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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 bas 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
debior, 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
inay have been lost or misappropriated
by the sheriff while in his hands under the

5. The provisions of the Code of Civil

Procedure, $S 1421 to 1425, authorizing
the substitution of the sheriff's indemni.
tors as defendants in his place in an ac-
tion against bim for wrongful levy, etc.,
are unconstitutional and void. -Hein v.

Davidson, 381.
6. The remedy given to a judgment creditor

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 couid

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. Field, That no facts were stated
which would confer jurisdiction to grant

an order of publication.Id.


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.

by 8 708, 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. 8. 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,


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

1. An action against a sherill 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.

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

See CREDITOR's Bill, 2; EVIDENCE, 19;


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.

N. Y, City, 3, 4 ; RECEIVERS, 8; Towns,
2 ; WILLS, 36.




See CORPORATIONS, 3-5, 10-12, 14, 17; 18. *

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 clrarged in
: tbe complaint, occurring before suit, is

3. Proof of malice, wantonness or a disposi-

tion to annoy or oppress plaintiff is neces-
sary to carry exemplary damages.-Id.

1. B. &• M. received a subscription of $3,000





NENT DOMAIN, 10, 11 ; RAILROADS, 2, 3.


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 sliares 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. lleud. That B. held
toward plaintiff à fiduciary relation,
and that altliough 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.

1. The affidavit required by $ 1279 of the Code

cannot be made by attorney where there
is a natural person, a party to the action, by
whom it may be made.- Bloomfield v. Ketch-

am, 540.

2. Where it appears that the controversy has

been created for the express purpose of be-
ing submitted without action and the ques-
tion submitted will affect others than the
parties to the submission an observance of
all the forms of law intended to guard
against submissions of questions, excent in
real controversies and in good faith should
be required.-Id.



See FRAUD, 11, 14-17.


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

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 bad 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 livery in violation of that condition will not
those :aking the premises under the will be effective against him.-Grimuood v. Wil-
plaintitfs were entitled to have the satisfac- son et al., 313.
iion cancelled and to be subrogated to the
lien of the original mortgages. Id.

5. If a surety, on executing an undertaking

required by the Code to be given in an ac-
3. Plaintiff purchased certain bonds secured tion, attaches to it the above mentioned con-

by a second mortgage on condition that the dition, the filing of such undertaking in
proceeds should be used to pay off the prior violation of said condition will be a defense
mortgage, which was done, but the bonds to an action against the surety on the un-
were afterwards declared usurious and void. dertaking, provided the party to the action
In an action to revive and foreclose the other than ihe one giving the undertaking
prior mortgage, Held, That as plaintiff's was deprived of no right by the filing of
claim to subrogation arose out of the usuri. such undertaking; and if such undertaking
ous agreement and could not be established is inoperative by reason of its failure to
without a resort to that agreement the ac- comply in form with the requirements of
tion could not be maintained.Baldwin v. the statute under which it is given, the
Moffett et al., 105.

waiver of such desect by the party entitled

to take advantage of it will not have the

effect of binding the surety.-Id.
SUPPLEMENTARY PROCEEDINGS. 6. It seems, however, that if the filing of the

undertaking in violation of the condition
1. The production and proof of an order made deprived the other party of a right, the

in supplementary proceedings reciting the surety would be liable.-Id.
facts necsssary to give the court jurisdiction
to act furnishes conclusive evidence of the

7. Where sureties in an undertaking on ap-
regularity of such order when questioned

peal become insolvent and the court orders
collaterally and prima facie evidence of the

a new undertaking filed within 20 days, or
existence of such facts. — Wright v. Nos.

in default thereof judgment to be enforcea-
trand et al., 218.

ble as if no undertaking had been given,and

the order is not complied with, the respond-
See DEPOSITIONS, 4 ; EVIDENCE, 13; RECEIV- ents by issuing execution release the sureties
ERS, 14.

from liability. Their election to issue and

rely upon execution precludes them from

pursuing the surcties upon the undertaking.

