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ous performance by each is required; hence
1 An officer de jure cannot recover salary for neither is bound to perform save on perform-
the time during which an officer de facto per-

ance, or tender of performance, by the other.
formed the duties of the office and received Hoag v. Parr.

the salary therefor. Dolan v. The Mayor, &c., 8 The vendor, in order to establish his right of
of N. Y.

160 recovery for the purchase-money, is bound to
2 The sulary follows the true title to the office, prove performance, or a tender of performance

on his part.

and where the intruder obtains the salary, he
is liable therefor in an action by the officer de 9 The fact that a part of the purchase-money
jure for money had and received. Id. agreed to be paid was evidenced by the promise

sory note of the purchaser, payable to the ven-
3 Disbursing officers are not bound to investi- dor on the same day the deed was to be deliv-
gate the title to offices before paying the sala- ered, does not vary the case from what it
ries thereof, but have a right to rely on the would have been had no note been given. Id.
apparent title.


See AGENCY, 3, 4; CONTRACT, 27, 39, 40;

1 Notice of completion of goods manufactured

to order is necessary only to allow an inspection
to ascertain whether they comply with the 1. Where the by-laws of a Savings Bank pro-
order, and where it is admitted that they did

vide that “the bank will use its best efforts
80 correspond proof of notice of completion is

to prevent fraud ; but all payments made to
unnecessary. Higgins v. Murray. 13 persons producing the deposit book shall be

deemed good and valid payments to the de-
2 Where goods are shipped by a certain line to positors respectively," the bank is bound, in
a point beyond the terminus of that line, and

an action against it for moneys paid upon a
the bill of lading provides that they shall be forged draft to a person producing the deposit
delivered to forwarders to be carried to their book, to prove that it had used its best efforts
destination, in absence of proof on the ques- to prevent the fraud, and the question whether
tion, it will be presumed that there was a con- it did is a proper one for a jury. Allen v. The
necting line, and that a shipment by the former Williamsburgh Savings Bank.

line, directed to the place of destination, was a

2 In such cases the exercise of ordinary care
shipment to such place of destination. Id.

and diligence will not excuse the bank for such
3 Inadequacy of price of itself may furnish payment.

grounds sufficient to justify a suspicion of
fraud or mistake and to set aside a judicial

sale. Abingdon Square Sav'gs Bk. v. Cassidy 1 On the trial of an indictment for seduction
et al.

83 under promise of marriage, evidence of the
4 Where grain which has been sold by an ex-

prosecutrix that she believed when the con-
ecutory contract of sale, is stored in the ven-

nection took place that the prisoner would
dor's warehouse by direction of the vendee, the marry her is proper and material. Armstrong
transaction from that time is to be deemed an

v. T'he People.

executed sale so as to pass the title. McNa- | 2 Evidence of prosecutrix, an unmarried fe-
mara v. Edmister.

152 male, that she is in a family way, is proper.
5 An agreement to sell a newspaper, which

provides that the vendee shall have full own- 3 A direction by the Court to the prosecutrix
ership when the conditions and stipulations are to go on and tell in her own way what occur-
performed, and until that time he shall take red on the evening of the intercourse, is prop-
possession as tenant or bailee, and in case of

default the vendor might take possession, is a
conditional sale, and no title will vest in the 4 The statute only requires supporting evi-
vendee until the consideration is paid and the dence as to the promise of marriage and the
conditions performed. Boon v. Moss. Flower carnal connection, and such evidence need
v. O'Brien.

349 only be such as the character of these matters
admits of.

6 An agreement to sell a newspaper establish-
ment, including the presses, &c., appertaining 5 Where the prosecutrix, her testimony,
to said printing business, except real estate and has limited the carnal connection to a single
accounts, notes and debts due the vendor, cov-

act, the supporting evidence need not be con-
ers the good-will, the subscription list, name

fined to that very time; general evidence
of the paper, and everything of advantage per covering the time of the existence of the facts
taining to the business.
la. it establishes is proper.

