that T. & Co. held the balance of the goods simply as bailees for plaintiff; and that any lien they might have passed with the notes and was extinguished by the proof of claim and acceptance of a dividend on the full amount in the composition proceedings.-Johnson v. Dickinson et al., 40. 2. On an executed present sale of an article, with warranty as to quality, it is neither necessary nor allowable to rescind the sale, and return, or offer to return the property sold, on account of a breach of warranty. But where a chattel sold is sold subject to the condition that it should prove to answer the representations made concern ing it, in such case the buyer may return the chattel in case the representations made in respect to it are untrue.-Fogg et al. v. Francis, 130. 3. It is competent for the parties to a sale of personal property to make the consideration of the sale to be the payment of the purchase price to a third person. Whether the payment is to be made directly to the vendor or to a third person for his benefit, payment is the condition on performance of which only the title will pass; and if the vendee sells the property without such payment, even to a bona fide purchaser, the vendor may retake it.- Wood et al. v. Barr, 411. See CONTRACT, 24; LIEN, 2; STATUTE OF FRAUDS, 2; TAXATION, 3. SCHOOLS. 1. Where a teacher acts with good intentions in punishing a scholar, and uses a proper mode of punishment, he will be protected unless he carried the punishment to such a degree that it was immoderate, and of itself implied malice.-Green v. Peck, 3. 2. He must not use a proper kind of punishment in a brutal manner.-Id. See STATUTE OF FRAUDS, 1. SERVICE. 1. An affidavit upon which an order of publication is granted is fatally defective which does not show that the plaintiff had been or would be unable with due diligence to make personal service of the summons.-Campbell v. Taylor, 14. 2. An order of publication under section 440 of the Code is sufficient although the order designating two newspapers does not in terms designate them in the order as most likely to give notice to the defendant. -Green v. Squires, 332. 3. Where the language used in the order of publication is the equivalent of the statutory expression, and there is a substantial compliance with the statute, the order of publication is valid.-Id. See CORPORATIONS, 9; DISCOVERY, 1. 1. 2. SERVICES. In an action to recover wages for services for a specified term, it appeared that plaintiff was dismissed by defendant before the commencement of the term specified, and that during a portion of that term he worked for other parties and was paid by them. No tender of performance by plaintiff to defendant was shown. Held, That plaintiff was not entitled to recover; that his action should have been for damages, for not having been continued in service by defendant as agreed.— Weed v. Burt, 132. The rule that from a request to perform services an implied promise arises to pay what they are reasonably worth, and that in some cases the law will imply a request from the beneficial nature of the services or their acceptance by the party, does not apply where the services are rendered by one in the employ of the person for whom they were rendered.-Ross v. Harden et al., 279. 3. Defendant was organized under a statute which provided that when half its capital stock was subscribed, and twenty-five per cent. paid thereon, directors might be elected, and that when twenty-five per cent. of its entire capital was paid in, active business operations might be commenced. Prior to December 1, 1874, a board of directors had been elected, officers chosen, offices opened, and preparations for business made. At that time plaintiff was hired as a clerk by defendant's vicepresident at the rate of $3,000 a year, but for no specified time. He rendered services for over six months. Held, That the contract was valid, and plaintiff entitled to recover for his services; that the fact that he was hired at a yearly rate did not necessarily imply a hiring for a year.-Legrand v. The Manhattan Mercantile Assn., 419. See STATUTE OF FRAUDS, 1. SET-OFF. 1. If goods are sold by an agent in his own name, without disclosing his principal, the purchaser has a right to set-off a debt due from such agent, in an action by the principal for the price of the goods, unless the purchaser knew, or had reason to believe, that the vendor was selling as agent, or unless there were circumstances such as to put him on inquiry in this respect. But public rumor or knowledge of the of the agency upon the part of others is not sufficient to bar the purchaser from his set-off; circumstances must be brought to his knowledge which would necessarily put him on inquiry.-Pratt v. Collins, 481. SHERIFFS. 1. Although in general, a sheriff is not enti tled to poundage on a money execution until the money is collected, still if, after SPECIFIC PERFORMANCE. An action for specific performance of a contract for the sale of real estate free. from taxes is maintainable, although an action at law could be maintained on defendant's covenant to pay such taxes.— Stone v. Lord, 536. See LIEN, 1; PRACTICE, 10. 2. At request of judgment creditor and on 4. Where it is shown by plaintiff that while 5. Defendant had the custody of certain 1. 2. STATE COURTS. See JURISDICTION, 1, 2. STATE OFFICERS. Where the Legislature has seen fit to make an appropriation for work done, voluntarily or otherwise, for the State, no disbursing officer of the government can refuse to apply the money to the purpose for which it was appropriated on the ground that the state was not originally under any legal obligation for its payment, or that the Legislature was not sufficiently informed of the facts. He can only inquire if the appropriation was made for the purpose claimed; when that is ascertained his duty is merely ministerial.