a mere tender of the money was not enough; but the tender should be kept good, or made good at the trial. Judgment and order reversed, and new trial granted; costs to abide the event. Opinion by Bockes, J.: Learned, P. J., and Boardman, J., concuring. APPEAL. N. Y. COURT OF APPEALS. An order, granted in an action to set aside the appointment of a Receiver, in supplementary proceedings, appointing a new Receiver and directing the former Receiver to account and pay over to him the money, in his hands, is discretionary, and not appealable to the Court of Appeals. See S. C., 8 W. Dig., 480. Plaintiff, who was a judgment and execution creditor of one C., commenced an action against C.; L., another creditor of C., and K., who had been appointed Receiver in supplementary proceedings instituted in favor of L. against C., charging that L.'s proceedings and the appointment of K. were in collusion with C., and seeking to set them aside. Upon motion at Special Term one P. was appointed receiver of C.'s property, and K. was directed to account and hand over to him the property, etc., received. by him from the judgment debtor. This order was affirmed by the General Term, and from it K. alone appeals. Jas. H. Greensward, for applt. Held, That it was within the discretion of the court to make the order appealed from, and it is therefore not reviewable in this court. 50 N. Y., 296; 53 id. 641). Appeal dismissed. Opinion by Danforth, J.; all concur, except Folger and Andrews, JJ., absent. UNDERTAKING ON ARREST. SURETYSHIP. DIVORCE. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Sarah L. Toler v. George Adee et al., Exrs., &c. Decided Nov., 1879. An order of arrest was granted in an action for divorce, which directed the sheriff to hold defendant to bail in the sum of $1,000. The Sheriff arrested the defendant and accepted an undertaking in the sum of $2,000 signed by defendants' testator alone. On a former appeal it was held that the undertaking was not void, but was good at common law and enforceable against the estate of the deceased surety, although the right of action did not accrue until after his death. Held, That such decision was conclusive of the question as to the validity of the undertaking; that the evidence did not make a case for the jury on the question of fraud on the sheriff's part in obtaining the signature of the obligor to the instrument, the latter not having been misled as to the general purpose for which his signature was required, and that if he omitted to examine the instrument, having ample opportunity to do so, without being purposly prevented, or thrown off his guard, his ignorance of its purport must be attributed to his own negligence. The surety on an undertaking on arrest is not discharged from liability by the discharge of his principal in bankruptcy; nor by an omission to file the undertaking in the clerk's office; nor by a delay in entering judgment in the action in which such undertaking is I. H. Maynard, for plff. George Adee, for defts. Held, That the decision of the court, on the former occasion, as to the validity of the undertaking, must be accepted as conclusive on this motion, without further consideration. Action upon an undertaking, executed by the defendants' testator, That the court below was right in Stephen B. Adee, deceased, upon holding that the evidence did not an order of arrest issued in an action make a case for the jury on the brought by the present plaintiff, question of fraud on the part of the then Sarah Adee, against her hus- sheriff, in obtaining the signature band, Augustus W. Adee, for a of the obligor to the instrument, the limited divorce, on the ground of latter not having been misled as to cruel and inhuman treatment. The the general purpose for which his order of arrest required the sheriff signature to the paper was desired. to arrest the said Augustus W. And that if he omitted to exAdee, and hold him to bail in the amine it, having ample opportunity sum of $1,000. The sheriff arrested to do so, or fully to inform himself the said Augustus W. Adee, and ac- of its contents, without being purcepted an undertaking, in the sum posely prevented or thrown off his of $4,000, signed and acknowledged guard, his ignorance of its purport by Stephen B. Adee alone, which must be attributed to his own negwas the instrument sued on. ligence. That the discharge in bankruptcy of the defendant in the suit in which the undertaking was given did not exonerate his surety from liability. That an omission to file the undertaking in the clerk's office did not operate to discharge the surety, that being a mere irregularity at most, and in no way affecting his liability. That the instrument being good at common law, it was not necessary to file it. The court had decided when the same case was before it on a former occasion (16 Hun., 46), that the undertaking in suit was not void as taken colore officii, but was good at common law, and that it was enforcable against the estate of the deceased surety, although the right of action upon it did not accrue until after his death. The plaintiff having been nonsuited on the first trial, the court set aside the nonsuit, and ordered a new trial. On the That a delay in entering judgsecond trial, the jury, under the ment in the action wherein the undirection of the court, found a dertaking was given, did not disverdict for the plaintiff for $1,867.50. charge the surety, it not appearing This was a motion by the defend- that he had been injured by the deants to set aside the verdict, and lay; and it being in the power of for a new trial. the defendant in the suit either to enter it himself or procure it to be entered. That a delay of two days in issuing execution upon the judgment did not discharge the surety. A record of judgment for divorce, granted in the State of Illinois, in favor of a husband against his wife, is not admissible in evidence against the wife in this state, where it appears that the divorce was obtained without notice to the wife, and that the husband was not himself at the time a resident of Illinois. Such a proceeding is manifestly a fraud upon the wife and upon the law. And for that reason, if for no other, the record of judgment is properly excluded as evidence against the wife. Motion for new trial denied, and judgment awarded on the verdict with costs. Opinion by Bockes, J.; Learned, P. J., and Boardman, J., concuring. RECEIPT. FRAUD. EVIDENCE. N. Y. SUPREME COURT. GENERAL Held, That the receipt or certificate of settlement was open to attack for fraud, or, as a receipt simply, was subject to explanation; that the question as to its validity and binding force was a proper subject for the determination of the jury; and that no restoration of the $250 paid was necessary, but it was to be applied in reduction of plaintiff's claim. Plaintiff offered in evidence a memorandumbook containing defendant's account. This was kept by one G., who testified that he made the entries correctly as they were given him by plaintiff, and plaintiff testified that he gave the items to G. correctly. It