stating that he had seen the

sworn statement of one of the defendant's
officers that such a contract was in existence, See CORPORATIONS, 12; LIFE INSURANCE, 8.
but such statement was not produced, nor
any reason given for its non-production.

Held, That as the moving affidavit and the
papers and proceedings herein showed that 1. The power given to the Mayor by the char.
à reference should be ordered unless the

ter of New York to remove ihe Police Com-
contract pleaded in the answer existed, and

missioners is not an arbitrary one, but can
that the evidence of its existence as given on

only be exercised on just and reasonable
a hearing of the motion was unsatisfactory,

grounds, and after notice to the person
the reference was properly ordered.--El-

charged.--The People ex rel. The Mayor v.
dredge v. The N. Y. & B. B. RR. Co., 501.

Nichols, 42.
18. The fact that the referee is an attorney of this

2. In such a proceeding the defendant may
court is per se no disqualification in an action

cross-examine the witness, produce others in
of this character.-Id.

his defense, and be represented by counsel. -

19. A finding of fact by a referee cannot be re- 3. A certiorari to review such a removal is

versed unless wholly unsupported by evi-
dence; it is his function to draw the infer-

properly heard at a Special Term desigoated

for “non-enumerated motions and Chamber
ences of fact.— Reynolds v. Robinson et al., 620.

20. The only method under the New Code of
reviewing the decision of a referee in an ac-

tion in the county court is by appeal to the

General Term of the Supreme Court.--Cook
v. Darrow, 522.

1. Where a citizen of one state is sued by a

citizen of another state, he is entitled to the
21. The judgment entered upon the report of a

removal of the action from the State Court
referee in the action in the county court is a

to the U. S. Circuit Court, as a matter of
judgment of the county court, the same as
though the action had been tried by the

right, upon making and filing, at any time

before trial, an affidavit, stating that he
county judge without a jury.-Id.

has reason to believe, and does believe, that
22. The court has no right to compel a reference from prejudice or local influence he will not be

of an ordinary action brought to recover able to obtain justice in such State Court.-
damages for defendant's negligence. — Durkin Penrose v. Penrose, 146.
v. Sharpe, 549.

23. Nor can a reference be claimed in such an ac-

tion brought against a receiver of a defendant 1. An action for the delivery of personal
railway on the theory that it is a proceeding property taken for a tax cannot be main-
to reach or affect a fund in court. The rights tained. Stimson et al. v. Wrigley, 10.
of plaintiff, under such circumstances, are 2. Plaintiffs, judgment creditors of a corpora-
the same as if he were seeking to enforce a

tion, purchased on the execution sale certain
personal instead of an official liability.-Id.

heavy machinery, and a bill of sale was made
24. Defendant obtained an order referring this to them. They did not remove the goods

action to a certain referee, on a showing from the mill, but put an agent in charge,
that an earlier action arising out of the and locked the door. One of plaintiffs after-

accident had been tried before wards hired the mill and stored the ma-
said referee; that the testimony therein chinery there. A short time after, defend-
had been voluminous


expensive, ant levied on said machinery by virtue of
and that the referee's report was in plain- tax warrants issued against the corporation,
tiff's favor. The order provided that either In an action to restrain defendant from selling.
party might use the testimony taken in the Held, That the transfer to plaintiff was fraud-
former action as though taken in this one, ulent and void as against the levy by de-


fendant, and that the action was not main- died, that the period of the Statute of Limittainable.-Id.

ations has run since the death of the original 3, Section 369 of the Code provides only for

plaintiff, so long as the action was not barred the restitution of money paid or collected in

before its commencement.-Green v. Martine,

129. an action in a Justice's or District Court, and does not apply to an action for claim and de- | 2. There is no distinction between legal and livery of personal property.-Mead v. Bait- equitable actions in this regard.-Id. man et al., 86.