—The People ex rel. Sage v. Schuyler, 445. STATUTE OF FRAUDS. Plaintiff was, by a parol agreement, hired by defendants to teach a district school for one year at a specified salary, and for a further year at the same salary if no notice should be given by either party at least two weeks prior to the expiration of the first year. No notice was given, but plaintiff was discharged a few weeks after the second year commenced. In an action to recover salary for the second year, Held, that the agreement in respect to the second year was not void under the Statute of Frauds; that the contract might have been performed within the year by the giving of the notice, and that this fact took the case out of the statute.-Smith v. Conlin et al., 152. Plaintiff and defendant entered into a parol contract, by which defendant was to purchase two stacks of hay for $190. Plaintiff then said, "The hay is yours.' and defendant said, "Yes." The hay was in sight at the time. A few days afterwards defendant paid $25 to bind the contract. The hay was not removed, but soon after was burned with plaintiff's barn. In an action for the balance of the purchase price, Held, That the sale was void by the Statute of Frauds; that the payment called for by the statute to take a contract out of its operation must be made at the time of entering into it.-Hallenbeck v. Cochran, 566. the meaning of § 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. See CONVERSION, 3; EXECUTION, 10. STATUTE OF LIMITATIONS. See LIMITATIONS. STOCKHOLDERS. See CORPORATIONS, 11-14, 18. STREETS. See EASEMENT, 2-4. SUBMISSION OF CONTROVERSY. See PRACTICE, 32. SUBROGATION. See MORTGAGE, 12; NEGOTIABLE PAPER, 13. SUBSTITUTION. See ATTORNEYS, 3. SUMMARY PROCEEDINGS. 1. A lease by a guardian, if ratified by the ward after majority, is the ward's lease ; and he or his grantee is the landlord for purposes of summary proceedings.-The People ex rel. Hanagan v. Ingersoll, 472. SUPERINTENDENT OF THE POOR. 1. One who is appointed to fill a vacancy in the office of superintendent of the poor is entitled to hold office for the remainder of the term for which his predecessor was elected. Section 5 of Article 10 of the Constitution is not applicable to the office of superintendent of the poor.--The People ex rel. Hatfield v. Comstock, 135, See POOR. SUPERVISORS. See MANDAMUS, 1, 2. 1. The tuition moneys, payable in advance, due a school teacher, at the beginning of a quarter, are earnings, and are not applicable in supplementary proceedings, in case such moneys, payable within 60 days prior to the procurement of the order, are necessary to the judgment debtor for the support of his family supported by his labor.-Miller v. Hooper, 157. 2. The beneficial interest of a judgment debtor in rents and profits of lands cannot be reached in supplementary proceedings. -Manning v. Evans, 311. 3. Whatever estate or interest the debtor has in lands subject to the jurisdiction of the court is vested in the receiver in supplementary proceedings, by virtue of his appointment, and an order directing the assignment of such estate or interest by the debtor to the receiver is improper.-ld. 4. A judgment creditor is entitled to examine his debtor in supplementary proceedings as fully as may be once.-Canavan v. Coyne. 342. 5. As to whether the judgment creditor shall have the right to examine the debtor subsequently rests in the sound discretion of the court, and the affidavits upon which the application is based should show grounds for the second examination, such as subsequently acquired property or the like.-Id. 6. This right to examine the debtor does not attach to two or more judgments in favor of the same person, but is the privilege of the particular plaintiff.-Id. 7. An order in supplemental proceedings should not direct the proceedings to be sent to any other county than that in which the examination is had.-Pardee v. Tilton, 473. 8. The representatives of a party whose rights under the judgment and execution had been determined prior to September, 1877, may institute supplemental proceedings without renewing the action.-Id. See APPEAL, 15. 4. 5. Semble that in case of insolvency there might be cases where a Court of Equity, having all the parties before it, might relieve.--Id. 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 defendant's 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 op portunity to do so, without being purposely prevented, or thrown off his guard, his ignorance of its purport must be attributed to his own negligence. --Toler v. Adee et al., 211. 6. 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 given; nor by a delay of two days in issuing execution on such judgment.-Id. 7. A judgment was obtained by plaintiff against one Whitbeck for the recovery of the possession of certain real property. On appeal from such judgment to the General Term, the defendant in this action became Whitbeck's surety on the appeal bond, agreeing, among other things, that during the possession of said property by Whitbeck, he should not commit any waste. The undertaking was given in July, 1864, and in September, 1865, the General Term affirmed the judgment. Six days afterwards an appeal was taken by Whitbeck to the Court of Appeals, and a new undertaking with other sureties given, by which proceedings were stayed pending that appeal. In January, 1867, the judgment was affirmed by the Court of Appeals. In the winter of 1866-7, Whitbeck committed waste. In an action on defendant's undertaking, Held, That defendant was not responsible for the waste; that his liability for the acts of Whitbeck ceased after the new undertaking had been given.-Church v. Simmons, 300. See EXECUTORS, &c., 1; Mortgage, 12. SURROGATES. 1. Application for the proof of a will may be made in behalf of one having an express interest in the estate by a duly authorized agent for that purpose. It is not necessary that the applicatian should be made personally by the interested party.