Held, Untenable. The statute of 1883 relates only to statutory receivers to wind up a corporation and distribute its assets, and who become substantially statutory assignees. The act is entitled "An act in relation to receivers of corporations," and its whole scope and contemplation relates wholly to such receivers. It contains nothing in conflict with the general statutes relating to the venue of actions or motions, and only prescribes rules and regulations in relation to receivers of corporations such as the courts appoint in actions to close up their affairs. So viewed, it is in entire harmony with all other statutes and presents no inconsistency.

The venue in this action was properly laid in Orange county, and all motions and applications in the same may be made in that county. The receivers appointed herein were not receivers of the corporation; they were simply receivers pendente lite of the property embraced in the mortgage; and while it happens in this case that the mortgage comprehends all the property of the company, that is an independent fact which does not affect the principle. They were common law receivers for the protection of the property-simple custodians. They were clothed with no power to sell any of it, and they acquired no title to it. They could not close up the affairs of the company or distribute its assets. They simply hold possession of the property and receive the profits to

An order for the appointment of such receivers may yet be made in an action to foreclose a mortgage in any county where the same is triable, notwithstanding the statute of 1883.

Order reversed, with costs.

Opinion by Dykman, J.; Barnard, P.J., and Pratt, J., concur.

ESTOPPEL. LACHES.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Cornelia V. Phillips, applt., v. The Highland Nat'l Bk. et al., respt. Decided Feb., 1885.

One T., who was plaintiff's attorney in a foreclosure action, purchased the property himself and two years thereafter sold it and took back a mortgage which he afterwards assigned to defendant as security for loans. In an action to recover moneys paid on the mortgage and for an assignment thereof, Held, that plaintiff by failing to enforce her right to the property or the proceeds before the sale and assignment lost her right to the land or mortgage, and that she had no rights which could be enforced against the assignee of the mortgage.

Appeal from judgment entered on decision of Special Term.

One T. was the attorney for plaintiff in an action to foreclose a mortgage held by her and became the purchaser at the sale, taking the deed to himself, and two years later sold the same to honest purchasers and took back a bond and mortgage for $1,800 in part payment. He was at that time in

debted to one B. and assigned the bond and mortgage to him, but the assignment was never recorded, but was left with T.

Oct. 4, 1882, T. assigned the same bond and mortgage to the defendant bank as security for loans, and this assignment was recorded March 7, 1883. A payment of $400 of the principal was made to T. in 1882 and he paid it to B.

This action was brought, T. being dead, to recover the $400 from B. and to obtain an assignment of the bond and mortgage from the bank. The court at Special Term decided adversely to plaintiff and in favor of the bank as against B.

Held, No error. After T. became the purchaser of the property at the mortgage sale plaintiff could have obliged him to yield the same to her, and after he sold the same and received the proceeds it was her right to have them handed over to her, and she could have enforced her right by legal action. But she made no move in that direction. The sale of the land was made to a bona fide purchaser, and she lost her right to procure that, and the assignment of the mortgage was made to an innocent party for value and the same result ensued. 55 N. Y., 41; 94 Id., 189.

Bailey and the Bank stand equal on their equities, but the recording act must decide between them. B.'s assignment was not recorded, and was thorefore void as against the assignment of the Bank, which was recorded.

It follows that plaintiff had no rights which can be enforced against these defendants and that

Vol. 21.-No. 9.

TERM. FIRST DEPT. Galen W. Lovatt, respt., v. Ellen F. Watson et al., applts.

Decided March 4, 1885.

A landlord by instituting summary proceedings to evict his tenant affirms the lease as it exists, and is precluded from seeking a reformation thereof as a defense to an action brought to restrain the prosecution of such summary proceedings. It is not necessary to file a new note of issue and serve a new notice of trial after the service of a supplemental complaint.

Appeal from judgment of Special Term, and from order directing the trial to proceed.

The defendants, who were the landlords of the plaintiffs, commenced summary proceedings in a District Court to evict them. The determination was in favor of the defendants herein, but before the warrant could be executed this action was commenced to restrain the prosecution of such proceedings and to enforce the specific performance of the contract of hiring. A preliminary injunction was granted, but was dissolved, and the plaintiff herein evicted. He appealed, however, to the General Term of the Court of Common Pleas, where the judgment of ouster was reversed, and he was allowed to set up such eviction and.

reversal in a supplemental complaint in this action, to which the defendants interposed an answer, in which, among other things, they asked for a reformation of the contract on account of alleged fraudulent representations on the part of plaintiff, so that it should be declared null and void.

A. B. Conger, for applts.
E. P. Wilder, for respt.

Held, That defendants, in attempting to evict plaintiff, instituted a proceeding by which the contract was affirmed as it existed, and in which they sought its construction, and that prevented any reformation of the contract itself. 77 N. Y., 498.

When the case was called for trial, defendant urged that it was irregularly upon the calendar because no new note of issue had been filed nor notice of trial served since the supplemental pleadings had been put in. The judge directed the trial to proceed, and from this decision defendants appealed.

Held, When leave is given under 554 of the Code of Civ. Pro. to put in a supplemental complaint in addition to the former pleading, it is not a substitute for the original complaint, but a further complaint, and assumes that the original complaint is to stand. Code of Civ. Pro. $554; 2 Wait's Pr. 472, and cases cited.

