of Government directors, etc., of corporations, be paid by the companies respectively for which they were appointed, and that such compensation be fixed at $10 per day while employed and traveling expenses at ten (10) cents per mile. Held, That the Act of July 27th, 1866, was a valid exercise of legislative power by Congress, and came fairly within the limits of its reserved power of amendment. Receipts given by plaintiff, a Government director of The Union Pacific R. R. Co., for salary and expenses for the years 1874 to 1877, were not releases nor receipts given in settlement or compromise of a controverted claim, and are susceptible of explanation, and though in full may be shown to have been given under a misapprehension of his rights, and will not preclude him from recovering the

balance due him.

Appeal from judgment for plaintiff on referee's report.

Action to recover under the Act of Congress of July 27th, 1866 (14 U. S. Stat. at Large, 292), an unpaid balance alleged to be due plaintiff for traveling expenses while acting as a Government director of defendant for the years 1874, 1875, 1876 and 1877. It appeared on the trial that plaintiff as Government director was paid for said years for his services ten dollars a day, and for traveling expenses six dollars a day and his railroad fares actually paid, for which plaintiff receipted in full. If plaintiff's traveling expenses had been estimated at the rate of ten cents a mile, as provided for in the said Act of 1866, they would have amounted to as much more than plaintiff received as the amount claimed in this suit. This suit is brought for the difference between the amount paid and the amount of traveling expenses estimated at ten cents per mile, as provided in the Act of 1866.

Plaintiff was allowed to recover in the Court below the full amount of his claim.

A. H. Holmes and Jno. F. Dillon, for applt.

B. F. Watson, for respt.

Held, No error; that the said Act of 1866 applied to the Union Pacific R. R. Co,, and was a valid exercise of legislative power. 99 U. S., 700. The exercise of legislative power now in question is fairly within the limits of the reserved power of amendment as declared and applied in the case cited.

The receipts given by plaintiff were not such as to preclude his recovery in this case, and only operated to extinguish the debt pro tanto.

The plaintiff was entitled to the balance of his claim, with interest from the date it was demanded by him, as allowed by the referee.

Judgment affirmed.
Opinion per curiam.

STATUTE OF FRAUDS. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

John Ackley, exr., applt., v. Franklin J. Parmenter, respt.

Decided Jan., 1884.

A mortgage belonging to plaintiff's testator had been foreclosed by plaintiff and a sale was about to be had. Defendant then said to plaintiff that the mortgagor had placed in his hands stock to bid off the property and pay plaintiff his claim in full, if the sale was adjourned for ten days; that in ten days he would be prepared to pay. In reliance on this promise the sale was adjourned, and when had resulted in a large deficiency. In an action on this promise, Held, That it was not an original undertak ing and should have been in writing.

This was an action to recover on an alleged verbal promise made by defendant to plaintiff. Plaintiff is executor of Philander Ackley. One Silliman gave a mortgage to Philander. It was foreclosed by plaintiff and a sale was about to take place; the amount due was $2,791.27. The alleged promise was this: Plaintiff claimed that defendant, who is an attorney, on the day of sale said to him that Silliman had placed in his hands ferry stock to bid off the property and pay plaintiff his full claim if the sale was adjourned ten days; that he (defendant) would be prepared to pay in ten days. The defendant denied the allegations of the complaint; also set up that the promise was without consideration and was not in writing. The sale was postponed, and when made resulted in a deficiency, which this action is brought to recover. Plaintiff was non-suited.

James Lansing, for applt. R. A. Parmenter, for respt. Held, That the promise was not an original undertaking and should have been in writing. In Belknap v. Bender, 75 N. Y., 446, at p. 451, it is said: "if the promise be made to the creditor after it has become the duty of the promissor, under his arrangement with the debtor, to pay, then it is valid." That is to say, if in the present case, at the time of the alleged promise, the

pay. Bnt here, if defendant had the ferry stock for the purpose stated, that fact would only imply he was to sell the stock and use it for said purpose. But it appears that defendant had not sold it. We think. then, defendant was not under any present duty to pay any thing to plaintiff, and we think that the mere possession of property transferred to defendant by Silliman is not enough to make this promise an original undertaking. Not being in writing the promise was void.

