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4. Upon appeal from a judgment entered
upon the report of a referee, the court
will not disturb the finding of fact by
the referee where there is sufficient evi-
dence to sustain such finding. Thomas
v. Payne.
605

5. A referee is required to make such find-
ings of fact as are necessary to sustain
Eis conclusions of law. He is not re-
quired to find other facts which are
merely of a negative character. Me-
Andrew v. Whitlock.

623

REFERENCE.

1. Where the complaint states a cause of
action which, if true, would entitle the
plaintiff to recover back moneys paid by
him to the defendants (upon their re-
presentations that certain steps had been
taken by them toward the completion of
a contract), upon the ground that the
defendants never entered upon a per-
formance of the contract, and the de-
fendants, by answer, interpose a counter-
claim, the trial of which requires the ex-
amination of a long account, the action
is referable, notwithstanding the com-
plaint, by further averments, charges
that said representations were false and
fraudulent, and such reference is not in
violation of the provisions of the consti-
tution guaranteeing trial by jury.
Townsend v. Hendricks.
503

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REMOVAL OF CAUSES.

6.

1. An appeal lies to the General Term
from a Special Term order denying a
defendant's application under the twelfth
section of the act to establish United
States courts, passed by Congress, to re-
move the cause into the United States
Circuit Court. De Camp v. The New
Jersey Mutual Life Ins. Co.

5. The old principle or rule, "that the ac-
ceptance of rent under a lease, after a
forfeiture, is a waiver of the forjeiture,”
reasserted, and the leading cases re-
viewed. Ireland v. Nichols.

481
2. If, where there is no contest about the
facts, the order of removal is denied, the
defendant may answer in abatement to
the jurisdiction of the State court, set-
ting out the facts which, under the
United States statutes, authorize a re-
moval, the application for an order of
removal, and its denial.

ib.
3. Upon such answer the decision of the
court to which the application was made
for an order of removal, that, as mat-
ter of law, the defendant was not en-7.
titled on the conceded facts to an order
of removal, will be reviewed, and if
found to be erroneous, the plea to the
ib.
jurisdiction will be sustained.
4. The office of a petition for removal to
United States court is to set on foot the
proceedings to obtain a removal, and is
like unto a declaration of law or a bill

The Christie case, and the opinion of
Chief Justice Robertson (5 Robertson,
169), reviewed and considered as not
being antagonistic to the current of au-
thorities that support the above rule,
and as being in accordance with many
cases cited, that hold substantially,
"that rent may be paid and received
under circumstances that clearly show
that it was paid and received without
the knowledge or supposition of either
party that thereby the forfeiture was
waived; or that it was paid and received
as a compensation for the use and profits
of the land, and the intention of wair-
ing the lease expressly negatived by both
parties.'

ib.

Where the forfeiture claimed was the
breach of a condition not to underlet the
premises without consent, etc., and there
was but one underletting-held, that the
act of forfeiture was single and indi-
visible. The continuance of the same
underletting, after rent had been paid,
and thereby the forfeiture waived, can-
not be considered as the breach of a con-
tinuing covenant.
id.

8. In an action for rent due upon a written | 3.
lease executed by two of four defendants
named in the complaint, parol proof
offered by plaintiff of the existence of an
understanding between him and all the
defendants, to the effect that the lease
should be executed by the first-named
two defendants for the benefit of a co-
partnership to be formed between all the
defendants, which partnership was sub-
sequently formed, is not admissible for
the purpose of fastening an original lia-
bility under the lease upon all the de-
fendants. Mason v. Breslin.

2.

386

The practice of one judge vacating the
order made by another, and hearing and
deciding the subject-matter heard and
considered by another judge, deprecated.
ib.

9. A defendant will not be held liable for
rent as equitable assignee of a lease,
upon the ground of the privity of estate
existing between him and the lessor,
unless charged as such in the action. ib.

S

SALE.

1. An instrument, although purporting to
be an absolute sale, may be shown by
parol to have been intended as a security
only. Van Pelt v. Otter.
202

SHERIFF.

