The D., 553. The guardian can maintain an action for the rents. 7 Wend., 45; 8 Barb., 48. powers of a guardian are commensurate with his duties. 33 N. Y., 289. Section 1666, Code Civ. Pro., has no application to this case. That and the cognate sections relate to "real actions." This is a personal action. It is an action in debt, not for the recovery of rent as such, but for the recovery of money had and received by defendant which belongs to the ward of the plaintiff and for which the guardian may sue. 56 Barb., 197; 59 How., 24; Simpson's Law of Infants, 212. The evidence shows that by custom one-half of the rent was to be paid to each party. That defendant could not counterclaim the expense of improvements made without plaintiff's assent. It is well settled in this State that a tenant-in-common cannot recover from a co-tenant the expense of of improvements made, unless the co-tenant assented to the improvements. 60 Barb., 163; 48 N. Y., 106; 31 Hun, 522. The notice of appeal stated that it was also from an order denying a new trial, but no such order is in the appeal book, but a statement is found therein that a motion for a new trial was made on the judge's minutes and denied, to which defendant excepted. Held, That a formal order duly entered is the only competent evidence of the determination of such a motion. The statement that a motion was made and denied and an exception taken is not equivalent to an order, and the statement Vol. 21-No. 16b. and exception present no question for review. 23 Hun, 273; 63 N. Y., 656. 656. The grounds upon which the motion for a new trial on the minutes was made do not appear and for that reason the errors of the jury, if any, are not before this court. 34 Hun, 178; 20 W. Dig., 401. Judgment affirmed, with costs. Opinion by Follett, J.; Hardin, P.J., and Boardman, J., concur. TRESPASS. DAMAGES. SURE TYSHIP. N. Y. COURT OF APPEALS. Lord, adm'r, et al., respts., v. Tiffany et al., applts. Decided March 3, 1885. The party injured by a trespass may bring as many actions as there were wrong-doers. He can have but one satisfaction for damages, but may have the costs in all the actions. T. commenced separate actions against S. and L. for the same trespass and recovered judgments in each. Upon affirmance he brought actions on the undertakings and recovered. One of the sureties of S. paid nearly the full amount of the judgment against him and assigned to T. his claim for reimbursement against his principal co-surety. Held, That on payment of a sum sufficient to pay the balance of the damages and the costs in all the actions S. and his sureties would be released, and that the co-surety was entitled to be released from one-half of the judgment against him. Defendant T. commenced two actions, one against L. and another against S., both of whom were wrong-doers, for the same trespass. T. recovered a judgment in both actions. Each judgment was appealed from and affirmed by the General Term and the Court of Appeals. T. also brought separate actions on the undertakings given upon the several appeals, in which he recovered judgments. One of the sureties for S. paid nearly the full amount of the judgments against him, at the same time agreeing that the payments should not affect T.'s right to collect all his judgments against all the other parties, and assigned his claims against his principal and co-surety by reason of such payment. T. agreed to and did release the surety separately from the judgments against him. William Tiffany, applt., in per son. George H. Forster, for respts. Held, That upon the payment of a sum which, in addition to that already paid by the surety of S., would be sufficient to satisfy the damages and costs in all the actions, S. and his sureties would be released, and that G., the co-surety, was entitled to judgment releasing him from one-half of the judgment against him and restraining the collection of more than one-half from him. A case was made for equitable relief. A surety is entitled to the benefit of any security taken by the creditor. This rule applies also to money received by him from a person who could not have paid it or could not have been compelled to pay it if he had not sus tained that relation. A surety can neither directly nor indirectly, by his own act or in conjunction with a creditor, keep a judgment alive in order to coerce payment from his co-surety, or in any other way qualify the effect of his payment to the prejudice of the other surety. For a trespass the party injured may bring as many actions as there were wrong-doers. Although he recover a judgment in each action he can have but one satisfaction, 1 Johns., 289; 29 N. Y., 591. He may have, however, the costs in all the actions. Judgment of General Term, affirming judgment for