and declared by the 18th section that the several acts done and performed under the act of 1873 were expressly confirmed, and provided that the provisions in that act as to acts to be done prior Judgment of General Terin affirming judgment for defendant on verdict, af firmed. Opinion by Church, Ch. J. to the passage of this act shall be con- PROMISSORY NOTE. EXCEPstrued as if this act had passed on the 23d day of May, 1873. Plaintiffs claim that election was premature, and could not have taken place until the general election in 1874, and that the election was void because not conducted according to the laws applicable to the city of New York in respect to registry, &c. Geo. H. Foster, for applts. Abel Crook & John Flanagan, for respt. Held, That it was to be assumed that the act of 1874 was intended to confirm such election, and to recognize, so far as the legislature could, the defendant as legally entitled to the office. Its legal effect may be regarded as a legis lative construction of the act of 1873, both as to the time of holding the first election of District Justice and the inapplicability of the registry acts of the city of New York, and as a confirmation of the election, even if conducted irregularly. Also held, That the people having, through their constitutional agents ratified an election and recognized the title of defendant to the office, it was not competent for them to question it by quo warranto. The legislature had full power to do this. People v. Bull, 46 N. Y., 57, distinguished. It was competent for the legislature as between the people and defendant to construe its own act and to waive any irregularity in holding the election, and thus to confirm the title. TIONS. N. Y. SUPREME COURT. GEN'L TERM, FOURTH DEPARTMENT. Lattimer et al., applts. v. Hill et al., respts. Decided June, 1876. If the charge of a judge is erroneous, it is the duty of the court to grant a new trial, although neither the evidence nor the charge was excepted to. A party to a note may annex to such note any condition as to its delivery he may deem proper. Defendants are endorsers on a promissory note. At the time the note was endorsed it was proved that one of the plaintiffs asked defendants to endorse the note and said that they need have no fears of ever being liable upon it, as they (plaintiffs) would reserve out moneys going to the maker, who was working for them, and would see that same was paid; that they could not, under the laws, take the note unless endorsed, &c. No objection was made to the reception of this evidence. The court charged the jury that if they believed the story of the transaction at the time the note was endorsed that plaintiffs were to hold it and not to make defendants liable, but to charge the same in an account to the makers, cc., plaintiffs could not recover. The counsel for the endorsers did not except to this part of the charge, but seeks to take advantage of it now. Defendants claimed, that by reason of this agreement of plaintiffs to pay the note out of money due the makers for certain work, &c., defendants were to mislead, the judgment must be reprevented from filing a lien on the versed. building which was being made. 'The court in referring to this subject in his charge, says: "It is said on the part of defendants that they were prevented, by reason of the agreement, to file a lien, &c., and if they had they would have got their pay; and it is said that this may, and probably does, account for their not filing a lien, had they not supposed that note had been accepted as so much money. You will consider all circumstances which bear one way or the other, and see what the contract probably was by which plaintiff took this note." There was judgment for defendant. Held, That although the evidence as to the agreement under which the note was given and that portion of the charge in reference thereto, was not excepted to, if the charge was erroneous this court will order a new trial, as the failure to except did not injure plaintiff. That the party making a contract can annex to its delivery such conditions as he and if such condeem proper, may ditions are not performed he will be discharged therefrom. Opinion by Mullin, P. J. SERVICE OF SUMMONS. N. Y. COURT OF APPEALS. Person, applt. v. Markle et al., respts. Decided April 28, 1876. Neither a party nor a witness attending a court in this State from a foreign State can be served with a summons, unless he loses his privilege by remaining within the State an unreasonable length of time after the close of the trial. This was an appeal from an order of General Term affirming an order of Special Term setting aside the service of a summons in this action. It appeared that the summons was personally served at Elmira, in this State, on deefendant G., who was a resident of Pennsylvania, at the conclusion of a trial upon which he had been in attendance in good faith as a witness. J. McGuire, for applt. Held, That the service was properly set aside; that neither a party nor a witness attending a court in this State from a foreign State can be served with a summons unless he loses his privilege by remaining within the State an unreasonable length of time after the close of the trial. 