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SALARY.

1 An officer de jure cannot recover salary for
the time during which an officer de facto per-
formed the duties of the office and received
the salary therefor. Dolan v. The Mayor, &c.,
of N. Y.
160

2 The salary follows the true title to the office,
and where the intruder obtains the salary, he
is liable therefor in an action by the officer de
jure for money had and received.
Id.

3 Disbursing officers are not bound to investi-
gate the title to offices before paying the sala-
ries thereof, but have a right to rely on the
apparent title.

SALES.

Id.

1 Notice of completion of goods manufactured
to order is necessary only to allow an inspection
to ascertain whether they comply with the
order, and where it is admitted that they did
so correspond proof of notice of completion is
unnecessary. Higgins v. Murray.
13

2 Where goods are shipped by a certain line to
a point beyond the terminus of that line, and
the bill of lading provides that they shall be
delivered to forwarders to be carried to their
destination, in absence of proof on the ques-
tion, it will be presumed that there was a con-
necting line, and that a shipment by the former
line, directed to the place of destination, was a
shipment to such place of destination.

Id.

ous performance by each is required; hence

neither is bound to perform save on perform-
Hoag v. Parr.
ance, or tender of performance, by the other.
577

8 The vendor, in order to establish his right of
recovery for the purchase-money, is bound to
prove performance, or a tender of performance
on his part.
Id.

9 The fact that a part of the purchase-money
agreed to be paid was evidenced by the promis-
sory note of the purchaser, payable to the ven-
dor on the same day the deed was to be deliv-
ered, does not vary the case from what it
would have been had no note been given. Id.
See AGENCY, 3, 4; CONTRACT, 27, 39, 40;
PRACTICE, 7; WARRANTY.

SAVINGS BANKS.

1 Where the by-laws of a Savings Bank pro-

vide that "the bank will use its best efforts
to prevent fraud; but all payments made to
persons producing the deposit book shall be
deemed good and valid payments to the de-
positors respectively," the bank is bound, in
an action against it for moneys paid upon a
forged draft to a person producing the deposit
book, to prove that it had used its best efforts
to prevent the fraud, and the question whether
it did is a proper one for a jury. Allen v. The
Williamsburgh Savings Bank.
208

2 In such cases the exercise of ordinary care
and diligence will not excuse the bank for such
Id.
payment.

SEDUCTION.

3 Inadequacy of price of itself may furnish
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
prosecutrix that she believed when the con-
nection took place that the prisoner would
marry her is proper and material. Armstrong
v. The People.

4 Where grain which has been sold by an ex-
ecutory contract of sale, is stored in the ven-
dor's warehouse by direction of the vendee, the

transaction from that time is to be deemed an
executed sale so as to pass the title. McNa
mara v. Edmister.

152

5 An agreement to sell a newspaper, which
provides that the vendee shall have full own-
ership when the conditions and stipulations are
performed, and until that time he shall take
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
vendee until the consideration is paid and the
conditions performed. Boon v. Moss. Flower
v. O'Brien.
349

6 An agreement to sell a newspaper establish-
ment, including the presses, &c., appertaining
to said printing business, except real estate and
accounts, notes and debts due the vendor, cov-
ers the good-will, the subscription list, name
of the paper, and everything of advantage per-
taining to the business.

ld.
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
the same time, the obligations of the parties
are concurrent and dependent. A simultane-

323

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arose and the principal part of it was per-
formed within the State. Hiller v. The B. &
M. RR. Co.

45

3 Evidence of mental anxiety on account of
the slander is not admissible.
Id.

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.

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5 Where the sheriff levies upon a debt owing

to the defendant under an attachment, which
debt is neither collected nor sold by him, but
the suit is settled, the sheriff is not entitled to
poundage, nor is he entitled to fees which may
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.
239

Id.

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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. 345
insufficient to establish title in the grantee.
Clute v. Emmerlich.

See DAMAGES, 2; DEEDS, 3, 7.

SLANDER.

498

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2 Part performance of such a contract will take
it out of the statute of frauds.
Id.
See MARRIED WOMEN, 12; SPECIFIC PER-
FORMANCE, 1.

STATUTE OF LIMITATIONS.
1 In order to revive a debt barred by the
Statute of Limitations, there must be a clear
and definite acknowledgment of the debt, a
specification of the amount due, or a reference
to something by which such amount can be
definitely and certainly ascertained, and an
unequivocal promise to pay. Miller v. Bas-
chore.

27

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3 To a supplemental complaint to revive an
action, a defence may be interposed that the
proceedings to revive were not commenced in
one year from the appointment of the plaintiff
as executor, &c., and the granting of an order
allowing the filing of a supplemental complaint
does not debar defendant from setting up such
a defence in his answer. Evans v. Cleveland.
292

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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
Treasurer of Butterfield's Dispatch Co." in
their stead. No amended summons having
been served, Held, That the Court acquired
jurisdiction over the Butterfield's Dispatch
Co., or defendant, as treasurer thereof, only
from the time of defendant's appearance.
Sharo v. Cock.
373

5 An absolute acknowledgment of the exist-
ence of a debt is sufficient from which to infer
a promise to pay, which will take the case out
of the statute of limitations. Morrow v. Mor-
row et al.
423

6 An affirmance by the Court of Appeals of an
order of General Term reversing a judgment
is the final reversal of such judgment, and the
limitation prescribed by 104 of the Code of
Procedure (405, Code Civ. Pro.) begins to
run from the date of such affirmance. Woos-
ter, v. The 42d St. & Grand St. Ferry R. R.
Co.
500
See DEBTOR AND CREDITOR, 2; WILLS, 29.

