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teacher in that district are qualifiedly privileged. It was error to refuse to charge the jury that if defendant went to the commissioner and in good faith stated what he believed to be true about plaintiff it was a privileged communication.
Decker v. Gaylord et al., 360. 3. A person vested with the control of a
public institution and its employees, subject to the decision of its board of trustees or its executive committee, is within the class of persons whose communications made to his superior in the discharge of a duty are prima facie privileged.
Halstead v. Nelson, 371. 4. The fact that the meeting of the commit
tee at which such communication was made was not held on a day fixed by the by-laws will not render the occasion an unprivileged one.-Id.
j. Where an executor resists such a claim
and reduces it one third, no costs should be allowed against him below or here.Id.
See APPEAL, 23; CONTRACT, 5; New YORK
See AGENCY, 2, 3; BANKS, 6; MASTER
AND SERVANT, 6.
SHERIFFS. 1. When the sureties on a bond of indem
SPECIFIC PERFORMANCE. 1. A parol promise by the owner of land to
nity given to a sheriff bind themselves absolutely to keep him harmless from any judgment which may be
recovered against him for the seizure and sale of property under an execution, they are bound by the regular recovery, of a judgment against him although they were not notified of the proceedings in the action resulting in its recovery and it is not necessary that the judgment should have been paid before the sheriff can proceed against them on the bond.-Connor et al.
v. Reeres et al., 252. 2. The sureties on such a bond will be bound
when the judgment against defendant
NITY, 3; REPLEVIN, 2.
give it to another, accompanied by actual
Van Arsdale v. Perry, 116.
give to his newly married daughter one
charged generally with debts, the devisee,
See CONTRACT, 3, 4; RAILROADS, 14.
STATUTE OF FRAUDS.
1. The death of one partner does not abate
an action of slander originally brought in the name of all the partners.-Shale et al.
v. Schantz, 294. 2. Communications by a resident of a school
district to the school commissioner relative to the moral character of the school
1. Section 38 of Chap. 568. Laws of 1880, be
ing but a re-enactment of the provisions
5. Pledges may be retained until the pur
poses for which they were given have
been accomplished. - Id. See ATTORNEYS, 4, 5; CORPORATIONS, 18-20;
utes in respect to the number of jurors required, the provisions of the amendment of 1875 to the Revised Statutes are not to be deemed incorporated therein.
In re altering Main St., 207. 2. The provision contained in 8 6 of Ch.
See CURTESY, 2; LEASE, 9.
See COSTS, 2, 3.
SUPPLEMENTARY PROCEEDINGS. 1. The provisions of the Code of Civ. Proc. 3. The written answer of the executor un.
459, Laws of 1877, and $7 of Ch. 467, Laws of 1879, was not intended to restrict said acts to officers thereafter elected or appointed. It has reference to 18 of Art. 3 of the Constitution, which does not apply to officers whose salaries are fixed. Mangam v. The City of Brooklyn, 405.
See ABANDONMENT; CANALS; CHILDREN ;
CORPORATIONS, 20; CURTESY, 1 ; FERRIES;
See CORPORATIONS, 9–12, 18, 19.
STOCKS. 1. The committee on securities of the N. Y.
Stock Exchange has no jurisdiction to determine the legality of a tender or delivery of bonds to a purchaser who refuses to receive them upon the ground that the seller cannot convey a good title.-- Morris v. Grant et al., 123.
relative to proceedings subsequent to execution are not applicable where the judgment on which execution issued was recovered in the Municipal Court of the City of Rochester for less than $25 damages.- Mason v. Hackett, 79. 2. No order for the examination of defen
dant in proceedings supplementary to execution can be based on a return to an execution, made at plaintiff's request, that real estate had been levied on and advertised for sale and that no other property could be found. -- Murx et al. v. Spaulding
et al., 275. 3. An order for the examination of a defen
dant in supplementary proceedings cannot be upheld upon a motion to vacate it for the reason that it is based upon a return to the execution which did not warrant its granting, upon proof that a sufficient return should have been made. The remedy is to require the sheriff to make the proper return and, if he refuses, to
move to compel him to do so.--Id. 4. The court has no power to order the
judgment debtor to pay over to the re. ceiver money received and retained by him in another state or due to him there; the most that can be done is to require him to transfer his title to the money to
the receiver.-Buchanan v. Hunt, 288. See TAXES, 4.
