no right to interfere to disturb the conveyance. This case falls within the latter rule.

Judgment reversed and new trial granted, with costs to abide event. Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., con

cur.

C. H. Luscomb, for applt. Armstrong & Fosdick, for respt. Held, That since the decision of Wheeler v. Warner, 47 N. Y., 519, it has been beyond doubt, in this state, that a promissory note payable on demand is due. forthwith, and an action thereon

TATION.

the statute of limitations if not brought within six years after its

TERM. SECOND DEPT.

that to revive a debt so barred by

promise to pay made by the party to be charged or his authorized agent; that there is no agency between joint debtors, and that partial payments made by one do not bind his co-debtors. 2 N. Y., 527; 18 id., 558; 53 id., 442. These principles are decisive of this case against plaintiff. The claim of plaintiff that the transaction amounted to a simple deposit of money upon which the statute runs only from the time of actual demand cannot be allowed.

Judgment affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., con

cur.

MASTER AND SERVANT.
ASSAULT.

N. Y. SUPREME COURT. GENERAL
TERM. SECOND DEPT.

Mary F. Geraty, respt., v. Benjamin Stern et al., applts.

Decided Sept., 1883.

Defendants instructed their employees not to show styles or give prices to persons who

came from other stores to look at styles or

obtain prices. Defendants' floorwalker,

judging plaintiff to be such a person, ordered the saleswoman to take from plaintiff's person a cloak which she was trying on and this was done. Held, That this was

an assault for which defendants were liable.

his master's business the latter is

responsible. 46 N. Y., 23.

In this case there can be no claim that the employees were prompted by malicious motives or selfish aims. Their action was in the line

Action to recover damages for ill treatment amounting to an assault, alleged to have been received by plaintiff at the hands of the employees of defendants.

The evidence justified the jury in finding that plaintiff went to defendants' store in New York city to purchase an ulster for herself; that after she had examined it and tried it on preparatory to purchase, defendants' floorwalker approached and told her she did not want to purchase the garment and used language to indicate that she was a spy from a rival house and directed the saleswoman to take the cloak from off plaintiff, which was done.

It appeared that defendants had instructed their employees not to show styles or give prices to persons who came from other stores to look at styles or obtain prices. Vanderpoel, Green & Cuming, for applts.

C. D. Rust, for respt.

Held, That the act complained of amounted to an assault and that defendants are responsible for the misconduct of their employees. The liability of masters is not measured entirely by their instructions to their servants. If the act of the servant be within the scope. of his authority and committed in

it. The duty to act was cast on them then and there. Here an emergency arose where a case covered by the instructions was presented, as they believed, and the duty of deciding was imposed on them. They may have decided unwisely, but their decision and action were clearly within the line of their duty and defendants are responsible for the resulting consequences. It was for no selfish purpose that they submitted plaintiff to indignity, but to serve defendants only, and if they devolve the duty of carrying out their instructions on their employees they must be held responsible for the manner in which it is done.

Judgment affirmed, with costs. Opinion by Dykman, J.; Barnard, P.J., and Pratt, J., concur.

MINORS. WAR BOUNTIES. EVIDENCE.

N.Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

In re disposition of the real estate of Anthony Wasser, deceased, for payment of his debts.

Decided Oct., 1883.

Where a minor son enlists with his father's

consent bounties paid the son are his own. Matters set up by defendant in his answer, by way of defence only and not as ground of affirmative relief, are not conclusive upon him in a subsequent action.

Appeal by two heirs of deceased from a surrogate's decree, directing sale of decedent's real estate to pay his debts, upon petition of Matthew Wasser, administrator of decedent with will annexed.

The surrogate found that during the war of the rebellion petitioner, who was then a minor living with his father, the decedent, enlisted in the United States service, with his father's consent, and received certain bounties which he deposited with his father until such time as petitioner should call for them; that, afterward, several payments were made to petitioner by his father, one of which was made in 1878, and that the balance had never been demanded. The surrogate adjudged that there was due petitioner the balance of the deposit, with interest from the filing of the petition.