STAY OF PROCEEDINGS.

1 Under § 348 of the late Code of Procedure
a justice had the power to impose such terms,
other than as to costs, as in his discretion
might be equitable, subject to review by this
Court of any manifest abuse of discretion, and
such abuse will not be presumed when there
is nothing in the record or proofs to indicate
it. Waring v. Sanborn.
291

2 A stay of execution on a judgment will be
granted only for some cause arising during the
litigation or after the rendition of the judg-
ment. Strong v. The City of Brooklyn. 375

STOCK AND STOCKHOLDERS.

See CONSTITUTIONAL LAW, 14; CORPORA-
TIONS, 5, 12, 13, 16, 17, 18, 19, 25, 26; ESTOP-
PEL, 5; EVIDENCE, 12, 13.

STOCK RELEASE.

See COMMON CARRIERS, 12.

ance of an existing contract between them,
whereby the insurance company agrees to in-
sure absolutely against loss the interest of the
mortgagee in all policies issued by it and held
by him as mortgagee; and the mortgagee
agrees to assign the mortgages to the compa-
ny in case of loss upon full payment of his
claims, Held, That the insurance company is
not entitled to be subrogated to the rights of
the mortgagee, or to share in the surplus aris-
ing on the sale under foreclosure. The con-
tract between the company and the mortgagee
cannot qualify or invalidate the contract of
insurance whereby any payment made by the
company is to be applied in payment of the
mortgage. The Ulster Co. Savings Inst v.
Decker et al.

175

3 By such a contract, made without the knowl-
edge or consent of the insured, the insurance
company could and did waive defences as to
the validity of the policy that might have been
available against him.
Id.

See SURETYSHIP, 8, 12.

SUMMARY PROCEEDINGS.

1 Where the landlord has recovered possession
of the premises from the assignees of the lease
by summary proceedings, and, at the time of
commencing the proceedings, represented that
after issuing the warrant he would hold the
premises to their use and account for, and ap-
ply to their use all rents collected by him of
undertenants, which he afterwards refuses to
do, claiming that the lease had been annulled,
the judgment in such proceedings may be set
aside in an action brought for that purpose,
and a reference ordered to take and state the
account of rents received. Elverson et al. v.
Vanderpoel.

163

2 Declarations of the landlord's attorney,
while he was acting as such, and in the course
of the proceeding as part of the res gesta, are
competent.
1d.

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 notice was served in the manner required by the statute for the service of such notice. The People ex rel. Morgan v. Keteltas. 178

4 The statute requires such notice shall be served on the person owing the rent in the manner prescribed for the service of the summons in 2 R. S., p. 514, § 32. Id.

5 The omission of the venue in the landlord's affidavit in summary proceedings is a fatal defect. The People ex rel. Crawford et al. v. De Camp. 462

6 Where there are two or more defendants who are absent from the premises, the leaving of one copy of the summons with the person in charge is not a sufficient service.

SUPPLEMENTARY PROCEEDINGS.

Id.

1 A judgment debtor is entitled to notice of application for the appointment of a receive.: in supplementary proceedings against a third party, brought under § 294 of the Code of Procedure. Whitney v. Welch et al. 156

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9 Although an order granted in supplemen. tary proceedings is irregular, the judgment debtor must appear. He cannot trust entirely to the success of his attorney's efforts to have the order set aside. By so doing, he is guilty of contempt. Shults v. Andrews. 483 10 An affidavit in proceedings under § 292, subd. 2 of the Code, which does not state the facts, but follows the words of the statute, is sufficient to give jurisdiction. First Natl. Bk. of Rome v. Wilson.

See CONTEMPT, 1, 2; PARTITION, 1.

SURETYSHIP.

565

1 Where a grantee of mortgaged premises assumes and agrees to pay the mortgage in his deed, and a subsequent grantee, the owner of the equity of redemption, likewise assumes and agrees to pay the mortgage in his deed and thereafter obtains an extension of time from the holder of the mortgage, the prior grantee is discharged from the liability by reason of the covenant in the deed assuming the mortgage, he being the surety merely, and

2 The judgment debtor is regularly entitled to notice of an application for the appointment of a receiver in supplementary proceedings, and it is doubtful whether the receiver acquires any title to the debtor's property if such notice has been omitted. Clark v. Sav-standing in that relation to the person who age. subsequently to him assumes payment of the 61 mortgage. Cummings v. Butler.

193

3 A receiver in supplementary proceedings obtained an order, ex parte, requiring the judgment debtor to assign certain personal property to him: Held, That there was no jurisdiction of the defendant's person, and that the order was void. Reed v. Champagne.