7 Whore, by an agreement for the sale and

purchase of land, the deed is to be delivered
and the purchase-money to be paid at one and 1 The service of summons on a director of a
the same time, the obligations of the parties foreign corporation while he is temporarily in
are concurrent and dependent. A simultane- | the State is good, where the cause of action


arose and the principal part of it was per- 3 Evidence of mental anxiety on account of
formed within the State. Hiller v. The B. & the slander is not admissible,

M. RR. Co.


4 Evidence of a rumor in the neighborhood
See CORPORATIONS, 8; SUMMARY PRO- arising from a repetition of the slander by the
CEEDINGS, 3, 4, 6.

party to whom it was made is not competent.


5 In an action for slander, circumstances in

niitigation must be pleaded in order to be ad-

missible in evidence. Willocer v. Hill et al. 551

6 The fact that reports about the conduct of

plaintiff with defendant's husband had been

brought to defendant by the person to whom,

as alleged, she used the slanderous words
See PRACTICE, 26, 27.

charged in the complaint, is only available in

mitigation of damages, and upon showing that

such reports were brought to her before the
1 Where a Sheriff neglects to return execu-

slanderous words were uttered.

tions issued and delivered to him, he is liable,
prima fucie, in the full amount of such execu-

tions. The amount of the executions is, prima 1 Where a contract for the conveyance to him,
facie, the measure of damages. Doison v. of lands, is made by an agent in his own name,

126 and, pursuant to the contract, a conveyance
? But the Sheriff may show, in mitigation of of a part of the land is made directly to the
damages, that the full amount of the execu-

principal, the latter may maintain an action
tions could not have been collected, and that

for specific performance ; there is nothing in
therefore the judgment creditor has suffered

the statute of frauds which precludes it.

no injury by his neglect.


Beardsley v. Duntley.
3 A Sheriff is not bound to proceed, although 2 An action cannot be maintained by the
indemnified, provided he acts in good faith ; grantee of real property to compel specific
but may protect himself by proving a want of performance of an agreement between his
property in the defendant, from which to

grantor and a third party, whereby the latter
satisfy the execution.


was to take up and cancel of record a mort.

gage upon such premises. Miller v. Winchell.
4 In an action against the Sheriff for failure to

return an execution, any evidence that plain. 3 The deed did not operate as an assignment
tiff's interest therein was beyond her control,
as that it has been attached, should be con-

of such promise.

sidered in mitigation of damages. Wehle v.

4 In an action for specific performance of a

206 contract for the sale of land, evidence as to
5 Where the sheriff levies upon a debt owing value of the land actually conveyed and as to
to the defendant under an attachment, which difference in value between that and the land
debt is neither collected nor sold by him, but called for by the contract, is immaterial. Wil.
the suit is settled, the sheriff is not entitled to

son v. Van Peit.

poundage, nor is he entitled to fees which may See LACHES.
be fixed by the officer issuing the attachment
for trouble and expense, or under $ 243, un-

less he takes possession of the property. Rid-
lon v. Flanigan.


1 An executed parol exchange of land followed

by occupation and substantial improvements
6 A sheriff's deed of real estate sold under ex- on the faith of it, is binding in equity, espe.
ecution, alone, and of itself, without a sher: cially so as to one who holds the benefits and
iff's certificate of sale, as a basis thereof, is denies the other's rights. Borst v. Zeh. 315
insufficient to establish title in the grantee.
Clute v. Emmerlich.


2 Part performance of such a contract will take
it out of the statute of frauds.

See DAMAGES, 2 ; DEEDS, 3, 7.


1 Words imputing a crime are actionable un- STATUTE OF LIMITATIONS.
less the circumstances attending the speaking 1 In order to revive a debt barred by the
thereof tend to show that the hearer did not
understand that a crime was charged. Prime Statute of Limitations, there must be a clear

and definite acknowledgment of the debt, å
v. Eastwood.


specification of the amount due, or a reference
2 Evidence that the slanderous words were to something by which such amount can be
spoken to other parties, at times not charged definitely and certainly ascertained, and an
in the petition, are admissible to show malice. unequivocal promise to pay. Miller v. Bar.
Id. I chore.


2 To constitute mutual accounts there must

be mutual demands. Where the demands are

all upon one side, the statute commences to
run from the last item in the account, although
payments on account have been made. Adams

v. Carroll et al.


