and declared by the 18th section that Judgment of General Terın affirming the several acts done and performed un- judgment for defendant on verdict, af: der the act of 1873 were expressly con- firmed. firmed, and provided that the provisions

Opinion by Church, Ch. J. 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

TIONS. 23d day of May, 1873.

N. Y. SUPREME COURT. GEN'L TERM, Plaintiff's claim that election was pre

FOURTH DEPARTMENT. mature, and could not have taken place Lattimer et al., applts. v. Hill et al., until the general election in 1874, and respts. that the election was void because not Decided June, 1876. conducted according to the laws appli- If the charge of a judge is erroneous, cable to the city of New York in re it is the duty of the court to grant spect to registry, &c.

a new trial, although neither the evi

dence nor the charge was excepted to. Geo. H. Foster, for applts.

A party to a note may annex to such Abel Crook & John Flanagan, for note any condition as to its delivery respt.


proper. Held, That it was to be assumed that

Defendants are endorsers on a promthe act of 1874 was intended to con- issory note. firm such election, and to recognize, so

At the time the note was endorsed it far as the legislature could, the defend- was proved that one of the plaintiffs askant as legally entitled to the office. Its ed defendants to endorse the note and legal effect may be regarded as a legis. said that they need have no fears of ever lative construction of the act of 1873, being liable upon it, as they (plaintiffs) both as to the time of holding the first would reserve out moneys going to the election of District Justice and the in- maker, who was working for thein, 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.

No objection was made to the recepAlso held, That the people having, tion of this evidence. through their constitutional agents rat The court charged the jury that if ified an election and recognized the title they believed the story of the transacof defendant to the office, it was not tion at the time the note was endorsed competent for them to question it by that plaintiffs were to hold it and not quo warranto.

to make defendants liable, but to charge The legislature had full power to do the saine in an account to the makers, this. People v. Bull, 46 N. Y., 57, dis. &c., plaintiffs could not recover. The tinguished.

counsel for the endorsers did not except It was competent for the legislature to this part of the charge, but seeks as between the people and defendant to to take advantage of it now. construe its own act and to waive any Defendants claimed, that by reason irregularity in holding the election, and of this agreement of plaintiffs to pay thus to confirm the title.

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. Opinion by Mullin, P.J.

'The court in referring to this subject in his charge, says:

SERVICE OF SUMMONS. “It is said on the part of defendants N. Y. COURT OF APPEALS. that they were prevented, by reason of

Person, applt. v. Markle et al., rethe agreement, to file a lien, &c., and if

spts. they had they would have got their

Decided April 28, 1876. pay; and it is said that this may, and probably does, account for their not til. Neither a party nor a witness attend

ing a court in this State from a ing a lien, had they not supposed that

foreign State can be served with a note had been accepted as so much summons, unless he loses his privimoney. You will consider all circum lege by remaining within the State an stances which bear one way or the oth

unreasonable length of time after the er, and see what the contract proba

close of the trial. bly was by which plaintiff took this This was an appeal from an order of note.”

General Term affirming an order of There was judgment for defendant. Special Termn setting aside the service J. W. & H.J. Dining, for applts.

of a summons in this action. It apJ. W. Sanford, for respts.

peared that the summons was person

ally served at Elmira, in this State, on Held, That although the evidence as deefendant G., who was a resident of to the agreement under which the note Pennsylvania, at the conclusion of a was given and that portion of the trial upon which he had been in atcharge in reference thereto, was not ex- tendance in good faith as a witness. cepted to, if the charge was erroneous

J. McGuire, for applt. this court will order a new trial, as the

N. C. Moak, for respts. failure to exce pt did not injure plaintift.

Held, That the service was properly

set aside; that neither a party nor a That the party making a contract can

witness attending a court in this State annex to its delivery such conditions as

from a foreign State can be served with he may deem proper, and if such conditions are not performed he will be a summons unless he loses his privi

lege by remaining within the State an discharged therefrom.

unreasonable length of time after the That there is ground to apprehend, close of the trial. 2 J. R. 292 ; 3 Cow. that from the judge's charge as to the 381 ; 1 Wend. 292; 3 Duer, 622; 23 mechanic's lien, &c., the jury under

How. 331. stood the judge to instruct them that

Order affirmed. if the plaintiffs' conduct in reference to

Opinion by Allen, J. the note had any influence in inducing the endorsers to omit to file a mechanic's lien and thus secure the payment of the CONDITIONAL SALES. AMENDnote, they might find for the defend

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


Daniel J. Cushman, applt. v. Eli B. On the 7th day of May, 1874, Mrs. Jewell, respt.