2 A determination by a committee of the
V. Y. Stock Exchange of such a question between members of the Exchange, one of whom is the purchaser of certain bonds from the other, who is a pledgee of the same, and who is selling them to pay his loan, is not binding upon the pledgor, who is not a member of said Stock Exchange, and has had no notice of the proceedings resulting in such determination
nor opportunity to be heard therein.--Id. 3. The purchaser of bonds regularly sold
by a bona fide pledgee of the same has no right to refuse to receive them for the reason that intermediate the sale and the delivery a third party has served a notice upon the pledgee that he claims said bonds upon the ground that they were deposited by him with the pledgor as collateral security for a loan, and that the latter had no authority to pledge them. Such a notice does not prevent the pledgee's conveying a good title upon such sale.Id.
4. An agreement by which the parties unite
in purchasing stock and agree that one shall hold the same until they agree on a sale is not unlawful. Hope or expectation of a rise does not make the contract a wager one. A defense that the transaction sued upon was a wager contract must be pleaded.–Vischer v. Bagg, 399.
SURETYSHIP. 1. An agreement with one of two co-obli
gors, jointly and severally bound, not to sue him does not discharge the other obligor, but the other is liable for only
one-half the debt.-Benedict v. Rea, 73. 2. In 1880 defendant with others executed
as surety a bond to secure the performance by a bank, designated as a depository for canal tolls, of an agreement as to such deposits made by it with the State. At the end of 1880 the bank had on hand a large State deposit. In 1881 the bank granted to restrain a surrogate from taking proof of a will where the petition for proof stated the facts necessary to confer jurisdiction, but objection was thereafter made that decedent was a resident of another county. The presentation of the petition gave the surrogate jurisdiction of the subject matter, and the objection raised an issue which the surrogate had power to determine as incident to the subject matter, and his decision if erroneous could be reviewed on appeal, but not assailed collaterally.— The People ex rel. James v. Surrogate of Putnam Co.,
der $ 2718 must set forth facts showing that the validity or legality of the claim is doubtful, and also a denial of its validity or legality. Both conditions must concur.-Id.
4. A surrogate has power and authority by
implication to make an allowance for past maintenance of infants upon an accounting of executors or administrators in a case where such expenditure would have been authorized if an application had been made in advance.- Hyland et al. v. Baxter et al., 426.
was again designated and a new bond given and accepted by the state upon which defendant was not a surety but one Z. was, the other sureties remaining the same.
In 1882 the bank failed. In an action on the bond of 1880 to recover the balance due the State at the end of that year, Held, that in the absence of any proof that the bond of 1881 was agreed to be taken by the State in lieu of the bond of 1880, or that the latter bond was cancelled or surrendered, defendant was
liable.—The People v. Cushing, 261. 3. The sureties on a bond for faithful per
formance by their principal of the duties of his position are not discharged by the imposition of new duties which are separable and distinct from those protected by the bond, unless such new duties render impossible or materially hinder or impede the proper performance of the duties guaranteed, even though the new employment exposes their principal to temptation or gives a broader opportu. nity for dishonesty.--The Mayor, &c., of
N. Y. v. Kelly et al., 326. 4. Where a surety would escape liability by
reason of a request to the creditor to sue the principal debtor, he must show that the latter was solvent at the time of the request, and has since become insolvent.
- Wheeler et al. v. Benedict et al., 336. 5. Where the payee and holder of a note
past due told the surety that he did not consider him holden upon it, but it did not appear that the surety intended or was able, at the time, to pay the holder, nor that by the holder's statement the surety was prevented or influenced not to pay the holder at that time; nor that if the surety had then paid it he could have then collected the amount of the principal debtor, Held, That the holder was not estopped, and could recover of the
surety.-10. See EXECUTION, 8; LEASE, 7, 8; TRESPASS, 3.
5. His determination on such a question is
conclusive upon the parties until set aside
or reversed.-Id. 6. A writ of prohibition should not be
SURROGATES. 1. A petition for payment of a debt set
498. 7. Where a person has two residences at
different seasons of the year, that will be deemed his domicil which he himself elects or describes as his home or where he votes or exercises the rights and duties of a citizen.-Id.
forth that the claim had been presented to the executors and not rejected or paid, and that the statutory time had elapsed. The executors orally denied the allegagations. Proof was given of presentation of the claim to one of the executors, that it had not been rejected, and that the personal estate was sufficient to pay it. The executors did not ask for an accounting, or show the existence of other debts. The surrogate decreed payment. Held, No
error.-Lambert v. Craft, 181. 2. A petition under $ 2717 of the Code need
not set forth the facts which make out the debt.-Id.
