that T. & Co. held the balance of the goods

SERVICES. simply as bailees for plaintiff; and that any lien they might have passed with the 1. In an action to recover wages for services notes and was extinguished by the proof of

for a specified term, it appeared that

plaintiff was dismissed by defendant beclaim and acceptance of a dividend on the full amount in the composition proceed

fore the commencement of the term speciings. -Johnson v. Dickinson et al., 40.

fied, and that during a portion of that term

he worked for other parties and was paid 2. On an executed present sale of an article, by them. No tender of performance by

with warranty as to quality, it is neither plaintiff to defendant was shown. Held, necessary nor allowable to rescind the sale, That plaintiff was not entitled to recover; and return, or offer to return the property that his action should have been for damsold, on account of a breach of warranty. ages, for not having been continued in But where a chattel sold is sold subject to service by defendant as agreed.- Weed v. the condition that it should prove to Burt, 132. answer the representations made concern-2. The rule that from a request to perform ing it, in such case the buyer may return the chattel in case the representations

services an implied promise arises to pay made in respect to it are untrue.- Fogg et

what they are reasonably worth, and that in al. v. Francis, 130.

some cases the law will imply a request

from the beneficial nature of the services 3. It is competent for the parties to a sale of or their acceptance by the party, does not

personal property to make the considera- apply where the services are rendered by tion of the sale to be the payment of the one in the employ of the person for whom purchase price to a third person. Whether they were rendered.- Ross v. Harden et al., the payment is to be made directly to the 279. vendor or to a third person for his benefit, 3. Defendant was organized under a statute payment is the condition on performance of which only the title will pass; and if

which provided that when half its capital the vendee sells the property without such

stock was subscribed, and twenty-five per payment, even to a bona fide purchaser, the

cent. paid thereon, directors might be vendor may retake it.— iVood et al. v. Barr,

elected, and that when twenty-five per 411.

cent. of its entire capital was paid in, ac

tive business operations might be comSee CONTRACT, 24 ; LIEN, 2; STATUTE menced. Prior to December 1, 1874, a FRAUDS, 2 ; TAXATION, 3.

board of directors had been elected, officers

chosen, offices opened, and preparations SCHOOLS.

for business made. At that time plaintiff

was hired as a clerk by defendant's vice1. Where a teacher acts with good intentions president at the rate of $3,000 a year, but

in punishing a scholar, and uses a proper for no specified time. Ho rendered sermode of punishment, he will be protected vices for over six months. Held, That the unless he carried the punishment to such contract was valid, and plaintiff entitled to a degree that it was immoderate, and recover for his services; that the fact that

of itself implied malice.-- Green v. Peck, 3. he was hired at a yearly rate did not neces2. He must not use a proper kind of punish

sarily imply a hiring for a year. - Legrand ment in a brutal manner.-Id.

v. The Manhattan Mercantile Assn., 419. See STATUTE OF FRAUDS, 1.



1. If goods are sold by an agent in his own 1. An affidavit upon which an order of pub

name, without disclosing his principal, lication is granted is fatally defective

the purchaser has a right to set-off a debt which does not show that the plaintiff had

due from such agent, in an action by the been or would be unable with due dilig

principal for the price of the goods, unless ence to make personal service of the sum

the purchaser knew, or had reason to bemons.—Campbell v. Taylor, 14.

lieve, that the vendor was selling as agent, 2. An order of publication under section 440 or unless there were circumstances such of the Code is sufficient although the or

as to put him on inquiry in this respect. der designating two newspapers does not But public rumor or knowledge of the in terms designate them in the order as of the agency upon the part of others is not most likely to give notice to the defendant.

sufficient to bar the purchaser from his Green v. Squires, 332.

set-off ; circumstances must be brought to

his knowledge which would necessarily 3. Where the language used in the order of put him on inquiry.- Pratt v. Collins, 481.

publication is the equivalent of the statutory expression, and there is a substantial

SHERIFFS. compliance with the statute, the order of publication is valid.-Id.