1. Where a sum of money is put into the
hands of the sheriff by a person who has
become bail for a defendant on an order
of arrest, to secure the sheriff until such
bail shall justify, it is but a deposit in
lieu of bail. The Cmmercial Ware-
house Company of New York v. Gra-
ber.
638

But even if such security was void, the
plaintiff would not thereby acquire any
right to it (per MONELL, J.).

ib.

2. The sheriff is himself responsible as
bail until the bail justifies, and it may be
that he can protect himself against such
contingent liability by taking security
from the bail that he will justify (per
MONELL, J.).
ib.

SPECIAL TERM.

1.

Contested motions will be entertained
and heard only at the regular Special
Term of this court, unless differently
ordered by the judge holding such term.
Mayer v. Apfel.

729

2.

2. That part of a lot of goods sold by
sample were not of the kind and quality
agreed to be sold, and did not correspond
in kind and quality with the sample (the
whole lot having been delivered, and the
defective portion not having been re-
turned or offered to be returned to the
vendor), cannot be pleaded in bar to an
action for goods sold and delivered,
brought to recover the agreed price of
the lot. Youngs v. Kent.
248
3. A vendor of goods cannot recover either
the contract price nor on a "quantum
meruit" for a part of the goods delivered
under the contract, although the same
are accepted by the vendee. He must
perform his contract fully before he can
recover, and performance must not only
be averred in the complaint but proved.
The leading cases in support of this rule
briefly reviewed. Moses v. Banker. 267

3.

The power or authority for such a pro-
ceeding is bad in practice, and the cases
where the power is exercised should be
very extreme and exceptional, and has
never been tolerated in this court.

ib.

SPECIFIC PERFORMANCE.

1. In an action to compel the specific per-
formance of a written contract to trans-
fer shares of stock of a corporation, it is
competent to show by parol that the
contract, although purporting on its face
to be a sale, was, nevertheless, intended
as a mere security for the payment of a
sum of money. Anthony v. Atkinson.
228

Such at least is the rule in equity. The
rule at law is otherwise, and parol evi-
dence is inadmissible to vary a written
instrument, or explain its meaning, if it
is free from ambiguity.
ib.

3.

The following general rules are well
established in this State as relating to
contracts for land, and actions for specific
performance of the same: First, a pur-
chaser may insist upon a good, valid, and
unincumbered title. Second, he is en-
titled to receive substantially from his
vendor all the property for which he con-
tracted. Third, if he obtains such
a title, and obtains substantially the
property for which he contracted, by the
conveyance offered, a court of equity
will enforce performance on his part;
otherwise not. Beyer v. Marks. 715

4.

A court of equity, in the enforcement
of a specific performance of a contract,
where it appears there was a slight defi-
ciency in the estate, or a variance in the
description, or an incumbrance that can
and should be the subject of compensa-
tion, must consider and provide for the
same in the decree. Compensation fol-
lows as a matter of right, and must be
provided for in the decree in all proper
ib.

cases.

5.

When specific performance of a contract
is decreed, and it appears from the evi-
dence that compensation should have been

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3. If a proceeding before a surrogate is
not an original proceeding, but of a
matter over which he had already ac-
quired jurisdiction, then such jurisdic-
tion will continue. But if the proceed-
ing is original, then everything required
by the statute to confer jurisdiction
must appear.

ib.

2. Such liability may be solely a creature
of the act of incorporation, or may arise 4. A power to remove an executor is wholly

out of the contract of indebtedness be-
tween the creditor and the corporation,
depending entirely upon the language of
the statute and the facts of each par-
ticular case.
ib.

independent of any other power given to
surrogates; and to show its valid exer-
cise, it is necessary to show that all
things required by the statute had been
done.
ib.

T

TRESPASS.

1. Where a tenant is rightfully in pos-
session, it is a trespass to remove him
therefrom otherwise than by process of
law. Nowlan v. Trevor.

