remediless. The words "due process of law," mean something in the Constitution, and they are just as significant in their relation to property as they are in respect to life and liberty, and it will not be claimed that any man can be deprived of either life or liberty without an opportunity to be heard. A public officer has no greater right to commit wrongs than a private citizen, and where he is not protected by process against the injured party, he must be just as responsible for injuries caused. The question involved here was not raised in Hessberg v. Riley, 91 N. Y., 377. Order reversed and motion denied, with $10 costs and disburse ments of this appeal, and $10 costs of motion to abide final event. Opinion by Van Brunt, J.; J. F. Daly and Beach, JJ., concur. that sum over and above all counterclaims, for which action has been this day brought, and that defendant was a non-resident. Nothing was shown as to when the loans or any of them were to be repaid. Held, That no breach of contract is shown and that the attachment was properly vacated. Appeal from order vacating an attachment against the property of defendant as a non-resident debtor. The affidavit upon which the attachment was obtained alleged in substance that defendant was indebted to plaintiff in $6,000 over and above all counterclaims and that such indebtedness arises upon the following facts, that at sundry times since April 1st, 1883, and up to and including this date (to wit, the date of the affidavit and date of procuring attachment), plaintiff loaned defendant various sums of money amounting to $6,000, which he agreed to repay, and that no part has been repaid, and defendant still neglects to repay the same; that suit has been this day commenced, and defendant is a non-resident and resides in California, etc. P. J. Joachimsen, for applt. the Held, That the attachment was properly vacated. It appears by the morning papers that a portion of the loan for which this suit is brought was loaned and advanced on the day suit was brought. Nothing appears as to when these loans were to be repaid. The court cannot presume, in the absence of any statement to that effect, that the loan made on the day suit was brought was to be repaid on that day. No demand had been entered in the action is alleged. We think no breach of contract by defendant was shown, and plaintiff's right to an attachment was not made out with such clearness as the law required. 29 Hun, 306; 27 Hun, 242; 6 Hun, 526, criticised. Order affirmed, with $10 costs, and disbursements. Opinion by Brady J.: Daniels, J., concurs. PRACTICE. APPEAL. N. Y. SUPREME COURT. GENERAL Decided Jan. 25, 1884. A re-argument of an appeal from an interlocutory judgment determining the rights etc. of the parties in a partition suit will not be ordered for the reason that, at the time the appeal was taken, the final judg. ment of confirmation had been entered in the action, when that fact is first brought to the attention of the court upon the motion for a re-argument. If such an appeal is irregular, the irregularity is not a jurisdictional one affecting the power of the Court to proceed and hear the appeal, and the General Term has power to allow the papers to be amended by including both judgments in the notice of appeal, and by adding to them a copy of the final judgment. before the appeal had been taken. E. Schenck and Abram Wakeman, for respts. Frank L. Lawrence and E. Pierrepont, for applt. Held, That if there was any irregularity in the form of the appeal it was not a jurisdictional one affecting the right of the Court to proceed and hear the appeal with the consent of all the parties; and, no objection having been interposed or suggested that the appeal was not in all respects regular sion of the Court, the respondents until after the hearing and deciought not to be allowed a re-argument for the mere purpose of defeating the appeal by an irregularity which they have thus waived. That it is within the power of the Court to allow the appeal papers to be amended by including both judgments in the notice of appeal and by adding to them a copy of the final judgment. Ordered that the appeal papers be so amended nunc pro tunc as of the date of the original notice of appeal so as to enable the respondents to appeal to the Court of Appeals. Opinion by Davis, P.J.; Brady and Daniels, JJ., concur. PARTNERSHIP. LIMITA TIONS. GENERAL Motion for a re-argument of an appeal from an interlocutory judgment determining the rights etc., N. Y. COMMON PLEAS. of the parties in an action for the partition of real property. The motion was made upon the ground that the appeal was irregular for the reason that the final judgment TERM. William H. Dwinelle, applt.. v. Albert R. Edy, respt. Decided Jan. 21, 1884. An action for a partnership accounting, where the articles are under seal, is not barred till the expiration of twenty years, though there be no express covenant to re agreed to pay one-half the losses and expenses, has failed to do so, and plaintiff, under his partnership liability to third persons, has paid the whole. The basis of this action is defendant's covenant to pay the amount of expenses paid by either partner in excess of his proportion as therein provided. Appeal from judgment dismiss- pay one-half and its breach. 2 T. ing complaint. In April, 1869, plaintiff and defendant formed a partnership by an agreement under seal, containing this provision: "All losses happening to the said firm *** and all expenses of the business shall be borne by the said parties in equal proportions." The business was wound up in Dec., 1869. Plaintiff, on or before June, 1870, paid and expended moneys for said firm in payment of the whole of its debts. Before this action payment of one-half these disbursements was demanded by plaintiff from defendant, which was refused. This action was brought October 24, 1882. The complaint asked an accounting and judg ment for one-half the sums paid by plaintiff. R., 779; 2 Caines, 293. The illustration of co-obligors on a bond under seal where one pays the whole sum is not analogous. The right to contribution in such case results from a principle of equity jurisprudence, not contract express or implied. 