1. Although in general, a sheriff is not enti.

tled to poundage on a money execution unSee CORPORATIONS, 9; DISCOVERY, 1.

til the money is collected, still if, after by defendants to teach a district school for custody a portion thereof was extracted and converted, the burden is, upon such

levying, he is estopped from proceeding SPECIFIC PERFORMANCE. further by the party in whose favor the writ issued, he is entitled to his fees, com- 1. An action for specific performance of a

contract for the sale of real estate free . puted upon the value of the property levied upon.--Benedict v. Wright, 108.

from taxes is maintainable, although an

action at law could be maintained on de2. At request of judgment creditor and on

fendant's covenant to pay such taxes.his promise to furnish indemnity, which

Stone v. Lord, 536. was not fulfilled, the sheriff levied upon certain property, the title to which was in See LIEN, 1; PRACTICE, 10. doubt. Held, That the creditor is estopped ftom questioning the validity of the levy, on

STATE COURTS. the ground of non-exaction of indemnity

See JURISDICTION, 1, 2. and omission to try the title by sheriff's jury in order to escape payment of fees. · id.

STATE OFFICERS. 3. Defendant having been arrested in a civil

action, gave an undertaking to the sheriff, 1. Where the Legislature has seen fit to but the sureties failed to justify. After make an appropriation for work done, vol. judgment against defendant, execution

untarily or otherwise, for the State, no disagainst property was returned unsatisfied, bursing officer of the government can reand one against person, that he could not

fuse to apply the money to the purpose for be found. Within twenty days after com- which it was appropriated on the ground mencement of action against the sheriff, that the state was not originally under any the bail surrendered defendant in first ac

legal obligation for its payment, or that tion to the sheriff, who surrendered him

the Legislature was not sufficiently into the coroner on a new undertaking. formed of the facts. He can only inquire Held, That the sheriff should have kept de- if the appropriation was made for the purfendant ; that he had no right to surrender pose claimed ; when that is ascertained him to the coroner, and was not exonera- his duty is merely ministerial.—The Peoted thereby, and that the undertaking to ple ex rel. Sage v. Schuyler, 445. the coroner was a nullity.--Douglas v. Warren, 121.

STATUTE OF FRAUDS. 4. Where it is shown by plaintiff that while 1. Plaintiff was, by a parol agreement, hired property seized by a marshal was in his

one year at a specified salary, and for a

further year at the same salary if no nomarshal to show, in order to free himself

tice should be given by either party at from liability, not only that he did not

least two weeks prior to the expiration of personally abstract the property, but that he is guilty of no negligence in employing

the first year. . No notice was given, but unfit deputies or agents, to whom it was

plaintiff was discharged a few weeks after entrusted. --- Fisk v. Fiske, 172.

the second year commenced. In an action

to recover salary for the second year, 5. Defendant had the custody of certain Held, that the agreement in respect to the property under an attachment against one

second year was not void under the StatP. Thereafter, P. made a general assign- ute of Frauds ; that the contract might ment for creditors, and the assignee noti- have been performed within the year by fied defendant and forbid him to sell, and

the giving of the notice, and that this fact when he had sold enough to satisfy the at- took the case out of the statute, --Smith v. tachment, demanded possession of the Conlin et al., 152. balance. Befure the sale, an attachment in favor of plaintiff against P. was issued 2. Plaintiff and defendant entered into a to defendant, who returned that there was parol contract, by which defendant was to 10 property to attach, and returned the purchase two stacks of hay for $190. the execution nulla bona. Held, That an

Plaintiff then said, “The bay is yours.' action for a false return would not lie;

and defendant said, “Yes.” The hay was that the assignee acquired a good title, in sight at the time. A few days aftersubject to the payment of the first attach- wards defendant paid $25 to bind the coning creditor and the sheriff's fees, which tract. The hay was not removed, but soon was good against all persons until im- after was burned with plaintiff's barn. In peached for fraud"; that the Statute of an action for the balance of the purchase Frauds did not apply, as the property was price, Held, That the sale was void by the in the sheriff's hands, and not in the pos- Statute of Frauds; that the payment called

session of P.- Mumper v. Rushmore, 268. for by the statute to take a contract out of 6. An advertisement in obedience to a decree

its operation must be made at the time of of foreclosure and sale is a seizure within

entering into it.-Hallenbeck v. Cochran,

566. the meaning of g 284 of the Code, and there need be no entry on the land by the See Gas COMPANIES, 3; SHERIFFS, 5. sheriff to execute such a decree. The Union Dime Savings Int. v. Andariese, 435.