3. The doctrine of laches is done away with as 4. In an action for claim and delivery of per- applicable to such cases.-Id.

sonal property, after the reversal of a judg. 4. The Marine Court has jurisdiction under the ment for the plaintiff, the defendant may resort to his common law remedy to recover

Code, tu revive and continue an action against

executors and administrators of a deceased from the plaintiff the property or its value.Id.

part.y.The People ex rel. Eagan v. The

Justices of the Marine Court.—418. 6. One H. having been arrested in an action 6. An order allowing a writ of prohibition en

for claim and delivery of personal property, an undertaking was given, which provided

joining the Marine Court from entertaining that I should be amenable to process, and

jurisdiction of such an action affects a sub"for the payment to plaintiffs of such sum as

tantial right, and is appealable to the Court

of Appeals.- Id. may for any cause be recovered against defendant.” A judgment for the return of the See ARREST, 1. property or its value, in case a delivery could not be had, having been recovered, and an

SALARY. execution thereon returned unsatisfied, Held, That until plaintifts' failure to obtain the

See PUBLIC OFFICE, 1. property on execution issued, their right to

SALE. its value did not become perfect, and there was no judgment for the value within the 1. A. sold B. a wagon upon the agreement that meaning of the undertaking; that the under- B. should take it at a certain price, paint it taking was void as having been taken colore

and trim it; that B. should have an interest officii, as it bound the sureties for H.'s amen- in it to the value of the painting and trimability to process, which obligation was un

ming if he did not keep it, and that if he authorized by the statute.-Cook et al. v. kept it it should remain plaintiff's until paid Freudenthal et al., 95.

for. Two years afterwards A. and B. had a 6. Plaintiffs, as partners, bought certain goods,

settlement of accounts, and B. gave A, a note giving their individual notes therefor. The

which included the price of the wagon which vendors turned over a part of these notes to

had been painted and trimmed. This note one of their creditors. Defendant, another

has not been paid. Held, A conditional sale, creditor, attached these goods. Io an action

and that B. got no title to the wagon; that to recover possession, Held, That the giving

the agreement that B. should have an interest of the individual notes did not change the

to the value of the painting and trimming did debt from a firm debt to an individual one;

not constitute A. and B, tenants in common that plaintiffs acquired a good title, and were of the wagon.—Loomis v. Martin, 18. entitled to recover, even though the vendors 2. Where, on the trial of an action for value of made use of the proceeds to pay some of their goods sold by sample, the sample was not debus in preference to others.--Hicks et al. v.

produced in court, and the evidence was very Clark, 422.

vague as to it, and the plaintiff offered to read

from the deposition of plaintiff's agent the See INJUNCTION, 4; Taxation, 10.

answer to the question:

om what sample RESCISSION.

of wine did you take your order for said wine

of said L.?" and the answer was excluded, See CONTRACT, 13-16, 17; New YORK CITY, 4

Held, That for that a new trial must be

granted. — The Sonoma Valley Wine, &c., Co. RESIDENCE.

v. Lax, 60.

3. Upon a sale an agreement was executed 1. Where an unmarried man has lived in one

which stated that the vendees had that day place for upwards of a year, has many busi

given their note to the vendors for certain ness connections there, most of which impose

machinery, and that they claimed no right important responsibilities upon him of a

or title or privilege of ownership thereto unpermanent character, he is a resident within

til the note was paid. They did not pay the the meaning of the Code.-Smith v. Dorsey,

note Held. A conditional sale; that the title 240.

remained in the vendors, and was not af. REVIVOR.

fected by the taking of the note, and that a

bona fide mortgagee of the machinery got no 1. It is no defense to a bill to revive and con- title as against the vendors.--Knowlson et al.

tinue an action, the original parties having v. Sprong, 81.


See ASSESSMENTS, 6, 8, 9; CHATTEL MORTGAGE, same transaction, and one of the parties has

1; CONTRACT, 18, 24; CORPORATIONS, 26; become insolvent, it is proper to adjudge a FRAUD, 1, 2, 7, 8; REDEMPTION ; SURROGATES, set off in favor of the other party, even 8; Taxation, 13; TRADE MARKS, 2.

though his claim is upliquidated by judgment,

unless superior rights or equities of other SAVINGS BANKS.

persons have intervened.-Davidson et al. v. See BANKS, 3, 8.

