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treasurer, or in the absence of a president or
treasurer eo nomine upon a person discharg-
ing the duties of president or treasurer
under a different name.-Hathaway v. The
Am. Mining Stock Exchange, 328.

4. The words president and treasurer, as used
in 1919 of the Code, mean a president or
treasurer in the ordinary acceptation of the
term-a person discharging the functions
and duties of such officers by whatever
name called.-Id.

5. A mere allegation in an affidavit for an
order of publication that defendant is a
non-resident affords no ground for assuming
that due diligence has been used.-Kennedy
v. The N. Y. Life Ins. & Trust Co., 568.
6. An affidavit alleged that defendants could
not after due diligence be found in the
State, they being residents of another
State; that the summons had been duly
issued for them, but could not be served
personally on them by reason of such non-
residence. Held, That no facts were stated
which would confer jurisdiction to grant
an order of publication.-Id.

See LUNATICS, 2; SURROGATE, 7.

SERVICES.

1. In an action for services plaintiff testified
that defendant agreed to pay him a propor-
tionate share of his expenses and a reason-
able compensation for services in selling
certain lands, and upon his becoming dis-
couraged urged him to proceed and re-
peated his promise; that plaintiff gave
defendant a detailed account of his ex-
penses, which the latter promised to pay.
The evidence was corroborated to some
extent and was not squarely contradicted.
Held, That a finding for plaintiff was not
manifestly against the evidence and should
stand.-Sherwood v. Hauser, 301.

2. An employer is entitled to at least the
whole of the day upon which services were
completed to pay for their performance, in
the absence of any agreement as to when
the services should be paid for; an action,
therefore, brought on the day of the com-
pletion of the services is prematurely
brought.-Smadbeck v. Sisson et al., 407.

SET-OFF.

See Costs, 5-7, 10; EXECUTORS, &c., 5.

SHERIFFS.

1. An action against a sherif for an escape is
local.-Roach v. Odell, 204.

2. Where the sheriff has acted in good faith
and with diligence and the action is based
upon technical grounds, he should not be
required to admit away any legal defense
as a condition to retaining the venue in his
county. - Id.

3. The statute prohibiting sheriffs and other
officers from taking bonds in any other
case or manner than such as are provided
by law applies only to bonds which may be
required by the officer from parties becom-
ing subject to his authority, and has no
reference or application to a bond taken by
the sheriff to indemnify himself against the
consequences of a levy under an execution
upon property claimed by some person
other than the judgment debtor, and does
not prohibit the sheriff from taking such a
bond.-O'Donohue et al. v. Simmons, 336.

4. A surety on a bond given to the sheriff to
indemnify him for levying, attaching, and
making sale under an execution of personal
property judged to belong to the judgment
debtor, but to which a third person makes
a claim, is only liable for the act of the
sheriff in seizing such property, and for
such sum as was appropriated from the
avails to the satisfaction of the judgment,
and not for any of such property which
may have been lost or misappropriated
by the sheriff while in his hands under the
levy.-Id.

5. The provisions of the Code of Civil
Procedure, $ 1421 to 1425, authorizing
the substitution of the sheriff's indemni-
tors as defendants in his place in an ac-
tion against him for wrongful levy, etc.,
are unconstitutional and void.-Hein v.
Davidson, 381.

6. The remedy given to a judgment creditor
by 708, Sub. 3 of the Code, in case of in-
terference with the sheriff, is given solely
for the injury occasioned by a wilful with-
holding and concealment of property and
arises only when the sheriff is unable to re-
gain possession and dispose of such prop-
erty.-Scott et al. v. Morgan, 413.

7. A sheriff who attaches a debt under a war-
rant of attachment by delivering a copy of
such warrant to the debtor and taking a
certificate of indebtedness from him is en-
titled to have the amount of such debt
paid over to him during the pendency of
the action in which the warrant was issued,
and if the debtor refuses to do so the sher-
iff may maintain an action against him to
recover such debt. In such action it is not
necessary to allege in the complaint that it
has been brought by the direction of the
court or judge.-Davidson v. The Chatham
Nat'l Bank, 503.