5. As to whether the judgment creditor shall

have the right to examine the debtor subSee CORPORATIONS, 11-14, 18.

sequently rests in the sound discretion of

the court, and the affidavits upon which STREETS.

the application is based should show See EASEMENT, 2-4.

grounds for the second examination, such as subsequently acquired property or the


6. This right to examine the debtor does not See PRACTICE, 32.

attach to two or more judgments in favor

of the same person, but is the privilege of SUBROGATION.

the particular plaintiff. - Id. See MORTGAGE, 12; NEGOTIABLE PAPER, 13.

7. An order in supplemental proceedings

should not direct the proceedings to be SUBSTITUTION.

sent to any other county than that in

which the examination is had.- Pardee v. See ATTORNEYS, 3.

Titon, 473.

8. The representatives of a party whose SUMMARY PROCEEDINGS.

rights under the judgment and execution

had been determined prior to September, 1. A lease by a guardian, if ratified by the

1877, may institute supplemental proceedward after majority, is the ward's lease ;

ings without renewing the action.- Id. and he or his grantee is the landlord for purposes of summary proceedings.--The See APPEAL, 15. People ex rel. Hanagan v. Ingersoll, 472.


1. Sureties are always entitled to equitable 1. One who is appointed to fill a vacancy in

protection, and they should not be comthe office of superintendent of the poor is

pelled to pay in a case in which their entitled to hold office for the remainder of

principal is under no liability.-- Wettig v. the term for which his predecessor was

Moltz et al., 14. elected. Section 5 of Article 10 of the 2. Relief may be granted to sureties on an Constitution is not applicable to the office undertaking, even after a judgment is of superintendent of the poor.-- The Peo- rendered against them ; the only question ple ex rel. Hatfield v. Comstock, 135.

then being as to the terms of granting them

relief.--Id. See Poor.

3. In an action between sureties for contribSUPERVISORS.

ution the defendant cannot avail himself

of a simple indebtedness of plaintiff to the See MANDAMUS, 1, 2.

principal as a defence.--Davis v. Toulmin,


4. Semble that in case of insolvency there 1. The tuition moneys, payable in advance, might be cases where a Court of Equity,

due a school teacher, at the beginning of a having all the parties before it, might requarter, are earnings, and are not applic- lieve.--Id. able in supplementary proceedings, in

5. An order of arrest was granted in an case such moneys, payable within 60 days

action for divorce, which directed the prior to the procurement of the order, are

Sheriff to hold defendant to bail in the sum necessary to the judgment debtor for the

of $1,000. The sheriff arrested the desupport of his family supported by his

fendant and accepted an undertaking in labor.- Miller v. IIooper, 157.

the sum of $2,000 signed by defendant's 2. The beneficial interest of a judgment testator alone. On a former appeal it was

debtor in rents and profits of lands cannot held that the undertaking was not void, be reached in supplementary proceedings. but was good at common law and enforce- Manning v. Evans, 311.

able against the estate of the deceased 3. Whatever estate or interest the debtor has

surety, although the right of action did

not accrue until after his death. lleld, in lands subject to the jurisdiction of the

That such decision was conclusive of the court is vested in the receiver in supple

question as to the validity of the undermentary proceedings, by virtue of his ap

taking; that the evidence did not make a pointment, and an order directing the

case for the jury on the question of fraud assignment of such estate or interest by

on the sheriff's part in obtaining the sigthe debtor to the receiver is improper. - 18.

nature of the obligor to the instrument, 4. A judgment creditor is entitled to examine the latter not having been misled as to the

his debtor in supplementary proceedings general purpose for which his signature as fully as may be once. - Canavan v. Coyne. was required, and that if he omitted to 342.

examine the instrument, having ample op

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portunity to do so, without being pur- property made by a person since deceased, posely prevented, or thrown off his guard, which transfer was valid between the parhis ignorance of its purport must be at- ties and good and effectual as against heirs tributed to his own negligence.-- Toler v. and next of kin. Nor is jurisdiction given Adee et al., 211.

