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upon a verdict.


sureties had become insolvent,

obtained an order requiring the N. Y. SUPREME Court. GENERAL appellants to file a new undertakTERM. FIRST DEPT.

ing within twenty days, and diSheldon Collins, appll.,

recting that, in case such new

v. George M. Ball, respt.

undertaking was not so filed, the

judgment in said action be exeDecided Dec. 21, 1883.

cuted as if no undertaking had

been given. Said order was not Where suretics in an undertaking on appeal

become insolvent and the court orders a new complied with and thereafter said undertaking filed within 20 days, or in de respondents issued execution fault thereof judgment to be enforceable as which was returned nulla bona. order is not complied with, the respondents Subsequently said judgment was by issuing execution release the sureties affirmed at General Term, and an from liability. Their election to issue and action was brought upon said unrely upon execution precludes them from dertaking against the respondents pursuing the sureties upon the under herein, which action they settled taking.

by payment without contest. Appeal from judgment entered The court below charged that

the said undertaking was in force This action was brought to re- and that the sureties therein were cover the value of certain personal liable under it when the action property which plaintiff's assignor, was brought, and that therefore J. W. Hart, delivered to defend their payment in settlement of the ants, to be paid for in part and in suit constituted a defense herein. part to be sold and the proceeds Wakeman & Latling, for appli. accounted for to said Hart.

H. F. Anderson, for respt. The defense was that after de Held, Error ; that the condition livery of said property a of the undertaking, when read in agreement was made to the effect, connection with the statute, was, that defendants should hold the in substance, that the sureties said property, or its proceeds, to would pay the judgment upon its secure them against liability as affirmance, provided the proceedsureties in an undertaking on ap- ings to enforce it were stayed penpeal from a judgment against said ding the appeal and until such Hart, which they then executed, affirmance; that at the expiration and that they had been compelled of the time within which the new to pay by reason of their execu- undertaking was ordered to be tion thereof an amount greater filed the respondents on that apthan the value of said property. peal were entitled to elect whether

Upon the trial it appeared that they would hold the sureties to more than one year after said un- their liability or would seek to dertaking had been filed the re- collect said judgment by execuspondents on that appeal, upon tion; that they could not have affidavits showing that the said both remedies, and that, having


elected to issue exeoution, the value of appellant's premises, sureties were released. 90 N. Y., which computations had been 480. The subsequent payment by made orally by said counsel be. the sureties was therefore volun- fore the commissioners on the tary, and formed no

no defense hearing. There is no evidence herein.

that the letter influenced the comJudgment reversed and new missioners' decision. trial granted.

H.C. Day, for applt. Opinion by Davis, P. J.; Dan- Ansley Wilcox, for respt. iels, J., concurs.

Held, The strict rules that are designed to protect jurors against

every influence outside of the eviEMINENT DOMAIN. PRAC

dence that may affect their deciTICE.

sion are not applicable, in their N.Y. SUPREME COURT. GENERAL full extent, to commissioners unTERM. FOURTH DEPT. der the general railroad act. 13

Barb., 169. Commissioners may In re application of the N. Y.,

not receive and act upon surreptiW. S. & B. R. R. Co., respt., to ac

tious communications from the quire land of Mary Church, applt. prevailing party; but the bare Decided Jan., 1884.

fact of their receiving a commu

nication, as above described, will Where counsel sent a letter to the commis

not vitiate their report, where there sioners after the case had been submitted to them, but the letter contained only cer- is no reason to suppose that the tain computations which had been made result was affected thereby. 20 orally before the commissioners at the Conn., 226; 43 id., 439. And see, hearing. Held, An irregularity, but not such as to vitiate the report.

8 Abb., 141; 1 Cow., 221 ; 2 id.,

589 ; 1 Hill, 207. Appeal from Special Term order Order affirmed, with $10 costs denying appellant's motion to set and disbursements. aside the report of the commis

Opinion by Smith, P. J.; Har. sioners herein, on the alleged din and Barker, JJ., concur. grounds of the improper conduct of the commissioners and the improper interference of respondent's SURROGATES. JURISDICcounsel.

