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proving the property partitioned. I a tenant in common in possession In February, 1880, defendants is not entitled to compensation for purchased an undivided half of six his improvements from his coacres of land with a mill on it, tenants who have not assented to and on that day entered into pos- his making them. But the Code, session of the whole of the prem- $ 1461, apparently provides against ises. S. F. then owned the other what was done in this case. For half interest. There were three one year S. F., the judgment judgments against S. F. liens upon debtor, had the right to redeem his undivided half of the premises. upon payment of the amount bid One judgment was for $18, 247, and interest. For such one year recovered July 11th, 1878 ; one for and three months in addition he $1,100, recovered December 4th, remained tenant in common with 1879, and one for $423, recovered defendants. Does not the judgJanuary 12th, 1880. S. F.'s undi- ment creditor, by putting on exvided half of the premises was pensive improvements, impair or sold to defendants March 9th, 1880, prejudice the right of redempfor $4,500, upon an execution tion ? issued on the first above judgment. Then, again, the person in posJune 9th, 1881, W. redeemed on session during this fifteen months, his, the second above judgment, by $1441, is permitted to make to the amount of $600, and satisfied necessary repairs, but not alterhis jndgment to that amount. On ations or improvements. The acts the same day plaintiffs redeemed of defendants are in violation of on their, the third above judgment, this provision. over W., and satisfied their judg- Judgment affirmed, with costs. ment on which they redeemed. Opinion by Boardman, J.; Between March 9th, 1880, and Learned, P. J., and Potter, J., March 9th, 1881, defendants remodeled and enlarged the mill on the premises, and expended in
DECEDENTS' ESTATES. repairs and improvements the sum
GUARDIANS. of $10,200. The principal question litigated was whether or not de- N. Y. SUPREME COURT. GENERAL fendants are entitled to be allowed TERM. SECOND DEPT. the value of such repairs and im
Louise W. Skidmore, applt., v. provements. The Court held and William Post, exr., respt. decided that they were not entitled to be allowed any sum therefor.
Decided Feb., 1884. D. Carver, for respts.
The liability of a guardian to account to his Arthur More, for applts.
ward is a personal claim against him during Held, That the case of Scott v. his life and against his estate after his
death, and is referable under the statute. Gurnsey, 60 Barb., 163; 48 N. Y.,
On such a reference the burden of showing 106, controls this action. The
the guardian's dealings with the estate rests principle there established is this:
upon the executor.
Appeal from judgment entered Held, Error. All claims arising upon report of referee dismissing out of transactions had with the appellant's claim against the es- deceased and which matured durtate of Abram P. Skidmore.
ing his lifetime, and were then Testator was appointed special properly demandable, or which guardian of plaintiff, then would have become due or deinfant, in a proceeding to sell her mandable had he lived, are claims real estate. He sold the real estate against the decedent's estate and by two separate sales, and received properly referable under the the proceeds thereof, and he was statute. 25 Barb., 138. It is true ordered to invest the proceeds of that plaintiff's claim was of an the first sale on bond and mort equitable nature; that it would gage and apply the income to the probably have required the taking maintenance and education of the of an account and the striking of a infant and to invest the proceeds balance before it could have been of the second sale for the benefit determined what amount was due of the infant until the further to plaintiff ; but there is nothing order of the Court. He never in any of these requirements which made any reports of his trust or the referee had not power to deterfiled any accounts, and so far as mine. plaintiff had knowledge had never That, assuming that the preapplied any of the income to her sumption was as claimed by the support or education, and had referee, the time had arrived for never paid over to her any of the testator to account to his cestui principal sum, and had never been que trust, and this he could not do relieved from his trust. Plaintiff by simply passing over the securihad no general guardian and came ties in which he had invested the of age in February, 1881. Testator fund; he must show that the trust died in 1880, and defendant quali: fund had not depreciated through fied as executor in July, 1880. his carelessness or neglect; in Plaintiff presented a claim to the other words, he must give an acexecutor which was disputed and count and explanation of his perreferred under the statute,
formance of his trust and his On proof of the above facts the dealings with the fund, and his referee dismissed the claim on the liability to so account was a perground that it was to be presumed, sonal claim against him during his in the absence of evidence to the life and after his death against his contrary, that decedent had in- estate. Whether or not he had vested the estate as directed by converted the fund to his own use the Court, and in the absence of was of no sort of consequence so evidence showing that there was a far as his liability to account was failure to invest or that decedent concerned. had converted the fund to his own It is conceded by respondent use plaintiff had no claim against that in an action for an accounting the estate.
