REDEMPTION.

1. A purchaser of land at sheriff's sale is entitled to his deed at the expiration of fifteen months unless a valid redemption is made in the meantime. He cannot be deprived thereof by the mere deposit with the sheriff of the amount of his bid by a person not entitled to redeem.-In re opening Eleventh

avenue, 534.

REFEREE.

1. A referee, before whom a trial had been commenced, was subsequently appointed a Justice of the Supreme Court. After entering upon the discharge of his duties as such justice he made his report as referee. Held, That under section 21, of article VI of the Constitution he could not act as referee; that all proceedings by and before him as referee after he took the oath as a justice of this court are coram non judice and void, and that such provision of the Constitution cannot be waived by a party to an action.Countryman v. Norton, 143.

See PRACTICE, 25, 26.

REFERENCE.

1. After a case had been finally submitted to a referee for decision, an order was made bringing in additional parties defendant and requiring them to accept the referee who had been appointed and the evidence taken before him. The action did not appear to be one which could be referred without consent. Held, That even if the court had power to bring in new parties, it could not compel them to accept the referee and the evidence taken, even with the right of cross-examination.-- Wood et al. v. The Equit able Life Ass. Soc. et al., 140.

2. Two facts must be shown to authorize the court to direct a trial of issues of fact by a referee, viz.: 1st, that the trial will require the examination of a long account; 2d, that it will not require the decision of difficult questions of law. There is no distinction between different kinds of actions, nor between those of a legal and those of an equitable cognizance, but any action presenting these features may be referred.--Dane v. The Liverpool, L. & G. Ins. Co., 206.

3. The power vested in the court is, however, a permissive one merely, and it should not be exercised except in cases where the litigation arises chiefly upon the items of an account on one or both sides.--Id.

4. The only affect of the last clause of § 1013 of the Code of Civil Procedure is to authorize a reference to decide some of the issues less than the whole of them.-Id.

5. L. and wife conveyed certain property to S., who conveyed the same to L.'s wife, and she subsequently gave a mortgage thereon to one W. În an action brought by L.'s judg- |

9.

The jurisdiction of the court to order such a reference does not depend upon the nature of the defense to the claim.-Id.

10. The fact that the receiver of the corporation has brought an action at law upon the claim does not conclude him from applying for a reference under the statute.--Id.

11. An order reversing a judgment entered on a referee's report, and granting a new trial, does not of itself vacate the order of reference; that stands, unless otherwise specifically provided.--Catlin et al v. The Adirondack Co., 333.

12. An appeal will not lie to the Court of Appeals from such an order.-Id.

13. Findings of fact in a referee's report cannot be reviewed without a case duly settled, &c., and when the conclusions of law are fairly sustained by such findings, the judgment must be affirmed.-Brown v. Grupp et al., 357. 14. An action by an attorney for services and disbursements which involves the examination of a long account, extending over two years, on which payments are claimed to have been made, and which does not require the decision of any difficult questions of law, is referable. Carr v. Bedell et al., 449.

15. There is no impropriety in referring such an action to a lawyer as referee.-Id.

16. On appeal from an order of reference in an action for services, a stipulation to admit the services and their value, provided the decision of the appeal is favorable to appellant, cannot be allowed.-Id.

fendant, and that the action was not maintainable.-Id.

3. Section 369 of the Code provides only for the restitution of money paid or collected in an action in a Justice's or District Court, and does not apply to an action for claim and delivery of personal property.—Mead v. Baitman et al., 86.

4. In an action for claim and delivery of personal property, after the reversal of a judgment for the plaintiff, the defendant may resort to his common law remedy to recover from the plaintiff the property or its value.Id.

5. One H. having been arrested in an action for claim and delivery of personal property, an undertaking was given, which provided that I should be amenable to process, and "for the payment to plaintiffs of such sum as may for any cause be recovered against defendant." A judgment for the return of the property or its value, in case a delivery could not be had, having been recovered, and an execution thereon returned unsatisfied, Held, That until plaintiffs' failure to obtain the property on execution issued, their right to its value did not become perfect, and there was no judgment for the value within the meaning of the undertaking; that the undertaking was void as having been taken colore officii, as it bound the sureties for H.'s amenability to process, which obligation was unauthorized by the statute.-Cook et al. v. Freudenthal et al., 95.

6. Plaintiffs, as partners, bought certain goods, giving their individual notes therefor. The vendors turned over a part of these notes to one of their creditors. Defendant, another creditor, attached these goods. In an action to recover possession, Held, That the giving of the individual notes did not change the debt from a firm debt to an individual one; that plaintiffs acquired a good title, and were entitled to recover, even though the vendors made use of the proceeds to pay some of their debts in preference to others.-Hicks et al. v. Clark, 422.

