4; Costs, 8; RAILROADS, 18; SUPPLEMEN-


See MORTGAGE, 6, 16.


See EXECUTION, 3, 4; TAXES, 1, 2.


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1. When plaintiff requires the replevin of a

number of different chattels but states
only the aggregate value thereof without
placing a separate valuation on the dif-
ferent articles, and the sheriff replevies
only a portion of the chattels so claimed
by plaintiff, defendant, in order to secure
the return of the chattels so replevied,
must furnish the sheriff with an under-
taking in double the amount of the value
of all the chattels as stated in plaintiff's
affidavit, but no more can be recovered
of the sureties on such undertaking than
the value of the property the return of
which is secured thereby.- Weber v.

Manne, 292.
2. Defendant, upon false representations,

purchased goods of plaintiffs which de-
preciated in value while in his possession.
Afterward he made an assignment for the
benefit of creditors to defendant and
plaintiffs replevied the goods. 'Held, That
the loss by depreciation must be sustained
by the assignee, and this although the
complaint did not claim damages for the
depreciation. — Schoonmaker et al. v.

1. The complaint alleged that plaintiff's as-

signor became owner of the interest of a
partner in a firm ; that through the fraud
of defendants and one W. the firm prop-
erty was sold on execution for an inade-
quate price and transferred to defendants,
who had sold some of the property, col-
lected insurance, etc., and asked that the
sale be set aside; that the use and value
of the property be accounted for and
that plaintiff be paid his share of the firm
property. No accounting of the partner-
ship is asked for. Held, That a compul-
sory reference could not be granted.-

Morrison v. Van Benthuysen et al., 62.
2. When a case is one purely of fact, de-

pendent in part, at least, on the testimony
of witnesses whose testimony is conflict-
ing, it is peculiarly a case for a referee to
determine, and his conclusion cannot be
properly disturbed on appeal.-Kreisher

v. Vetter, 234.
3. An objection to the allowance of interest

by a referee, where there is no exception
in the case, or suggestion to the referee
'in that respect, cannot be considered on
appeal. - Wiltsie v. The Village of Green-

bush, 254.
4. The rule in case of conflicting evidence

is that the finding of the referee upon the
facts must be accepted as conclusive upon
the parties, even though witnesses spoke
under a possible bias from interest, both
pecuniary and in feeling.– Holcomb v.

Campbell, 265.
5. Under an order of reference to take proof

of certain specified matters it is not error
for the referee to report the testimony
taken by him together with his opinion
thereon.-In re application of Chittenden,

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Kelly, 432.
3. In the absence of proof that it was

brought with knowledge of defendant's
fraud in procuring the goods, the com-
mencement of an action on contract and
the procuring an attachment in such ac-
tion is not such an election of remedies
as will bar an action in replevin for goods
obtained by fraud where the action on
contract was regularly discontinued be-
fore the bringing of the action in replevin
and no property or benefit was secured

thereby.-Hayes v. Midas et al., 495.
4. It is not to be inferred, as matter of law,

that one who is guilty of fraudulently
disposing of property was also guilty of
fraud in its acquisition, and knowledge
of the fact cannot be imputed to one wbo

has no other means of information.-Id.
See SALE, 8, 9.


See SALE, 8, 9.




1. Where an action is to recover for two

causes, one of which survives and the
other does not, an order of revivor should
be limited to the one which survives.-

Brackett v. Griswold, 41.



9. But in an action of replevin brought by

the vendor against an assignee for the benefit of creditors of the fraudulent purchaser to recover the property thus fraudulently obtained, an offer on the trial to return the purchase money paid at the time of the sale, less the value of the goods disposed of prior to the replevy, and the depreciation of the goods replevied, is sufficient and all that the law

requires.-Id. 10. When an assignee for the benefit of

creditors is not a bona fide purchaser.

Id. 11. One M. agreed to sell to a corporation

certain ties to be delivered at specified points, a certain sum to be paid on deliv. ery and the balance when they were taken and used. The ties were delivered and the advance paid, but they were never inspected or taken by the company. Held, That no title passed to the company.

-Cornell v. Clark, 566. 12. Subsequently M. sold the ties to plain

tiff, who had been a director of said company, who paid for and took them away. Held, That the legal title was vested in plaintiff, and that the property could not be taken under execution against the


FRAUD, 5, 6, 10; REFERENCE, 1; WAR


SCHOOLS. 1. In an action by a school teacher for

wages the complaint alleged a contract with the trustee; performance of services thereunder, and a refusal by the trustee to pay. On demurrer, Held, Sufficient. and that if plaintiff was not a qualified teacher or had omitted his duty such defenses should be brought in by answer.