plaintiffs, affirmed. Opinion by Danforth, J. All N. Y. COURT OF APPEALS. The People ex rel. Osgood et al., ex'rs, applts., v. The Commissioners of Taxes of New York, respts. Decided May 5, 1885. Where the evidence before the assessors fails to show that the assessment is erroneous in whole or in part it is their prov. ince to determine the amount of the property liable to taxation. The "just debts" which may be deducted from the personal property are legal, valid and incontestible obligations. Disputed claims against an estate for which the surrogate has directed a portion of the estate to be retained by the executors do not fall within the definition of just debts within the statute. Affirming S. C., 21 W. Dig., 93. The relators seek in this proceeding to review the determination of defendants in assessing them for personal property retained by them as executors, by order of the surrogate, "for the payment of disputed and other claims and the further expenses of admin The istration." The relators applied to defendants to remit said estate altogether from their assessment rolls, and presented an affidavit showing that there were unpaid claims made against the estate exceeding the amount of assets in their hands, and that in consequence thereof they had no personal property of said estate subject to taxation. The commissioners reduced the assessment to the sum admitted to be in the hands of the executors, and as to that amount confirmed it. claims made against the estate were contested by the executors and their validity had never been admitted nor established. nature did not appear. John M. Bowers, for applts. D. J. Dean, for respts. Held, That the action of the commissioners was proper. It is essential to the support of a claim to reduce or nullify an assessment made by the proper officers that it should be made to appear affirmatively by sufficient proof that such assessment is in part or as a whole erroneous. 91 N. Y., 581. If the evidence fails to show this or leaves the matter in doubt, it is the province of the assessors to determine the amount of the property liable to taxation. Their The use of the term just debts in the statute, 2 R. S., 7th Ed., 991, § 10, implies that legal, valid and incontestible obligations must be shown in order to entitle an estate to the benefit of the statute. Order of General Term, affirming proceedings of the commissioners, affirmed. N. Y. COURT OF APPEALS. McCormick, respt., v. The Pennsylvania Central RR. Co., applt. Decided April 14, 1885. Plaintiff having refused to pay for extra baggage, defendant's agent refused to deliver the checks or the baggage, which was in plain sight and could have been returned. Defendant's president authorized plaintiff to receive the baggage at P. without checks, and promised it should be stopped there. It, however, went on to C. and was burned there in the depot. Held, That defendant was liable for conversion of the baggage. On March 11, 1862, between 10 and 11, P. M., and about twenty minutes before the schedule time for starting the train, plaintiff and his family arrived at defendant's depot in Philadelphia with nine pieces of baggage, for the purpose of taking passage for Chicago. Defendant's baggage-master demanded an additional charge for extra baggage, which plaintiff refused to pay, and the baggagemaster refused to deliver the checks for the trunks until it was paid. Plaintiff several times demanded the return of his baggage or the delivery of checks therefor. The baggage-master testified that he gave as a reason for not returning the baggage that the train was about to start and it had been placed in the van in such a position as to make it inconvenient or impossible to reach it and redeliver it in season for the train to leave on its schedule time. Plaintiff's evidence tended to show that the baggage was in plain sight and accessible, and that there was sufficient time to remove it and deliver it to plaintiff before the time for the starting of the train. Plaintiff refused to take a passage on the train, but returned to his hotel with his family where he remained until the next day. That morning plaintiff called on defendant's president, who authorized him to receive his baggage at Pittsburg from defendant's agent there without producing checks and promised that defendant would cause baggage to be stopped at Pittsburg and delivered to him on demand. That evening plaintiff with his family took passage on defendant's train, and when he arrived at Pittsburg the next day applied to defendant's agent for his baggage, but was informed that through inadvertence it had not been taken off but had been allowed to go through to Chicago, and an order was endorsed upon a copy of the one addressed to him directing the baggage agent at Chicago to