8. A judge who, under § 3307, sub. 2, Code
Civil Pro., adjusts the sheriff's fees and ex-
penses on an attachment has no authority
to add to the adjustment a direction for the
payment of the amount.-Hall et al. v. The
U. S. Reflector Co., 504.

9. By sub. 2 of § 3307, Code Civ. Pro., the
judge who issued the warrant of attach-
ment is vested with the authority to adjust
the sheriff's fees and expenses thereunder,

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and no power to do so is conferred upon
the court, and, therefore, an order made by
the court making such adjustment is inop-
erative.-Id.

See CREDITOR'S BILL, 2; EVIDENCE, 19;
FRAUD, 2.

SLANDER.

1. Evidence by defendant as to prior difficul-
ties or malice between him and plaintiff is
competent upon the question whether the
slander was uttered in the spirit of malice,
hatred or revenge; and defendant may tes-
tify as to the existence or non-existence of
malice on his part.-Crowell v. Day, 97.

2. Proof of repetitions of slanders of the same
character and import as those charged in
the complaint, occurring before suit, is
competent.-Id.

3. Proof of malice, wantonness or a disposi-
tion to annoy or oppress plaintiff is neces-
sary to carry exemplary damages.-Id.

SPECIFIC PERFORMANCE.

1. B. & M. received a subscription of $3,000
from plaintiff, which they were to use with
other funds in buying stock and bonds of a
certain company and for which they were
to deliver to him 150 shares of said stock.
Plaintiff paid the $3.000. Thereafter B.
purchased said stock and bonds but refused
to deliver said shares to plaintiff. In an
action for specific performance it was found
that the stock was not easily purchaseable
and that a judgment in damages would be
an inadequate remedy. Held, That B. held
toward plaintiff a fiduciary relation,
and that although the contract was not
in writing, yet as it had been partly per-
formed B. should fully execute it.-John-
son v. Brooks, 61.

2. To entitle a party to a decree for specific
performance it is sufficient that his case is
good, his right clear and the remedy at law
defective, or its enforcement attended with
doubt or difficulty.-Id.

See DEEDS, 5; HEIRS, 4.

STATUTE OF FRAUDS.
See FRAUD, 11, 14-17.

STATUTES.

1. Statutory repeal by implication is not fa-
vored and courts are bound to uphold the
former law if both can subsist together.-
Baird v. The Mayor, &c., of N. Y., 39.

2. The general act of Congress of July 27,
1866, providing that the compensation and
traveling expenses of Government direct-
ors, 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,
was a valid exercise of legislative power by
Congress, and came fairly within the limits
of its reserved power of amendment. -Brewer
v. The Union Pacific RR. Co., 426.

See CHATTEL MORTGAGE, 4; CONSTITUTIONAL
LAW, 4; CORPORATIONS, 22; DISORDERLY
PERSONS; DIVORCE,8; EXECUTORS, &C.,10;
N. Y, CITY, 3, 4; RECEIVERS, 8; TOWNS,
2; WILLS, 36.

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1. One who, at the request of another, ad-
vances money to redeem or even to pay off
a security in which that other has an inter-
est or to the discharge of which he is bound,
is not a volunteer, and in the absence of an
express agreement one will be implied if
necessary that it shall subsist for his use,
and it will be so enforced.-Gans et al. v.
Thieme et al. 69.

2. One T. died, leaving his property encum-
bered by a mortgage. His widow, who
was the executrix, subsequently remarried,
and she and her husband borrowed money
of plaintiffs with which they paid off the
mortgage and had it satisfied of record and
gave a new mortgage to plaintiffs. Neither
she nor her husband had any personal inte-
rest in the premises, nor was she authorized
by the will to mortgage the real estate. Held,
That plaintiff's loan was in fact made for

the benefit of the estate, and that as against
those taking the premises under the will
plaintiffs were entitled to have the satisfac-
tion cancelled and to be subrogated to the
lien of the original mortgages.—Id.

3. Plaintiff purchased certain bonds secured
by a second mortgage on condition that the
proceeds should be used to pay off the prior
mortgage, which was done, but the bonds
were afterwards declared usurious and void.
In an action to revive and foreclose the
prior mortgage, Held, That as plaintiff's
claim to subrogation arose out of the usuri-
ous agreement and could not be established
without a resort to that agreement the ac-
tion could not be maintained.-Baldwin v.
Moffett et al., 105.

