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

to the passage of this act shall be con- PROMISSORY NOTE. EXCEP

strued as if this act had passed on the 23d day of May, 1873.

Plaintiff's 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.

Judgment of General Terin affirming judgment for defendant on verdict, af firmed.

Opinion by Church, Ch. J.



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 evi-
dence nor the charge was excepted to.
A party to a note may annex to such
note any condition as to its delivery
may deem proper.

Defendants are endorsers on a promissory note.

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 in-maker, who was working for them, and applicability of the registry acts of the would see that same was paid; that city of New York, and as a confirma- they could not, under the laws, take the tion of the election, even if conducted note unless endorsed, &c. irregularly.

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

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.

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 re-
prevented from filing a lien on the
building which was being made.

Opinion by Mullin, P. J.

'i he 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.
J. W. & H. J. Dining, for applts.
J. W. Sanford, for respts.

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.


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. N. C. Moak, for respts.

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.

That the party making a contract can annex to its delivery such conditions as he may deem proper, and if such conditions are not performed he will be discharged therefrom.

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 defend


ants, and as such an instruction would N. Y. SUPREME COURT. GENERAL TERM. be wholly unauthorized and calculated


Order affirmed.
Opinion by Allen, J.

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.

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 installiñent falling due on the first of August, and also $5.56, being the installment not

This action was brought before a 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, On appeal to the County Court the and Mrs. K. retained the money for judgment was reversed. The plaintiff' 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 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 en


ter on the premises of Mrs. K. and re-her title became perfect, and the plain

move said machine, and collect all reasonable charges for the use of the

tiff acquired a valid title to it under his agreement with Mrs. K.


An amendment to a complaint striking out a waiver of a cort will not be


S. J. Barrows, for applt. Ball & Searles, for respt. 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;

The evidence does not make a case Underneath the signature of Mrs. K. allowing plaintiff to waive the tort and is the following: 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.

"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."

Opinion by Mullin, P. J.; Smith | 1875, why authority should not be and Noxon, J.J., concurring.

given to sell so much of the real estate of the deceased as should be necessary to pay his debts, was granted.


In the matter of the Estate of John
B. Kelly, deceased.

Decided June 13, 1876.


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 SurroA petition of administrators to the gate reciting the petition for leave to Surrogate for authority to sell real sell, the order to show cause, proof of 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 sell the premises described, prescribing sale "unless upon due examination

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.

This order was signed by the then Surrogate, with a memorandum in penconfirming the sale of certain real escil at the left of the signature, "signed

have been complied with, as if this
act had not been passed."
This is an application for an order

tate, ordered to be sold under the pro-
visions of the Revised Statutes, for the
purposes of paying the debts on appli

cation of the administrators.

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

given, but was afterwards, and on the 6th day of March, 1876, presented at the Surrogate's office and filed by the

The petition was filed June 28th, 1875, on which day an order, requiring all persons interested in said estate to

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 Surrogate, Van Schaick, but that he was then absent from the city and never returned alive.

Subsequently, and on the 24th day of May, 1876, a duplicate (substantially) of the order of sale above described, 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 statexecution, 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 adjudgand was then signed by the presented valid or subsisting against said esSurrogate. tate, or was entered in the Book of On the 25th day of May, 1876, on Proceedings, or the vouchers supportan affidavit setting forth the facts in ing the same filed pursuant to Section respect to the signing of the first order, 13 of said statute. 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 sign said order of sale of date of March 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 jurisdiction of the parties, or the subtunc, was presented and signed for the ject matter aforesaid, by reason of the purpose of curing the defect or omis- defects of the petition, and second, besion referred to, it appearing that the cause of the non-adjudication of the sale of the premises had been already claims against the estate, and their non-entry in the Book of Records, and that the order of sale was defective because made before the execution, filing and approval of the bond, and

Calvin, Surrogate. Objection is taken by the counsel for the purchaser


Chas C. Egan, for Admrs.
Chas. M. Hall, for purchaser.

It appears by the petition in this matter that it omits to state the description of all the real estate of which the intestate died seized, with the value of that the said order of sale, supposed to have been made by Surrogate Van Schaick, was not in fact made by him, and therefore the order for signature thereof nunc pro tunc, is invalid, and that the first signature by the present Surrogate was not authorized by the act of 1874, Chapter 9, as not being a record of a will or proof or examina

the respective portions or lots, and whether occupied or not, and if occupied, the names of the occupants, in conformity to 2d Revised Statutes, 104 Section, 2d Statutes at Large.

It also appeared, by deposition, that the recital in Surrogate Hutchings' or der of sale, that the bond had been given 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

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