67

matter of law upon this evidence, and to
charge the jury in effect, that ANY accept-
ance or approval of the work done under
the sub-contract by plaintiffs' engi-
neer, no matter in what capacity or in
what manner or for what purpose, re-
lieved the sureties, although it did not
relieve the principal contractors from
their obligation that, when completed,
the entire machinery should successfully
perform the stipulated service, and that
this was so, if the acceptance took place
for the principal contractors only, under
authority derived solely from them, and
not for the plaintiffs. That a contractor
cannot appoint an agent and by that
agent do an act which would release his
own sureties and destroy plaintiff's right
of action. The Board of Water Com-
missioners v. Burr.
25

TRIAL.

2.

1. Where a contract for certain engines,
pumps, and boilers provided that plain-
tiffs' engineer should be at liberty at all
times to require the rejection of any work
which he should deem inferior, and of
any material which he might deem of im-
proper or inferior qua'ity or strength,
and to require the substitution of other
work and materials, and the contract
further provided for the payment of ad-
vances, as the work progressed, based
upon the relative amount of the work
furnished to the whole sum, and the
principal contractors thereupon made a
sub-contract through plaintiffs' engineer
with other parties, as to part of the work,
according to drawings approved by plain-
tiffs' engineer, and such work was subse-
quently accepted by said engineer as
satisfactory; but where the contract
also provided that, when completed, the
said engines, pumps, and boilers should
perform a stipulated duty; and where
upon the trial of an action brought
against the sureties of the principal con-
tractors for the general non-performance
of the contract, a conflict of evidence
arose upon the following points:-1.
Whether or not the principal contractors
were improperly influenced by plaintiffs'
engineer in the award of the sub-contract
to the sub-contractors; 2. Whether or
not plaintiffs' engineer, in order to bring
about this award, agreed to be responsible
that the sub-contractors would perform
their work perfectly. and in full com-
pliance with and satisfaction of the
original contract; 3. Whether or not
plaintiffs' engineer, in all which he did in
regard to the sub-contract, acted as the
agent of the principal contractors; 4.
Whether or not an interference took
place by plaintiffs' engineer with the sub-
contractors without the acquiescence of
the principal contractors; and 5. Whe-
ther the acceptance of the work done
under the sub-contract by plaintiffs' en-
gineer was an acceptance on behalf of
the principal contractors, or on behalf of
the plaintiffs, and if on behalf of the
latter, whether it was an absolute one or
made for the sole purpose of making it
the basis for an estimate for advances to
be made under the original contract:
Held, that by such conflict of evidence,
clear issues of fact were raised for the
determination of the jury under proper
instruction from the court. That it was
error for the court below to determine as

Where sureties have bound themselves
by the provisions of their bond, that the
contractors will perform and abide by
any alterations which the parties to the
contract may make therein, a direction
to the jury contained in the general charge
of the court, that if they come to the
conclusion that material alterations have
been made in the contract by the parties
thereto, without the knowledge and con-
sent of the sureties, or that there was any
interference on the part of the plaintiff's
without the consent of the sureties, to
stop there and find a verdict for the de-
fendants, without any qualification of
the language at the time, although the
court, prior to the general charge, had,
on plaintiffs' motion, laid down a propo-
sition containing the true rule of law-
held, that the general charge, if not
erroneous, was at least calculated to mis-
lead the jury, and that a new trial should
be granted upon that ground.
ib.

3.

7.

8.

The contents of every writing are to be
proved by the paper itself and by that
alone, if the paper be in existence.
Therefore, in cross-examining a witness,

Where there is a general verdict, the
court will assume that the jury has found
it upon all the facts in the case. Van Pelt
v. Otter.
202

4.

Upon conflicting evidence the court will
not disturb a verdict.
ib.

5.

An instrument, although purporting to
be an absolute sale, may be shown by
parol to have been intended as a security
only.
ib.

6. Where the evidence of the defendant's
negligence is conflicting, it is error to
take it from the jury, and to determine
as a matter of law that there is negli-
gence.
339
Bellon v. Baxter.

