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ous performance by each is required; hence
ance, or tender of performance, by the other.
160 recovery for the purchase-money, is bound to
on his part.
sory note of the purchaser, payable to the ven-
See AGENCY, 3, 4; CONTRACT, 27, 39, 40;
PRACTICE, 7; WARRANTY.
vide that “the bank will use its best efforts
to prevent fraud ; but all payments made to
deemed good and valid payments to the de-
an action against it for moneys paid upon a
2 In such cases the exercise of ordinary care
and diligence will not excuse the bank for such
83 under promise of marriage, evidence of the
prosecutrix that she believed when the con-
nection took place that the prisoner would
v. T'he People.
152 male, that she is in a family way, is proper.
349 only be such as the character of these matters
act, the supporting evidence need not be con-
fined to that very time; general evidence
arose and the principal part of it was per- 3 Evidence of mental anxiety on account of
4 Evidence of a rumor in the neighborhood
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
charged in the complaint, is only available in
mitigation of damages, and upon showing that
such reports were brought to her before the
slanderous words were uttered.
126 and, pursuant to the contract, a conveyance
principal, the latter may maintain an action
for specific performance ; there is nothing in
the statute of frauds which precludes it.
Beardsley v. Duntley.
grantor and a third party, whereby the latter
was to take up and cancel of record a mort.
gage upon such premises. Miller v. Winchell.
of such promise.
4 In an action for specific performance of a
206 contract for the sale of land, evidence as to
son v. Van Peit.
STATUTE OF FRAUDS.
1 An executed parol exchange of land followed
by occupation and substantial improvements
2 Part performance of such a contract will take
See MARRIED WOMEN, 12; SPECIFIC PER-
and definite acknowledgment of the debt, å
specification of the amount due, or a reference
2 To constitute mutual accounts there must
See RAILROAD COMPANIES, 16, 17.
1 Where the holder of a junior mortgage is so
v. The Yonkers Savings Bank.
2 When a loss has occurred, and the insurance
company has paid to the mortgagee the
ny in case of loss upon full payment of his
373 claims, Held, That the insurance company is
not entitled to be subrogated to the rights of
423 insurance whereby any payment made by the
company is to be applied in payment of the
mortgage. The Ulster Co. Savings Inst v.
the validity of the policy that might have been
STAY OF PROCEEDINGS.
291 undertenants, which he afterwards refuses to
do, claiming that the lease had been annulled,
2 Declarations of the landlord's attorney,
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-
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.
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
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