TION. Proceedings under the general

N.Y. SUPREME COURT. GENERAL railroad act. The alleged impropri

TERM. FOURTII DEPT. ety consisted in the sending of a letter by counsel for the railroad Frances D. Woodruff, respt., v. company to the commissioners Elizabeth Young, exrx., applt. after the case had been submitted to them. The letter contained

Decided Jan., 1884. nothing more than a statement

A surrogate has not jurisdiction to call an of certain computations of the agent or trustee to account.

Vol. 18.–No. 15b.

Appeal from so much of a sur. I have been received by defendant as plainrogate's order as requires defend.

tiff's agent, and the complaint is drawn up

on the face of certain accounts rendered by ant to account in respect to certain

defendant as such agent, he is entitled to securities known as the Gibbs &

an inspection thereof, though the complaint Lake mortgages.

after setting forth a demand of such balThe order assumes the binding

ance from defendant, and his refusal to

pay, alleges that he has converted the same validity of the alleged settlement

to his own use. between the parties to this appeal in 1868, wherein the Gibbs & Lake Appeal by plaintiff from order mortgages were transferred by the granting inspection of certain executrix to Mrs. Woodruff to books, etc., kept by defendant as ward her share of the estate plaintiff's superintendent, viz., a then ascertained and settled, and journal, ledger, balance sheet and the remainder was paid to her in certain vouchers. The application money.

was for the purpose of enabling S. Hubbard, for applt.

defendant properly to draw his James Wood, for respt.

answer. The complaint set forth Held, Thạt in respect to the that defendant was such superinmortgages named, defendant, if tendent; that it was his duty to liable at all, is liable not as execu

receive and disburse money for, trix, but as plaintiff's agent and and to pay the balance remaining trustee, and the case is one for a to plaintiff ; that on a day speci court of general jurisdiction. fied he reported a certain balance

Bonfanti v. Daguerre, 3 Bradf., in his hands; that thereafter he 431, cited by respondent's coun

received other specified sums; that sel, to the point that the court will

on being asked for a statement of not regard the discharge of an ex

his receipts and disbursements he ecutor out of court, is inapplicable. presented various vouchers “by

Order reversed, with $10 costs which it appears that he has paid and disbursements.

out and expended for this comOpinion by Smith, P. J.; Har- pany the sum of $19,770, and that din and Barker, JJ., concur.

there is still in his hands belong. ing and unaccounted for the sum

of $50,468; that payment was de. INSPECTION OF WRITINGS. manded, but defendant neglected PLEADING.

and refused to pay the same, “but N.Y. SUPERIOR Court. GENERAL has converted the same to his own TERM.

use.' The Inyo Consolidated Mining action was for conversion, the al

Plaintiff contended that, as the Co., appit., v. Thomas B. Pheby, legations in the complaint as to the respt.

accounts, vouchers, etc., were imDecided Dec. 3, 1883.

material, and that defendant was Where the action is brought to recover the

not entitled to an inspection thereamount of a balance of moneys alleged to


Easton & Jennings, for applt. respondent to pay into the sheriff's Frank E. Blackwell, for respt.