Judgment affirmed.

Opinion by Learned, P. J.; Boardman, J., concurs; Potter, J., dissents, on the grounds that defendant having, in consideration of the transfer of property to him, absolutely promised to pay plaintiff's debt, the promise was an original one and not within the statute; that the receipt of the stock for the purpose indicated, together with the adjournment of the sale, furnished a good consideration for the promise; that defendant's representations, acted upon by plaintiff, estopped defendant from proving that he himself owned the stock, and that it was error for the court to admit such proof.

WILLS. PROBATE.

PRACTICE.

GENERAL

TERM. FOURTH DEPT.

In this State the will of a non-resident, without regard to the place of its execution or the place of testator's death, may be admitted to probate if the same be executed in pursuance of the laws of this State, or as prescribed by the laws of the testator's

residence.

A commission should be granted to examine non-resident witnesses whose evidence is shown to be material and important, when the application is made in good faith. Appeal from decree of Surrogate's Court of Oswego County, admitting to probate certain instruments as the last will and testament of Malvina N. Seabra, who died in said county, October 5, 1882. Testatrix died without issue, leaving her surviving her husband and others, her heirs at law and next of kin. The will was executed at Oswego, Sept. 7, 1882, and disposes of all of testatrix's estate, real and personal, to the exclusion of her husband, a portion of which personal estate was in said county at the dates of the will and of her death. The husband contested the probate of the will, on the grounds that testatrix lacked testamentary capacity and sound mind and memory; that the papers propounded were not her free and voluntary act, but were procured by fraud and duress; that at the times of the execution of the will and of her death, testatrix was a citizen and resident of, and domiciled in Portugal, and that the will was not executed according to the laws of that country. On filing such objections, contestant applied for a commission to take the testimony of non-resident witnesses. Sufficient is disclosed by the moving affidavits, which are not contradicted, to establish

the fact that the evidence of a portion of the non-resident witnesses. was material and important to the contestant on the issues to be tried, and that the application was made. in good faith.

George F. Van Deveer, for applt. William A. Poucher, for respt. Alanson Dean.

S. C. Huntingdon & Son, for proponents and for all other respts.

Held, That the Surrogate's Court of Oswego County has exclusive jurisdiction to take proof of the will and admit it to probate. Code Civ. Proc., § 2476.

The law has not always been the same, but now the will of a nonresident, without regard to the place of its execution, or the place of the testator's death, may be admitted to probate if the same be executed in pursuance of the laws of this State, or as prescribed by the laws of the testator's residence. 23 N. Y., 394; 53 id., 556; 1 Bradf., 69; Laws 1876, Ch. 118, §2; Code Civ. Proc., §2611. The will was duly executed under onr laws.

But the commission should have issued on the question of capacity, fraud and undue influence.

Decree admitting will to probate reversed, together with order denying application for a commission, and proceedings remitted to Oswego County Surrogate's Court, with directions to proceed in the matter of the probate of the will of Malvina N. Seabra, with costs of this appeal to be paid out of the estate.

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

PLEADING. DAMAGES.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

structed that they were only to find the actual damages, if any. They found a forcible detainer and found for plaintiff in the sum of

Decided Jan., 1884.

In all actions for damages the sum demanded in the complaint must be sufficient to cover

the real demand, and it cannot be enlarged

after verdict without granting a new trial.

Appeal from order at Circuit and Special Term denying plaintiff's motion to amend the complaint after verdict by increasing the claim for damages to correspond with the verdict, and refusing to allow plaintiff to treble the damages found by the jury except upon condition that he remit the excess beyond the amount demanded in the complaint, and interest thereon from date of verdict.