Collins v. Ball, 352.
1. In an action against sureties on

a bond
given for the faithful performance of duties

8. The extension by the payee of the time
by one H , the answer contained no denial
of the facis alleged in the complaint, but

of payment of a note, upon an executory
alleged that defendants had no knowledge

usurious agreement with the maker, which
or information sufficient to form a belief as

the latter did not perform, does not release
10 whether or not H. was at the time the

a surety.– Thayer v. King, 474.
action was commenced indebted to plaintiff 9. To exonerate a surety by the creditor's de-
“ in the sum mentioned in the complaint
or in any other sum and therefore deny the

lay to proceed against the principal the
same.' Teld, That this was merely a de.

surety must show explicit notice or request
nial of a legal conclusion and put in issue

to the creditor to take such proceedings.-

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

1. In the settlement of an administrator's ac.

count, the Surrogate referred the matter to
3. In an action against the sureties on a bonit a referee; the referee made his report, and

for faithful performance, evidence that its confirmation was regularly moved for
after the principal failed to perform de- before the Surrogate, who confirmed it.
fendants notified plaintiff that they wished and no exceptions were taken to the same
to withdraw the bond and were induced to until some seven weeks afterwards. Held.
remain by his assurance that he would not That the Surrogate had no alternative but
let the principal get behind and if he did to direct an order for confirmation, and an
would stop his business and notify defend- appeal from his decision brings up nothing
ants, and that he did not do so, but let the for review.-In re accounting of Leffingwell.
liability increase, is competent.--Id.

4. Where a surety signs a bond upon con: 2. A surrogate has not jurisdiction to call an

dition that it is not to be delivered until agent or trusted to account.-- Woodruff v.
another person becomes a party to it, a de. Young, 353.

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3. The Surrogate has the power, the neces- 10. Under an order referring an administra-

sary facts being shown, to make the orders tor's account to a referee to examine and
authorized by $ 2717, 2718 and 2719 of the report it is the duty of the surrogate to
Code of Civil Procedure, decreeing pay. consider the exceptions filed to the report
ment of a legacy, or a portion thereof, as and determine the questions presented
well in a case where a petition has been thereby.-In re accounting of Pool, 555.
filed for the revocation of the probate of a
will and citations have been issued thereon See EXECUTORS, &c., 12, 13; GUARDIANS, 1;
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 Iloyt 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.

See APPEAL, 23, 24.
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 1 Leases given on tax sales in Queens Co. are
application, there was no personal property prima facie evidence that the tax was legal-
belonging to the decedent within the State; ly imposed and that the proceedings and
for the surrogate is not required to issue sale were regular, and this includes the as-
letters of administration when they must, sessment of the land. The party assailing
for all practical purposes. prove to be en- such lease has the burden of proof.- Lott v.
tirely ineffectual, and, in such a case, it is a Degrai, 23..
proper exercise of the surrogate's discretion
io deny the application.- In re application 2. Where real property, belonging to a be-
of Schoonmaker, 410.

nevolent corporation, is all lawfully devot.
5. In the absence of the denial required by

ed to the care, custody, education and

maintenance of destitute mothers and chil-
$ 2805 of the Code a person interested in a

dren, it is exempt by law from taxation,
trust fund is entitled to an order for an in-

and an equitable action will lie to set aside
termediate accounting by the trustee, and
it is the duty of the surrogate to hear the al.

a tax imposed thereon.— The N. Y. Infant
legations and proofs and make such decree

Asylum v. The Board of Supervisors of West-

chester Co. et al., 274.
as may be right, even though an action to
settle conflicting claims on the fund is

3. When the period allowed by law for the
pending between the trustce and the peti- assessment of personal property for the
tioners and others in the Supreme Court. –

purposes of taxation by the Commissioners
In re estate of McCarter, 433.

of Taxes and Assessments of the City of
6. It is in the discretion of the court to

New York expires between the death of a
charge the trustce with the costs of an ap-

decedent and the issuing of letters testa-
peal occasioned by his conduct.-Id.

mentary to the persons named as executors

in his will, such tax may be imposed upon
7. A citation was issued returnable in less

such persons as executors, although they
than six weeks. The order for service pro-

have not yet qualified as such and received
vided for service on non-residents eii her

their letters testamentary, and they are the
personally without the state or liy publica- proper persons to be notified of the imposi-
iion. Held, That a personal service without

iion of such tax.- T'he People ex rel. Cou-
the state thirty days before the return day

dert et al. v. Comrs. of Taxes, 368.
was sufficient.-in re application for ac-

4. The Commissioners of Taxes and Assess-
counting of Macaulay, 445.

ments in the City of New York may tax
8. Where assets of one who was domiciled the executors of a deceased person on the
and died in another state are in a county of

personal property belonging to the estate
this state at the time of application for let.

