ties holding under him, from the expense tors by the makers of the draft, from the of a double litigation. sale of which acceptance was to be paid. Daly, J. F. J., dissents, holding that Plaintiffs, acting on the faith of defendthe Chancellor should, on equitable ante' despatch, discounted the draft on grounds, which are sufficiently shown, them. Before the maturity of the draft the refuse leave; the proper construction of makers were declared bankrupts in Canthe statute giving that power. ada, and the plaintiffs had in their hands Equitable Life Assn. of U. S. v. Stevens about $1,000 of the proceeds of the dis et. al. count. Defendants claimed that this sum N. Y. Common Pleas, Gen'l T., June should be allowed to them on the accept 28, 1875. NEGOTIABLE PAPER. ance. Held. 1. That the sum in plaintiffs' hands could not be disposed of in a suit to which the bankrupts were not a party. 2. That the sum could not be set off Fraudulent consideration. Void note be- to defendants, for the assignee in bank tween parties. I. Defendant joined with other creditors of plaintiff in a compromise of his debts at forty cents on the dollar, but before executing the composition deed they exacted from him a promise to pay to them the balance of their debt by a note at four months. Such a note was made, and before maturity defendants transferred it to a bona fide holder, to whom it was paid by plaintiffs. Suit was brought to recover the amount paid. Held. 1. The note was void between the parties, the consideration being founded in fraud of the other creditors. 2. The sum paid to a bona fide holder, on a negotiable note, void between the parties to it, can be recovered from the party so transferring it. Gilmour v. Thompson et al. N. Y. Common Pleas, June 28, 1875. Opinion by Robinson, J., Daly, C. J., and Larremore, J., concurring. Obligation of acceptors. Application of security in hands of owner of acceptance. Equities between parties to acceptance do not affect holder. II. Defendants, in writing, by a telegraphic despatch, to merchants at Montreal, agreed to accept their draft for $3,000 at thirty days' sight. Goods were consigned for sale to the proposed accep ruptcy, in Canada, could claim it, notwithstanding the judgment of this court. 3. That no such defense can be allowed to an unconditional acceptor, though the holder of the acceptance had taken a sum of money, or any other value, as a collateral security, not expressed on the face of the draft, or communicated to the acceptors. 4. Bona fide holders of acceptances can recover on them without reference to the equities between the parties to the draft. Molson's Bank of Montreal v. Howard et al. N. Y. Superior Court, Aug. 3, 1875. Opinion by Curtis. J., Sedgwick, J. concurring. Bona fide holder, to what extent. tion endorsement on a promissory note, Held. That plaintiff was not a bona fide holder except for the $50 paid. Opinion by Daly, C. J., Larremore, J., concurs, and Robinson, J., concurs, and adds that the plaintiff's assignor was bound to learn from the defendant the a book-keeper, or to assign him compensaterms of the accommodation endorse- tion, but claimed that the payment by ment, since he was a party to the orig- the Comptroller of the City of New York, inal suretyship, and plaintiff is bound to of his salary as book-keeper, for more than that extent. a year, was "designating and approving" of his salary at $3,500 a year, within the McAdam v. Cooke. N. Y. Common Pleas, Gen'l T., June provision of Sec. 32 of the City Charter, Chap. 137 of the Laws of 1870. 28, 1875. Opinion by Daly, C. J., Larremore, and Robinson, J.J., concurring. NEW YORK CITY AND COUNTY. Authority in Comptroller to fix salaries and compensation, and to prescribe duties of clerks and employees. I. Plaintiff, a clerk in the Finance Department of the City of New York, at a salary of $2,000, was in August, 1870, assigned to the additional duty of bookkeeper to the Commissioners of the Sinking Fund, in the place of a former book-keeper, who had been receiving, under the resolution of such Commissioners, passed in 1869, $1,500 a year, paid monthly. Plaintiff was paid both salaries by two warrants, monthly, until October 1, 1871, as assistant clerk, and as book-keeper. From that time he was refused payment of the salary as bookkeeper, though he was required to do the work. Held. 1. That Sec. 32, referred to above, allowed the head of each department, from time to time, to remove an incumbent or employee in his department, and, also, to change his salary or compen. sation. This discretion was to be exercised for the public good, and could not lawfully be abridged by contract, so as to bind his own official action, or that of his successors. The subordinate had no vested right in his term of office, or to a continued rate of compensation or salary, and as he elected to remain on the reduction of his salary, was subject to the action of the Comptroller. 