2 J. R. 292; 3 Cow. 381; 1 Wend. 292; 3 Duer, 622; 23 How. 331. Order affirmed. That there is ground to apprehend, that from the judge's charge as to the mechanic's lien, &c., the jury understood the judge to instruct them that if the plaintiffs' conduct in reference to the note had any influence in inducing the endorsers to omit to file a mechanic's lien and thus secure the payment of the note, they might find for the defendants, and as such an instruction would N. Y. SUPREME COURT. GENERAL TERM. be wholly unauthorized and calculated CONDITIONAL SALES. AMEND- FOURTH DEPARTMENT. Daniel J. Cushman, applt. v. Eli B. Jewell, respt. Decided April, 1876. In cases of conditional sales where the title is to vest in the purchaser upon payment of the price, the purchaser may perfect his title to the property at any time by tender of the price, although it is payable by installments and they are not due. If the debt was payable with interest, the purchaser must pay interest until the maturity of the debt. An amendment to a complaint striking out a waiver of a cort will not be allowed. On the 7th day of May, 1874, Mrs. K. paid on said note $5, $5 on the first day of June, and on the first day of July $5. On or about the 25th of July, 1874, plaintiff bought of Mrs. K. the said machine, and on the first of August fol lowing it was taken from the plaintiff by defendant. Plaintiff made a demand for the machine which was refused. On the first of August Mrs. K. went to defendant's house and tendered to defendant the $5, being the installinent falling due on the first of August, and This action was brought before a also $5.56, being the installment not justice of the peace who rendered judg-paid in April and interest thereon. ment in favor of the plaintiff. The defendant refused to receive it, S. J. Barrows, for applt. On appeal to the County Court the and Mrs. K. retained the money for judgment was reversed. The plaintiff him. appeals to this court. The evidence shows that the defendant sold to Mrs. K. a sewing machine for $25, payable in monthly instalments, with interest, and took her note containing the follow. ing clauses and conditions, viz.: "It is expressly understood that the said E. B. Jewell neither parts with nor do I assign any title to said machine until said note is fully paid, and it is as expressly understood that I am not to remove said machine from my present place of residence, Rome, N. Y., without the consent of the said E. B. Jewell." In case of default in pay. ment, defendant was authorized to enter on the premises of Mrs. K. and remove said machine, and collect all reasonable charges for the use of the same. Held, That under the contract between Mrs. K. and the defendant, evidenced by the paper called a receipt, Mrs. K. had no title to the machine when she sold it to or exchanged with plaintiff, and could not, for that reason, convey any to him. The removal of the machine by plaintiff from Mrs. K's. house forfeited her right to the possession of the machine, but it did not necessarily annul the sale to her. She paid the balance due on the machine before the defendant took possession; her title became perfect, and the plaintiff acquired a valid title to it under his agreement with Mrs. K. The evidence does not make a case Underneath the signature of Mrs. K. allowing plaintiff to waive the tort and is the following: "I herein further agree that if I violate any part of the within I forfeit all that has been paid on the within, or may have been paid on the same." sue on contract; that can only be done when the wrong-doer has sold or otherwise disposed, so that it may be assumed he received the value of it in money or its equivalent. Opinion by Mullin, P. J.; Smith | 1875, why authority should not be and Noxon, J.J., concurring. JURISDICTION. SURROGATE'S COURT. NEW YORK Co. given to sell so much of the real estate of the deceased as should be necessary to pay his debts, was granted. Service of this order together with publication was made, and on the 28th day of September in the same year an order was made by the then Surrogate reciting the petition for leave to sell, the order to show cause, proof of Decided June 13, 1876. A petition of administrators to the Surrogate for authority to sell real estate to pay debts, which omits to state a description of all the real service thereof, together with publicaestate of deceased, whether occupied tion, and that the Surrogate, on due or not, and if occupied, the n mes of examination, being satisfied that the the occupants," will not confer juris- administrators had fully complied with diction on the Surrogate to grant the the provisions of the statute, that the order to show cause. If the requirements of the statute which debts, for the purpose of satisfying prescribes what such petition must which the application was made, were state, may be disregarded in one due and owing, and not secured by particular, it may be in all. judgment, or mortgage, &c., stating the Sections 1, 2 and 3 of Chap. 82, Laws amount, and