other facts proved upon the trial: that the agent was placed in actual possession of the farm, so far as possession thereof could be delivered; that although it was the sheriff's duty to remove from the premises the personal property, yet an omission to do so would not vitiate the execution of the writ,

was served by the tenant, which continued in force until April 30, 1867. It did not appear whether any steps had been taken towards the enforcement of the writ before the stay was served. The sheriff returned that on May 10, 1867, he put the defendant in possession. The tender of the 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 Jany. 17, 1867, and not executed until shall be barred of all relief (2 R. S., 506, § May 10, 1867, that there could not be a 34), began to run from the time of the devalid execution of it after the return day. livery of possession, and that the time limited for redemption could not be enlarged by a subsequent re-entry of plaintiff. The time for redemption having expired the court had no discretion, but was bound upon the facts proved to dismiss the complaint.

R. A. Parmenter, for applt.
Samuel Hand, for respts.

Held, That the writ could be executed after the return day; that the land of which the writ directed possession to be delivered was bound by the judgment, and the office of the writ was simply to carry the judgment into effect with reference to that land; that the command to return the writ within sixty days was directory merely.

Such an execution is not analagous to an execution against personal property, but is more analagous to a proceeding to sell real estate under an execution, and may be taken after the return day of the writ.

Plaintiff also claimed that there was no actual execution of the writ May 10, 1867. | The judge on the trial found as a fact that the execution was duly executed on that day by the sheriff, who assumed to deliver possession of the premises to the agent of the assignee of the plaintiff in the execution, he being then upon the premises. It appeared that the sheriff demanded possession of the occupant of the only part of the premises that were occupied, and threatened to remove him unless he consented to acknowledge himself as holding under the landlord, which he did in writing. The sheriff went. upon the unoccupied portions of the farm and assumed to deliver possession to the agent.

Held, That the finding of the judge was sustained by the sheriff's return, and the

Judgment of General Term, affirming judgment dismissing complaint, affirmed. Per curiam opinion.



Elizabeth Harden, applt, v. Robert H.
Corbett, respt.

Decided January 28, 1876.

The complaint is controlling in deter-
mining the nature of an action.
An order denying a motion to refer
for want of power is appealable.
The character of an action on contract
to recover money deposited with a
person on his promise to return same
when demanded is not changed by the
allegation that the depositary misap-
propriated and converted the funds.
Appeal from an order denying motion for
order of reference.

The complaint alleges that the plaintiff, at the solicitation of defendant, deposited with defendant, who is an attorney of this court, money and securities of the

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alleged value and amount of one hundred reversed and motion for reference granted. Opinion by Davis, P. J.; Brady and Donohue, JJ., concurring.

and twelve thousand dollars. That plaintiff placed said money and securities in the 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 defendant converted the same to his own use.

The answer admits the receipt of upwards of $103,000, and then alleges that the defendant paid out at plaintiff's request about $61,000; that he lost $20,000 in speculating in Pacific Mail for her account, and that she promised to pay him for services rendered the sum of $100,000, and demands judgment by way of counter claim for upwards of $70,000.

The motion was made on the pleadings, a bill of particulars and affidavit.

The Court at Special Term denied the motion on the ground that the action was one sounding in tort, and therefore could not be referred.

George L. Ingraham for applt.
Robert L. Sewell for respt.


Elliot C. Cowden et al, respts, v. Alfred Teale, applt.


Held, on appeal, that as to the character of the action the complaint is controlling That the complaint shows a cause of action on contract for the recovery of money which the plaintiff alleges she placed in the hands of the defendant as her attorney and counsel, and for which she demands an accounting. She distinctly alleges that defendant received said moneys as her attorney, rromised to hold same for her, pay over the same to her when demanded, and she alleges a breach of this agreement It does not change the character of the action that she also alleges that the defendant has misapplied and appropriated the moneys to his own use. That is merely another form of alleging a breach of the contract. The authorities establish that on allegations such as are contained in this case the action must be considered as one upon contract. 44 N. Y. 63; 42 N. Y. 33; 53 N. Y. 305.

The Special Term having denied the motion on the ground of want of power the order was clearly appealable. Order below

Decided January 28, 1876.

Where the accuracy of an account is brought in question the case is referable.

Appeal from order granting a reference. Action brought for money advanced, commissions and charges in reference to goods sold by plaintiff for defendant on commission.

Defence, that the property was sold at improper times and for less than its value, counter claiming for the amount in which defendant was damaged. It was stipulated on the part of the defendant that if an order of reference should not be granted,

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Brewster et al, applts, v. Taylor, respt.
Decided January 18, 1876.

To take a sale of personal property out
of the statute there must be a payment
or a delivery and acceptance of the
article. Delivery without accept-
ance is not sufficient.

This action was brought to recover the price of a wagon alleged to have been sold and delivered to the defendant. The evidence showed that defendant contracted orally to purchase of plaintiffs a two-horse wagon, to which a pole belonging to defendant was to be fitted, and when completed directed it to be sent to the stable of one McD. Plaintiffs could not fit the pole to the wagon, and sent it to the stable without further authority from defendant, and without notice to him, where the wagon was soon after destroyed. No payment had been made by defendant, and there was no proof of an acceptance by him. At the close of plaintiffs' evidence defendant moved for the dismissal of the complaint on the ground that the transaction was void by the statute of frauds. The motion was granted and a verdict directed for defend


Samuel Hind for applts.
D. C. Brown for respt.

Order of General Term reversing order of Special Term granting a new trial affirmed.

Opinion by Miller, J.