8. When upon the judicial settlement of
the account of an administratrix whose intestate was the general guardian of a ward who lived with him and whom he had charged for board, the ward is allowed to testify without objection that she did not think that her board bill was correct, and that she should have been credited with the value of services performed by her for her guardian, and an allowance is made her by the surrogate for such services, it is too late to raise the objection upon appeal that the charge for board in the account had not been properly surcharged or objected to as excessive, and that no claim or demand for services had been interposed on behalf of the ward.-In re settlement of accounts
of Clark, 563. 9. Where a ward boards in the family of
her guardian and is charged for board, and while so residing in her guardian's family renders services of value, those services should be allowed as a claim to reduce the charge for board.-Id.
the amount of tax to be raised and its rate, delivered its warrant for the collection of the tax affixed to the assessment roll to the supervisor of the town and adjourned sine die. It had previously directed the supervisor to extend the amount of taxes against each of the persons and their property named and described in the roll. He did so. Held, That the warrant was void and that plaintiff's got no title by a purchase at a sale under the same.-Phe
People v. Hagadorn et al., 430. 7. Where the comptroller sells lands for custodia legis and therefore non-taxable. -The People ex rel. Smith v. Comrs. of
10. Section 2561, Code of Civ.Pro., by which
$10 costs may be allowed for each additional da beyd two days where a trial or hearing before the surrogate necessarily occupies more than two days, is equally applicable to a hearing before a referee appointed by the surrogate as to a hearing before the surrogate in person; but the said section does not contemplate or empower any allowance for days on which an adjournment occurs without
any actual hearing.--Id. 11. While a surrogate is not chargeable with
interest on a fund received and simply · retained by him for distribution, yet where he places such fund where it draws interest such interest becomes a part of the fund, belongs to the beneficiaries, and the surrogate will be required to pay it
over with the principal.-In re Coffin, 568. See CONTEMPT, 1, 2.
1. The whole amount of a fund held by ex
ecutors on deposit in trust companies under a decree of a surrogate to await the determination of contested claims against the estate which exceed the amount of the fund is subject to assessment and taxation.—The People ex rel. Osgood v. Tax
Comrs., 93, 378. 2. Contested and disputed claims against
an estate are not just debts within the meaning of the statute entitling a person assessed as executor, etc., to have deducted the just debts due from him in his representative aracter.-Id.
nonpayment of the taxes for several years, the taxes for some of which years are regular and for other years void, the void
taxes will invalidate the sale.-Id. 8. The failure of a telegraph company to
make the report required by $ 3 of Chap. 471, Laws of 1853, does not deprive the tax commissioners of jurisdiction to assess its property, but in so doing they may proceed upon such information as they have.—The People ex rel. The Mutual
Tei. Co. v. Comrs. of Taxes, 438. 9. Ch. 269, Laws of 1880, giving a remedy
by certiorari, does not permit a party complaining to lie by without availing himself of the opportunity to remedy his grievance by application to the commis
sioners.-Id. 10. In the City of New York it is not essen
tial to the validity of a tax upon land that the name of the owner should be inserted in the assessment list.- Haight
v. The Mayor, &c., of N. Y., 450. 11. The only effect of an omission of, or an
error as to, the name of the owner is to deprive the city of its right to collect the tax from the owner's personal property and confine its remedy to the enforce
ment of the lien on the lands.-11. 12. The premises No. 108 Second avenue, in
the City of New York, belonging to the Swiss Benevolent Society, a corporation incorporated for the purpose of affording pecuniary and other relief to such persons, natives of Switzerland or of Swiss origin, as may be in the United States and in need of assistance, and used to give a temporary home, asylum and relief to the sick, necessitous and others who may be proper objects of its bounty in accordance with its charter, is an “almshouse" within the meaning of sub. 4 of $ 4, 1 R. S.. 388, and as such is exempt from taxation. --The People ex rel. The
Swiss Ben. Soc. v Comrs. of Taxes, 492. 13. The committee of the property of a lu
natic is a trustee within the meaning of 2 R. S., 7th ed., 789, S 5, and 991, S 10, and the property of the lunatic in his hands is taxable under said statutes, and such property cannot be considered to be in
3. Ch. 382, Laws of 1879, ch. 402, Laws of
1881, and ch. 516, Laws of 1883, acts which, as to certain counties, provide a new method for the collection and payment of arrears of the state tax, are constitutional. --The People v. The Board of Suprs. of Ulster Co., 258.
