utes.

but express doubt, whether a referee can get the statutory rate for each case where it appears that he heard a number of cases each day, some taking but a few minWitnesses testified that two hours were a day's work at a reference. The court intimate that such testimony should have no effect on the question of what that day's work is for which a referee can claim pay under the statute.

It appeared from his claim that Mr. Dayton expended some $2,700 on clerk hire, books, printing, stationery, &c. The court say Mr. Dayton had no right as referee to hire a clerk; that if such items can be allowed anyone, it must be the receiver on his accounting. No opinion is expressed whether they can be allowed the receiver, but the court say: "His (the receiver's) commissions are allowed him for services rendered, and the permission to employ clerks is not intended to free him from all duties."

Nothing is to be allowed Mr. Dayton for his services in passing on the validity of the 15,000 undisputed claims as to which he reported. He did nothing which could not have been done by the clerical force of the receiver, and hardly gave supervision to the work. He was appointed to take proof of disputed claims. company was dissolved for insolvency. The receiver was expressly given the powers of receivers unthe Rev. Stat., Part 3, chap. 8, tit. 4, art. 3, which article refers for such powers also to Part 2, chap. 5, tit. 1, art 8. This last ar

The

ticle (§ 19) provides for a reference if any controversy shall arise between the receiver and any other person in the settlement of any demands against the debtor. The order was made probably in substantial compliance with that article, amended by chap. 373, Laws of 1872. The greater part of the order relates to disputed claims. At the end there is, it is true, a general clause that the referee is to take proof generally in regard to all claims and obligations. This may also refer to the disputed claims. It cannot have been intended by the court to burden the assets of an insolvent company with the expense of taking proof of undisputed claims.

Order reversed, with $10 costs and printing disbursements against respondent, and motion to confirm denied, with $10 costs against petitioner.

Opinion by Learned, P. J.; Bockes, J., concurs; Westbrook, J., not acting.

it that was possible. That to end the contract, D. should have tendered B. a deed and demanded what was due him for taxes and unpaid purchase money.

The action is brought to recover the value of certain hemlock bark taken from plaintiff by defendant. Both parties claim under one Darbee, who owned the fee in 1848 of the land on which the bark was peeled. In that year Darbee gave one Barnhardt a receipt for $37, for which he bound himself, his heirs and administrators, to give him a deed of the land in question. It was a wild lot, no buildings or fences. For twenty-five years Barnhardt cut more or less bark and timber from it. This was his only possession. The lot continued to be assessed to Darbee, who continued to pay the taxes. The evidence was conflicting on this point. Barnhardt claimed that there was $2.50 due for taxes. Darbee claimed that there was $2.50 due on the contract as well as taxes. In 1869 Darbee conveyed the bark on the lot to defendant. In 1871 Barnhardt peeled the bark in question. Each party then knew the claims of the other in the premiPlaintiff had a verdict.

ses.

T. F. Bush, for applt.

C. V. R. Ludington, for respt. Held, That the title to the bark was in plaintiff. The so-called receipt was a contract for the sale of the land. Having taken such possession as was possible, Barnhardt was the equitable owner. If a balance were due on the contract | Darbee's title was only as security for that balance in equity. Barnhardt was entitled to the enjoy

N. Y. COURT OF APPEALS. Heilman, respt., v. Lazarus. applt.

Decided Nov. 28, 1882.

A lease contained a provision that the party of the first part agreed to sell and the party of the second part agreed to buy the premises leased for a sum specified "per special agreement, signed in the same time with this lease," to be effected at any time during the lease, upon two months' notice. Plaintiff, the lessee, testified that no other paper was executed. Held, That the lease contained in itself every element of a complete and perfect agreement, even as respected the contract of sale, if no reference had been made to a further settlement of details, or if such settlement and modification was waived.

In an action of ejectment by the lessee to recover possession under such lease, it is not error to charge the jury that the lease is in form complete and signed by the parties, and it is needful for the defendant to establish his defense satisfactorily. This is not charging that the burden of proof is upon defendant to impeach the lease, nor is the burden of proof shifted; it only means "there is necessity of evidence to answer the prima facie case, or it will prevail." Where the subject matter involved was the right of possession of real estate for two years subject to the rent reserved, and no money value of the right is shown, there is

ance.

This was an action of ejectment. Plaintiff claims title under a lease of the premises in question, for two years from May 1, 1880, which contains the usual and ordinary provision for the protection of the lessor and lessee, and also contains this provision: "The party of the first part agrees to sell to the party of the second part, and the party of the second part agrees to buy from the party of the first part, the house and lot herein leased for the sum of eight thousand dollars, lawful money of the United States, as per special agreement, signed in the same time with this lease; a sale of the property voids the lease and can be effected any time during the term of the lease, upon two months' previous notice given to the party of the first part by the party of the second part, of his intention to effect the sale." It appears that the lease was drawn by the lessor, who was a German, who was inexperienced in drawing legal papers. Plaintiff testified that no other or further paper was executed at the same time with the lease, and no other was presented or shown to him, and was corroborated in this by two other witnesses present at the execution of the lease. Defendant then moved for a nonsuit, on the ground that no completed contract had been executed, and plaintiff had not bound himself to buy. This motion was denied.