1 Story's Eq. Jur., 12th Ed., §493; 57 N. Y., 331. Peters v. Delaplaine, 49 N. Y., 365; Knox v. Gye, L. R., 5 H. L., 656; and Noyes v. Crawford, 10 Ch. Div., 31, distinguished. Judgment reversed; new trial ordered, costs to appellant to abide event. Opinion by Beach, J.; Van Brunt and J. F. Daly, JJ., concur. FERRIES. TERM. THIRD DEPT. In re application of Daniel W. Talcott, Jr., for a ferry license. The court below held the claim N. Y. SUPREME COURT. GENERAL barred by the Statute of Limitations, upon the ground that there was an absence of any covenant in the agreement whereby one partner was to pay the other for any amount paid in excess of one-half, and, therefore, the action was not brought upon the indenture. Childs & Hull, for applt. A. J. Vanderpoel and John M. Bowers, for respt. Held, That the action is upon a sealed instrument, and so amenable to the twenty year limitation. Code Civ. Pro., § 384. Defendant Decided Jan., 1884. An applicant for a license to run a ferry between Troy and West Troy, under Ch. 226, Laws of 1854, must make proof of service of the notice required by that act and also of that required by tit. 2, Act. 7, Ch. 16, pt.. 1, R. S. And the objection that this latter notice was not given may be insisted on by one not an owner of the land through which the highway adjoining to the ferry shall run, but who is only interested as licensee of a ferry which the proposed ferry will injure. Certiorari to review a decision of the Board of Commissioners to regulate ferries between Troy and West Troy, created by Ch. 226, Laws of 1854. Section 5 of that act provides that the action of this Board shall be subject to Tit. 2, Art. 7, Ch. 16, of part 1 of R. S., "so far as the same are not inconsistent with the provisions of this Act." The law of 1854 provides that notice of application for a ferry license shall be given only to the Mayor of Troy and to the President of the Village of West Troy; while Tit. 2 (supra), of R. S., at $2, provides that no such license shall be granted to any person other than the owner of the land through which the highway adjoining the ferry shall run, unless run a ferry may be valuable, and it is the intent of the R. S. that it be first shown that the owner has, after notice, waived that right. We think their objection could be availed of by the appellants, although merely representing a ferry which the proposed ferry would injure. It seems to us that they may lawfully insist on any of the positive regulations of the statute. Order reversed without prejudice to a renewal of the application on proper notice. Opinion by Learned, P. J.; Boardman and Potter, JJ., con such owner neglect to apply there- N. Y. SUPREME COURT. GENERAL for after notice; also (§ 3) that when any person not the owner shall apply the owner shall have eight days' notice of the application. Application was made here by a person not the owner and objection was taken, by the licensees of an established ferry likely to be injured by this one, that proof had not been made of the eight-day notice aforesaid on certain owners of land at the west terminus. The objection was overruled and a li cense granted. King & Rhodes, for applts. Robertson & Foster, for respt. Held, That the notice prescribed by the R. S. was requisite as well that required by the law of 1854. The notice to the Mayor, &c., is in the interest of the public; the notice of the R. S. is in the interest of the land owner. The right to Vol. 18-No. 17. TERM. THIRD DEPT. Rensselaer Post, respt., v. Edward Lyke, applt. Decided Jan., 1884. In an action for false representations, in stating that certain land was clear of incumbrances when in fact a judgment was a lien upon it, it appeared that plaintiff still owed defendant upon the purchase far more than the amount of the judgment in question. Held, That plaintiff was entitled to recover only nominal damages, as he had as yet suffered no damages and was besides in a position, if compelled to pay the judgment, to keep back the amount from the money still due defendant. The action was to recover for alleged false representations in the sale of land. The sale was by quit claim deed. The fraud was claimed to be in representing the land as clear when it was incumbered by a judgment for $94. The price of the land was $650, on which but $50 was paid in cash, $600 was secured by bond and mortgage given by the purchaser and wife-to whom does not appear. The judgment has not been paid. The false representations were denied, but plaintiff recovered as damages (the action being tried as one at law) the amount of the judgment. R. V. W. Du Bois, for applt. Hawes & Cochrane, for respt. Held, That there could be no recovery, as no damages were shown. If he has been defrauded by the amount of the judgment, plaintiff can set that up when sued on the bond and mortgage; they are not negotiable and he can can set up this defence. At present plaintiff has land worth $650, on which he has paid but $50, and he has not paid the judgment. 17 Hun, 111. Judgment reversed; new trial granted; costs to abide event. Opinion by Learned, P. J.; Boardman and Potter, JJ., con cur. MUNICIPAL CORPORATION. COSTS. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Lelia E. Marsh, applt., v. The Village of Lansingburgh, respt. Decided Jan. 1884. Sect. 3245 of the Code, declaring that costs cannot be awarded against a municipal corporation unless the claim is first presented to its chief fiscal officer, &c., does not apply to an action begun in justices court, even though such action be appealed to the County Court and there be re-tried. Appeal by plaintiff from order of County Court, dismissing an appeal from the determination of the County Clerk refusing to tax costs against defendant. This action was begun in justices court to recover damages for obstructing a street, and the complaint demanded a judgment for a sum of money only. An appeal was taken and a new trial had in the County Court. It is conceded that the claim was not before suit presented to the treasurer of the village, its chief fiscal officer. Under § 3245, Code, costs were refused. Merritt & Ryan, for applt. Held, Error. Sect. 3247, subdiv. 13, declares that tit. 1, of Ch. 21 (which includes § 3245), applies only to an action in one of the courts specified in § 3247, subdiv. 4; subdiv. 4 does not specify a justices court. Hence § 3245 does not apply, and plaintiff is entitled to costs. Order reversed, with $10 costs, and determination of Clerk reversed, with $10 costs. Opinion by Learned, P. J.; Bockes and Boardman, JJ., con cur. CONTRACT. STATUTE OF FRAUDS. N. Y. COMMON PLEAS. GENERAL TERM. James McGivern, respt., v. Thomas Fleming, applt. Decided Jan. 21, 1884. A memorandum or note of a contract for the sale of goods, etc., does not conform to the |