Ellis v. Sharp, 202. 2. Defendant was elected collector of taxes

for a school district in Oct., 1882. He received the warrant for the collection of school taxes Dec. 11, 1882. He had not then been notified to give a bond nor had its amount been fixed. He however posted the statutory notices requiring voluntary payment, and in the lifetime of the warrant subsequently demanded payment of a tax of plaintiff which was refused. The warrant expired and was renewed by the trustee Jan. 23, 1883. The next day defendant gave his bond to the trustee. He again demanded payment, which was refused, and he levied upon and sold property of plaintiff. Held, That his action was legal The notices already posted were sufficient, as the bond once given related back and made him competent to execute the warrant.




See CORPORAT.ONS, 3, 5; N. Y. City, 1, 2.

SALE. 1. Under a contract for the sale of wagon

hubs the vendees were to sort and count them after delivery. Held, That title passed to the vendees on delivery.- Price

et al. v. Heath, 131. 2. The proposition that fraud must be

proved and will not be presumed applies to civil as well as criminal trials.-Id.

3. The fact that vendees found themselves

insolvent five months after making the contract is not of itself evidence of their

fraud in making the purchase.-1d. 4. On a sale of goods which are clearly

identified, as bags of coffee distinguished by marks and numbers, the title passes to the purchaser notwithstanding a requirement that they be weighed; especially where the question affects an innocent purchaser or pledgee of the vendee.

-Sanger et al. v. Waterbury et al., 224. 5. A sale of property absolute in its terms

containing the condition that the vendee, as the purchase price of the property, should pay to each of the creditors of the vendor a certain percentage of their sev. eral debts pro rata, less than the full amount, in full of such debts, is not fraudulent as tending to hinder and delay creditors.-Chadwick v. Burrows et al.,

255. 6. Under such an agreement the vendee

cannot require that any of the creditors not consenting to the agreement receive such percentage in discharge and satisfaction of his debt, but such creditor is entitled to receive such sum in abatement of his claim.-Id.

7. Such vendee is in no respect a trustee,

but his payments are made in pursuance of an original undertaking to pay them as the purchase price of the property

bought by him.-Id. E. Where upon a sale and purchase of goods

possession is obtained by the purchaser by means of a fraud, the vendor has the right to repudiate and rescind the sale and bring an action of replevin for the goods. He is bound, however, to rescind promptly on discovering the fraud, and must restore, or offer to restore, whatever he has received of value on the sale. Schoonmaker et al. v. Kelly, 301.


The statute is mandatory as to the giving of the bond, but directory as to the time when it shall be given.-- Duntley v.

Davis, 297.
See N. Y. CITY, 6.

services through illness, and unless the contract provides some means to sever the services, the husband is not required

to proceed alone.--Costen v. Decker, 231. 9. That in such case the recovery must be

upon the quantum meruit, and the stipulated price for the services is some evidence of their value.-Id.




1. In an action to recover for services per

formed for defendant's testator, defendant, who was the widow of said testator, was asked as a witness what proportion of plaintiff's time was devoted to the business of her testator. Held, Admissible; that the question called for a fact within her knowledge, and not for an

opinion.-Johnson et al. v. Myers, 50. 2. Another witness was asked if he had

been with J. when he was professedly in said business. Held, That this did not call for declarations of J. that he was at work for testator, but to show that witness knew the kind of business in which

J. was engaged.-Id. 3. Where the business requires the best

judgment, skill and ability and is largely of a confidential nature, is varied and in many respects responsible, proof of the capacity and ability of the person performing it is pertinent, and he is entitled to be paid for his services on that basis.

Id. 4. Construing the terms of a contract for

personal services in a mercantile business where the pay was to consist of a certain proportion of the “net profits” of the

business.—Eldredge v. Smith, 146. 5. An effort to obtain other employment is

not a condition precedent to plaintiff's right to recover damages from his employer for a wrongful discharge.How

son v. Mestayer, 152. 6. Prima facie, plaintiff's damage is the

amount of the stipulated compensation, and the burden is on defendant to show that through plaintiff's negligence the damages have been increased.

