to compel the defendant to appear and be examined before the trial, the existence of a cause of action is not established by allegations in the affidavit, stating simply that the "action is brought to recover damages for certain breaches, on the part of defendant, of a contract in writing." (Hale agt. Rogers, 22 Hun, 19.)

13. Although the affidavit may be made by the attorney, the materiality of the testimony of the witness must be alleged, upon his own knowledge; or, if it be made upon information, the source thereof must be given. (Id.)

EXCEPTIONS.

4. Where, therefore, it is alleged that a verdict is perverse, excessive in amount, and contrary to the law and the evidence, the judgment entered thereon cannot be reviewed here without an exception. (Id.)

5.

This rule has not been changed by the provision of the Code of Civil Procedure (sec. 999), in reference to the granting of a new trial by the judge presiding at the trial. (la.)

6. For such errors, it seems, the general term has power to grant a new trial in its discretion, although no exceptious were taken on the trial. (Id.,

7. A writ of error in a criminal case brings up for review only questions of law raised by exceptions properly taken upon trial. (Eighmy agt. People, 79 N. Y., 546.)

2. It is not essential, in an exception to a portion of a charge, to repeat the language excepted to, although this is strictly the more accurate practice; it is sufficient if the portion objected to is pointed out with such accuracy that there can be no misapprehension as to the application of the exception. (People ex rel. Dailey agt. Livingston, 79 N. Y., 280.)

3. This court can only review judgments and grant new trials for errors of law; and such errors must be pointed out by exceptions taken at a proper time. (Standard Oil Co. agt. Amazon Ins. Co., 79 N. Y., 506.)

No exception lies to a refusal to postpone a criminal trial by reason of the absence of witnesses. (Id.)

Under the provision of the Code of Procedure, in reference to making a case for the purposes of review, in an action tried by the court or a referee (sec. 268), the ten days allowed for that purpose did not begin to run until the entry of judgment, and notice thereof; the alternative stated therein, within such time as may be prescribed by the rules of the court," meant such further time as might be prescribed. (French agt. Powoers, 80 N. Y., 146.)

66 or

10. A service, therefore, of a copy of

a referee's report, and notice of filing, did not operate to limit the time to serve a case or exceptions. (Id.)

11. The practice, in this respect,

was not changed by the provision of the Code of Civil Procedure (sec. 994), providing that exceptions, taken after trial, may be

*

*

taken at any time before the expiration of ten days after service *of a copy of the decision of the court, or report of the referee, and a written notice of the entry of judgment thereupon." (Id.)

12. While, under this provision, exceptions may be taken at any time after trial they are not required to be taken until ten days after notice of judgment; and although no pro vision is made as to time for serving the case, as the case is required to contain the exceptions (Code of Civil Procedure, sec. 997), it need not, and cannot be served until after the exceptions are framed; and the party cannot be put in default for not serving a case containing them, before the expiration of the time allowed for framing them. (Id.)

13. The exceptions referred to in said provision are not simply those taken on the trlal. (Id.)

14. The attention of the court must be called to the precise point intended by an exception, otherwise it will not avail. (Schile agt. Brokhahus, 80 N. Y., 615.)

EXECUTION.

1. In an action to recover damages for a conversion of personal property, the costs exceeded the ver dict recovered by the plaintiff, and a judgment for such excess was entered in favor of the defendant:

Held, that as the judgment was recovered in an action for a tort, the plaintiff could be imprisoned under an execution against his person, issued thereon. (Phil brook agt. Kellogg, 21 Hun, 238.)

inserted should be granted as a matter of course-a return made by a sheriff in pursuance of an order, from which an appeal has been taken, should be canceled if the order be reversed on the appeal. (Benedict Manufacturing Co. agt. Thayer, 21 Hun, 614.)

3. After certain property of one Paine had been levied upon under an execution, issued upon a judgment recovered against him by one Bagley, and advertised for sale, a question arose as to whether an engine, boiler, and certain machinery so levied upon, were real or personal property. Thereupon it was agreed by and between Bagley, Paine and the sheriff, that the same should be, and the same were treated and sold as personal property; the judgment creditor buying the same, and also the real estate, relying upon the said agreement. Thereafter, and before the expiration of the time to redeem the real estate so sold, the plaintiff, who had recovered a judgment against Paine after the said sale, redeemed the said real estate from the same, and took a deed thereof from the sheriff. The said boiler and machinery were conveyed to the defendant by a purchaser from Bagley, to whom the same had been voluntarily surrendered by Paine before the recovery of the second judgment. In an action by the plaintiff to recover the said articles, on the ground that they formed part of the realty, held, that Bagley having purchased the same in reliance upon the said agreement, Paine was estopped, as against him, from claiming that they were part of the realty. (Bennett agt. Bagley, 22 Hun, 408.)

