NEW YORK CITY AND COUNTY. 1 The Supervisors of the County of New York in auditing a bill for services are not necessarily called upon to pass upon the question whether such services are skilfully and carefully rendered, and consequently the County is not precluded from showing as a defence to an audited bill that they were damaged by unskilful performance of the services covered by such bill. Kellum, exrx., v. The Mayor, &c., of N. Y.

17

15 Adding to a note, after indorsement, the words" At S. B. Gavitt's Bank, Lyons, N. Y.," without his knowledge or consent, does not release the indorser. Shuler v. Gillett. 302 16 The defendant paid upon his note, with plaintiff's assent, interest not yet due. No writing was signed by either party then or ever. Held, That the time of payment of the 2 The Act of 1871, Chap. 583, conferring on note was not extended to the time up to the Board of Apportionment the right to fix which the interest had been paid. McDonnell the salaries of city officials and employees, v. Blanchard. 410 does not give them the power to reduce the salary of the Fire Marshal, as a subsequent Act, Laws of 1871, p. 1278. §5, specially provides that the salary of Fire Marshal, Assistant Fire Marshal and Chief and Assistant Clerks shall be regulated by the Board of Police. McSpedon v. The Mayor, &c., of N. Y. 18

17 Such a transaction, if it extends the time
of payment, is a new promise, and should be
in writing, under § 110 of the Code of Pro-
cedure.
Id.

18 The mere fact that a note given for a gam-
bling debt is made payable to the order of a
third person, who indorses it for the accom-
modation of the real owners, by whom it is
used to pay a note of their own, also indorsed
by the same person, does not make the note a
valid one.
It is void under 1 R. S., 663, §
16. Anthony et al. v. Layng.
448

19 When one loans his note, that another may
raise money upon it, he is not damnified until
he has paid the note or been sued upon it;
and until then he has no action against the
borrower. Loomis v. Mowry et al.
456

20 An instrument in the form of a draft, which provides that the payment thereof shall be charged to apply on a certain contract between the drawer and drawee, is a bill of exchange; the direction as to the application of the payment does not make the draft payable out of the moneys due and to become due under the contract, but is a simple direction to the drawee how to reimburse himself. Hollister v. Hopkins. 563 21 An accommodation indorser, as between himself and a bona fide holder, where his liability has become fixed, becomes the principal debtor, and if he desires the benefit of any security held by the creditor, he must

3 The head of a department in the City of
New York may, after consenting to the substi-
tution of sureties in place of these originally
proposed, by one secking to obtain a contract
on a public letting, if he becomes satisfied that
such substitution would be unwise, at any
time before such sureties are approved by the
Comptroller, withdraw his consent. The
People ex rel. Mc Kone v. Green et al.
4 The Common Council of the City of New
York, unless specially authorized by the char-
ter, or by authority contained in or implied
from legal enactment, cannot incur expense
against the City, except for necessaries to per-
form their official functions.
Silcocks et al. v.
The Mayor, &c., of N. Y.

44

62

See ASSESSMENTS, 1, 6, 9; EVIDENCE, 14; for the partition of real estate in which the
SALARY; SURETYSHIP, 6.
judgment debtor has an interest. Dubois, recr.,
v. Cassidy.
210

2 The mere possession of the original letters
patent by the patentee. after they have been
surrendered for a reissue and the patent has
been declared void, is not a return of the orig-
inal patent. Peck v. Collins.
246

As to patent right notes, see CONSTITU-
TIONAL LAW, 7.

PAYMENT.

7 Where a prior award made upon the same
subject is set up as a defence to an action for
an accounting between partners, and the re-
feree has given defendant the benefit and ad-
vantage of such award, the defendant cannot,
on appeal, gainsay the action of the referee in
adopting it as the basis of his determination of
defendant's rights. Flannagan v. Madden. 176
8 Where such prior award directed defendant
to make collections and pay off debts, sell
stock on hand, &c., to close the business, and
defendant has been guilty of wilful delays in
disposing of the property, and finally sold it to
his son at an inadequate price, such acts ope-
rate as a fraud upon his partner's rights, and
he may be charged with its full value at the 2 The question whether an established state
Id. of facts is sufficient to rebut presumption of
payment by lapse of time, is for the Court.
Beale's ex'rs v. Kirk.

time it should have been sold.