that the personal property of 1850, and the amendments of Sec. 3 by Chap. 260, Laws of 1869, was insufficient for such payment, and and Chap. 92, Laws 1872, do not the Surrogate, having inquired and cure or obviate such omission. ascertained whether sufficient moneys Said Sections 1, 2 and 3 are not appli- for that purpose could be raised by cable to proceedings before the Surro- mortgage or lease, and it appearing gate, and do not relieve him from that it could not, and that said adminrequiring strict conformity to the requirements of the Revised Statutes istrators had executed a bond with sufgoverning such proceedings. To ficient sureties, approved according to hold otherwise would nullify Sec. 4 to the statute, which bond was filed, it of same act. That section prohibits was ordered that said administrators the Surrogate from confirming a sale "unless upon due examination sell the premises described, prescribing he shall be satisfied that the provis- the credit to be given on the sale to ions of the title of the Revised Stat- the purchaser, and that the administrautes (governing such proceedings) tors file a return, &c. have been complied with, as if this act had not been passed." This is an application for an order confirming the sale of certain real es tate, ordered to be sold under the provisions of the Revised Statutes, for the purposes of paying the debts on appli cation of the administrators. This order was signed by the then Surrogate, with a memorandum in pencil at the left of the signature, "signed provisionally," which, it appears, meant subject to filing and approval of the bond, as is supposed, at all events the bond seems not then to have been The petition was filed June 28th, given, but was afterwards, and on the 1875, on which day an order, requiring 6th day of March, 1876, presented at all persons interested in said estate to the Surrogate's office and filed by the show cause on the 18th day of August, clerk, but was not actually approved until May 25, 1876, and was in the date the 17th day of March, 1876, was penal sum of $3,000. not in fact granted by the late SurroSubsequently, and on the 24th day gate, Van Schaick, but that he was of May, 1876, a duplicate (substan- then absent from the city and never tially) of the order of sale above de- returned alive. scribed, bearing date the 17th day of On an examination of the records of March, 1876, was presented to the the office, no evidence appeared that present Surrogate for the purpose, as is the late Surrogate ever took proof of supposed, of curing the defect, if any, any debts against the estate in question, of the former order being signed before prior to his order under the stat execution, delivery and approval of the ute, except such proof as was furbond, and the omission of Surrogate nished by the petition in this matter, Van Schaick to sign the latter order, or that any such debt was ever adjudg and was then signed by the present ed valid or subsisting against said esSurrogate. tate, or was entered in the Book of Chas C. Egan, for Admrs. On the 25th day of May, 1876, on an affidavit setting forth the facts in respect to the signing of the first order, and the delay in giving the bond, and that such bond was delivered March 6, 1876, to the chief clerk, and the omission of the late Surrogate to Calvin, Surrogate. Objection is tasign said order of sale of date of March ken by the counsel for the purchaser 17th, and that such omission was by on the sale of the premises in question, inadvertence, together with an order among numerous others, that the late that the order of sale aforesaid be sign- Surrogate Hutchings did not obtain ed by the present Surrogate nunc pro tunc, was presented and signed for the purpose of curing the defect or omission referred to, it appearing that the sale of the premises had been already made. jurisdiction of the parties, or the subject matter aforesaid, by reason of the defects of the petition, and second, because of the non-adjudication of the claims against the estate, and their non-entry in the Book of Records, and It appears by the petition in this that the order of sale was defective matter that it omits to state the descrip- because made before the execution, tion of all the real estate of which the filing and approval of the bond, and intestate died seized, with the value of that the said order of sale, supposed to the respective portions or lots, and have been made by Surrogate Van whether occupied or not, and if occu- Schaick, was not in fact made by him, pied, the names of the occupants, in and therefore the order for signature conformity to 2d Revised Statutes, 104 thereof nunc pro tunc, is invalid, and Section, 2d Statutes at Large. that the first signature by the present It also appeared, by deposition, that Surrogate was not authorized by the the recital in Surrogate Hutchings' or act of 1874, Chapter 9, as not being a der of sale, that the bond had been record of a will or proof or examinagiven a cording to law was not true, tion taken before the predecessor of and that the order of sale bearing the present Surrogate, or a record of |