See MORTGAGE, 18; RECORD, 2.

SUPPLEMENTARY PROCEEDINGS.

1. The production and proof of an order made
in supplementary proceedings reciting the
facts necsssary to give the court jurisdiction
to act furnishes conclusive evidence of the
regularity of such order when questioned
collaterally and prima facie evidence of the
existence of such facts.- Wright v. Nos-
trand et al., 248.

See DEPOSITIONS, 4; EVIDENCE, 13; RECEIV-
ERS, 14.

SURETYSHIP.

1. In an action against sureties on a bond
given for the faithful performance of duties
by one H, the answer contained no denial
of the facts alleged in the complaint, but
alleged that defendants had no knowledge
or information sufficient to form a belief as
to whether or not H. was at the time the
action was commenced indebted to plaintiff
"in the sum mentioned in the complaint
or in any other sum and therefore deny the
same." Held, That this was merely a de-
nial of a legal conclusion and put in issue
no fact alleged.-Emery v. Baltz et al., 226
2. H. was arrested on an order of arrest in an
action brought against him by plaintiff, and
was subsequently released on giving an
offer of judgment. Held, That this did
not discharge defendants from liability as
sureties. Id.

3. In an action against the sureties on a bond
for faithful performance, evidence that
after the principal failed to perform de-
fendants notified plaintiff that they wished
to withdraw the bond and were induced to
remain by his assurance that he would not
let the principal get behind and if he did
would stop his business and notify defend-
ants, and that he did not do so, but let the
liability increase, is competent.-Id.

4. Where a surety signs a bond upon con
dition that it is not to be delivered until
another person becomes a party to it, a de-

livery in violation of that condition will not
be effective against him.—Grimwood v. Wil-
son et al., 313.

5. If a surety, on executing an undertaking
required by the Code to be given in an ac-
tion, attaches to it the above mentioned con-
dition, the filing of such undertaking in
violation of said condition will be a defense
to an action against the surety on the un-
dertaking, provided the party to the action
other than the one giving the undertaking
was deprived of no right by the filing of
such undertaking; and if such undertaking
is inoperative by reason of its failure to
comply in form with the requirements of
the statute under which it is given, the
waiver of such defect by the party entitled
to take advantage of it will not have the
effect of binding the surety.—Id.

6. It seems, however, that if the filing of the
undertaking in violation of the condition
deprived the other party of a right, the
surety would be liable.-Id.

7. Where sureties in an undertaking on ap-
peal become insolvent and the court orders
a new undertaking filed within 20 days, or
in default thereof judgment to be enforcea-
ble as if no undertaking had been given, and
the order is not complied with, the respond-
ents by issuing execution release the sureties
from liability. Their election to issue and
rely upon execution precludes them from
pursuing the sureties upon the undertaking.
-Collins v. Ball, 352.

8. 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.-Thayer v. King, 474.

9. To exonerate a surety by the creditor's de-
lay to proceed against the principal the
surety must show explicit notice or request
to the creditor to take such proceedings.-
Id.

See INJUNCTION, 6; LEASE, 7; MORTGAGE, 11,
18; SHERIFFs, 4

SURROGATE.

1. In the settlement of an administrator's ac-
count, the Surrogate referred the matter to
a referee; the referee made his report, and
its confirmation was regularly moved for
before the Surrogate, who confirmed it.
and no exceptions were taken to the same
until some seven weeks afterwards. Held.
That the Surrogate had no alternative but
to direct an order for confirmation, and an
appeal from his decision brings up nothing
for review. In re accounting of Leffingwell.

168.

2. A surrogate has not jurisdiction to call an
agent or trustee to account.-Woodruff v.
Young, 353.

3. The Surrogate has the power, the neces-
sary facts being shown, to make the orders
authorized by $2717, 2718 and 2719 of the
Code of Civil Procedure, decreeing pay-
ment of a legacy, or a portion thereof, as
well in a case where a petition has been
filed for the revocation of the probate of a
will and citations have been issued thereon
as in a case where the probate is final, and
he is not prohibited from so doing in the
former case by the provisions of $2650 of
the Code of Civil procedure -In re petition
of Hoyt et al., 360.