4. That the plaintiff, by redeeming under his subsequently recovered judgment, acquired no greater rights than his debtor had. (Id.) The plaintiff claimed that the sale of the personal property was

void, because it had been sold in bulk, instead of in parcels:

Held, that he could not in this action question the regularity of the sale on that ground. (Id.)

6. The plaintiff, having been arrested by virtue of an execution against his person, issued upon a judgment for costs recovered by the defendant herein, moved for and obtained, at special term, an order setting the execution aside unconditionally, which order was, upon appeal, reversed by the general term, but affirmed by the court of appeals. After the granting of the order by the special term, the plaintiff commenced, and is still prosecuting, an action against the defendant for false imprisonment. After the affirmance of the order of the special term by the court of appeals, the defendant moved to have it so modified as to make the relief thereby granted conditional upon the plaintiff stipulating not to bring an action for false imprisonment, or to continue the action already brought therefor:

Held, that the motion was properly denied. (Catlin agt. Adiron dack Co., 22 Hun, 493.)

7. Notwithstanding a levy under an execution upon his personal property, the judgment debtor remains owner; and can convey title, subject to the lien created by the execution. (Mumpher agt. Rushmore, 79 N. Y., 19.)

8. An assignee for the benefit of creditors, of the debtor, acquires a title subject to such lien, good against all persons until the assignment is impeached for fraud. (Id.)

9. Plaintiffs entered into a contract with S. & G., by which the former agreed to malt for the latter 25,000 bushels of barley from October 1, 1875, to June 1, 1876, at a price specified. Plaintiffs were to purchase the barley and ship the

malt when directed by S. & G., who were to have the increase.

S. & G. agreed to accept plaintiffs' drafts in payment for the purchase of the barley," or to furnish satisfactory notes. At the close of each month plaintiffs were to fur

nish a statement of the amount malted, and on presentation S. & G. agreed to pay the price for malting. S. & G. also agreed to pay interest, exchange and insurance on the barley and malt from the time the barley was paid for by plaintiffs until the malt was delivered. Plaintiffs were authorized to retain and hold as security, after June first, a sufficient amount of the malt to pay any notes or drafts then unpaid. In an action for malt manufactured under the contract, but not delivered or paid for, which had been levied upon by defendant, as sheriff, under and by virtue of an execution against S. & G.:

Held, that the legal title in the malt was in the plaintiffs until paid for, and that S. & G. had no leviable interest therein. (Tuthill agt. Bogart, 79 N. Y., 215.)

EXECUTOR AND ADMINISTRATOR.

1. An action can be maintained by a creditor against an administrator to recover the amount of bonds of the intestate, the payment of which are secured by mortgages executed by him upon real estate, and the fact that the creditor is the owner and holder of mortgages upon lands situated in the state of New Jersey, given as collateral security to the bonds, is no defense to the suit. The provisions of 1 Revised Statutes, 749, section 4, is no bar to such action. (Thompson agt. Sullivan, ante, 71.)

2. An executor must exercise due diligence in the making of loans to protect himself from personal liability for losses. (Savage agt. Gould et al., ante, 217.)

3. The taking second mortgages and reliance upon the judgment of others not such diligence. (ld.)

4. When mortgages so improperly taken are foreclosed and bought in by him for the estate, executor is liable for costs, taxes, &c. (Id.)

5. Commissions allowed to a trustee out of trust funds by mortgagees, or to his attorney, when the trustee is to share therein, remain the funds of the estate and are to be accounted for as such. (Id.)

6. That some service was rendered by the attorney will not alter this rule when the amount is manifestly excessive, as compensation and the burden is upon the executor to establish such value. (Id.)

7. Delegation to others the exercise due from a trustee of his judg ment is evidence of incompetency. (Savage agt. Gould et al., ante, 234.)

8. So is the investing of trust funds on second mortgages and conversion of good securities for reinvestment. (Id.)

9. Surrogates finding that the taking of commissions on loans made by a trustee or by his partner for him, is evidence of dishonesty warranting a removal, approved. (Id.)

