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was served by the tenant, which continued other facts proved upon the trial: that the in force until April 30, 1867. It did not agent was placed in actual possession of the appear

whether any steps had been taken farm, so far as possession thereof could be towards the enforcement of the writ before delivered ; that although it was the sheriff's the stay was served. The sheriff returned duty to remove from the premises the perthat on May 10, 1867, he put the de- sonal property, yet an omission to do so fendant in possession. The tender of the would not vitiate the execution of the writ, rent in arrear was not made until Sept. 24, possession of the land having been delivered. 1869, and on the day following this action Also, Held, That the statute, providing was commenced. The plaintiff claimed that in such case, if the rents and costs that the writ of possession being returnable shall remain unpaid for six months after in sixty days, and having been issued the execution was executed, the lessee

17, 1867, and not executed until shall be barred of all relief (2 R. S., 506, S May 10, 1867, that there could not be a 34), began to run from the time of the de. valid execution of it after the return day. livery of possession, and that the time R. A. Parmenter, for applt.

limited for redemption could not be enSamuel Hand, for respts.

larged by a subsequent re-entry of plaintiff. lleld, That the writ could be executed The time for redemption having expired after the return day; that the land of which the court had no discretion, but was bound the writ directed possession to be delivered upon the facts proved to uismiss the comwas bound by the judgment, and the office plaint. of the writ was simply to carry the judg.

Judgment of General Term, affirming ment into effect with reference to that land : judgment dismissing complaint, affirmed. that the command to return the writ within

Per curiam opinion. sixty days was directory merely.

Such an execution is not analagous to an execution against personal property, but is

REFERENCE. more analagous to a proceeding to sell real

SUPREME COURT-GENERAL TERM. estate under an execution, and may

be taken after the return day of the writ.

FIRST DEI'T. Plaintiff also claimed that there was no Elizabeth Harden, applt, v. Robert H. actual execution of the writ May 10, 1867. Corbett, respt. The judge on the trial found as a fact that

Decided January 28, 1876. the execution was duly executed on that the complaint is controlling in deterday by the sheriff, who assumed to deliver

mining the nature of an action. possession of the premises to the agent of an order denying a motion to refer the assignee of the plaintiff in the execution,

for want of power is appealable. he being then upon the premises. It ap. The character of an action on contract peared that the sheriff demanded possession

to recover money deposited with a of the occupant of the only part of the pre person on his promise to return same mises that were occupied, and threatened to when demanded is not changed by the remove him unless he consented to acknowl allegation that the depositary misapedge himself as holding under the landlord.

propriated and converted the funds. which he did in writing. The sheriff went Appeal from an order denying motion for upon the unoccupied portions of the farm order of reference. and assumed to deliver possession to the

The complaint alleges that the plaintiff, agent.

at the solicitation of defendant, depoHeld, That the finding of the judge was sited with defendant, who is an attorney sustained by the sheriff's return, and the of this court, money and securities of the

alleged value and amount of one hundred reversed and motion for reference granted. and twelve thousand dollars. That plaintiff Opinion by Davis, P. J.; Brady and placed said money and securities in the Donohue, JJ., concurring. hands of defendant as her attorney and agent, and that he promised to hold the same for her and pay over the same to her whenever demanded; and alleged that de

SUPREME COURT-GENERAL TERM. fendant converted the same to his own use. The answer admits the receipt of up

FIRST DEPT. wards of $103,000, and then alleges that the defendant paid out at plaintiff's request Elliot C. Cowden et al, respts, v. Alfred about $61,000; that he lost $20,000 in Teale, applt. speculating in Pacific Mail for her account,

Decided January 28, 1876. and that she promised to pay him for services rendered the sum of $100,000, and where the accuracy of an account is demands judgment by way of counter claim brought in question the case is referfor upwards of $70,000.

able. The motion was made on the pleadings,

Appeal from order granting a reference. a bill of particulars and affidavit.

Action brought for money advanced, comThe Court at Special Term denied the

missions and charges in reference to goods motion on the ground that the action was one sounding in tort, and therefore could sold by plaintiff for defendant on com mis.

sion. not be referred. George L. Ingraham for applt.

Defence, that the property was sold at Robert L. Sewell for respt.

improper times and for less than its value,

counter claiming for the amount in which Hell, on appeal, that as to the character

defendant was damaged. It was stipulated of the action the complaint is controlling on the part of the defendant that if an That the complaint shows a cause of action order of reference should not be granted, on contract for the recovery of

· All the items in plaintiff's account for the plaintiff alleges she placed in the hands cash, and other items for charges of money of the defendant as her attorney and coun. advanced and other items, shall be adsel, and for which she demands an account

mitted." ing. She distinctly alleges that defendant received said moneys as her attorney, r ro.