4. The granting of letters of administration
to a creditor of an intestate dying within
this State, on the application of such cred-
itor therefor, is discretionary with the sur-
rogate when it is made to appear in opposi-
tion that the intestate was not a resident
of this State, and that, at the time of the
application, there was no personal property
belonging to the decedent within the State;
for the surrogate is not required to issue
letters of administration when they must,
for all practical purposes, prove to be en-
tirely ineffectual, and, in such a case, it is a
proper exercise of the surrogate's discretion
to deny the application.-In re application
of Schoonmaker, 410.

5. In the absence of the denial required by
$2805 of the Code a person interested in a
trust fund is entitled to an order for an in-
termediate accounting by the trustee, and
it is the duty of the surrogate to hear the al-
legations and proofs and make such decree
as may be right, even though an action to
settle conflicting claims on the fund is
pending between the trustee and the peti-
tioners and others in the Supreme Court. —
In re estate of McCarter, 433.

6. It is in the discretion of the court to
charge the trustee with the costs of an ap-
peal occasioned by his conduct.-Id.

7. A citation was issued returnable in less
than six weeks. The order for service pro-
vided for service on non-residents either
personally without the state or by publica-
tion. Held, That a personal service without
the state thirty days before the return day
was sufficient. In re application for ac-
counting of Macaulay, 445.

8. Where assets of one who was domiciled
and died in another state are in a county of
this state at the time of application for let-
ters of administration the Surrogate of such
county has jurisdiction to issue letters and
to decree distribution on a final accounting,
and he is not deprived of such jurisdiction
by the fact that the assets were irregularly
brought to this state.-In re accounting of
Hughes.-453.

9. Whether in such a case the assets shall be
remitted to the intestate's domicil for dis-
tribution is a question of judicial discretion
depending on the circumstances of the par-
ticular case.-Id.

10. Under an order referring an administra
tor's account to a referee to examine and
report it is the duty of the surrogate to
consider the exceptions filed to the report
and determine the questions presented
thereby. In re accounting of Pool, 555.

See EXECUTORS, &c., 12, 13; GUARDIANS, 1;
LIMITATION, 5; VERIFICATION; WILLS, 4,

34.

SURVIVOR.

See NEGLIGENCE, 33.
SUSPENSION OF RIGHTS.

See APPEAL, 23, 24.

TAXATION.

1 Leases given on tax sales in Queens Co. are
prima facie evidence that the tax was legal-
ly imposed and that the proceedings and
sale were regular, and this includes the as-
sessment of the land. The party assailing
such lease has the burden of proof.—Lott v.
Degrai, 235.

2. Where real property, belonging to a be-
nevolent corporation, is all lawfully devot-
ed to the care, custody, education and
maintenance of destitute mothers and chil-
dren, it is exempt by law from taxation,
and an equitable action will lie to set aside
a tax imposed thereon.-The N. Y. Infant
Asylum v. The Board of Supervisors of West-
chester Co. et al., 274.

3. When the period allowed by law for the
assessment of personal property for the
purposes of taxation by the Commissioners
of Taxes and Assessments of the City of
New York expires between the death of a
decedent and the issuing of letters testa-
mentary to the persons named as executors
in his will, such tax may be imposed upon
such persons as exccutors, although they
have not yet qualified as such and received
their letters testamentary, and they are the
proper persons to be notified of the imposi-
tion of such tax.-The People ex rel. Cou-
dert et al. v. Comrs. of Taxes, 368.

4. The Commissioners of Taxes and Assess-
ments in the City of New York may tax
the executors of a deceased person on the
personal property belonging to the estate
and assess the value of such personal prop-
erty previous to the expiration of the time
provided by law for the advertisement for
claims against such estate, and, consequent-
ly, before the executors can obtain accurate
knowledge of the amount of such personal
property subject to taxation, and such val-
uation will be conclusive in the absence of
any evidence furnished to the Commission-
ers by the executors showing that it is ex-
cessive.-Id.