the burden of showing the testaVol. 18.–No. 20b).
tor's dealings with the fund would Defendant testified that after the have rested on defendant. I think note had matured plaintiff told the same rule applied to this pro- | him that Jack had paid one-half ceeding.
of the note and got an extension The evidence made out a prima of 30 days for the balance ; “I," facie case, and in the absence of said the witness, "told him Ilidn't any proof to the contrary plaintiff want it to run so; I wanted it was entitled to a judgment. collected; he said I needn't be
Judgment reversed, reference scared, he knew he was perfectly vacated and new trial ordered, responsible, for Jack was at the costs to appellant to abide event. bank in April with $1,600 in auc
Opinion by Pratt, J.; Barnard, tion notes to sell to him ; I asked P. J., and Dykman, J., concur. him why he didn't make pro
vision for that note,
or offset PROMISSORY NOTE.
enough to pay it ; he said SURETY.
that he made him an offer of ten
per cent. discount on the whole N. Y. SUPREME COURT. GENERAL amount, and Jack said he would TERM. FOURTH DEPT.
be back again if he could not do George W. Thayer, applt., v.
any better.” The witness continDavid H. King, respt.
ned, "About three weeks after I
had another conversation with Decided Jan., 1884.
Thayer ; I asked him if Jack bad The extension by the payee of the time of
been up or he had seen Jack; he payment of a note, upon an executory usu- said he had not; 1 then told him rious agreement with the maker, which the I wanted him to sue it immedi. latter did not perform, does not release a
ately, or write him to pay it ; that surety: To exonerate a surety by the creditor's delay
is about all of that interview." to proceed against the principal the surety There is no oiher testimony tendmust show explicit notice or request to the ing to show a request to prosecute. creditor to take such proceedings.
E. A. Nash, for applt. Appeal from judgment on rek- J. S. Garlock, for respt. eree's report.
Held, That the agreement for Action on a promissory note extension did not discharge the made by one Jack and defendant surety. 3 Lans., 216 ; 33 Vt.,618; as his surety, and discounted by 36 id., 306; 1 B. Mon., 324; 14 plaintiff, who knew that defendant id., 17; 17 Ind., 202. signed as such surety. The ref- That there was not such explicit eree found that about the time request to sue as the rule requires. when the note became due Jack 82 N. Y., 121, 131. proposed to pay plaintiff $5 for Judgment reversed and new trial extending it one month; that ordered before another referee, plaintiff accepted the proposition costs to abide event. and extended the time, but Jack Opinion by Smith, P. J,; Har. never paid the $5 or any part of it. 'din and Barker, JJ., concur.
ATTACHMENT. AMEND. motion to vacate, without preju
dice to a renewal thereof. MENT.
fendant made no objection to the N.Y. SUPREME COURT. GENERAL reading of so much of plaintiff's TERM. FOURTH DEPT.
opposing affidavits as tended to Chauncey S. Kibbe, respt., v.
establish grounds other than that Simeon W. Wetmore, applt.
specified in the attachment. The
fraudulent disposition of property Decided Jan., 1884.
shown by the affidavits occurred Section 683, Code Civ. Proc., does not relate in Pennsylvania. to the power of amendment, but to the practice on motion to vacate an attach
Ansley & Davie, for applt.