the surrogate in such a case by the fact

that the person to whom the transfer was 6. The surety on an undertaking on arrest is

made subsequently became the adminisnot discharged from liability by the dis

trator of the person who made the transcharge of his principal in bankruptcy ;

fer.- Richardson et al. v. Root et al., 266. nor by an omission to file the undertaking in the clerk's office ; nor by a delay in en- 4. Section 829 of the Code applies to Surrotering judgment in the action in which gates' Courts, and to proceedings therein. such undertaking is given ; nor by a delay -Schoonmaker et al. v. Wolford et al., 366. of two days in issuing execution on such 5. An application for probate of a will was judgment.-Id.

contested by respondents, who were tes7. A judgment was obtained by plaintiff tator's only legal heirs, on the ground of

against one Whitbeck for the recovery of want of mental capacity, fraud and undue
the possession of certain real property. influence. On the trial they were allowed
On appeal from such judgment to the to testify in relation to personal transac-
General Term, the defendant in this action tions and conversations between them and
became Whitbeck's surety on the appeal the testator. Held, error ; that they were
bond, agreeing, among other things, that persons “interested in the event of the
during the possession of said property by proceedings within the meaning of § 829.
Whitbeck, he should not commit any -Id.
waste. The undertaking was given in

6. Where the surrogate opens a decree as a July, 1864, and in September, 1865, the

favor, and directs a reference upon certain General Term affirmed the judgment. Six

conditions, to which the applicant subdays afterwards an appeal was taken by

mits, if the referee's report is set aside on Whitbeck to the Court of Appeals, and a

appeal and a new hearing ordered, the new undertaking with other sureties given,

surrogate can impose no new conditions by which proceedings were stayed pend

upon such new hearing.-Matter of the ing that appeal. In January, *1867, the

estate of Marsh, 498. judgment was affirmed by the Court of Appeals. In the winter of 1866-7, Whit- See APPEAL, 33. beck committed waste. In an action on defendant's undertaking, Held, That de

TAXATION. fendant was not responsible for the waste; 1. So long as the state, by its system of taxthat his liability for the acts of Whitbeck

ation, does not entrench upon the legiticeased after the new undertaking had been

mate authority of the Union, or violate given. -Church v. Simmons, 300.

any right recognized or secured to the citiSee EXECUTORS, &c., 1 ; MORTGAGE, 12.

zen by the Constitution of the United

States, the United States Supreme Court,

as between the citizen and his state, can

afford no relief against state taxation, how. 1. Application for the proof of a will may ever unjust, oppressive, or onerous.-Kirt

be made in behalf of one having an express land v. Hotchkiss, 100.
interest in the estate by a duly authorized 2. Taxation by a state of a debt held by one
agent for that purpose. It is not necessary

of its citizens against a resident of another that the applicatian should be made per

state, which debt is evidenced by the sonally by the interested party.Russell v.

debtor's bond and secured by a deed of Hart et al., 54.

trust or mortgage on real estate in such 2. A surrogate has jurisdiction to take proof other state, violates no provision in the

of a will disposing of real and personal Federal Constitution.-ld.
estate situate both in his county and in a 3. The statute regulating sales of land by
foreign country, made by a citizen of the

the state for unpaid taxes requires notice state, and a former resident of such county,

of the comptroller's deed to be given to but a resident of such foreign country at

occupant, and the production of the compthe time of his death, though the will has

troller's certificate is necessary to prove the been admitted to probate in such foreign

failure of the occupant to redeem.-Lucas country, and is in the possession and cus

v. McEnerna, 107. tody of a foreign court whence it cannot, according to the laws of that country, be 4. Hence, in an action to obtain possession of obtained; and if properly executed ac- lands bought at tax sale, the plaintiff must cording to the laws of this state and the produce the comptroller's certificate at the foreign country, it is entitled, upon proper time, or account for its non-production. If proof of that fact, and of its contents, to this is not done, and the land was occupied be admitted to probate.-Id.

when plaintiff received his deed, he can

not recover.-Id. 3. A surrogate has not jurisdiction to try an

issue as to the good faith of a transfer of 5. It is irregular and unauthorized to make

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an assessment to an “estate." When the

rectly charged, both in fact and in is held by trustees under a will

Id. it should be assessed to them as trustees. – Trowbridge et al. v. Horan et al., 192.

