motion papers, but before the hearing, has been abolished by the Code of Civil Procedure, (Watt agt. Healy, 22 Hun, 491.)

172. 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.)

173. The defendant also moved to have the costs awarded to the plaintiff by the special term and court of appeals, set off against the costs awarded to it, and inIcluded in the final judgment, in the action in which the execution had issued:

Held, that the motion should have been granted, particularly as the plaintiff was shown to be insolvent. (Id.)

174. A sale of real estate, under a decree of foreclosure, will not be set aside because the notice of sale was not published in all the editions of the paper issued on the days on which the notice was published. (Everson agt. Johnson, 22 Hun, 115.)

175. Under section 292 of the Code

177.

Upon the dismissal of an appeal from a county court to the supreme court, the costs must be adjusted by the clerk, upon notice, in the usual way, and they cannot be taxed by a judge of the court, under section 311 of the Code. (Andrews agt. Long, 22 Hun, 24.)

178. Where, upon an appeal to the

court of appeals from an order granting a new trial, the court affirms the order, and renders a judgment absolute in favor of the respondents, in pursuance of section 194 of the Code of Civil Procedure, the sureties upon the undertaking, given by the appellants, are liable for all the costs in the action, and not simply for those incurred by the appeal to the court of appeals. (Burdett agt. Lowe, 22 Hun, 588.)

179. When the court of appeals reverses a judgment in favor of the plaintiff, and orders a new trial, with costs to abide the event, and on the second trial, the plaintiff again recovers a judgment, ho cannot tax, in his favor, the costs

of the reversal by the court of appeals. (First Nat. Bank agt. Fourth Nat. Bank, 22 Hun, 563.)

180. One who, in an action brought to forclose a mortgage, has recovered a judgment for a deficiency arising on the sale, against the executor of the deceased mortgagor, cannot maintain an action to secure and apply to the payment thereof surplus moneys arising on the foreclosure of another mortgage, given by the same mortgagor upon different property, without alleging his inability to collect the judgment out of the personal estate of the deceased. (Fliess agt. Buckley, 22 Hun, 552.)

181. Section 568 of the Code of Civil Procedure, authorizing a motion to vacate an order of arrest, founded upon proof by affidavit on the part of the defendant, to be made "to the court, or if the order was granted by a judge out of court, to any judge of the court upon notice," is not in conflict with nor does it abrogate the provisions of section 769 of the said Code, which requires all motions, upon notice, in an action in the supreme court, to be made within the judicial district in which the action is triable, or in a county adjoining it, except that when it is triable in the first judicial district, the motion must be made therein. (Sutton agt. Sabey, 22 Hun, 557.)

182. Surplus moneys arising upon a sale had under a decree entered in an action brought to foreclose a mortgage, after the death of the mortgagor and owner of the premises, are to be regarded as realty, and an action brought by one claiming to have a lien thereon, to have the same established and the moneys divided among those entitled to receive them, must, under section 982 of the Code of Civil Procedure, be brought in the county in which the premises were situated and!

the surplus moneys deposited. (Fliess agt. Buckley, 22 Hun, 551.)

183. Where a railroad company wrongfully refuses to receive and transport goods, tendered to it by one who offers to comply with the terms established by it in ref erence thereto, the remedy of the party aggrieved is by an action at law to recover the damages sustained thereby, and as the remedy afforded to him by such action is an appropriate and adequate one, a mandamus compelling the company to receive and transport such goods, will not be granted. (People ex rel. Ohlen agt. N. Y., L. E. & W. R. R. Co., 22 Hun, 533.)

184. In an action at law against a common carrier for a wrongful refusal to receive and transport property, the party aggrieved is entitled to recover as damages, the difference between the value of the property at the place where it was tendered to the company, and its value at the place to which it was to be taken, less the expenses of transportation. (Id.)

185. On hearing of an unsuccessful application to dissolve a temporary injunction granted in this action, the defendants' counsel confined his objections to alleged defects in the plaintiff's papers, and did not use affidavits relating to the merits of the action, which he had previously prepared. Upon the trial of the action the complaint was dismissed.