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Rule for a new trial.
Opinion by Thayer, P. J.


The action was upon two indorsements of the defendant, one of them being upon draft of the Alaska Coal Company for $3,150, to the order of Simon J. Stine, and the other upon a note of Stine for $650. These instruments were discounted by the plaintiffs for Stine, and were both protested for non-payment. Subsequently Stine sent to the bank, by mail, two other notes to be discounted, in order that with the proceeds he might take up the protested draft and note. The bank refused to discount the two notes sent for this purpose. The first point of the defence. was that the bank ought to have notified

Held, No error, that the sale of the


was not complete until the pole had been fitted, and so there was no acceptance when the contract was made, and it was not es

the defendant of their refusal to discount the second set of notes for Stine and that

stable. No sale therefore was made out within the statute of frauds.

tablished by sending the wagon to the by its neglect to do so he lost the opportunity of securing himself by proceeding promptly against Stine. It is difficult to comprehend how any obligation rested. upon the bank to notify the defendant of their refusal to discount the second set of notes sent to them by Stine, or to accept 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 extend further indulgence to him and his indorser, the defendant. There is no ground whatever, either of reason or of law, for asserting that any duty rested upon the bank to notify the defendant of their refusal to extend further accommodation to Stine. It was a fact which he could have easily ascertained upon inquiry at the bank, and if it was important for him to know it, it was his own fault that he did not ask for the information himself.

This ruling was in conformity with Brown v. The Second National Bank of Erie (22 Smith, 209); and Lucas v. The National Bank of Pottsville (32 Legal Int. 379), as we understand those deci


Rule discharged.


Beeston v. Beeston.

Decided November 22, 1875.

A contract whereby one party agrees to
advance money
to another with
which to bet or wager, the proceeds
of which are to be divided, is not
illegal, and the latter will be com-
pelled to account to the former in
respect of money earned thereunder.
Declaration on check drawn by defend-
ant to plaintiff's order.

The second branch of the defence rested upon the allegation that the bank had discounted the paper upon which suit was brought, and other notes upon former occasions out of which the paper sued upon had arisen, at usurious rates. Upon that subject the jury were instructed by the court, that by the act of Congress relating to the organization of National Banks, the taking of usurious interest upon the instruments sued upon Plea, That plaintiff and defendant enterwould work a forfeiture of all interested 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 any usurious interest in those transactions, they should deduct the usurious interest so received from the plaintiff's claim, but not the lawful interest paid: but that the lawful interest paid in those prior transactions was not to be deducted from the plaintiff's claim in this suit, but if the parties desired to make any further reclamations against the bank, upon their former transactions, other than the deduction of the usurious interest, they must proceed for the penalty in an action of debt, in which they might recover double the amount of the interest taken, according to the statute.

Demurrer and joinder.

Held, The statute (8 and 9 Vic. c., 109 s. 18) is directed against suits brought for recovering on any contract by way of wagparty to a wager against the other, or by ering, and applies to actions brought by one either party against a stakeholder.

This case is not within the statute. The only thing that can be said on the other side is, that this being a pre-arranged plan, such betting as was in contemplation was illegal, but it was not so at common law, and the statuts apply only to securities between the parties wagering. It only makes such contracts null and void, not illegal.

Judgment for plaintiff.
Opinion by Pollock, B.


VOL. 2.]


White & Bushe, for applt.

W. S. Logan, for respt.


Held, on appeal, That the money received by the sale of the mortgaged propN. Y. SUPREME COURT, FIRST DEPART-erty in Connecticut, seems to have been applied by the special administrator, in

Burn-due course of administration, to the pay

ment of debts in that state, under proper authority.

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. to contest these payments. That should Special administrators appointed in another state, should contest claims of creditors being in that state, and not the general administrator here. Release of a security does not affect the indebtedness it was given to secure.

have been done by the special administrator in Connecticut, and his failure to have done so cannot now be urged as a reason for not paying the debt of respondent.

The release of respondent's mortgage would not, in itself, have any effect upon the indebtedness which it had been given

to secure.

[No. 2.


Harvey, admr, &c., appll., vs. Burn&c., appll., vs. ham, respt.

Decided December 30, 1875.

Appeal from order of the Surrogate's Court directing the payment by the administrator of the amount of a note held by respondent.

Order affirmed.



Mayer, resp't, v. The Mayor, etc., of N.
Y., applt.

As security for a promissory note held by respondent, deceased had executed a mortgage of certain of his real estate in Connecticut, and given it to respondent. This lien upon this property respondent ASSESSMENTS. LOCAL IMPROVEreleased, and permitted the special administrator appointed in that State to sell the land and apply all the proceeds of such sale to the payment of creditors residing there, under authority from the Connecticut Court of Probate. Respondent 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 it was guilty of negligence, he may recover it, unless the position of the party receiving it has been changed in consequence thereof. Local improvements instituted by the corporation are public improvements, and the moneys collected therefor are held by the city in its own right, and not as depository.

Decided December 21, 1875.

The existence of the debt is not dis puted, but appellant urged in his affidavit that the release was made without his

knowledge, and that certain unjust and disputed claims of respondent's son-in-law were thereby paid, which otherwise could have been resisted. That respondent had conspired with his son-in-law to effect this result, and had thereby damaged the appellant to the extent of $500.

These charges were not sustained by any further proof than the mere statements of appellant in his affidavits.

Opinion by Davis, P. J.; Daniels, J., concurring.

This action was brought to recover back money paid to defendant by plaintiff for an assessment for a local improvement upon land in New York city. In making the payment pla ntiff intended to

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