Prior to this proceeding the contestants herein brought an action of partition, in which this petitioner was made a defendant, and his answer therein contained three counts: The first was a denial. The second set up the existence of the present claim, calling it a loan, and alleged that it was equal in amount to the value of the land sought to be partitioned, and that said Matthew was about to take steps to establish said claim and procure a sale of said premises to satisfy it. The third count averred that Anthony bought the premises described in the complaint with Matthew's money and for his benefit, but took the title in his own name, under an agreement that Matthew was the equitable owner.

Strong & Brendel, for applts. Martin Clark, for respt.

Held, That the father having consented to the enlistment of his son, the bounties belonged to the latter. 50 Barb., 351, S. C. affd., 47 N. Y., 245; 56 N. Y., 76.

Brown v. Town of Canton, 49 N. Y., 662, distinguished.

We cannot say that any of the findings were against the weight of evidence.

The attitude of the defendant in the partition suit does not bar the present action. The matters set up in the answer were alleged by way of defence only, and not as ground of affirmative relief. Although it has been said that a simple contract debt is a sort of statutory lien upon the real estate of the deceased debtor during the time limited for a proceeding by the executor or administrator to procure a disposition of the land for payment of debts, 1 Barb., 75; 16 id., 193, yet jurisdiction to enforce such lien is conferred by statute upon the surrogate alone. 2 R. S., 100, §§ 1 et seq.; Code Civ. Proc., $$ 2750 et seq. His jurisdiction of that subject is exclusive.

If the transaction was a loan, the last payment took it out of the statute of limitations. The burden of showing payment was on the contestants.

If the equitable title is in petitioner the only result is that he is asking to dispose of his own land for the payment of his father's debts, to which his co-heirs cannot well object.

Decree affirmed, with costs.

din and Barker, JJ., concur.

SALARY.

N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

The People ex rel. Smith, appll., v. The Trustees of the Village of Flushing, respts.

Decided Sept., 1883.

On the resignation of the police justice of the village in April, 1882, the trustees passed a resolution reducing the salary and appointed relator to fill the vacancy until the election in December, when he was elected to the office. Held, That although he was elected to fill a vacancy his term commenced January 1, 1883, and that the resolution having been passed more than two months prior

when he was elected to the office by the electors.

J. H. Stanbrough, for applt.
C. W. Pleasants, for respts.

Held, That while it may be true that relator was elected simply for the unexpired term of his predecessor, yet his term as said justice commenced in January, 1883, and so the resolution reducing the salary was passed more than two months before the commencement of such term. As to him therefore the salary was diminished in pursuance of the statute and he can ask for no more.

Order affirmed, with costs and disbursements.

Opinion by Dykman, J.; Pratt,

pursuant to statute.

Appeal from order denying ap

plication for a mandamus to com

EXTRA ALLOWANCE.

the salary of relator as police justice of the village at the rate of $1,000 instead of $500.

66

The statute fixes the salary at $1,000, but the same section provides that the trustees may by resolution from time to time increase or diminish such salary for the term of office of such justice to commence after the passage of such resolution, provided such resolution be passed at least two months before the commencement of such term."

One F. resigned his office as police justice about April 1, 1882. The trustees thereafter fixed the salary by resolution at $500 a year and then appointed relator to fill the vacancy until the

TERM. FOURTH DEPT.

The Remington Paper Co., applt., v. Anna M. O'Dougherty et al., respts.

One A., a mortgagee, was made a defendant in an action to set off certain judgments obtained by plaintiff against the mortgagors against judgments obtained by them against plaintiff, and to have said judg ments satisfied out of the mortgaged property. A. succeeded and obtained judgment that the lands be sold, his debt paid therefrom and the surplus, if any, applied on plaintiff's claims. Held, That an extra allowance to A. could only be computed on the amount of plaintiff's claim and not on the amount of the mortgage.

Appeal from order awarding to defendant O'Brien "an extra allowance of $250 to be taxed against plaintiff.”