Alfaro et al., 66.

2. In an action against principals and sureties SEDUCTION.

on an undertaking, å set-off of a debt of See INFANT, 2.

plaintiff or his assignor to the principals will

not be allowed at law.-Coffin v. McLean et SERVICE.

al., 96.

See BROKERS, 1; CONTRACT, 3. 1. An order for service of summons by publication, which nppears, from the body thereof,

SHERIFFS. to have been made by a judge, is not void by 1. Where the sheriff has become liable as bail reason of its having a caption and a direction

for a defendant held under a warrant of arto enter; and there is no objection to the court amending it by striking out such super

rest in civil action, he is exonerated by surAuous portions.- Mojarietta et al. v. Saenz et

rendering defendant to the jail before the al., 37.

expiration of time to answer in an action

against himself; and the court has power 2. The Supreme Court has jurisdiction to make to grant him such further time, after answer,

an order for service of summons by publica- as it deems just, to make such surrender.tion against a non-resident defendant, al- Douglas v. Xaberstro, 276. though the action be one to recover damages for personal injuries to plaintiff in New York 2. To entitle the sheriff, however, to such relief, City, in which an attachment cannot issue,

after the time for answering has expired, he

must show a substantial and sufficient excuse and therefore an action in which judgment could not be entered by default under section

for permitting the defendant in a body execu1217 of the Code; and such order cannot be

tion to be at large.Id. eet aside as irregular, at least before the time 3. Although the question of extending the to answer has expired. The plaintiff's pro- sheriff's time to make surrender of defendant ceedings should not be arrested until he is largely discretionary, still it is the duty of attempts to enter judgment; then the ques- the General Term to review the evidence on tion of his right to do so could properly be which the Special Term made the order raised, or, if he entered judgment, a motion granting such relief.-ld. to set it aside would bring before the court 4. In an action against a sheriff for an escape, the question whether jurisdiction of the person of the defendant had been properly

where the precept upon which the prisoner acquired.— Clark v. Boreel, 349.

was arrested is introduced in evidence, and

also the decree authorizing the precept, if the See INSOLVENCY, 2, 3; SHERIFFS, 9, 10.

decree recites sufficient jurisdictional facts,

it seems that it is not necessary to show all SERVICES.

the proceedings upon which the precept was

issued.— Dunford v. Weaver, 320. !. When an agreement is made that compensa-10. The sheriff cannot defend on the ground of

tion for services is to be provided for by will, and a provision is made sufficient only to

error in the judgment or the process upon

which he made the arrest, unless the latter compensate in part, the party rendering the

was void.-Id. services has, after the death of the other, a cause of action against his representatives 6. In such actions the sheriff is liable for the for the balance due, and in such case the whole debt for which the prisoner was ar. legacies are to be applied in part payment, rested, if on final process of any kind, and unless the language of the will excludes the the insolvency of the prisoner cannot be inference that the testator intended the legacy proved in mitigation of damages. His liabilto go in reduction of the debt.- Reynolds v. ity extends to interest on the debt.-Id. Robinson et al., 620.

7. Whether a sheriff, who has arrested a party 2. Declarations of testator, at the time of making to a final accounting before a surrogate, on

the will, that a legacy is intended as pay- process issued to compel the payment of ment for services, are inadmissible.--Id. moneys decreed to be paid by him, can law.

fully admit him to the jail liberties, quære. See Bar, 6; CONTRACT, 8; INFANT, 1; STATUTE

-Id. OF FRAUDS, 2.

8. Assuming his right to do so, if the prisoner SET-OFF.

goes beyond the limits without the sheriff's

consent, and an actiou is begun against the 1. When the cause of action in separate actions sheriff during his absence, his liability is

between the same parties arises out of the fixed.-Id.