Id. 7. A mere conjecture on plaintiff's part that

bs obtaining the discharge of another he might get employment in such other person's place, there being no evidence of the salary to be earned, etc., does not amount to proof that plaintiff could have

found other employment. — 1d. 8. Full performance of an indivisible con

tract for the services of a husband and wife for a definite period is excused by the inability of the wife to perform the

SET OFF. 1. A husband, acting as the agent of his

wife, leased her interest in a mill to plaintiff, who agreed to pay the rent in Hour and feed and otber mill products, to be delivered at the husband's flour and feed store, to which the wife assented. In an action against the husband for the price of the flour, etc., delivered at his store, Held, That the evidence warranted a finding that the husband was authorized by his wife to apply the amount of the rent due in payment for the goods; that he was entitled to set off such amount, and that the referee erred in finding to the contrary.-Whiting v. Hood et al.,

158. 2. Defendant's assignors, R. & Co., indorsed

and delivered to plaintiffs the note of B., representing that it was as good as the Bank of England, etc., and requesting them to indorse it and procure it to be discounted at the bank and forward the proceeds to them; all of which plaintiffs did. At this time plaintiffs were indebted to R. & Co. upon a claim not then due; and both said B and R. & Co. were insolvent, and shortly after the latter made a general assignment to defendants. Subsequent thereto said note became due and plaintiffs were obliged to take it up, and afterwards their indebtedness to R. & Co. became due. Held, That under the special circumstances of the case plaintiffs were equitably entitled to have their demands set off and applied in extinguishment of their indebtedness to R. & Co., although the liability of plaintiffs upon said note itself was but conditional and had not become fixed at the time of the assignment to defendants.-Rothschild et

al. v. Muck., 173. 3. Equitable set off is never justified save

where other remedies are impossible and where the demand allowed is put beyond reasonable doubt.-Armstrong et al. v. McKelvey et al., 367,


1. A sheriff may justify a return of nulla

bona to an execution issued upon a judgment after he has levied upon property under the preliminary process of attachment issued in the action before judgof inquiry, plaintiff, without proof, is en-
titled to nominal damages, and limitation
to that may not necessarily be applicable
to an action of slander.—Manktelow v.

culty between them, and testified that
they did not understand plaintiff to
charge plaintiff with a crime. Held,
That there could be no recovery.-Ban.
non v. Cleary, 439.

ment; but he is liable for his error in
supposing that property of defendant be-
longed to a third party.— The Third Nat.

Bk. of Buffalo v. Elliott, 242.
2. A recital in a sheriff's deed of the issue

of execution, unaccompanied by proof of
possession under the deed or acts in pais
in support of it, is not evidence of the
issue of execution.-Hasbrouck v. Bur-

hans, 474.
3. Nor is evidence of the county clerk that

after diligent search he cannot find the
execution, no proof having been made

that it ever existed.-Id.
4. A bond given by a deputy sheriff to the

sheriff conditioned for the faithful per-
formance of his duty by the former and
for the indemnity of the sheriff against
the consequences of any improper act of
the deputy speaks only from the time of
its delivery, and the sureties thereon are
not liable for the consequences of any-
thing done by the deputy before that
time. The delivery of such a bond is
presumptively at its date, but the time
of actual delivery may be shown, and,
when it is so shown, the date of the bond
becomes unimportant.Reilly v. Dodge

et al., 492.

1. The property in question was sold by an

assignee in bankruptcy at auction and bid
off by one R., who died. A deed was given
to one T., who claimed to have bought
the bid from R.'s administrator, and
through this deed plaintiff acquired title.
No possession ever accompanied this
title. Held, That the title was so uncer-
tain that specific performance of a con-
tract for its sale would not be decreed;
that R.'s interest under his bid was real
estate and passed to his heirs, and the
administrator had no interest therein or
right to sell the same.-Palmer v. Morri-

son, 317.

1. On the assessment of damages by a writ

2. An agreement to convey embraces an

agreement to sell, and an obligation as-
sumed in an instrument in the form of a
bond to execute and deliver a deed of
certain premises upon payment by the
obligee of a certain sum of money is as
effectual as an agreement to convey such
premises as if it was in the form of a

simple contract.-Martin v. Colby, 358.
3. The execution, delivery and acceptance

of a deed of a portion of the premises, be-
fore the time designated by the instru-
ment for its performance, by the consent
of the parties, is not necessarily a satis-
faction or performance of the contract.
It is a part performance and its effect
is to be determined by the agreement
which produced such partial perform-

4. That by the terms of the instrument in

question the obligation to pay for im-
provements would seem to have been de-
signed to create a liability, rather than a
condition precedent, and plaintiff was
not bound to make tender or payment of
the value of such improvements as a con-

5. While it is presumed when nothing ap-

pears to the contrary that a party is able
to specifically perform, he is permitted to
show that he cannot; and it is error to
refuse to allow defendant to prove that
his wife refused and will not sign a deed
of conveyance of the lands in question.