Upon a reference ordered to ascertain the damages sustained by reason of the injunction, held, that the sureties to the undertaking were not liable for the costs and expenses of the unsuccessful application to dissolve the injunction. (Langdon agt. Gray, 22 Hun, 511.)

186 Where, after the return unsat

isfied of an execution, issued upon a judgment recovered against a

corporation, the judgment creditor commences an action against it in equity for the appointment of a receiver, and procures therein a final judgment appointing a receiver, such receiver may, under chapter 403 of 1860, commence separate actions against each of the stockholders thereof to recover any sum remaining due upon his shares of stock, and he is not bound to bring one action and make all the creditors and stockholders parties thereto. (Van Wagenen agt. Clark, 22 Hun, 497.)

187. Upon the return of an order requiring the relator to show cause why he should not be attached for a criminal contempt, in forcibly and willfully resisting the lawful order and process of the court, such proceedings were had that the court adjudged him to have been guilty of the said contempt and ordered that he be imprisoned in the county jail for thirty days and pay a fine of $250:

Held, that for the purpose of reviewing these proceedings upon a certiorari, they must be deemed to have been terminated by the entry of the final order, convicting the relator of the contempt, and sentencing him to pay the fine and be imprisoned, and that it was error to quash the writ on the ground that the proceedings were not terminated because no warrant of commitment had yet been issued. (People ex rel. Gilmore agt. Dona hue, 22 Hun, 470.)

188. Under general rule No. 30, the testimony taken before a referee must be filed with his report, and until this is done the filing is incomplete, and the time within which exceptions to the report must be filed and served does not begin to run. (Pope agt. Perault, 22 Hun, 468.)

189. Although a stenographer is not obliged to part with his notes until his bill has been paid, yet, if he do deliver them to the referec

to be examined by him and used as the basis of his report, he cannot limit the effect of such delivery, and it is the duty of the referee to file them with his report, even though the fees of the stenographer remain unpaid. (Id.)

190. In an action by one of several residuary legatees to recover his share of the estate, a demurrer interposed by the executor, the sole defendant, on the ground that the other residuary legatee should be made parties thereto, cannot be adjudged frivolous. (Leavy agt. Leary, 22 Hun, 499.)

191. In an action to rescind a sale on the ground of fraud, it is sufficient to produce upon the trial and offer to surrender the notes given for the goods purchased; no tender of them need be made before the commencement of the action. (Naugatuck Cutlery Co. agt. Babcock, 22 Hun, 481.)

192. An attachment which has become invalid by reason of the failure of the plaintiff to serve the summons, either personally or by publication, within thirty days from the time it was issued, is not revived and rendered valid by the subsequent appearance of the defendant in the action. (Blossom agt. Estes, 22 Hun, 472.)

193. A decision overruling a demurrer interposed to an indictment, and directing that judgment be given for the People, unless the accused plead over, cannot be reviewed upon a certiorari, before a judgment has been entered on the decision. The court cannot review the decision before entry of judgment, even though the counsel for both of the parties agree that it may so review it. (People agt. Beman, 22 Hun, 283.)

194. In the absence of any motion or act, on the part of a defendant, upon the trial of an action from

which an assent to a decision of the case by the court and a waiver of the right to go to the jury may be implied, an exception to a direction of a verdict for plaintiff is sufficient to present the point on appeal that there were questions of fact for the jury; it is not necessary to request the submission of any such fact. (First Nat. Bk. of Springfield agt. Dana, 79 N. Y., 108.)

195. Where a defendant does not accept an allegation of fact in the complaint, but gives evidence upon the trial in conflict with it, plaintiff is not precluded on appeal from claiming the fact to be as the evidence establishes it (Cowing agt. Altman, 79 N. Y., 167.)

198. Where an objection to evidence has once been made and overruled, it is not required to repeat the objection, where subsequent questions call for the same class of evidence relating to the same subject-matter. (Church agt. How

ard, 79 N. Y., 415.)

