Where sureties in an undertaking on appeal become insolvent and the court orders a new undertaking filed within 20 days, or in default thereof judgment to be enforceable as if no undertaking had been given, and the order is not complied with, the respondents by issuing execution release the sureties from liability. Their election to issue and rely upon execution precludes them from pursuing the sureties upon the undertaking.

Appeal from judgment entered upon a verdict.

This action was brought to recover the value of certain personal property which plaintiff's assignor, J. W. Hart, delivered to defend ants, to be paid for in part and in part to be sold and the proceeds accounted for to said Hart.

The defense was that after delivery of said property a new agreement was made to the effect, that defendants should hold the said property, or its proceeds, to secure them against liability as sureties in an undertaking on appeal from a judgment against said Hart, which they then executed, and that they had been compelled to pay by reason of their execution thereof an amount greater than the value of said property.

Upon the trial it appeared that more than one year after said undertaking had been filed the respondents on that appeal, upon affidavits showing that the said

sureties had become insolvent, obtained an order requiring the appellants to file a new undertaking within twenty days, and directing that, in case such new undertaking was not so filed, the judgment in said action be executed as if no undertaking had been given. Said order was not complied with and thereafter said respondents issued execution which was returned nulla bona.

Subsequently said judgment was affirmed at General Term, and an action was brought upon said undertaking against the respondents herein, which action they settled by payment without contest.

The court below charged that the said undertaking was in force and that the sureties therein were liable under it when the action was brought, and that therefore their payment in settlement of the suit constituted a defense herein.

Wakeman & Latting, for applt.
H. F. Anderson, for respt.

Held, Error; that the condition of the undertaking, when read in connection with the statute, was, in substance, that the sureties would pay the judgment upon its affirmance, provided the proceedings to enforce it were stayed pending the appeal and until such affirmance; that at the expiration of the time within which the new undertaking was ordered to be filed the respondents on that ap peal were entitled to elect whether they would hold the sureties to their liability or would seek to collect said judgment by execution; that they could not have both remedies, and that, having

which computations had been made orally by said counsel before the commissioners on the hearing. There is no evidence that the letter influenced the com

Opinion by Davis, P. J.; Daniels, J., concurs.

EMINENT DOMAIN. PRAC

TICE.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

In re application of the N. Y., W. S. & B. R. R. Co., respt., to acquire land of Mary Church, applt.

Decided Jan., 1884.

Where counsel sent a letter to the commissioners after the case had been submitted to them, but the letter contained only certain computations which had been made orally before the commissioners at the hearing, Held, An irregularity, but not such as to vitiate the report.

Appeal from Special Term order denying appellant's motion to set aside the report of the commissioners herein, on the alleged grounds of the improper conduct of the commissioners and the improper interference of respondent's counsel.

H. C. Day, for applt.
Ansley Wilcox, for respt.

Held, The strict rules that are designed to protect jurors against every influence outside of the evidence that may affect their decision are not applicable, in their full extent, to commissioners under the general railroad act. 13 Barb., 169. Commissioners may not receive and act upon surreptitious communications from the

prevailing party; but the bare fact of their receiving a communication, as above described, will not vitiate their report, where there is no reason to suppose that the result was affected thereby. 20 Conn., 226; 43 id., 439. And see, 8 Abb., 141; 1 Cow., 221; 2 id., 589; 1 Hill, 207.

Order affirmed, with $10 costs and disbursements.

Opinion by Smith, P. J.; Hardin and Barker, JJ., concur.

SURROGATES. JURISDIC

TION.

railroad act. The alleged impropriety consisted in the sending of a letter by counsel for the railroad company to the commissioners after the case had been submitted to them. The letter contained nothing more than a statement of certain computations of the

Vol. 18.-No. 15b.

TERM. FOURTH DEPT. Frances D. Woodruff, respt., v. Elizabeth Young, exrx., applt.

Decided Jan., 1884.

A surrogate has not jurisdiction to call an agent or trustee to account.

Appeal from so much of a surrogate's order as requires defendant to account in respect to certain securities known as the Gibbs & Lake mortgages.

The order assumes the binding validity of the alleged settlement between the parties to this appeal in 1868, wherein the Gibbs & Lake mortgages were transferred by the executrix to Mrs. Woodruff to ward her share of the estate as then ascertained and settled, and the remainder was paid to her in

money.

S. Hubbard, for applt. James Wood, for respt. Held, That in respect to the mortgages named, defendant, if liable at all, is liable not as executrix, but as plaintiff's agent and trustee, and the case is one for a court of general jurisdiction.

Bonfanti v. Daguerre, 3 Bradf., 431, cited by respondent's counsel, to the point that the court will not regard the discharge of an executor out of court, is inapplicable. Order reversed, with $10 costs and disbursements.

Opinion by Smith, P. J.; Hardin and Barker, JJ., concur.

have been received by defendant as plaintiff's agent, and the complaint is drawn upon the face of certain accounts rendered by defendant as such agent, he is entitled to an inspection thereof, though the complaint after setting forth a demand of such balance from defendant, and his refusal to pay, alleges that he has converted the same to his own use.