9 In actions for dissolutions of copartnerships,
unless some special circumstance be shown as
against it, the appointment of a receiver is
proper. Llorens v. Costa.
484

10 Where articles of agreement of copartner-
ship called for an accounting every six months,
and provided for the withdrawal of any dis
satisfied member of the same, in case such
accounting should exhibit any discrepancy, on
thirty days' notice, an actual accounting, had
five months and eleven days after formation
of the partnership, is within the provision of
the articles.
ld.

11 A threat by a partner to close the firm's
store, unless $6,000 be advanced by the other
partners, is good ground for dissolution. Id.

12 Dictum, That a partner has no authority to
sell all the partnership effects at once, without
the assent of his copartner. McKoon v. Geils
et al.

486

1 Payment of money under protest to obtain
property cannot be regarded as voluntary, and
is sufficient to sustain an action where the exe-
cution is illegal. Baldwin v. The Liverpool &
Gt. W. Steam Co.

39

173

3 An admission by defendant of payment to
an unauthorized person is not sufficient to re-
but such presumption, but in the absence of a
demand it will be presumed that plaintiff re-
ceived the money through such person. Id.

Where payments have been made upon an
illegal contract which remains unexecuted,
and the parties are in pari delicto, a recovery
may be had as for money had and received.
Knowlton v. The Congress & Empire Spg. Co.
418

5 That the payment was made by crediting a
dividend as such payment does not alter the
Id.

case.

See ASSESSMENTS, 4, 5, 6; CONTRACTS, 39;
MORTGAGE, 1, 17, 20, 23.

PENALTIES.

1 An action to recover a penalty cannot be
maintained where no penalty has been ex-
pressly created and imposed. A penalty can-
not be raised by implication. Health Dept. of
N. Y. v. Knoll.
248

PERJURY.

1 It is error to instruct a jury to judge from
the appearance and manner of a person six

7 Where the verification to such a pleading 1 The construction of the abbreviation "etc."
contains the words "except as to the matters, in this case was a question of law for the

4 The Court is not bound to charge a proposition of law based on a state of facts which there is no evidence in the case to support. Id. 5 Where, in an action against a married woman for goods sold, the complaint demands that her separate estate be applied to the payment of the judgment, and that a receiver of such estate be appointed, the action is not thereby changed to an equitable one so as to deprive her of her right to a trial by jury. Litchfield v. Dezendorf. 68 6 A general objection to evidence is not available as ground of error on appeal. Cushman v. The U. S. Life Ins. Co. 86

7 Where, in an action for an accounting of sales, in which the complaint claims that defendants had made fraudulent statements of their sales to plaintiff's damage, the complaint is dismissed on the ground that such statements were correct, it is error for the General

Term to base its affirmance of the judgment solely upon the ground that the complaint stated an equitable cause of action and the cause of action proved was a legal one. Williams v. Slote et al.

88

8 The filing of a paper in violation of an order of the Court is, in legal contemplation, no filing. Marshall et al v. Macy et al.

90

19 When an improper rule has been stated and a motion is made for a new trial, on the ground that the damages given are clearly unauthorized, the General Term may require that the amount be reduced, or grant a new trial, although there be doubt as to whether an exception was taken. De Lavalette v. Wendt. 236

9 Where the evidence is sufficient to sustain the findings of a referee, it is error in the Court to refuse to confirm the report and to order judgment thereon. Knox v. White et al. 20 An order for the examination of an adverse 111 party before trial must be served upon the 10 The better practice in actions at law, in party and his attorney; service upon the atcase of a defective general denial contained in torney alone will not authorize the Court to compel the party's attendance by attachment an answer, is by motion to strike ont such an or to punish him for his non-attendance. Rid answer as not allowed by the Code, or by modle v. Cram. 277 tion to make same more definite and certain, instead of by motion for judgment on the answer as frivolous. Chamberlin v. The Am.

Nat. L. and T. Co.

129

21 Laches alone is sufficient ground for denying an application to set up a defence by way of supplemental answer. McDonald et al. v. 290

Davis.