2. Plaintiff was not entitled to any increase of pay from an increase of his duties. 3. He may recover for the month of October, 1871, the book-keeper's salary, since he had no opportunity to use his option to go or stay, before November 1, 1871. Bruns v. The Mayor, etc. of the City of New York. N. Y. Common Pleas, June 28, 1875. Opinion by Robinson J., Daly, C. J., and Daly, J. F. J., concurring. No authority in Common Council to appoint executive officers; power of appointment, when it exists, to whom it may be delegated. II. Plaintiff was appointed janitor by a Justice of a District Court of the City of New York, pursuant to a resolution of the Common Council of said city authorizing such appointment. The District Court Act, Laws of 1857, Chap. 334, requires the Mayor, Aldermen, and Commonalty of Plaintiff referred to no law or ordinance authorizing the Commissioners to appoint the City of New York, to furnish at the expense of the city, all necessary attend- respondent) that "the above-named apance, rooms, furniture, etc., for these pellant, feeling aggrieved thereby, intends courts. By the City Charter of 1857, to appeal therefrom, to the Court of Com(Laws of 1857, Chap. 446, Sec. 23,) the mon Pleas for the city and county of care of public buildings of the city of New York," is an express, though inforNew York, was intrusted to the Street mal, notice of appeal from the judgment Department, and by the Charter of 1870 of the District Court, and if not objected (Laws of 1870, Chap. 135, Sec. 78, Sub. 5), to, or returned, is a sufficient notice of that care was transferred to the Depart- appeal from the judgment. But the ment of Public Works. grounds of the appeal must be set forth, and, to that end, an amended notice may be served. McGlynn v. Cohen. N. Y. Common Pleas, Sp. T., June, 1875. Held. 1. That the duty of a janitor of a District Court is that of exercising a charge over the court building, its furniture, and the like, and that the Common Council of said city has no authority to exercise the duty and powers of an independent. executive department of the city. The appointment of the plaintiff, therefore, as sham. was without authority. 2. And had the Common Council the power, they could not delegate the power of appointment to any officer not connected with the city government. Hartman v. The Mayor, etc., of New N. Y. Common Pleas, Gen'l T., June II. Motion to strike out part of answer J. F. Daly, J. There is no authority for striking out part of an answer, or part of a defence as sham. Any separate defence may be stricken out, but not a part of an entire separate defence, and not a part of an entire answer. Starr et al. v. Griswold. N. Y. Common Pleas, Sp. T., June 4, 1875. Opinion by Daly J. F. J., Daly C. J., Preponderance of evidence on motion. and Robinson, J., concurring. PRACTICE. Sufficiency of notice of appeal from judgment of District Court. Amendment of notice allowed, when. I. Motion to dismiss appeal from judgment of a District Court of the city of New York, on the ground of a want of service of notice of appeal on respondent and justice, and to set aside undertaking on appeal, served and filed, and for leave to proceed and collect judgment. Arrest. Motion for an order of arrest. III. J. F. Daly, J. The averments of the plaintiff's affidavits being squarely denied, and the fact to be determined depending wholly on the oath of the parties, who stand before the court entitled to equal credit, there is not such a preponderance of evidence in plaintiff's to justify favoring the granting of an order. Smith v. Kimball. N. Y. Common Pleas, Sp. T., June 5, 1875. Amendment of pleading, when allowed. Statute of Limitations, not to be avoided. Held. J. F. Daly, J. That the service of an undertaking on appeal, containing the recital, (after specifying the judgment and where rendered, in what action, and IV. Motion for leave to amend comagainst whom, with the title of the case, plaint by setting up, as a cause of action, designating the parties as appellant and the original consideration of a bill of ex ! change upon which action is brought. Action commenced April 1, 1864, and answer served June 2, 1864. Held. J. F. Daly, J. The amendment cannot be allowed, for the defendant would, by this allowance, be cut off from his plea of the Statute of Limitations. Pottier v. Matthews et al. credit, when such representations are in great part false; sells out his whole business; does not pay all his obligations falling due two and four days after such sale; fails to account for the proceeds of the sale of his business, or of the goods, and only offers to turn over unavailable securities to his creditors, a prima facie N. Y. Common Pleas, Sp. T., June 