Pindar & Inman, for respt. An objection to the reading of affidavits on
motion cannot be made for the first time on Held, That the power of amend. appeal.
ment given by $ 723, Code of Civ. A fresh attachment may be granted on affida
Proc., covers the case; $ 683 does vits ex parte. It is immaterial that the fraudulent disposition not relate to the power of amend.
of property took place outside of this state, ment, but to the practice upon so long as our courts have jurisdiction of motion to vacate an attachment. the action and the parties.
Defendant can not now, for the Appeal from Special Term order first time, object that the affidavits allowing an amendment of the were improperly received, and that warrant of attachment issued the order allowing the amendment herein and refusing to vacate the should therefore be reversed. same.
The court had power to grant a The warrant was issued upon fresh attachment on the affidavits the ground that defendant was a ex parte. As between the parties, non-resident of the State, and that that was the only effect of the ground only was stated in the at- amendmient; and there do not aptachment. Defendant moved at pear to be any intervening lienors. Special Term to vacate the attach- It is immaterial where the fraudmenton affidavits tending to show ulent disposition of property took that he was a resident of the State. place; if the courts of this State Plaintiff read opposing affidavits have jurisdiction of the action and tending to show that defendant the parties, plaintiff is entitled to had disposed of his property with his remedy against defendant's intent to defraud his creditors, and property in this State. had kept himself concealed with Order affirmed, with $10 costs of like intent and to avoid service of appeal and disbursements, which process. Thereupon, on plaintiff's may be set off against those remotion, the court made an order quired to be paid to defendant as allowing the attachment to be a condition of the order appealed amended by inserting therein the from. latter grounds, on payment of de- Opinion by Smith, P. J.; Harfendant's costs, and denying the din and Barker, JJ., concur.
CORPORATIONS. OFFICERS. none was ever fixed or agreed to SALARY.
be paid and no demand was made
of the company for salary or to N. Y. SUPREME COURT. GENERAL
vote or fix such salary. TERM. SECOND DEPT.
Held, That the referee erred in Morris H. Smith, respt., v. The the judgment rendered. Ordina L. I. RR. Co., applt.
rily it is enough for a party claimDecided Feb., 1884.
ing compensation for services to
show that such services have been In the absence of a by-law fixing the salary of performed. The law will then an officer of a corporation or an express raise an implied promise to pay. promise to pay no compensation for his
But when it is made to appear services upon quantum meruit can be recovered by such officer.
from all the circumstances that Where a party accepts an office to which there was no contract of employ. no salary is attached, and allows himself to
ment ; that there was no hiring or be re-elected for several successive terms
that the services were voluntarily during which he serves without demanding or receiving any salary or having one given and that no compensation fixed, Held, That such circumstances rebut was intended by the parties, the any presumption that compensation for his implication of a promise to pay is services was intended or expected.
rebutted and the action must fail. Appeal from judgment in favor 12 Barb, 477 ; 19 N. Y., 13; Wood of plaintiff, entered on the report on Master and Servant, $ 62. of a referee.
In this case it would seem that Action to recover compensation the implication of a promise to for services rendered as secretary Pay plaintiff as secretary is wholly of defendant from April, 1870, to rebutted by the facts. Plaintiff April, 1875.
was not hired as a clerk, employee, Plaintiff was elected secretary in laborer or servant by defendant in April, 1870, and re-elected four the sense in which those terms are successive years and acted as sec- usually used. He was elected an retary during the whole five years. officer of the corporation under by. The by-laws of the company make laws which determined the office, no provision for a salary for that its duties, &c., but which did not office, and no action has been taken provide a salary. A secretary of fixing any such salary. Plaintiff a corporotion is not a servant in was never a stockholder or director the ordinary and usual sense in of the company, but at the time of which the term is used, 58 N. Y., his first election was employed as a 367; 37 id., 640; and in the abclerk in the office of the financial sence of a by-law fixing the salary agents of the company and con- of an officer of a corporation or an tinued to be so employed during express promise to pay no comthe whole period he served as sec- pensation for such services upon retary. At some time after his quantum meruit can be recovered. election he spoke to some of the 11 W. Dig., 141 ; 49 Pa. St., 118. officers about compensation, but Plaintiff accepted an office to