10. Emerson agt. Bowers (4 N. Y., 449) distinguished. (Id.)

11. Surrogate may remove testamentary trustees (Contra: Blake agt. Sands, 3 Redf., 168). (Id.)

12. Chapter 79, Laws 1873, giving surrogates power to remove executors for dishonesty construed, with chapter 482 of 1871, as giving similar jurisdiction over testamentary trustees. (Id.)

13. The plaintiff of surviving executor of George J. Price, sues defendant individually, and as

sole acting executor of his father (who with plaintiff was co-executor of said Price), for an accounting and damages and other relief, alleging that defendant's testator, who, as such co-executor, took the exclusive control and management of Price's estate, committed various wrongful acts, set forth, in relation thereto, imperiling it; charging misconduct in relation to said estate on the part of defendant since the death of his father, the books and vouchers in relation to said estate having then come into his possession; and setting up that the widow and children of plaintiff's testator, to whom said testator devised the income of his estate during his children's minority, the principal to be then paid to them, are still living and of full age:

Held, overruling demurrer to the complaint, that an executor not only has the right to call his co-executor to account in a suit in equity, but a foreign executor may be held amenable to like authority to prevent either a complete or partial failure of justice, and to maintain and enforce a trust; defendant being accountable for his testator's misconduct to the extent of the latter's assets in his hands. (Price agt. Brown, ante, 511.)

14. The complaint states a sufficient cause of action under section 484 of the Code. (Id.)

15. The case not being one for a final accounting, the widow and devisees of Price are not necessary parties, and if necessary they may be brought in. (Id.)

16. As the causes of action stated in the complaint all arise out of one transaction- the alleged breach of trust of defendant's testator — they have not been improperly united. (Id.)

See STREET OPENINGS.

Matter of Opening Sixty-seventh
Street, ante, 264.

See COSTS.
Murphy agt. Travers, ante, 301.

17. An administrator may avail himself of the defense of the statute of limitations upon the hearing of a disputed claim before a referee, without having pleaded it. (Converse agt. Miner, 21 Hun, 367.)

18. The rendering of an account to a surrogate by an executor or administrator, and the settlement of the account after it has been rendered, are separate and distinct proceedings. (Remington agt. Walker, 21 Hun, 322.)

See SHERIFF.

FEES.

Little et al. agt. Coyle et al., ante, 76.

1. Under section 96 of chapter 335 of 1873-providing that no officer of the city of New York should have or receive to his own use any fees, perquisites or commissions, or any percentages, but that every such officer should be paid a fixed salary, and that all the fees, percentages and commissions received by him should be the property of the city—it is no defense to an action brought to compel one of the city officers to account for the fees received by him, that no salary has ever been fixed or attached to his office. (Mayor, &c., agt. Kent, 21 Hun, 483.)

FINDINGS OF LAW AND FACT.

1. In a case tried by the court, a finding of fact, without evidence to support it, if excepted to, presents a question of law subject to review in this court. (Sickles agt. Flanagan, 79 N. Y., 224.)

2. To reverse the conclusions of law of a referee, it must appear from the facts found that they are erro

3.

To sustain an exception to the refusal of a referee to find facts as requested, it is incumbent upon the party to show that the material facts so requested to be found were established by uncontroverted evidence, and that if found they would have affected the result. (Stewart agt. Morss, 79 N. Y., 629.)

4. No question can be raised in this court upon a matter of fact, in a case tried by a referee, as to which no facts were found by the referee, or requested to be found. (Id.)

FORCIBLE ENTRY AND DETAINER.

1. In proceedings for forcible entry and detainer under title 2 of chapter 17 of the Code of Civil Procedure, the main question for determination is whether the party charged entered by force upon one, having previously a peaceable possession, under claim of right, and whether the person whose possession was invaded has been held out by force. (Kelly agt. Sheehy et al., ante, 439.)

2. These provisions do not cast upon the magistrate the burden of examining and determining conflicting titles to real estate. (Id.)

FOREIGN CORPORATION.

1. Where plaintiffs, residents of this state, have a cause of action against defendants, a foreign corporation, arising upon the sale and delivery of personal property made by their brokers, a service upon the president of such corporation while passing through this state was sufficient to commence a suit, although his presence here had no relation whatever to the corporation or to his official