hands a sufficient sum of money Held, That the order was prop- to satisfy the judgment in this erly granted. If the allegations action. were material defendant should The money sought to be reached not be deprived of the benefit of was awarded to defendant as a the face of accounts presented by pensioner for his services in the him, on which the complaint is rebellion. The money was sent by drawn. It is not just when plain- means of a pension certificate, tiff has used allegations as if they which defendant cashed at bank, were material and proper to be and the money now sought to be answered that he should take a reached is part of the identical different position when it may be money which he got from the for his interest to do so, and which bank. it will not by the face of the rec- J. W. Dininney, for applt. ord thereafter appear he has taken. D. M. Dorwin, for respt. To meet the allegation upon the Held, That the money is exempt appearance of some of the ac- from execution and from seizure counts, it was proper to allow an in any legal proceeding. Code inspection of the accompanying Civ. Proc., $ 1393. Appellant's accounts, so that defendant might counsel cites Wygant v. Smith, make a substantial averment in his 2 Lans., 185, and Whiting v. Baranswer as to what all the accounts rett, 7 id., 106. The first is inapshowed. That the accompanying plicable, and the second, so far as accounts are charged to be falsely it has any bearing, is adverse to and fraudulently made up is an appellant. additional reason for an inspec- Order affirmed, with $10 costs tion.

and disbursements. Order affirmed, with $10 costs. Opinion by Smith, P. J.; Har. Opinion per curiam.

din and Barker, JJ., concur.




TERM. FOURTH DEPT. George W. Wildrick, applt., v. Jerome Longprey et al., respts., Newton De Vinney, respt.

v. Arthur G. Yates, applt. Decided Jan., 1884.

Decided Jan., 1884. Pension money is exempt from seizure in

Where a complaint contains two counts, one legal proceedings.

upon an agreed price and the second upon Appeal from order of County

a quantum meruit, both claims arising out

of one transaction, the pleading is not neCourt, denying motion in supple

cessarily within the prohibition by the code mentary proceedings to require of “unnecessary repetition."

Appeal from Special Term order | knowledge, he can hardly be denying motion to compel plain- harmed by allowing the two counts tiffs to elect between the two to stand. counts of their complaint, and to Order affirmed, with $10 costs strike out, &c.

and disbursements. The first count alleges that Opinion by Smith, P.J.; Harplaintiffs did certain work for de- din and Barker, JJ., concur. fendant, and expended the sum of $7 in doing the same, and that in consideration thereof defendant

EVIDENCE. WITNESS. promised to pay $2,563.35 for said N. Y. SUPREME COURT. GENERAL work and to repay the $7. The

TERM. THIRD DEPT. second count alleges that plaintiffs Peter Barton, respt., v. Geo. did work for defendant for which Scramling et al., exrs., applts. he promised to pay the value

Decided Jan., 1884. thereof, and that it was worth $2,563.35. The work alleged in

F., a deputy sheriff, levied an execution each count is the same. Plaintiffs'

against B. on the property of B's wife,

upon the promise of the attorney in the exeaffidavit in opposition to the mo- cution to indemnify the sheriff against loss tion states that the contract upon by such levy. Mrs. B. sued the sheriff and which they claim the work was

recovered. In an action by the sheriff

against the executors of the attorney upon done was made in part with de.

the promise, Held, That F. was not a comfendant personally, and partly

petent witness to prove the promise, being with defendant's agent, as they person interested in the event ” within claim.

the meaning of g 829 of the Code. Shepard & Putnam, for applt. Appeal from judgment in favor Hopkins & White, for respts. of plaintiff.

Held, That the pleading does Plaintiff was a sheriff having a not violate the injunction of the deputy named F. Plaintiff reCode against “unnecessary repe-ceived an execution against B.,

Each count states a sep- and through F, enforced it against arate and complete cause of action, property of Mrs. B. He did this although arising out of one trans- upon the promise of one Burnside, action. The current code allows the attorney in the execution, that a statement of each cause of ac- he would indemnify F. against tion. $ 481, subd. 2; 32 Barb., loss by reason of the levy. Mrs. 217; 65 How. Pr., 1.

B. eued the sheriff and recovered. Should plaintiffs fail to prove B. is dead, and this action is the authority of the agent at the against his executors to recover on trial they would be defeated as the promise of indemnity. F. to a part of their claim at least, was called as a witness to prove unless they can recover upon a the promise, and it was objected quantum meruit. And as the that he was incompetent under authority of the agent is a mat- 829, Code. The objection was ter peculiarly within defendant's loverruled.


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