1 Where the holder of a junior mortgage is so
3 To a supplemental complaint to revive an situated that by a sale or foreclosure of a prior
action, a defence may be interposed that the mortgage he will be greatly damaged, he may
proceedings to revive were not commenced in redeemn from such prior mortgage. He must
one year from the appointment of the plaintiff make an actual tender of payment; a tender
as executor, &c., and the granting of an order accompanied by a request for an assignment
allowing the filing of a supplemental complaint of the mortgage to him is not sufficient. Frost
does not debar defendant from setting up such

v. The Yonkers Savings Bank.

a defence in his answer. Eouns v. Cleveland.


2 When a loss has occurred, and the insurance

company has paid to the mortgagee the
4 An action was brought against George E. amount of the policy, and taken from him an
Cock and others, and * The Overland Dis assignment, to that amount, of a judgment of
patch Co.” The pleadings were subsequently foreclosure obtained by him under the mort-
amended by striking out the names of defend- gage, such assignment being made in pursu-
ants, and substituting “ George E. Cock as ance of an existing contract between them,
Treasurer of Butterfield's Dispatch Co." in whereby the insurance company agrees to in-
their stead. No amended summons having sure absolutely against loss the interest of the
been served, lleld, That the Court acquired mortgagee in all policies issued by it and held
jurisdiction over the Butterfield's Dispatch by him as mortgagee; and the mortgagee
Co., or defendant, as treasurer thereof, only agrees to assign the mortgages to the compa-
from the time of defendant's appearance.

ny in case of loss upon full payment of his
Shaw v. Cock.

373 claims, Held, That the insurance company is

not entitled to be subrogated to the rights of
5 An absolute acknowledgment of the exist- | the mortgagee, or to share in the surplus aris-
ence of a debt is sufficient from which to infering on the sale under foreclosure. The con-
a promise to pay, which will take the case out tract between the company and the mortgagee
of the statute of limitations. Morrow v. Mor-cannot qualify or invalidate the contract of
row et al.

423 insurance whereby any payment made by the

company is to be applied in payment of the
6 An affirmance by the Court of Appeals of an

mortgage. The Ulster Co. Savings Inst v.
order of General Term reversing a judgment Decker et al.

is the final reversal of such judgment, and the
limitation prescribed by s 104 of the ('ode of 3 By such a contract, made without the knowl-
Procedure ( 405, ('ode Civ. Pro.) begins to edge or consent of the insured, the insurance
run from the date of such affirmance. Woos.coinpany could and did waive defences as to
ter, v. T'he 420 St. & Grand St. Ferry R. R.

the validity of the policy that might have been
500 available against him.



1 Under $ 348 of the late Code of Procedure 1 Where the landlord has recovered possession
a justice had the power to impose such terms, l of the premises from the assignees of the lease
other than as to costs, as in his discretion by summary proceedings, and, at the time of
might be equitable, subject to review by this commencing the proceedings, represented that
Court of any manifest abuse of discretion, and after issuing the warrant he would hold the
such abuse will not be presumed when there premises to their use and account for, and ap-
is nothing in the record or proofs to indicate ply to their use all rents collected by him of
it. Wuring v. Sanborn.

291 undertenants, which he afterwards refuses to

do, claiming that the lease had been annulled,
2 A stay of execution on a judgment will be the judgment in such proceedings may be set
granted only for some cause arising during the aside in an action brought for that purpose,
litigation or after the rendition of the judg. and a reference ordered to take and state the
ment. Strong v. The City of Brooklyn. 375 account of rents received. Elverson et al. v.



2 Declarations of the landlord's attorney,
See CONSTITUTIONAL LAW, 14; CORPORA- while he was acting as such, and in the course
TIONS, 5, 12, 13, 16, 17, 18, 19, 25, 26; Estop of the proceeding as part of the res gestæ, are
PAL, 5; EVIDENCE, 12, 13.



3 Where the service of a three days' notice to

pay rent, &c., is relied upon in summary pro-

ceedings to remove tenants for the non-pay-
6 Where the surety for a ward collector has 7 K., a judgment debtor, held a note for $800. given a bond and mortgage in discharge of his After the appointment of a receiver, two notes liability for a defalcation of said collector, he were given to K., who thereupon destroyed is not entitled to recover the avails thereof the $800 note. Held, that the receiver had no where the amount of such defalcation has title to the two notes or their proceeds. Id. I been made good by taxation pursuant to the 8 An appointment, by the Supreme Court, un. 15 A surety on a promissory note is bound with der Ch. 320, Laws of 1830, of a commissioner out any consideration moving to him. Ver. to act as Surrogate, when the Surrogate, palen et al. v. Eckerson et al.

ment of rent, the affidavit must show that 8 Where a motion to set aside an order in supnotice was served in the manner required by plementary proceedings has been granted, but the statute for the service of such notice. The no order to that effect entered, the judgmentPeople ex rel. Morgan v. Keteltas. 178 debtor cannot object to a second order on the

ground of the pendency of the prior proceed4 The statute requires such notice shall be ing. Shults v. Andrews.