The complaint contained two counts: The first charge forcible entry and detainer upon plaintiff's lands to his damage $3,000, and alleged that thereby defendant by force of section four of the statute of "trespass on lands," forfeited and became liable to pay treble the amount of said damages, and the same count concluded by a demand of judgment for $3,000, beside costs. The second count alleged forcible detainer of the same lands to plaintiff's damage $3,000. The complaint concluded thus: "Wherefore, on account of the foregoing premises, said plaintiff demands judgment against said defendant in the sum of three thousand dollars, besides costs of this action." The jury were in

to amend the complaint by increasing the amount claimed to $7,000, and that the amount of damages found by the jury be trebled. The court denied the motion to amend, but gave plaintiff leave to enter an order multiplying the amount of damages found, by three, upon his filing a stipulation remitting all of said sum so resulting in excess of $3,000, and interest from date of verdict, and to enter judgment for said $3,000, with interest and no

more.

Goodelle & Nottingham, for applt.

Kennedy & Tracy, for respt.

Held, That the court will not amend a complaint after verdict by increasing the amount of damages for which judgment is demanded without setting aside the verdict and granting a new trial, to give defendant an opportunity to defend against the enlarged claim. 10 Co., 117, a. b. ; 7 T. R., 131 ; 1 Ch. Pl. (14th Am. Ed.) 339, 418; 14 Johns., 111; 3 Wend., 356; 4 Den., 311; 2 Seld., 97; 5 Lans., 67; 11 Hun, 294.

The order was strictly within the rule and practice of the court.

The motion to amend was properly denied. So far as appears, plaintiff asked to amend unconditionally and not upon the usual terms of paying costs and taking a new trial.

Order affirmed, with $10 costs and disbursements.

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

INJUNCTION.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

George Chamberlain, applt., v. The B., N. Y., & P. R. R. Co., respt.

Decided, Jan. 1884.

Where defendant, without attempting to meet plaintiff's case on the merits, seeks to

remove a temporary injunction by giving an undertaking under the statute, plaintiff may exact an undertaking in full and strict compliance with the statute.

Appeal from Special Term order dissolving an injunction.

Plaintiff owns a house and lot on the south side of a village street, with ninety feet front and bounded on the north by the center of the street. Defendant proDefendant procured from the village permission to lay its track through the street, with the center line twenty feet north of the south line of the street, the same to be constructed on the grade of the street, with no material excavations or embankments. On June 8th, 1883, defendant, against plaintiff's protest, began preparing the street in front of plaintiff's property for its tracks. Plaintiff thereupon began this action and procured a prelim ary injunction restraining defen dant's operations, and caused the same with the summons and complaint to be served. Upon affidavits, defendant moved to dissolve the injunction, and at the time of the hearing of the motion no answer had been served. Defendant

moved to have the injunction vacated on its giving the security as provided in § 629 of the Code, as amended by Ch. 404, Laws of 1883. The order appealed from was granted upon defendant's giving an undertaking in the penalty of $1000, with two sureties, "conditioned to pay to the plaintiff all damages that he may sustain by reason of the construction and operation of defendant's road upon the premises described in the complaint in this action." F. W. Kruse, for applt.

Bowen, Rogers & Locke, for respt.

Held. Defendant's acts are an unjustifiable intrusion upon plaintiff's possession and are confessedly a trespass. Upon the undisputed facts as they now appear, plaintiff is entitled, as demanded in his complaint, to a permanent injunction restraining defendant from continuing the trespass. Plaintiff in his moving papers established an unquestioned right to the injunction order. Defendant's undertaking is not in compliance with the statute, in letter or spirit. As defendant has utterly failed to meet the case upon the merits, it is not entitled to a dissolution of the injunction except upon strict compliance with the statute as to the form and conditions of the undertaking.

Order vacating injunction reversed, with $10 costs and disburse ments on this appeal, and $10 costs for opposing motion at Special Term.

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