Appeal by plaintiff from order granting inspection of certain books, etc., kept by defendant as plaintiff's superintendent, viz., a journal, ledger, balance sheet and certain vouchers. The application was for the purpose of enabling defendant properly to draw his answer. The complaint set forth that defendant was such superintendent; that it was his duty to receive and disburse money for, and to pay the balance remaining to plaintiff; that on a day speci fied he reported a certain balance in his hands; that thereafter he received other specified sums; that on being asked for a statement of his receipts and disbursements he presented various vouchers "by which it appears that he has paid out and expended for this company the sum of $19,770, and that there is still in his hands belonging and unaccounted for the sum of $50,468; that payment was demanded, but defendant neglected and refused to pay the same, but has converted the same to his own

Easton & Jennings, for applt. Frank E. Blackwell, for respt. Held, That the order was properly granted. If the allegations were material defendant should not be deprived of the benefit of the face of accounts presented by him, on which the complaint is drawn. It is not just when plaintiff has used allegations as if they were material and proper to be answered that he should take a different position when it may be for his interest to do so, and which it will not by the face of the record thereafter appear he has taken. To meet the allegation upon the appearance of some of the accounts, it was proper to allow an inspection of the accompanying accounts, so that defendant might make a substantial averment in his answer as to what all the accounts showed. That the accompanying accounts are charged to be falsely and fraudulently made up is an additional reason for an inspection.

Order affirmed, with $10 costs.
Opinion per curiam.

PENSION MONEY.

respondent to pay into the sheriff's hands a sufficient sum of money to satisfy the judgment in this action.

The money sought to be reached was awarded to defendant as a pensioner for his services in the rebellion. The money was sent by means of a pension certificate, which defendant cashed at bank, and the money now sought to be reached is part of the identical money which he got from the bank.

J. W. Dininney, for applt.
D. M. Dorwin, for respt.

Held, That the money is exempt from execution and from seizure in any legal proceeding. Code Civ. Proc., § 1393. Appellant's counsel cites Wygant v. Smith, 2 Lans., 185, and Whiting v. Barrett, 7 id., 106. The first is inapplicable, and the second, so far as it has any bearing, is adverse to appellant.

Order affirmed, with $10 costs and disbursements.

Opinion by Smith, P. J.; Hardin and Barker, JJ., concur.

PLEADING.

TERM. FOURTH DEPT.

George W. Wildrick, applt., v. Newton De Vinney, respt.

Decided Jan., 1884.

Pension money is exempt from seizure in legal proceedings.

Appeal from order of County Court, denying motion in supplementary proceedings to require

TERM. FOURTH DEPT. Jerome Longprey et al., respts., v. Arthur G. Yates, applt.

Decided Jan., 1884.

Where a complaint contains two counts, one upon an agreed price and the second upon a quantum meruit, both claims arising out of one transaction, the pleading is not necessarily within the prohibition by the code of "unnecessary repetition."

The first count alleges that plaintiffs did certain work for defendant, and expended the sum of $7 in doing the same, and that in consideration thereof defendant promised to pay $2,563.35 for said work and to repay the $7. The second count alleges that plaintiffs did work for defendant for which he promised to pay the value thereof, and that it was worth $2,563.35. The work alleged in each count is the same. Plaintiffs' affidavit in opposition to the motion states that the contract upon which they claim the work was done was made in part with defendant personally, and partly with defendant's agent, as they claim.

Shepard & Putnam, for applt. Hopkins & White, for respts. Held, That the pleading does not violate the injunction of the Code against "unnecessary repetition." Each count states a separate and complete cause of action, although arising out of one transaction. The current code allows a statement of each cause of action. 481, subd. 2; 32 Barb., 217; 65 How. Pr., 1.

Should plaintiffs fail to prove the authority of the agent at the trial they would be defeated as to a part of their claim at least, unless they can recover upon a quantum meruit. And as the authority of the agent is a matter peculiarly within defendant's

Order affirmed, with $10 costs and disbursements.

Opinion by Smith, P. J.; Hardin and Barker, JJ., concur.

EVIDENCE. WITNESS. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Peter Barton, respt., v. Geo. Scramling et al., exrs., applts.

Decided Jan., 1884.

F., a deputy sheriff, levied an execution against B. on the property of B's wife, upon the promise of the attorney in the execution to indemnify the sheriff against loss by such levy. Mrs. B. sued the sheriff and recovered. In an action by the sheriff against the executors of the attorney upon the promise, Held, That F. was not a competent witness to prove the promise, being person interested in the event " within the meaning of § 829 of the Code. Appeal from judgment in favor of plaintiff.

a

66

Plaintiff was a sheriff having a deputy named F. Plaintiff received an execution against B., and through F, enforced it against property of Mrs. B. He did this upon the promise of one Burnside, the attorney in the execution, that he would indemnify F. against loss by reason of the levy. Mrs. B. sued the sheriff and recovered. B. is dead, and this action is against his executors to recover on the promise of indemnity. F. was called as a witness to prove the promise, and it was objected that he was incompetent under § 829, Code. overruled.

The objection was