5. When the owner of real estate situated in
the City of New York applies to the Tax

Commissioners of said city for a reduction
of the assessed value of such land on the
ground that it is excessive for reasons stated.
the Commissioners themselves are entitled
to obtain further information, and to act, to
a certain extent, upon their own observa-
tions and judgment, and where they have
taken that course, and in good faith have
adopted the valuations complained of, as
long as no legal principle was violated in
doing so the Court will not interfere for the
reversal of their proceedings.—The People ex
rel. Syms v. Tax Comrs., 456.

6. When no legal error was committed in
making the valuations, but they were grad-
uated by what was considered by the Com-
missioners to be the fair and reasonable ef-
fect of all the evidence upon which their
action was authorized to be taken, and the
only ground of complaint is that the force
and weight of the evidence has not been ac-
curately measured, an appellate court should
be exceedingly reluctant to interfere and to
derange and disturb the system adopted
and pursued in making the assessments.
-Id.

7. A minister who is disqualified for active
duty by age and infirmity is nevertheless
entitled to his exemption from assessment.
-The People ex rel. Mann v. The Assessors of
Covert, 458.

8. So long as assessors try diligently to dis-
charge their duties they should not be
visited with costs for mere error of judg
ment.-Id.

9. A telegraph company owning a line partly
within and partly beyond the limits of this
State, and partly in the City of New York,
is subject to taxation in that city on its
capital stock to the amount of the actual
cost of its works within that city, and for
such personal property or real estate as it
may own therein; but if its officers fail to
furnish to the Tax Commissioners a state-
ment of the cost of its works, etc., as re-
quired by statute, the Commissioners have
the right to assess the property of the com-
pany according to the best information they
can procure, and if the corporation has
failed to apply for the correction of such
assessment within the time provided by law
for that purpose the Court will not there-
after correct such assessment on certiorari.
-The People ex rel. The Mutual Union Tel.
Co. v. Comrs. of Taxes, 524.

See Costs, 8, 9.

TELEGRAPH COMPANIES.

See CORPORATIONS, 9-12; TAXATION, 9.

TENDER.

See CONTRACT, 13: MORTGAGE 13.

TENEMENT HOUSES.

See CONSTITUTIONAL LAW, 5.

TENANTS IN COMMON.

See CONVERSION, 1; REDEMPTION, 2.

TITLE.

See ADVERSE POSSESSION; INSURANCE COM-
PANIES, 1.

TORT.

See EVIDENCE, 17; PARTIES, 3.

TOWN BONDS.

1. One who takes a town bond issued in aid
of a railroad is bound to see to it that it is
authorized by the statute under which it
purports to have been issued.-Craig v.
The Town of Andes, 67.

2. In an action upon a town bond, issued
pursuant to Chap. 907, Laws of 1869, the
town may raise the question whether the
County Judge had jurisdiction of the pro-
ceedings notwithstanding the determination
of said County Judge pursuant to § 2 of
said act. The only effect of that section is
to cast upon the town the burden of prov-
ing that no jurisdiction, in fact, existed in
the County Judge. --Id.

3. Some of the petitioners, without whom the
signers would constitute less than the ma-
jority of the tax-payers, attached to their
signatures a condition that the road should
run through a certain town, which would
change the route from that desired by the
other petitioners. Held. That the desire
expressed was not within the purview of
the act; that the County Judge acquired
no jurisdiction of the proceedings and
could not, of his own motion, dispense with
the performance of a condition precedent
to the exercise of the authority conferred
by said act.-ld.

TOWNS.

1. After relator recovered a judgment against
the town of Kingston the town was di-
vided. A mandamus requiring defendant
to levy the amount of the judgment on the
several towns into which Kingston was
divided was reversed by the General Term.
Held, No error; that relator has a plain
remedy by mandamus to compel a meeting
of the officers of the towns and a discharge
by them of the duties devolved upon them
by the Revised Statutes.-The People ex rel.
McKenzie v. The Board of Supervisors of
Ulster Co., 220.

2. Chap. 554, Laws of 1880, applies only to
the collection of judgments against towns
which have not been divided or altered.-
Id.

See BRIDGES.

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