See INJUNCTION, 4; TAXATION, 10.

RESCISSION.

See CONTRACT, 13-15, 17; NEW YORK CITY, 4

RESIDENCE.

1. Where an unmarried man has lived in one place for upwards of a year, has many business connections there, most of which impose important responsibilities upon him of a permanent character, he is a resident within the meaning of the Code.—Smith v. Dorsey,

240.

REVIVOR.

1. It is no defense to a bill to revive and continue an action, the original parties having

1.

ARREST, 1.

SALARY.

See PUBLIC OFFICE, 1. SALE.

A. sold B. a wagon upon the agreement that B. should take it at a certain price, paint it and trim it; that B. should have an interest in it to the value of the painting and trimming if he did not keep it, and that if he kept it it should remain plaintiff's until paid for. Two years afterwards A. and B. had a settlement of accounts, and B. gave A. a note which included the price of the wagon which had been painted and trimmed. This note has not been paid. Held, A conditional sale, and that B. got no title to the wagon; that the agreement that B. should have an interest to the value of the painting and trimming did not constitute A. and B. tenants in common of the wagon.-Loomis v. Martin, 18. 2. Where, on the trial of an action for value of goods sold by sample, the sample was not produced in court, and the evidence was very vague as to it, and the plaintiff offered to read from the deposition of plaintiff's agent the answer to the question: "From what sample of wine did you take your order for said wine of said L.?" and the answer was excluded, Held, That for that a new trial must be granted. The Sonoma Valley Wine, &c., Co. v. Lax, 50.

3. Upon a sale an agreement was executed which stated that the vendees had that day given their note to the vendors for certain machinery, and that they claimed no right or title or privilege of ownership thereto until the note was paid. They did not pay the note. Held. A conditional sale; that the title remained in the vendors, and was not af fected by the taking of the note, and that a bona fide mortgagee of the machinery got no title as against the vendors.-Knowlson et al. v. Sprong, 81.

9. Such an action being begun by delivering the summons to the sheriff's clerk at the place which the sheriff testified was his "official

office," there was, at least, prima facie compliance with the Code, § 426, subdivision 3, as amended in 1879.-Id.

10. Plaintiff, however, may be allowed to prove on the appeal the formal designation of such place as his office by the sheriff, in support of the judgment.—Id.

11. An action was brought by certain judgment creditors of one B. against the defendant, a tax collector, for damages for the taking and detention by said defendant in his official capacity of certain personal property held in the hands of the sheriff, under an execution against said B., and in favor of the plaintiffs. The property was subsequently returned. The complaint did not aver that the judgment debtor B. was insolvent. Held, That the absence of the averment of the judgment debtor B.'s insolvency was fatal to plaintiff's right of recovery, and therefore the dismissal of the complaint on the pleadings was proper.-Scott et al. v. Morgan, 531.

See ATTACHMENT, 3; Contempt, 2; Deed, 2, 3; EJECTMENT, 2; EXECUTION, 3-5; REDEMPTION.

SIGNATURE.

See LEASE, 3.

SLANDER.

1. In an action for slander the complaint charged that the defendant uttered various slanderous words at the city of New York in the presence and hearing of divers persons. but omitted to state in whose presence the slanderous words were uttered, or the place where, or time when, such slanderous words were uttered. Held, A proper case to require a bill of particulars of the place or places where the words are alleged to have been spoken, and in the presence of what persons. -Stiebling v. Lockhaus, 203.

1. While the defendant in an action of slander may give evidence of facts and circumstances 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 shown that such facts and circumstances were known to and believed by him at the time of making the charge.-Hatfield v. Lasher, 337.

2.

3.

4.

be maintained, as plaintiffs could not transfer a good title for the terms thereby granted.— Bensel et al. v. Gray, 86.

Where plaintiff, testatrix, had entered into an executory contract to convey lands, and then died, leaving the contract unexecuted and the lands undevised, and the payment of the balance due was conditioned upon the giving of a deed, and the heirs refuse to give the same, Held, That the administrator with the will annexed has an interest in the contract which he may enforce by an equitable action to compel the heirs to give a deed, and the vendee to accept the same and pay the balance due on the contract.-Wheeler v. Crosby et al., 72.

Under the facts above stated the tender of a deed was not necessary before bringing the action against the vendee.-Id.

Where time is not of the essence of a contract by its terms, and it remains to be seen by the evidence whether time was made essential by subsequent notice, it must appear that such notice was express, distinct and unequivocal, in an action for specific performance, in order to defeat the action. It is otherwise in an action at law.-Selleck v. Tallman, 188.

Where it is sought to stay the prosecution of an action because the costs of a former action have not been paid, it must appear from the record that the actions are identical.-Arnold v. Clark, 189.