1

SALARY.

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.

577
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.

Id.
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.

Id.

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

PRACTICE, 7; WARRANTY.
SALES.
1 Notice of completion of goods manufactured

SAVINGS BANKS.
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

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,

Id.
M. RR. Co.

45

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.

Id.
SERVICES.

5 In an action for slander, circumstances in
See MARRIED WOMEN, 6.

niitigation must be pleaded in order to be ad-

missible in evidence. Willocer v. Hill et al. 551
SET OFF.
See ATTORNEYS, 8.

6 The fact that reports about the conduct of

plaintiff with defendant's husband had been
SEVERANCE.

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
SHERIFFS.

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

slanderous words were uttered.

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

SPECIFIC PERFORMANCE.
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,
Saxton.

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.

Id.
no injury by his neglect.

59

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.

Id.

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

212
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.

Id.
sidered in mitigation of damages. Wehle v.

4 In an action for specific performance of a
Conner,

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.

501
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-

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

239

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.

498

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

Id.
See DAMAGES, 2 ; DEEDS, 3, 7.

See MARRIED WOMEN, 12; SPECIFIC PER-
SLANDER.

FORMANCE, 1.
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.

279

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.

27

2 To constitute mutual accounts there must

STREET RAILWAYS.
be mutual demands. Where the demands are

See RAILROAD COMPANIES, 16, 17.
all upon one side, the statute commences to
run from the last item in the account, although
payments on account have been made. Adams

SUBROGATION.
v. Carroll et al.

256

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.

162
a defence in his answer. Eouns v. Cleveland.

292

2 When a loss has occurred, and the insurance

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.

462

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.

See CONTEMPT, 1, 2; PARTITION, 1. SUPPLEMENTARY PROCEEDINGS.

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.

255

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.

473

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.

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.

223

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.

242