and assess the value of such personal prop-
ters of administration the Surrogate of such erty previous to the expiration of the time
county has jurisdiction to issue letters and provided by law for the advertisement for
to decree distribution on a final accounting,

claims against such estate, and, consequent-
and he is not deprived of such jurisdiction

ly, before the executors can obtain accurate
by the fact that ihe assets were irregularly

knowledge of the amount of such personal
brought to this state.-In re accounting of properiy subject to taxation, and such val.

uation will be conclusive in the absence of

any evidence furnished to the Commission-
9. Whether in such a case the assets sliall be

crs by the executors showing that it is ex-
remitted to the intestate's domicil for dis-

tribution is a question of judicial discretion
depending on ihe circumstances of the par: 5. When the owner of real estate situated in
icular case.-Id.

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.

See ConstituTIONAL LAW, 5.
the Commissioners themselves are entitled
to obtain further information, and to act, to

a certain extent, up n their own observa.
tions and judgment, and where they bave

Sec ConverSION, 1; REDEMPTION, 2.
taken that course, and in good faith liave

adopted the valuations complained of, as
long as no legal principle was violated in See ADVERSE POSSESSION; INSURANCE COM-
doing so the Court will not interfere for the

reversal of their proceedings.— The People e.r
rel. Sym8 v. Tax Comrs., 456.

6. When no legal error was committed in

See Evidence, 17; PARTIES, 3.
making the valuations, but they were grad-

uated by what was considered by the Com-
missioners to be the fair and reasonable ef. 1. One who takes a town bond issued in aid
fect of all the evidence upon which their of a railroad is bound to see to it that it is
action was authorized to be taken, and the

authorized by the statnte under which it
only ground of complaint is that the force purports to have been issued. — Craig v.
and weight of the evidence has not been ac- The Town of Andes, 67.
curately mcasured, an appellate court should
be exceedingly reluctant to interfere and to 2. In an action upon a town bond, issued
derange and disturb the system adopted pursuant to Chap. 907, Laws of 1869, the
and pursued in making the assessments. town may raise the question whether the

County Judge had jurisdiction of the pro-

ceedings notwithstanding the determination
7. A minister who is disqualified for active

of said County Judge pursuant to $ 2 of
duty by age and infirmity is nevertheless said act. The only effect of that section is
entitled to his exemption from assessment. to cast upon the town the burden of prov.
- The People ex rel. Minn v. The Assessors of

ing that no jurisdiction, in fact, existed in
Covert, 458.

the County Judge. --Id.
8. So long as assessors try diligently to dis. 3. Some of the petitioners, without whom the

charge their duties they should not be signers would constitute less than the ma-
visited with costs for mere error of judg. jority of the tax-payers, attached to their

signatures a condition that the road should

run through a certain town, which would
9. A telegraph company owning a line partly change the route from that desired by the

within and partly beyond the limits of this other petitioners. Held. That the desire
State, and partly in the City of New York, expressed was not within the purview of
is subject to taxation in that city on its the act; that the County Judge acquired
capital stock to the amount of the actual no jurisdiction of the proceedings and
cost of its works within that city, and for could not, of his own motion, dispense with
such personal property or real estate as it the performance of a condition precedent
may own therein; but if its officers fail to to the exercise of the authority conferred
furnish to the Tax Commissioners a state. by said act.-Id.
ment of the cost of its works, etc., as re-
quired by statute, the Commissioners have

the riglit to assess the property of the com-

1. After relator recovered a judgment against
pany according to the best information they
can procure, and if the corporation has

the town of Kingston the town was di.
failed to apply for the correction of such

vided. A mandamus requiring defendant
assessment within the time provided by law

to levy the amount of the judgment on the

several towns into which Kingston was
for that purpose the Court will not there-
after correct such assessment on certiorari.

divided was reversed by the General Term.
- The People ex rel. The Mutual Union Tel.

Held, No error; that relator has a plain
Co. v. Comrs. of Taces, 524.

remedy by mandamus to compel a meeting
of the officers of the towns and a discharge

by them of the duties devolved upon them
See Costs, 8, 9.

by the Revised Statutes.- The People ex rel.
McKenzie v. T'he Board of Supervisors of

Ulster Co., 220.


2. Chap. 554, Laws of 1880, applies

the collection of judgments against towns

which have not been divided or altered. -




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