199. The defendant, in an action in a court of record, is not bound to avail himself by way of counterclaim, of an independent cause of action, existing in his favor against plaintiff. The rule in this respect was not changed by the Code. (Brown agt. Gallaudet, 80 N. Y., 413.)

200. 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., 614.)

cluded thereby from showing the actual transaction, the question cannot be raised upon appeal. (Id)

197. The complaint in an action upon a contract made by commissioners of highways set forth the contract, in which defendants were described as commissioners, and that they signed it as such; they were not described in the summons and complaint as commissioners, and judgment was asked against them personally:

Held, that plaintiff was properly non-suited, because defendants were not sued officially as commissioners; that under the statute providing for actions upon such contracts (2 R. S., 473, sec. 92), it was necessary to specify "in the process, pleadings and proceedings their name of office;" that the statutory requirement was not merely formal, but matter of substance, to the end that the amount collected might be allowed in the official account of the commissioners (2 R. S., 476, sec. 108); also as it affected the place of trial. (Boots agt. Washburn, 79 N. Y., 207.)

1.

general term affirming a judgment is premature and unauthorized; judgment should first be entered and the appeal taken from the judgment. (Kilmer agt. Bradley, 80 N. Y., 630.)

PRINCIPAL AND AGENT.

An agent authorized to receive payment of interest accruing on a mortgage and to collect the principal, and who received a portion of the principal before it was due, is not authorized to extend the payment of the mortgage debt after it became due. (Ritch agt. Smith et al., ante, 18.)

2. To uphold the granting of such extension the agent should have been specially authorized thereto, or it should appear that the act was embraced within the powers allowed to be performed, or was ratified. (Id.)

of his agency, such presumption does not extend to acts clearly not within the agency. (Id.)

4. The payment of a part of a mortgage debt after due, in itself affords no adequate consideration for an agreement made by an agent to extend the payment of the residue of the principal, or to discharge a surety. (Id.)

5. An agent authorized to receive payment of interest accruing on a mortgage and to collect the principal, and who received a portion of the principal before it was due, is not authorized to extend the payment of the mortgage debt after it became due. (Ritch agt. Smith et al., ante, 157)

6. To uphold the granting of such extension the agent should have been specially authorized thereto, or it should appear that the act was embraced within the powers allowed to be performed or was ratified. (Id.)

7. Where the plaintiff and agent were father and son residing in different states, the latter in the same city with those who were to make payments:

Held, that although this relationship might imply greater confidence in management and an easier disposition to ratify unauthorized acts, it does not imply an express prior authority to do unusual and undesirable acts. (Id.)

8. While a principal is presumed to have notice of the acts performed by his agent in the usual course of his agency, such presumption does not extend to acts clearly not within the agency (Affirming Same Case, ante, 13). (Id.)

one for $500, owned by one Crosby, entered into negotiations with the defendant Wright for the sale of the lot to him, subject to the Root mortgage, upon the agreement that he should pay the Crosby mortgage. While the negotiations were pending, Foster, Crosby and Root each called upon one Howe, an attorney, and requested him to draw such papers as might be necessary to carry out the agreement between them, which he did. Thereafter Foster conveyed the lot to Wright by a deed, containing a clause by which the latter assumed the payment of the Root mortgage. Wright also agreed to and did thereafter pay and discharge the Crosby mortgage.

In an action to foreclose the Root mortgage, and hold Wright liable for any deficiency that might arise on a sale, he claimed that the deed, though absolute on its face, was intended as a mortgage, and that he was not liable, upon the covenant, for the assumption of the Root mortgage contained therein:

Held, that the relation of attorney and client did not exist between Wright and Howe, so as to render the testimony of the latter, as to the declarations and acts of the parties relating to the agreements entered into between them, inadmissible, under section 835 of the Code of Civil Procedure. (Root agt. Wright, 21 Hun, 344.)

RAILROADS.

1. The holder of a limited ticket, bearing an agreement upon its face that it was good only between the date of its purchase and the end of the day designated by the punch mark on its margin, is not entitled to use such ticket after the expiration of such date, if it be the fault of the passenger that the ticket has expired before he has arrived at his destination. (Auerbach agt. New York Central