Where the evidence before the jury is
sufficient, if credited, to authorize them
to find a verdict for plaintiff, it is error
to direct a verdict for defendant.
Schanck v. Morris.
464

a party will not be allowed to represent
in a question the supposed contents of a
written deposition, or examination, and
then ask the witness if he had testified
thus. Speyer v. Stern.
516

12. After a party has rested his case,
whether for the prosecution or the de-
fense, he cannot "de jure" introduce
any testimony afterwards except what is
clearly in answer or rebuttal of evidence
introduced by the opposite party, before
the party offering the testimony had re-
sumed the case.
ib.
13. A defendant, to avail himself of an
exception to the refusal of the court to
allow him to introduce certain testimony
offered, must have offered the same be-
fore he rested the defense, or it must
clearly appear that the testimony offered
was in answer or rebuttal to the evidence
of the plaintiff introduced after he
ib.
(plaintiff) had resumed the case.

4.

5.

When it is shown that a person had
been elected a trustee of a corporation,
his acceptance will be presumed.

9. A party may exhibit the writing to the
witness, and by pertinent questions call
his attention specifically to the same or
any part thereof, and inquire as to his
signature or the execution of the same
by him, etc.
ib.
10. If the execution is admitted, the party
may at a proper time read the same in
evidence, or if its execution is denied, it
may be proved and read in evidence at
the proper time for the purpose of con-
tradicting the testimony of the witness
given at the trial. The proper time, as
a general rule, is when the party offering
the same in evidence is conducting the
case, and not upon the cross-examina-
tion.

6.

7.

ib.

The liability of a trustee for the omis-
sion of a corporation to make an annual
report, is in the nature of a penalty, and
within the three years' limitation of
action for penalties or forfeitures.

ib.

11. At no time, however, can a party com-
pel a witness to answer a question, nor
upon objection be permitted to have one
answered, which contains or sets forth
substantially any portion of the subject-
matter of the writing. The writing
itself is higher evidence of its contents
than the statements of the witness in
relation thereto.
ib.

9.

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is no bar to an action against one of snel
trustees, to enforce its individual is-
bility, for a default of the company to
file its annual report. Nimmons v. Îup.
pan.

652

ib.

3. The pendency of an action against all
the trustees of a mining company, to
enforce their liability for falsely certify-
ing that all the capital had been paid in,

The recovery of a judgment against
such company is conclusive evidence of
a debt against the company, and is open
to attack by others only for fraud or
collusion.

is.

*b.

Corporations are not dissolved by inso!-
vency or non-user. Those are grounds
for judicially declaring them dissolved.
Dissolutions can be effected only in the
manner prescribed by statute.
ið.

8.

A trustee in office at the time a corpora-
tion fails to make its annual report, is
liable for all the existing debts of the
company, and such as may thereafter be
contracted, until the report is filed ið.

And such liability attaches upon each
default of the company, so long as the
trustee remains in office. So that al-
though there have been several successive
defaults of the company, and the first
of which was more than three years be-
fore suit brought, but the last was within
three years, the action is maintainable
upon the last default, and the statute of
limitations is not a bar.
ib.

10. A new and original liability is created
on each default, and if any of the de-
faults is within three years, it may be
made the foundation of the action; and
the creditor is not bound to confine him-
self to the first default.
ib.

11. A trustee of a corporation, created
under the general act for the incorpora-
tion of manufacturing and mining com-
panies, being made liable, upon the
default of the company to file an annual
report, for the existing debts of the
company, is liable for such debts, al-
though they were contracted before he
became a trustee. Nimmons v. Hennion,
603

12.

The meaning of "existing debts,” in
the statute, is such debts as were due at
the time of the default of the company.
ib.

13. Therefore, where the company had
given its promissory note, which, by its
terms, was not due or payable until after
the default of the company to file its
report-heid, not to be an existing debt
for which a trustee then in office would
ib.
be made liable.

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