K paid on said note $5, $5 on the first Decided April, 1876.

day of June, and on the first day of In cases of conditional sales where the July $5. title is to vest in the purchaser upon

On or about the 25th of July, 1874, pagment of the price, the purchaser plaintiff bought of Mrs. K. the said may perfect his title to the property machine, and on the first of August fol. at any time by tender of the price, lowing it was taken from the plaintiff although it is payable by installinents and they are not due. If the debt by defendant. was pajable with interest, the pur Plaintiff inade a demand for the machaser must pay interest until the chine which was refused. maturity of the debt.

On the first of August Mrs. K. went An amendment to a complaint striking to defendant's house and tendered to

out a waiver of a cort will not be defendant the $5, being the installineut allowed.

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, 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

S. J. Barrows, for applt. shows that the defendant sold to Mrs.

Ball & Scarles, for respt. K. a sewing machine for $25, payable in monthly instalments, with interest,

Theld, That under the contract beand took her note containing the follow tween Mrs. K. and the defendant, eviing clauses and conditions, viz.:

denced by the paper called a receipt, “It is expressly understood that the Mrs. K. had no title to the machine said E. B. Jewell neither parts with when she sold it to or exchanged with por do I assign any title to said ma- plaintiff

, and could not, for that reason, chine until said note is fully paid, and convey any to him. The removal of it is as expressly understood that I am the machine by plaintiff from Mrs. K's. not to remove said machine from my

house forfeited her right to the possespresent place of residence, Roine, N. sion of the machine, but it did not noY., without the consent of the said E. cessarily annul the sale to her. She B. Jewell.” In case of default in pay. paid the balance due on the machine ment, defendant was authorized to en- before the defendant took possession ; ter on the premises of Mrs. K. and re- her title became perfect, and the plainmove said machine, and collect all reas. tiff acquired a valid title to it under his onable charges for the use of the 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:

sue on contract; that can only be done “I herei further agree that if I when the wrong-doer has sold or otherviolate any part of the within I forfeit wise disposed, so that it may be asall that has been paid on the within, or sumed he received the value of it in may have been paid on the same.” money or its equivalent.


Opinion by Mullin, P. J.; Smith |1875, why authority should not be and No con, J.J., concurring.

given to sell so much of the real estate

of the deceased as should be necessary JURISDICTION.

to pay his debts, was granted. SURROGATE'S COURT. NEW YORK Co.

Service of this order together with In the matter of the Estate of John publication was made, and on the 28th B. Kelly, deceased.

day of September in the same year Decided June 13, 1876.

an order was made by the then Surro- . A 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 imes 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 was insufficient for such payment, and Sec. 3 by Chap. 260, Laws of 1869, 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 saleunless 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. have been complied with, as if this act had not been passed."

This order was signed by the then This is an application for an order Surrogate, with a memorandum in penconfirming the sale of certain real es cil at the left of the signature, “signed tate, ordered to be sold under the pro- provisionally,” which, it appears, meant visions of the Revised Statutes, for the subject to filing and approval of the purposes of paying the debts on appli bond, as is supposed, at all events the cation of the administrators.

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

the on

until May 25, 1876, and was in the cate 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 Suriogate 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 adjudy. and 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,

Chas C. Egan, for Admrs. and that such bond was delivered

Chas. M. Hall, for purchaser. 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 ly the present Surrogate nunc pro jurisdiction of the parties, or the subtunc, was presented and signed for the ject matter afore:aiil, 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 made.

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 Suction, 20 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

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