4. In supplementary proceedings taken to
collect a tax under Chap. 640. Laws of 1881, the affidavit will be sufficient if it state the facts required by $ 1 of that act; it is not requisite that it state also the facts necessary to show the jurisdiction of the assessors and of the supervisors.
-Proceedings to collect tax of Conklin, 329. 5. Where the evidence before the assessors
fails to show that the assessment is erroneous in whole or in part it is their province to determine the amount of the property liable to taxation.- The People
ex rel. Osgood v. Tax Comrs., 378. 6. A board of supervisors fixed the equal
ized valuation of a town and entered the same in the assessment roll; it determined
Taxes, 543. See APPEAL, 4; CONTRACT, 4; CORPORATIONS,
3. The board of town officers mentioned in
$1 of that act is the board of town auditors.-Id.
TOWNS. 1. An action against the railroad commis
sioners of a town and others for alleged wrongful conduct in issuing town bonds. by reason whereof the town rights and property may be injuriously affected, may be maintained in the name of the supervisor.-Mitchell v. Strough et al,
225. 2. The bonds were issued by the commis
sioners in 1872, and delivered to the railroad while the adjudication of the county judge was in force. This action was brought in 1879. Held, That the cause of action was barred by the statute of limi. tations.-Id.
TRESPASS. 1. Plaintiff's complaint alleged a wrongful
27; HIGHWAYS, 8, 9; PARTITION, 1.
See TAXES, 8.
TENEMENT HOUSE ACT.
See CONSTITUTIONAL LAW, 11-13.
TORS, 18; LIMITATION, 6; SPECIFIC PER-
1. A release of one joint tort feasor, on sat
isfaction by him, operates as a discharge for all the wrong doers. - De Long v. Cur
tiss et al., 131. See APPEAL, 12.
1. An action by a taxpayer to vacate an
audit of bills by the Town Board on the ground that such audit was illegal and without authority may be maintained under Chap. 161, Laws of 1872.
Osterhoudt v. Rigmey et al., 403. 2. A board of town audit has no power to
audit and allow claims which have been rejected by a prior board on the merits. Where a portion of such prior claim is included in an audit in such a manner that it cannot be ascertained how much has been allowed for the new legal charge the whole of such audit should be vacated.-Id.
cutting of timber by defendant on lands owned and occupied by plaintiff, named the damage and demanded “judgment for treble damages, amounting to $250." The answer was a general denial. The verdict assessed plaintiff's actual damages at $12.50, and awarded him treble damages. Held. A claim of title was raised on the pleadings within 3228, subd. 1.
('ode Civ. Pro.-Crowell v. Smith, 26. 2. The party injured by a trespass may
bring as many actions as there were wrong-doers. Ile can have but one satisfaction for damages, but may have the costs in all the actions. - Lord et al. v.
Tiffany et al., 377. 3. T. commenced separate actions against S.
and L. for the same trespass and recor. ered judgment 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 the 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.-Id. 4. Defendant inherited the land in dispute
from his father, who was dead at the time of the trial of this action for trespass. As a witness in his own behalf plaintiff testified that he cut timber on the disputed land in the presence of defendant's father, and that their conversa. tion at the time was friendly. Heldi, That the evidence was_inproper under Code, S 829.-Oliver v. Freligh, 411.
See PARTIES, 1.
1. The legislature may, by direct enactment,
impose the characteristics of commercial paper on municipal bonds, and may declare innocent purchasers of such bonds, when they are issued by the proper officer having apparent authority, to be bona fide holders and as such protected.
--Alvord v. The Syracuse Savings Bank et al., 421. 2. Under Chap. 571, Laws of 1868, the pur
chaser for value of bonds issued under that act had a right to rest on the determination of the assessor and the act of the commissioner, and was not bound to go behind them.--Id.