also appeared that defendant had admitted the correctness of a transcript of the account taken from this book. This book was delivered to the jury, by consent of both parties, at the close of the case. Held, That, upon the facts proved, the book was admissible, not as a book of account, but as a memorandum to aid or correct the memory; that the consent of the parties to the delivery of the accounts to the jnry took away all ground for objection that the book had been improperly admitted; the account having been shown to have been correctly taken from such book. Appeal by the defendant from a judgment entered on a verdict. The action was for work, labor and services, and for money paid, laid out and expended. The amount claimed by the plaintiff was $1,250. The Alexander Dunn, respt., v. Edward answer denied the making of any D. James, applt. Decided Nov., 1879. In an actlon for labor and services and for moneys paid, defendant introduced in evidence a receipt for $250, signed by plaintiff, which also contained a statement that the parties had settled and compromised their accounts, and that plaintiff was to receive $500 in full of all claims; $250 being then paid, and the balance to be paid in two months. Plaintiff could neither read nor write, and testified that there was no settlement, and that the paper was read to him only as a receipt for $250, and that he had no knowledge of the rest of its contents. contract between the parties, or that anything was due the plaintiff, and set up payment, counter-claim, and a settlement of the plaintiff's claim. On the trial, the plaintiff proved the performance of the work and labor, by his own testimony, and that of other witnesses in corroboration. The defendant offered in evidence a receipt for $250, purporting to be signed by the plaintiff, which also contained a statement that the parties had settled and compromised their mutual accounts, and that the plaintiff was to receive $500 in full close of the case, the plaintiff's of all claims-$250 being then paid, counsel suggested that the account and $250 was to be paid in two of the plaintiff (viz.: the sworn copy months. It was claimed by the of the book) and the memorandum plaintiff that there was no settle- used by the defendant while giving ment or looking over of the ac- his testimony, should be delivered counts; that the paper, when signed to the jury. The judge stated that, by the plaintiff, was read to him if neither party objected, the aconly as a receipt for $250; and that counts could be so delivered; and in so far as the balance of the paper no objection being made, the acwas concerned, he had no knowledge counts were handed to the jury, of its contents. He was very illiter- and taken out by them. ate, and could neither write nor read writing; and made his signature by a mark. The defendant claimed, on the trial, that the plaintiff could not show that the state- Held, That the receipt or certifiment contained in the paper was cate of settlement, signed by the written and obtained from him with- plaintiff, was open to attack for out his consent or knowledge. The fraud, or, as a receipt simply, was judge decided that the plaintiff subject to explanation. The jury found a verdict in favor That the question as to the validity and binding force of the paper was a proper subject for consideration and determination by the jury; and that they having, upon conflicting evidence, found against its validity, the court was not at liberty, under the facts proved, to gainsay the verdict. might show that the portion of the paper relating to a settlement was not true in fact, or not read to him, and that he had no knowledge that the paper contained that statement, when he signed it. The jury found against its validity. The plaintiff offered in evidence a memorandum book, containing the account between him and the defendant. This book was made and kept by G, at the request of the plaintiff, who swore that whenever any moneys were paid him he gave the items to G. correctly, and G. swore that he made the entries in the books correctly, as the sums were given him. And it was shown when a That the question as to the adtranscript of the account, as con- missibility of the plaintiff's memotained in the book, was presented randum book in evidence was not to the defendant, he said it was "all whether it was admissible as the right," that he found it "pretty case stood when it was offered and correct." The memorandum book received, for it might have been rewas received in evidence. At the ceived with reference to other evi That no restoration by the plaintiff of the $250 paid him at the time the paper was given was necessary. That the paper being found to be invalid, the case was left as if it had never existed, and the sum then paid was to be applied in reduction of the plaintiff's claim. dence, afterwards to be submitted, National Bank of the City of New which would overcome any objec- York. tion. That the question was whether the book was admissible, as the case was made on all the evidence submitted. Decided Jan., 1880. Where a motion is made to set aside a verdict And that upon the facts proved the book was admissible in evidence, not as a book of account, but as a memorandum, like any memorandum, resorted to, to aid or correct the memory, which, without The defendant moved to set aside it, would be indefinite and uncer- the verdict upon the judge's minutes tain; the defendant's having, in for excessive damages, and because substance, admitted its correctness the verdict was contrary to and by admitting the correctness of a against the weight of evidence, and verified copy. That the book was also verified as a memorandum in aid of the memory in so far as entries of payments were made in it, independent of the defendant's admission of the correctness of the sworn transcript from it. otherwise contrary to the evidence Held, That the order must be affirmed if any one of the grounds specified in the notice of motion is good. That under § 999 of the Code the language, "contrary to evidence," is broad enough to cover the ground if contrary to the weight That the consent of the parties to the delivery of the accounts to the jury took away all just ground for objection that the book was improperly admitted; the account of of evidence. That the words “conthe plaintiff being shown to have been taken correctly from such book. Judgment appealed from affirmed, thetically to the expression "conwith costs. Opinion by Bockes, J., Boardman, embrace any case in which a moJ., concuring. SETTING ASIDE VERDICT. trary to evidence or contrary to law" in that section the language "contrary to evidence" is used anti trary to law," and was meant to tion for a new trial can be made upon the evidence in the cause, as contradistinguished from errors of law. See Cheney v. N. Y. C. & H. R. R. R., 16 Hun., 415. That from the preponderance of testimony, and the character of it, and in the opinion of the court so overwhelmThomas C. Clark v. The Mechanics ing, that the order by the court be N. Y. COMMON PLEAS. TERM. GENERAL |