475 served on the person owing the rent in the manner prescribed for the service of the sum

9 Although an order granted in supplemen. mons in 2 R. S., p. 514, § 32.

ld. tary proceedings is irregular, the judgment

debtor must appear. He cannot trust entirely 8 The omission of the venue in the landlord's to the success of his attorney's efforts to have affidavit in summary proceedings is a fatal the order set aside. By so doing, he is guilty defect. The People ex rel. Crawford et al. v. of contempt. Shults v. Andreros.

433 De Camp.


10 An affidavit in proceedings under $ 292, 6 Where there are two or more defendants subd. 2 of the Code, which does not state the who are absent from the premises, the leaving facts, but follows the words of the statute, is of one copy of the summons with the person in sufficient to give jurisdiction. First Natl. Bk.

565 charge is not a sufficient service. Id. of Rome v. Wilson.


SURETYSHIP. 1 A judgment debtor is entitled to notice of application for the appointment of a receive: | 1 Where a grantee of mortgaged premises asin supplementary proceedings against a third sumes and agrees to pay the mortgage in his party, brought under & 294 of the Code of deed, and a subsequent grantee, the owner of Procedure. Whitney v. Welch et al. 156 the equity of redemption, likewise assumes

and agrees to pay the mortgage in his deed 2 The judgment debtor is regularly entitled to and thereafter obtains an extension of time notice of an application for the appointment from the holder of the mortgage, the prior of a receiver in supplementary proceedings, grantee is discharged from the liability by and it is doubtful whether the receiver ac- reason of the covenant in the deed assuming quires any title to the debtor's property if the mortgage, he being the surety merely, and such notice has been omitted. Clark v. Sav. standing in that relation to the person who age. 193 subsequently to him assumes payment of the

61 3. A receiver in supplementary proceedings mortgage. Cummings v. Buller. obtained an order, ex parte, requiring the 2 No cause of action arises against the sareties judgment debtor to assign certain personal upon an undertaking on appeal to the Court property to him: Held, That there was no of Appeals until the remittitur from the Court jurisdiction of the defendant's person, and that ; of Appeals has been duly filed with the clerk the order was void. Reed v. Champagne. of the Court below. The jurisdiction of the

227 Court below is restored by filing the remittitur, 4 Where, upon examination of third person in and not until then. Marshal et al. v. Mucy

et al.

90 supplementary proceedings, a motion for the appointment of a receiver is made, ard is met 3 Sureties on an undertaking in a replevin suit by affidavits denying the debtor's interest in may waive the formalities of the statutory the property in question, the Court, at the proceedings, and thus become estopped by the time of granting the order appointing the re- recitals therein froin asserting or proving its ceiver, has no power to adjudicate the receiv-invalidity. Harrison v. Wilkin.

92 er's right to the money. In case the title to the fund or property is in dispute, the order 4. Where a surety, after maturity of the debt, should provide simply for the appointment of gives security for its payment to the creditors,

and with their consent undertakes the prosethe receiver, and delegate to him authority to prosecute an action for its recovery. Munice cution of suits in their names against the prinv. Smith.


cipal debtor for the purpose of collecting the

debt, he is entitled to be reimbursed by his 5 $ 299 of the Code sustains & clause in the principal for his costs and expenses which he order in such cases restraining the third per has assumed, as well as his costs in the action son from paying over.

Id. to obtain the relief. Thomson v. Taylor. 98 6 A receiver appointed in supplementary pro 5 Where the principal debtor is dead, the claim ceedings cannot claim property acquired sub- of the surety for reimbursement may be al. sequent to the date of the order, or debts lowed in an action to marshal and distribute subsequently arising. Thorn, recr. v. Fellows the assets of the estate.

id. et al.


act of 1837, and especially so where the reso- such an extension of the time of payment as lution of the Board of Supervisors authorizing will discharge the sureties upon his bond from such taxation has not been acted upon. Oakley liability. Voss v. Hoeft et al. Wardell v. v. The Mayor, etc., of N. Y. 107 Hoeft et al.