And there was no necessity, therefore, to file either a new note of issue or to serve a new notice of trial.

Judgment and order affirmed. Opinion by Davis, P.J.; Daniels, J., concurs.

AMENDMENT. TITLE.

TRUST.

N. Y. COURT OF APPEALS. Price, respt., v. Price et al., ex`rs, applts.

Decided March 3, 1885.

The complaint alleged that plaintiff allowed defendant P. to take notes belonging to her, to be secured by a mortgage given to him by the other defendants; that P. delivered them to the other defendants, who destroyed them, and asked to be adjudged owner of the mortgage to the extent of the notes. The referee allowed the complaint to be amended by striking out the allegation as to the destruction of the notes, they being produced. Held, No error; that the amendment did not affect the issue or bring in a new cause of action.

One of these notes was payable to plaintiff, and admissions of P. were shown to the effect that he received it from plaintiff to give to the other defendants. Held, That the legal and equitable title was słown to be in plaintiff, and that the mortgage was impressed with a trust in favor of plaintiff for the amount due her.

On November 22, 1869, defendants R. executed a bond and mortgage to the defendant P. for $50,000, in consideration of the surrender of promissory notes of a like amount. It appeared that these notes, to the amount of $10,000, belonged to plaintiff, and were at the request of P. delivered to him to be secured by the mortgage, and upon his agreement to hold the same in trust for her to that extent. The complaint in this action. alleged that plaintiff allowed P. to take the notes, and that he imme diately gave them to the defendants R., one of whom in plaintiff's presence destroyed them. The complaint further alleged that no

part of said $10,000 has been paid to plaintiff, and for reasons stated she believes and charges that defendants intend to dispute their indebtedness and cheat and defraud her of her rights in the premises. She asked that she be adjudged to be the owner of $10,000 of said bond and mortgage, and that said sum be ordered paid to her as it falls due, and that meanwhile defendants be enjoined from doing anything to her prejudice. At the close of plaintiff's case the referee allowed the complaint to be amended by striking out the allegation as to the destruction of plaintiff's notes, the same having been produced by defendants R. on the trial. Defendants claim that this

was error.

Charles Hughes, for applt. Frank J. Mather, for respt. Held, Untenable, the object of the action being to protect and enforce plaintiff's interest growing out of the facts alleged, and their existence being denied the amendment in question did not affect the issue raised or bring in a new cause of action; as the power and discretion of the referee in such mat

ters has no other limit, his decision is not reviewable. 70 N. Y., 180; id., 92.

Upon the merits, the referee found the execution of the bond and mortgage as alleged, and the other allegations in favor of the plaintiff to the extent of $5,000. It appeared that among the notes surrendered when the bond and mortgage were executed there was one dated October 15, 1869, payable three months after date to

plaintiff's order for $5,000, in the handwriting of one of the R.'s, and upon it was indorsed a statement, in the handwriting of P., that it was surrendered and formed $5,000 of the mortgage executed by defendant R. November 22, 1869. It was also proved by one A. that, shortly after said mortgage was executed, P. stated to him that R. having applied for a loan he told him him he had not any ready money, but perhaps his wife had, and he saw her and she let him have $10,000.

Held, That a case was made for the consideration of the referee; that the legal and equitable title was shown to be in the plaintiff.

Robinson v. Cushman, 2 Den., 149; Pease v. Dwight, 6 How., U. S., 200, distinguished

The legal presumption is that the note was delivered either to the

payee named therein (plaintiff), or some one authorized by her to receive it, and the referee having refused to find that the note was delivered to defendant P., it stands as a note made for value and delivered to the payee. This is sufficient to sustain plaintiff's title. Cow., 77; 2 Abb. Ct. App. Dec., 492.

The bond and mortgage in question are impressed with a trust in favor of plaintiff for the amount due her, whether by express agreement of the mortgagee or otherwise is immaterial. Story's Eq. Jur., 1255; 69 N. Y., 133.

A party cannot on appeal have the benefit of an exception to the admission of evidence and at the

tice thereof given the next day to the endorser. The only defense pleaded is the statute of limitations.

Earl M. Stimson, for applts. M. E. Barlow, for respts. Held, That the endorser's contract being, if on demand at a certain place named the maker did not pay the note, he would, upon notice of its non-payment, pay it, no cause of action would arise against him until after a demand made at the time and place stipulated and a failure of the maker to pay. 17 Johns., 248; 19 id.,392; 37 Barb., 10. The holder is not chargeable with neglect for omitting to make such demand within any particular time. 23 N. Y., 28: 60 id., 265; 41 id., 581; 47 id., 519; 88 id., 339.

It was claimed that certain letters, addressed by the holder of the note to the maker, containing requests to make payment thereon, operated as a sufficient demand of payment to cause the statute of limitations to commence to run against the note in favor of the endorser.

Held, Untenable. 29 Me., 188; 18 Conn., 361; 61 Me., 244; 1 Parsons on B. and N., 372.

It is essential to the validity of a demand that it shall be made by a person authorized to receive payment and deliver the instrument upon which it is founded, and the person on whom it is made must then be afforded an opportunity by immediate payment or performance to protect himself from the consequence of a breach of con