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