Lewis Sanders, for applt.
George F. Langbein, for respt.
Held, No error; that the lease

even as it respected the contract of sale, a complete and perfect agreement, if no reference had been made to a further settlement of details, or if such settlement and modification was waived. The lease was admissible, as it tended to show the making of a complete and perfect contract.

Defendant was sworn as a witness and testified that a further paper specifying details and conditions of the contract of purchase chase was prepared and presented at the time of the exeaution of the lease; that the plaintiff declined to sign it until he had consulted a lawyer, and later refused entirely. The Court charged that the agreement signed was of a character sufficient, if perfected," to be valid and effectual, but whether or not a complete and perfected agreement was a question of fact. Defendant's counsel excepted to so much of the charge as states that the lease produced by the plaintiff is a complete and executed instrument, as appears upon its face."

Held, That this exception was inaccurate, as the judge nowhere spoke of the lease as "complete and executed," and it would, if accurate, have been unavailing, as the lease, on its face, contains every necessary element of a complete and perfect contract.

The court stated in its charge to the jury the evidence given by defendant tending to show that a separate special agreement was prepared, presented for execution and refused, and said "If but one

of these papers was executed, and under this understanding, as detailed by Mr. Ramsperger, the other for any reason whatever was left unexecuted, the two papers together making the agreement, there would have been no

plete agreement between the parties as to these premises." The court, in adverting to defendant's version of the fact, said, "It is needful for defendant to establish this defense to your satisfaction, because the plaintiff produces a lease which is in form complete and signed by the parties." It is claimed that this proposition is erroneous and is reached by defendant's exception "to that part of the charge which says that the burden of proof is on the defendant to impeach the lease." Nothing is said in the charge about the burden of proof or impeaching the lease.

Held, That the jury were not misled; that the language used can fairly be said to mean no more than that plaintiff having made out a prima facie case, defendant must give some evidence to rebut. it which the jury believe, or the prima facie case must prevail. 62 N. Y., 455; 46 id., 279.

Plaintiff was granted an extra allowance of $75. The subject matter involved was the right of possession of the property for two years subject to the rent reserved. Whether that had any money value was not shown.

Judgment of General Term, af firming judgment on verdict for plaintiff, affirmed, and order granting extra allowance reversed. Opinion by Finch, J. All con

cur.

AWARD. PRACTICE. N. Y. COURT OF APPEALS. In re application of Roberts, respt., v. Warren, applt.

Decided Nov. 28, 1882.

An award was made to a R. R. Co. for expenses in raising its road bed, &c., on account of a contemplated reservoir, and the commissioners directed it to be paid to W., the contractor. The order of confirmation directed it to be paid to the contractor who should do the work. This order was made without notice to W., who did some of the work, and was then advised by the officers of the Croton Dept. to stop, as the appropriation would not hold out. The railroad was afterwards sold under foreclosure and a new company formed, which employed R. to do the work, which he performed at a cost exceeding the award. On notice to W., an order was made amending the former order by directing the award to be paid to R., without prejudice to W.'s rights against either RR. Co. Held, That the direction of the commissioners that the award should be paid to W. did not give him such a vested right in the award as precluded the Court from directing that it be paid to R.; that W., having had notice of the motion to amend, the order entered thereon was valid as to him.

and discharge of all claims and damages of the R. R. Co. The commissioners reported that said award should be paid to W., the contractor, for doing the work, upon the certificate of the chief engineer of the R. R. Co., from time to time, as the work should progress. The Court made an order confirming the report of the commissioners, which made the award payable, not to W. by name, but to the contractor who should do the work. It appeared that when the award was made W. was the contractor for building the road, and as such had already graded the road at the points in question, at an expense of several thousand dollars, and the R. R. Co. then owed him about $80,000, and had turned the road and property over to him as security for the debt. The direction that W. should receive the award was founded on an agreement made by the R. R. Co. and the Croton Department, in the presence of the appraisers. The order confirming the report of the commissioners was made without notice to W. That order was afterwards amended by the order now appealed from, which directs the payment to be made to R. This order was made upon notice to W., and after hearing him through counsel. It further appeared that after the award was made, and before its confirmation, W. moved his machinery and tools on the work, and with his men did several hundred dollars' worth of work, when the officers of the Croton Department notified him

that there was danger of the appropriation for the department not. holding out, and that he might get into trouble by not having money to meet his payments, and advised him to stop until they felt sure he would receive his pay; that he stopped at their request, and they promised to notify him when they felt safe that the appropriation would be replenished. W. never received any such notice, but went on with his business in other parts of the country, leaving his tools and materials at the place ready to proceed on notice. He never did anything further in the prosecution of the work. Soon after W. stopped work the railroad and its franchises were sold under foreclosure of a mortgage and a new company was organized, under the name of the N. Y. C. & N. RR. Co., which company went on with the construction of the road, and employed R. as contractor. His contract provided, among other things, that he should be entitled to receive and retain any award made by the Croton Aqueduct Department or other public authority. R., under this contract, did the work in question at a cost slightly exceeding the amount of the estimate of the commissioners, and moved to amend the order confirming their report by inserting his own name as the contractor who performed the work, thus making the award payable to himself, which motion resulted in the order now appealed from. N. C. Moak, for applt. .Fordham Morris, for respt. Held, That the direction of the