3. It is no proper or just audit of an account

made up of numerous items to allow a 6. In 1873 certain property, about thirty gross sum, instead of considering and acres, was assessed for taxes in bulk and

passing upon the items.-Id. estimated at a gross sum. Plaintiffs, claiming that one-half had been taken for a

TOWN BONDS. park, tendered the taxes on the other half, which the receiver refused to accept on the 1. An action will lie under Chapter 161, Laws ground that he had no power to apportion of 1872, to restrain the negotiation and the taxes. In 1876 a law was passed

sale of town bonds, issued under a judgauthorizing the assessors to amend their ment void for want of jurisdiction in the rolls for several years in various respects,

court which rendered it, and which are and among others to redescribe and divide void for matters appearing upon their the property, which they accordingly did face.- Metzger et al. v. The Attica & A. RR. in 1877. Plaintiffs again tendered the Co., 291. taxes, which were refused unless they paid See CONTRACT, 18-20. interest and penalties for non-payment. lleld, That the effect of the Act of 1876 was

TRADEMARKS. to relieve plaintiffs from the interest and penalties which accrued prior to making 1. The Acts of Congress of 1870 and 1876, the amended roll in 1877. - Id.

relating to trademarks, cannot be upheld 7. Plaintiff was assessed as agent of one C.

in whole or in part as valid and constitufor bonds, mortgages, and demands held

tional.—U. S. v. Steffens, 45. by him as such agent. It appeared that C. was a non-resident, and that the securities

TRESPASS. were sent to plaintiff for collection, and 1. In an action of trespass it appeared that dethat the latter had no interest in them. fendant entered into possession of the locus Held, That the assessment was illegal, and in quo under a contract of sale from L., that the County Court had power to order plaintiff's ancestor, and continued in posthe refunding of the tax paid thereon.- session to the time of doing the acts alleged

Williams v. The Board of Supervisors, 272. to be trespasses. The contract price was 8. No lien or incumbrance is created by tax

found to be $12 per acre, which defendant had paid.

On the trial defendant was until after the list containing it is con

asked if he had agreed to pay $30 per acre. firmed. - The Washington Heights M. E. Church v. The Mayor, &c., of N. Y., 457.

This was objected to, and the objection

overruled. Held, No error ; that the evi9, A tax imposed upon church property is dence was immaterial, and its reception

illegal, although at the time the assessors did not vary the result; tha the original made out the assessment rolls the title did and only entry being lawful and continunot stand in the church, but the title was ous under the contract, judgment could conveyed to the church before the tax list only be given for defendant.- Fonner v. was confirmed.-Id.

Johnson, 236. See MORTGAGE, 1.

2. An action of trespass quare clausum fregit,

committed in another state, beyond the TENDER.

jurisdiction of our courts, cannot be main

tained in this state.—De Courcy v. Stewart, See REPLEVIN, 2.




1. It is the duty of a trustee of a fund for the

security of others to protect the fund from TOWNS.

unfounded claims upon it, and he is not

aggrieved when an unreal claim has been 1. A board of town auditors has no right to defeated, but it is his duty also to protect

depart from the per diem allowance to and assist real claimants in reaching their town officers fixed by statute, but the num- due share of the fund; and if, in his sound ber of days service claimed is open to ex- judgment, an error has been committed in amination by them.- The People ex rel. disallowing any claim, he may hold him.

Thurston v. Toron Auditors of Elmira, 432. sel aggrieved, and seek relief by appeal. 2. The board is not bound by the number of

Bockes v. Hathorn et al., 118. days' service charged in the bill; but, in 2. Plaintiff was one of three trustees, all of in order to a proper and legal audit, the equal power. Held, That his co-trustees board must examine the bill in detail, and having refused to act as plaintiffs, he had allow or disallow the various items accord. a right to take such action in the suit as his ing as they are found correctly or incor. judgment dictated.-Id.

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