H. C. Southworth for applt. mised to hold same for her, pay over the

John B. Taylor for respts. same to her when demanded, and she al Held, That to establish the counter claim leges a breach of this agreement It does defendant must show each sale improperly not change the character of the action that made. she also alleges that the defendant has mis

This assails plaintiff's account, for though applied and appropriated the moneys to his the advances and charges are admitted, the own use. That is merely another form of sales are questioned. The accuracy of the alleging a breach of the contract. The account is questioned, and each sale in the authorities establish that on allegations such account is the subject of investigation. as are contained in this case the action must

Order affirmed. be considered as one upon contract. 44 N. Y. 63; 42 N. 1'. 33; 53 N. Y. 305.

Opinion by Brady, J.; Daniels, J., and The Special Term having denied the Davis, P. J., concurring. motion on the ground of want of power the order was clearly appealable. Order below

money which





Brewster et al, applts, v. Taylor, respt.

The First National Bank of Lebanon Decided January 18, 1876.

v. Cake. To take a sale of personal property out

Decided December 31, 1875. of the statute there must be a payment A bank is under no obligation to give or a delivery and acceptance of the

an applicant for discount notice article. Delivery without accept whether or not his paper will be ance is not suficient.

taken. And it makes no difference This action was brought to recover the

that the discount was to be applie i price of a wagon alleged to have been sold

to the payment of notes then in the

bank on which the applicant was an and delivered to the defendant. The evi.

indorser. dence showed that defendant contracted

The usurious interest taken by a Naorally to purchase of plaintiffs a two-horse

tional Bank in previous transactions wagon, to which a pole belonging to de.

only will be a matter of set-off. fendant was to be fitted, and when com. The whole interest paid can be recoverpleted directed it to be sent to the stable

ed only in an action as a penalty of of cne McD. Plaintiffs could not fit the pole to the wagon, and sent it to the stable

Rule for a new trial. without further authority from defendant,

Opinion by Thayer, P. J. and without notice to him, where the

The action was upon two indorsements wagon was soon after destroyed. No payment had been made by defendant, and of the defendant, one of them being upon there was no proof of an acceptance by him. a draft of the Alaska Coal Company for At the close of plaintiffs' evidence defend- $3,150, to the order of Simon J. Stine, and ant moved for the dismissal of the complaint

the other upon a note of Stine for $650. on the ground that the transaction was void

These instruments were discounted by by the statute of frauds. The motion was

the plaintiffs for Stine, and were both granted and a verdict directed for defend- protested for non-payment. Subsequently

Stine sent to the bank, by mail, two other ant,

notes to be discounted, in order that with Samuel Hind for applts.

the proceeds he might take up the pro

tested draft and note. The bank refused D. C. Brown for respt.

to discount the two notes sent for this

purpose. The first point of the defence Held, No error, that the sale of the

wagon was not complete until the pole had been was that the bank ought to have notified

the defendant of their refusal to discount fitted, and so there was no acceptance when

the second set of notes for Stine and that the contract was made, and it was not established by sending the wagon to the by its neglect to do so he lost the oppor

tunity of securing himself by proceeding stable. No sale therefore was made out

promptly against Stine. It is difficult to within the statute of frauds.

comprehend how any obligation rested Order of General Term reversing order upon the bank to notify the defendant of of Special Term granting a new trial their refusal to discount the second set affirmed.

of notes sent to them by Stine, or to acOpinion by Miller, J.

cept them in renewal of the protested paper. It was the defendant's duty to ascertain himself whether the bank would


accept any such offer made by Stine to This ruling was in conformity with extend further indulgence to him and his Brown v. The Second National Bank of indorser, the defendant. There is no Erie (22 Smith, 209); and Lucas v. The ground whatever, either of reason or of National Bank of Pottsville (32 Legal law, for asserting that any duty rested Int. 379), as we understand those deciupon the bank to notify the defendant of their refusal to extend further accommo Rule discharged. dation to Stine. It was a fact which he could have easily ascertained upon in- WAGERING. CHECK GIVEN FOR quiry at the bank, and if it was important SHARE OF WINNINGS. for him to know it, it was his own fault

Exglish DECISIONS. EXCHEQUER that he did not ask for the information

DIVISION. himself.