227

4 Where, upon examination of third person in supplementary proceedings, a motion for the appointment of a receiver is made, and is met by affidavits denying the debtor's interest in the property in question, the Court, at the time of granting the order appointing the receiver, has no power to adjudicate the receiver's right to the money. In case the title to the fund or property is in dispute, the order should provide simply for the appointment of the receiver, and delegate to him authority to prosecute an action for its recovery. Manice

V. Smith.

5

255

299 of the Code sustains a clause in the order in such cases restraining the third person from paying over. ld.

6 A receiver appointed in supplementary proceedings cannot claim property acquired subsequent to the date of the order, or debts subsequently arising. Thorn, recr. v. Fellows et al. 473

7 K., a judgment debtor, held a note for $800. After the appointment of a receiver, two notes were given to K., who thereupon destroyed the $800 note. Held, that the receiver had no title to the two notes or their proceeds. Id.

2 No cause of action arises against the sureties upon an undertaking on appeal to the Court of Appeals until the remittitur from the Court of Appeals has been duly filed with the clerk of the Court below. The jurisdiction of the Court below is restored by filing the remittitur, and not until then. Marshall et al. v. Mucy

et al. 90 3 Sureties on an undertaking in a replevin suit may waive the formalities of the statutory proceedings, and thus become estopped by the recitals therein from asserting or proving its invalidity. Harrison v. Wilkin.

92

4. Where a surety, after maturity of the debt, gives security for its payment to the creditors, and with their consent undertakes the prosecution of suits in their names against the prin

cipal debtor for the purpose of collecting the

debt, he is entitled to be reimbursed by his principal for his costs and expenses which he has assumed, as well as his costs in the action to obtain the relief. Thomson v. Taylor. 98 5 Where the principal debtor is dead, the claim of the surety for reimbursement may be allowed in an action to marshal and distribute the assets of the estate. id.

6 Where the surety for a ward collector has given a bond and mortgage in discharge of his liability for a defalcation of said collector, he is not entitled to recover the avails thereof where the amount of such defalcation has been made good by taxation pursuant to the

act of 1837, and especially so where the resolution of the Board of Supervisors authorizing such taxation has not been acted upon. Oakley v. The Mayor, etc., of N. Y. 107

7 Where a surety purchases goods of his principal, a portion of the purchase price whereof is to be applied to the payment of the obliga tion, he holds such money in trust for that purpose, and where he afterwards pays a judgment recovered upon such obligation, and takes an assignment thereof, he is entitled to contribution only on the amount of the balance of such judgment over and above the amouut so held by him in trust. Where the assignment is taken in the name of a third party, such assignee acquires no greater rights than the surety had. Waldorf v. Fingar et al. 112 8 Sureties having paid the debt of the principal are subrogated to all the rights of the principal, and have the right which their principal had as creditors to set aside a deed made by debtor to hinder, delay, and defraud creditors. Martin et al. v. Walker et al.

217

9 Where one co-surety has been released from liability by the conduct of the creditor, the remaining co-surety is exonerated only as to so much of the original debt as the discharged surety could have been compelled to pay, had his obligation continued. Morgan v. Smith.

220

10 A release of one joint debtor by parol will not operate to discharge the other, and can only be pleaded by the one to whom it was given. Id.

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1 Surrogates have no power to adjudicate with reference to a disputed claim. This principle is not to be extended. McNulty v. Heard. 80 2 Surrogates have power to pass upon the question as to whether a judgment has been paid, and to decree payment thereof. Id.

3 The decree of a Surrogate granting allow. ances may be the subject of an appeal upon the merits. Noyes v. The Children's Aid Bociety. 130

4 The Surrogate of New York is confined, in granting allowances, to the manner prescribed in § 308 and 309 of the Code of Procedure.

Id.

11 Where there is a condition in a lease that 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. Id.

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14 Although a surety is released by the neglect of the creditor to take the necessary steps to fix his liability, yet, if he waives the laches, he debars himself from setting it up as a defense. Ross v. Hurd. 242

15 A surety on a promissory note is bound without any consideration moving to him. Vervalen et al. v. Eckerson et al. 392

16 The giving of a bond and mortgage by a special guardian for infants to secure the payment of trust moneys, which bond and mortgage are cancelled by the infants upon coming of age and learning its existence, is not

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7 Where a decree for payment of a debt in full has remained unperformed by the execuor up to the time for a general distribution of the estate, and the estate proves insufficient to pay all debts in full, the party in whose favor it was made is only entitled to his pro rata share, and especially so where the executors have been removed, and a receiver of the estate appointed by the Supreme Court. Id.

8 An appointment, by the Supreme Court, under Ch. 320, Laws of 1830, of a commissioner to act as Surrogate, when the Surrogate, County Judge, and District Attorney are disqualified, is not a violation of Art. 6, § 8 of the Constitution of 1846. Such commissioner is not a public officer within the meaning of such section. In re will of Hathaway. 387 9 The power of appointment conferred upon

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