6. In such case plaintiff cannot be required

Lilly et al., 354.
2. Defendant has the right to meet so far as

he can the evidence on the part of plain-
tiff by calling witnesses and giving such
evidence as may be proper in mitigation

of damages.-Id.
3. An inquisition will not ordinarily be set

aside on the ground that the damages are
large or small, nor for error in the admis-
sion of evidence, unless it can be seen
that the party against whom it was re-
ceived may have been prejudiced, or that
injustice may have been occasioned by it.

4. But in an action for slander where im.

proper evidence is admitted before the
jury having no legitimate bearing in mit-
igation of damages, and which may have
materially affected the result to the prej-
udice of plaintiff, the inquisition should

be set aside.-Id.
5. Defendant stated to several

persons that
plaintiff had robbed her, but these per-
sons knew that there had been a lawsuit
between them or that there was a diffi-

to accept a conveyance less valuable than
that to which he is entitled, but he can-
not take such deed as defendant alone
can effectually execute and damages for
the deficiency. He must take either such
deed or seek his remedy in damages.--Id.
claim for relief in an agreed case submitted under $ 1279 of the Code Civ. Pro. when one of the parties thereto objects to such amendment.

made a crime.-Darrow v. The Family Fund Soc., 310.

7. When it is made to appear that a reason

able doubt exists as to the validity of a title the court will not compel a purchaser to take a title, but will leave the vendor to his action for damages. - Fer

ris v. Plummer, 467. 8. An objection based on a decision of a

General Term cannot be considered captious nor unreasonable on the part of a


1-4, 6.

SUMMARY PROCEEDINGS. 1. Semble, That in summary proceedings

the question of fraud in obtaining an alleged lease cannot be litigated. The tenant is confined to denials and cannot make affirmative allegations therein.Becker et al. v. Church, 134.




See FRAUD, 10.

STATUTES. 1. The provisions of the appropriation acts

of 1874 and 1875 in relation to the letting of contracts for work at the Buffalo State Asylum referred to future work and future contracts.--McMaster v. The State, 181.








SUPPLEMENTARY PROCEEDINGS. 1. Where an order is made by a justice of

the Supreme Court to examine a nonresident debtor who has a place of business in another judicial district, the order must be made returnable before a judge of that district. --Browning v. Hayes,

26. 2. There is no remaining provision of the

statute authorizing a judge, in proceedings supplementary to execution, to order the application towards the payment of a judgment, or the delivery or transfer to the receiver for such purpose, of any other than personal property of the

judgment debtor. -Smith v. Tozer, 252. 3. A direction in an order that a judgment

debtor assign or convey real estate situate in the State of Illinois is not within the power of the judge, and the judgment debtor, in refusing to assign or to convey such real estate to the receiver,

is not guilty of contempt.-Id. 4. The only manner in which a receiver in

supplementary proceedings can become vested in the real property of the judgment debtor is by filing the order appointing bim, or a certified copy thereof, in the office of the clerk of the county where the property is situated, and its

situs must be within this State.-Id. 5. In case of real estate situated out of this

State the Code of Civil Procedure provides a requisite remedy by action.

Id. 6. Under $ 2, Chap. 309, Laws of 1883, the

surrogate of Steuben County has power, acting as county judge, to grant an order directing a defendant to appear and le examined in proceedings supplementary to execution in a case in which the county judge might have entertained such proceedings at chambers.-McIntyre

v. Allen, 328. 7. T., a judgment creditor of D., instituted

supplementary proceedings, and, after examining D. several days, no further


SUBMISSION OF CONTROVERSY. 1. The court has no power to amend the

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Kingsland v. The Mayor, &c., of N. Y., 334. 2. A submission of controversy under $

1279 is limited to such cases as can be followed by an effectual judgment, and cannot be entertained for the purpose of obtaining an injunction.- The Cunard SS. Co. v. Voorhis et al., 468.



1. Suicide, when the attempt is successful,

is not a crime under the Penal Code. It is only an unsuccessful attempt which is

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