424 7 Where a surety purchases goods of his prin. 17 A surety is entitled to full indemnity cipal, a portion of the purchase price whereof against the consequences of the default of is to be applied to the payment of the obliga his principal and to call upon him for reimtion, he holds such money in trust for that bursement of all reasonable expenses legitipurpose, and where he afterwards pays a mately incurred in consequence of such dejudgment recovered upon such obligation, and fault or for his own protection. Thompson v. takes an assignment thereof, he is entitled to Taylor. In re claim of Matteson.

518 contribution only on the amount of the balance | 18 The fact that the surety, instead of froof such judgment over and above the amouut so held by him in trust. Where the assign curing the creditor to prosecute, gave security ment is taken in the name of a third party, itor's name, makes no difference in the allow

and brought the action himself in the credsuch assignee acquires no greater rights than

Ida the surety had. Waidorf v. Fingar et al. 112

ance of his claim. 8 Sureties having paid the debt of the principal See EXECUTIONS, 5. are subrogated to all the rights of the principal, and have the right which their principal

SURROGATES, had as creditors to set aside a deed made by debtor to hinder, delay, and defraud creditors. 1 Surrogates have no power to adjudicate with Martin et al. v. Walker et al.

217 reference to a disputed claim. This principle 9 Where one co-surety has been released from is not to be extended. McNulty v. Heard. 80 liability by the conduct of the creditor, the 2 Surrogates have power to pass upon the remaining co-surety is exonerated only as to question as to whether a judgment has been so much of the original debt as the discharged paid, and to decree payment thereof.

Ja, surety could have been compelled to pay, had his obligation continued. Morgan v. Smith.

3 The decree of a Surrogate granting allow. 220

ances may be the subject of an appeal upon

the merits. Noyes v. The Children's Aid na 10 A release of one joint debtor by parol will ciety.

130 not operate to discharge the other, and can only be pleaded by the one to whom it was

4 The Surrogate of New York is confined, in given.

Id. granting allowances, to the manner prescribed

in SS 308 and 309 of the Code of Procedure. 11 Where there is a condition in a lease that

Id. the lessee shall not sublet the premises without the written consent of the lessor, the giv. 5 He can make allowances in lieu of costs in ing of such written consent will not discharge cases where, under the Revised Statutes, he the sureties on the lease. Id.


had power to award costs. 12 Where the rights of the creditors are re

6 The authority vested in the Surrogate, unserved against the surety, notwithstanding a

der the Revised Statutes, to decree payment new agreement with the principal, and the of a debt of a deceased person by his executor, surety is compelled to pay, he is entitled to etc., in full or in part, at any time after six be subrogated to the original rights of tho months from the time that letters were creditor.

Id. granted, is to be exercised in conformity with

the general principle of equality among credi. 13 An agreement by the holder of a promissory tors. In re claim of Thomson. Thomson v. note with the maker to accept drafts or bills Taylor.

383 to the amount of said note, and to extend the 7 Where a decree for payment of a debt in payment during the time said drafts were run.

full has remained unperformed by the execuning, carried out without he knowledge of the surety, will release such surety. Pomeroy tor up to the time for a general distribution of et al. v. Tanner.


the estate, and the estate proves insufficient

to pay all debts in full, the party in whose fa14 Although a surety is released by the neglect vor it was made is only entitled to his pro rata of the creditor to take the necessary steps to share, and especially so where the executors fix his liability, yet, if he waives the laches, he have been removed, and a receiver of the esdebars himself from setting it np as a defense. tate appointed by the Supreme Court. Id. Ross v. Hurd.


392 County Judge, and District Attorney are dis16 The giving of a bond and mortgage by a

qualified, is not a violation of Art. 6, § 8 of special guardian for infants to secure the pay is not a public officer within the meaning of

the Constitution of 1846. Such commissioner ment of trust moneys, which bond and mort- such section. In re will of Hathaway. 387 gage are cancelled by the infants upon coming of age and learning its existence, is not 1 9 The power of appointment couferred upon

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