deliver the baggage to plaintiff on demand without checks. Plaintiff's family continued their passage on the same train, but he stopped over a train at some place on the route and did not arrive at Chicago until the next day (March 14th). On the night of the 13th defendant's depot at Chicago was struck by lightning and with its contents burned. Plaintiff's baggage had been stored in the depot and only a small portion of it was saved, which was delivered to and accepted by him. This action was brought for a conversion of the baggage. Charles M. Da Costa, for applt. Held, That plaintiff was entitled to recover; that as the evidence showed that the baggage could have been returned to plaintiff when demanded at Philadelphia defendant's conduct in retaining it amounted to a conversion, and there was an original, wrongful detention of plaintiff's property by defendant, and a defeat, through the negligent or willful misconduct of defendant and its servants in carrying it beyond the point agreed upon for its redelivery, of every effort on the part of plaintiff to regain its possession. Opinion of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Puger, Ch. J. All N. Y. COURT OF APPEALS. Moorehouse, rec'r, respt., v. The Second National Bank of Oswego, applt. Decided March 24, 1885. Defendant having taken excessive interest from one McR., the latter agreed to discharge all claims in his favor on account thereof, and not sue or allow any suit to be brought against defendant on account thereof, and in consideration thereof defendant agreed to discharge all of his indebtedness to defendant which might remain after applying all other collections available. Held, That this operated as a release and discharge of McR.'s cause of action and was a good defense to an action brought by McR. 's receiver to recover such excessive interest, and that the original liability of defendant was not revived upon its mere failure to perform its part of the agreement. This action was brought by plaintiff as receiver of one McR., appointed in proceedings supplementary to execution, to recover under section 5198 of the U. S. Revised Statutes twice the amount of excessive interest alleged to have been taken and received by defendant on loans made by it to MCR. The referee found that on Nov. 1, 1876, an oral agreement was made between McR. and defendant, whereby McR. agreed to settle and discharge all claims and causes of action in his favor against defendant, for or on account of his having paid more than seven per cent. upon loans and discounts, and that all such matters be applied in payment of that part of his indebtedness to defendant not collected by defendant from any other source, and that he would not sue or allow any other suit to be brought against defendant for or on account of such illegal interest. In consideration thereof defendant's officers, for and in its behalf, agreed that it would satisfy so much of the indebtedness of McR. as remained after applying all other collections available, or would consent as a creditor to his discharge in bankruptcy, as McR. might request. When this agreement was made McR. was indebted to defendant for loans and discounts to a large amount, and on June 26, 1879, after applying all collections made by it McR. still owed on the indebtedness existing Nov. 1, 1876, without taking into account the excessive interest paid, $7,817.73, no part of which has since been paid. S. C. Huntington, for applt. B. B. Burt, for respt. Held, That the agreement of Nov. 1, 1876, was a good defense. It operated from its very nature as a discharge and satisfaction of McR.'s claim against defendant. The mutual promises of the parties were not dependent so as to render the discharge of McR.'s claim conditional upon full performance by defendant. The law acting upon the agreement itself made the application without further act of the parties. 24 N. Y., 386. The agreement not to sue or to permit suit to be brought, being general and unlimited, operated as a present release and discharge of McR.'s cause of action. 19 Johns., 129; Addison on Contracts, 270. It was not a technical release, but operated as such, and the fact that it was oral does not affect the application of the principle. 5 Met., 442; 24 N. Y., 386; 44 Barb., 641. It was claimed that defendant took proceedings subsequent to the agreement inconsistent with it. Held, That the agreement having been established, its violation by defendant would not affect its legal operation. A cause of action on contract or for tort may be extinguished by an agreement between the parties, although it is executory; if such agreement is accepted in satisfaction, and this appears expressly or by implication, the original cause of action is merged and extinguished. 75 N. Y., 574. |