Beeston v. Beeston. The second branch of the defence Decided November 22, 1875. g'ested upon the allegation that the bank A contract whereby one party agrees.

to had discounted the paper upon which advance money to another with suit was brought, and other notes upon which to bet or wager, the proceeds former occasions out of which the paper of which are to be divided, is not sued upon had arisen, at usurious rates.

illegal, and the latter will be comUpon that subject the jury were instruct

pelled to account to the former in ed by the court, that by the act of Con

respect of money earned thereunder. gress relating to the organization of

Declaration on check drawn by defend. National Banks, the taking of usurious ant to plaintiff's order. interest upon the instruments sued upon Plea, That plaintiff and defendant enterwould work a forfeiture of all interest ed into a contract whereby plaintiff was to due upon them, the legal interest as well advance certain moneys; and, with such as the usurious interest, and, that if they moneys, and his own, defendant was to bet found that the paper in suit had been and wager upon the result of certain horse discounted at usurious rates, the plaintiffs races, the proceeds of which were to be dicould recover no interest whatever. With vided in certain proportions, and that the regard to the prior notes which the bank check was given for plaintiff's share of had previously discounted for Stine upon moneys won on such races and for no other former occasions the jury were told that consideration. if they found that the bank had received Demurrer and joinder. any usurious interest in those transac Held, The statute (8 and 9 Vic. c., 109 tions, they should deduct the usurious in- s. 18) is directed against suits brought for terest so received from the plaintiff's recovering on any contract by way of wag. claim, but not the lawful interest paid; ering, and applies to actions brought by one

: , but that the lawful interest paid in those either party against a stakeholder. prior transactions was not to be deducted This case is not within the statute. from the plaintiff's claim in this suit, but The only thing that can be said on the if the parties desired to make any further other side is, that this being a pre-arranged reclamations against the bank, upon was illegal, but it was not so

plan, such betting as was in contemplation

at common their former transactions, other than the law, and the statut :8 apply only to securities deduction of the usurious interest, they between the parties wagering. It only must proceed for the penalty in an action makes such contracts null and void, not il. of debt, in which they might recover dou- legal. ble the amount of the interest taken, ac Judgment for plaintiff. cording to the statute.

Opinion by Pollock, B.



(No. 2.

to secure.

NEW YORK WEEKLY DIGEST. White & Bushe, for applt.

W. R. Logan, for respt. VOL. 2.)

Held, on appeal, That the money reADMINISTRATOR.

ceived by the sale of the mortgaged propX. Y. SUPREME COURT, FIRST DEPART- erty in Connecticut, seems to have been

applied by the special administrator, in MENT. Harvey, admr, &c., appll., vs. Burn- due course of administration, to the pay

ment of debts in that state, under proper bam, respt.

authority. Decided December 30, 1875.

In the absence of proof to the contrary In absence of proof to the contrary, we must presume that the debts paid administrator presumed to have paid were only those which had been properly only such debts as were properly proved. This, however, is not the place

proved. Special administrators appointed in have been done by the special adminis

to contest these payments. That should another state, should contest claims of creditors being in that state, and trator in Connecticut, and his failure to not the general administrator here. have done so cannot now be urged as a Release of a security does not affect the reason for not paying the debt of res

indcbiedness it was given to secure. pondent. Appeal from order of the Surrogate's

The rele:se of respondent's mortgage Court directing the paym-nt by the ad- would not, in its·lf, have any effect upon ministrator of the amount of a note held the indebtedness which it had been given by respondent. As security for a promissory note held

Order affirmed. by respondent, deceased had executed a Opinion by Davis, P. J.; Daniels, J., mortgage of certain of his real estate in concurring. Connecticut, and given it to respondent. This lien upon this property respondent ASSESSMENTS. LOCAL IMPROVEJulealsed, and permitted the special ad

MENTS. ministrator appointed in that State to

N. Y. COURT OF APPEALS. soll the land and apply all the proceeds of euch sale to the payment of creditors Mayer, resp't, v. The Mayor, etc., of N. residing there, under authority from the Y., applt. Connecticut Court of Probate. Res Decided December 21, 1875. pondent then looked to the appellant for where money has been paid under a misthe payment of his claim.

take of fact, although the party paying The existence of the debt is not dis it was guilty of negligence, he may reputed, but appellant urged in his affidavit

cover it, unless the position of the party

receiving it has been changed in consethat the release was made without his

quence thereof. knowledge, and that certain unjust and Local improvements instituted by the cor. disputed claims of respondent's son-in-law

poration are public improvements, and were thereby paid, which otherwise could the moneys collected therefor are held by have been resisted. That respondent had the city in its own right, and not as decinspired with his son-in-law to effect this

pository. result, and had thereby damaged the This action was brought to recover appellant to the extent of $500.

back money paid to defendant by plain. These charges were not sustained by tiff for an assessment for a local improve any further proof than the mere state- ment upon land in New York city. In ments of appellant in bis affidavits. making the payment pla ntiff intended to

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