-Russell v. Hart et al., 54. 2. A surrogate has jurisdiction to take proof of a will disposing of real and personal estate situate both in his county and in a foreign country, made by a citizen of the state, and a former resident of such county, but a resident of such foreign country at the time of his death, though the will has been admitted to probate in such foreign country, and is in the possession and custody of a foreign court whence it cannot, according to the laws of that country, be obtained; and if properly executed according to the laws of this state and the foreign country, it is entitled, upon proper proof of that fact, and of its contents, to be admitted to probate.-Id. 3. A surrogate has not jurisdiction to try an property made by a person since deceased, 4. Section 829 of the Code applies to Surro- 6. Where the surrogate opens a decree as a 1. 2. 3. 4. TAXATION. So long as the state, by its system of taxation, does not entrench upon the legitimate authority of the Union, or violate any right recognized or secured to the citizen 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, however unjust, oppressive, or onerous.-Kirtland v. Hotchkiss, 100. Taxation by a state of a debt held by one of its citizens against a resident of another state, which debt is evidenced by the debtor's bond and secured by a deed of trust or mortgage on real estate in such other state, violates no provision in the Federal Constitution.-Id. The statute regulating sales of land by the state for unpaid taxes requires notice of the comptroller's deed to be given to occupant, and the production of the comptroller's certificate is necessary to prove the failure of the occupant to redeem.-Lucas v. McEnerna, 107. Hence, in an action to obtain possession of lands bought at tax sale, the plaintiff must produce the comptroller's certificate at the time, or account for its non-production. If this is not done, and the land was occupied when plaintiff received his deed, he cannot recover.-Id. issue as to the good faith of a transfer of 5. It is irregular and unauthorized to make an assessment to an "estate." When the property is held by trustees under a will it should be assessed to them as trustees.Trowbridge et al. v. Horan et al., 192. 6. In 1873 certain property, about thirty acres, was assessed for taxes in bulk and estimated at a gross sum. Plaintiffs, claiming that one-half had been taken for a park, tendered the taxes on the other half, which the receiver refused to accept on the ground that he had no power to apportion the taxes. In 1876 a law was passed authorizing the assessors to amend their rolls for several years in various respects, and among others to redescribe and divide the property, which they accordingly did in 1877. Plaintiffs again tendered the taxes, which were refused unless they paid interest and penalties for non-payment. Held, That the effect of the Act of 1876 was to relieve plaintiffs from the interest and penalties which accrued prior to making the amended roll in 1877.-Id. 7. Plaintiff was assessed as agent of one C. for bonds, mortgages, and demands held by him as such agent. It appeared that C. was a non-resident, and that the securities were sent to plaintiff for collection, and that the latter had no interest in them. Held, That the assessment was illegal, and that the County Court had power to order the refunding of the tax paid thereon.Williams v. The Board of Supervisors, 272. 8. No lien or incumbrance is created by tax until after the list containing it is confirmed. The Washington Heights M. E. Church v. The Mayor, &c., of N. Y., 457. 9, A tax imposed upon church property is illegal, although at the time the assessors made out the assessment rolls the title did not stand in the church, but the title was conveyed to the church before the tax list was confirmed.-Id. See MORTGAGE, 1. TENDER. See REPLEVIN, 2. TITLE. See ALIENS, 2; BILL OF LADING; EXECUTION, 5; SALE, 1; VENDOR and VENDEE. TOWNS. 1. A board of town auditors has no right to depart from the per diem allowance to town officers fixed by statute, but the number of days service claimed is open to examination by them.-The People ex rel. Thurston v. Town Auditors of Elmira, 432. 2. The board is not bound by the number of days' service charged in the bill; but, in in order to a proper and legal audit, the board must examine the bill in detail, and allow or disallow the various items according as they are found correctly or incor 1. In an action of trespass it appeared that defendant entered into possession of the locus in quo under a contract of sale from L., plaintiff's ancestor, and continued in possession to the time of doing the acts alleged to be trespasses. The contract price was found to be $12 per acre, which defendant had paid. On the trial defendant was asked if he had agreed to pay $30 per acre. This was objected to, and the objection overruled. Held, No error; that the evidence was immaterial, and its reception did not vary the result; that the original and only entry being lawful and continuous under the contract, judgment could only be given for defendant.-Fonner v. Johnson, 236. 2. An action of trespass quare clausum fregit, committed in another state, beyond the jurisdiction of our courts, cannot be maintained in this state.-De Courcy v. Stewart, 561. See ADVERSE POSSESSION, 1, 3, 4. TRUSTEES. 1. It is the duty of a trustee of a fund for the security of others to protect the fund from unfounded claims upon it, and he is not aggrieved when an unreal claim has been defeated, but it is his duty also to protect and assist real claimants in reaching their due share of the fund; and if, in his sound judgment, an error has been committed in disallowing any claim, he may hold himsel aggrieved, and seek relief by appeal.Bockes v. Hathorn et al., 118. |