9. Such an action being begun by delivering be maintained, as plaintiffs could not transfer

the summons to the sheriff's clerk at the place a good title for the terms thereby granted.which the sheriff testified was his “official Bensel et al. v. Gray, 86. office,” there was, at least, prima facie com 2. Where plaintiff, testatrix, had entered into pliance with the Code, $ 426, subdivision 3, As amended in 1879.-Id.

an executory contract to convey lands, and

then died, leaving the contract unexecuted 10. Plaintiff, however, may be allowed to prove and the lands undevised, and the payment of

on the appeal the formal designation of such the balance due was conditioned upon the place as his office by the sheriff, in support giving of a deed, and the heirs refuse to give of the judgment.-Id.

the same, Held, That the administrator with

the will annexed has an interest in the con11. An action was brought by certain judgment

tract which he may enforce by an equitable creditors of one B. against the defendant, a tax collector, for damages for the taking

action to compel the heirs to give a deed, and

the vendee to accept the same and pay the and detention by said defendant in his

balance due on the contract.— Wheeler v. official capacity of certain personal property held in the hands of the sheriff, un

Crosby et al., 72. der an execution against said B., and in 3. Under the facts above stated the tender of favor of the plaintiffs. The property was a deed was not necessary before bringing the subsequently returned. The complaint did action against the vendee.-Id. not aver that the judgment debtor B. was in. 4. Where time is not of the essence of a contract solvent. Held, That the absence of the

by its terms, and it remains to be seen by averment of the judgment debtor B.'s insolv

the evidence whether time was made essenency was fatal to plaintiff's right of recovery, and therefore the dismissal of the complaint

tial by subsequent notice, it must appear that on the pleadings was proper.- Scott et al. v.

such notice was express, distinct and un

equivocal, in an action for specific performMorgan, 631.

ance, in order to defeat the action. It is See ATTACHMENT, 3; CONTEMPT, 2; DEED, 2, 3;

otherwise in an action at law.-Selleck v. EJEOTMENT, 2; EXECUTION, 3–5; REDEMPTION.

Tallman, 188.

See LEASE, 3.

1. 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 SLANDER.

good and will be paid at maturity, such 1. In an action for slander the complaint

promise is not a promise to answer for the charged that the defendant uttered various

debt of another, and is is not within the

Statute of Frauds.- Milks v. Rich, 43. slanderous words at the city of New York in the presence and hearing of divers persons. 2. A verbal contract for employment for a year but omitted to state in whose presence the as bookkeeper is within the Statute of Frauds slanderous words were uttered, or the place and void, if made prior to the commencement where, or time when, such slanderous words of the term of one year. -Blanck v. Little et wore uttered. Held, A proper case to require al., 254. a bill of particulars of the place or places 3. A contract within the statute may be taken where the words are alleged to have been spoken, and in the presence of what persons.

advantage of on the trial of an action brought -Stiebling v. Lockhaus, 203.

upon it without being pleaded.-Id. 1. While the defendant in an action of slander STATUTE OF LIMITATIONS. may give evidence of facts and circumstances

See LIMITATION. tending to prove the truth of the statements made by him in mitigation of damages, yet, to be available for that purpose, it must be

STAY. shown that such facts and circumstances were 1. Where it is sought to stay the prosecution known to and believed by him at the time of

of an action because the costs of a former making the charge.-Hatfield v. Lasher, 337. action have not been paid, it must appear

from the record that the actions are identi. SPECIFIC PERFORMANCE.

cal.- Arnold v. Clark, 189. 1. Plaintiffs and defendant entered into a con

STOCKHOLDERS. tract, by which plaintiffs were to sell defendant two tax leases “and all and singular the See Banks, 7; CORPORATIONS, 6, 7, 12, 16, 17; premises therein mentioned


JOINT STOCK COMPANIES; RAILROAD COMPAthe terms of said leases." It appeared that

NIES, 17. the leases were irregular and defective. Held,

STOPPAGE IN TRANSITU. That the agreement being to transfer not only the leases but the land and buildings, 1. As to whether a stoppage in transitu is of itan action for specific performance could not self a disaffirmance of the contract of sale, or

« ForrigeFortsett »