5, case for an attachment is made out. V. Motion to confirm report of referee, and for judgment of divorce. Preliminary objection by defendant, that the order of reference was irregular. Held. J. F. Daly, J. The order of reference is amendable. The motion may stand over for plaintiff to move to amend. Thurston v. Loewal et al. N. Y. Common Pleas, Sp. T., June 7, 1875. Costs out of fund. Allowed, to whom, and when. VIII. Daly, C. J. Costs are not allowed to each claimant out of the fund, as a matter of course. It is entirely in the discretion of the court, and depends upon the circumstances of each particular case. When the fund falls short, the N. Y. Common Pleas, Sp. T., June 4, establishing his claim or debt shall do so more equitable rule is, that each creditor Sutherland v. Sutherland. 1875. Discharge of insolvent debtor under Rev. St., Art. 3, not conclusive. May be attacked collaterally. at his own expense, and, so far as has been indicated, I infer that to be the practice. This does not apply to the plaintiff, who institutes the action or proceedings, upon whom the burden is imposed of carrying VI. In proceedings supplementary to it on, and who enters the final decree. execution, to examine judgment-debtor Nor shall a mere custodian of the fund under Sec. 292 of Code. The judgment be entitled to costs. It is necessary that debtor produced a discharge granted under Rev. St. (Art. 3.), obtained since the judgment. Held. J. F. Daly, J. The discharge is not conclusive, for it may be attacked collaterally for jurisdictional defects, if such defects appear upon the record of the proceedings. Morange v. Wolfsohn. N. Y. Common Pleas, Sp. T., June 5, 1875. he should take part in the proceeding, Collins et al. v. The Oceanic St. Navig. Costs. Extra allowance in foreclosure suit, under Sec. 309 of the Code, will be cut off, when. Tender of amount due on mortgage and costs, effect of, on allow ance. Prima facie case for attachment, what is. VII. Motion to vacate attachment. J. F. Daly, J. Where defendant contracts debts immediately before selling out IX. J. F. Daly, J. 1. An offer to allow his business; makes representations as to judgment under Sec. 385 of the Code his solvency and property, to induce may be made in an action to foreclose a mortgage on real property, and such an brokers, to negotiate the loan, and the offer will cut off the plaintiff's right to an extra allowance under Sec. 309 of the Code. The offer must be in writing, and made at least ten days before the trial or verdict. 2. A tender of the amount due on the mortgage, with costs to date, will not cut off the right to an extra allowance, under Sec. 309 of the Code, in a foreclosure suit, the statute applying only to actions of law. Astor v. Palache. loan not being made, he, Cook, authorized Christie to sell the stock at a certain price. Christie then offered the stock, at a higher price, to Markham, who, in turn, offered it at a higher price still to Townsend, and Townsend sold the stock to one Burdell for a price further advanced. The stock was transferred under the power to Burdell. Townsend, Markham, and Christie kept the gain on their respective bids, and Cook received the price he asked from Christie, which he paid over to N. Y. Common Pleas, Sp. T., May, plaintiff's order, after deducting his com missions. The note was also negotiated, and is outstanding. Held. That the defendants were protected by the rule that the plaintiff was estopped by the indicia of authority in the power of attorney from denying his agent's authority to act. They were bona fide holders under the rule. Opinion by Daly, C. J. Loew, J., concurs, and adds, the bona fides was a question of fact for the jury to determine on the evidence. Daly, J. F. J., dissents and says, that the rule is for the protection of bona fide purchasers, and does not operate to defend brokers, as such. Zulick v. Markham et al. PRINCIPAL AND AGENT. Evidence of authority in agent from power of attorney to transfer stock in his hands. Rule as to bona fide purchasers. SHERIFF. Duty to plaintiff to proceed under execution. Attachments in his hands against property of plaintiff in the executions no excuse for not proceeding. Pleading, leave to amend. Plaintiff sued for conversion of personal property. He employed Cook, a broker, Twenty days after answering the comto borrow money for him on his note with plaint in an action to recover damages a certificate of stock as collateral security. for the non-return of the executions of A power of attorney, with transferee's the plaintiff, defendants asked leave to name in blank, accompanied the certifi- interpose a second defence, to the effect cate. Cook went to Christie, who went that the debtors and others, six weeks to Markham, who went to Townsend, all after the issuing of the executions, caused |