NEW YORK CITY AND COUNTY. 1 The Supervisors of the County of New York in auditing a bill for services are not necessarily called upon to pass upon the question whether such services are skilfully and carefully rendered, and consequently the County is not precluded from showing as a defence to an audited bill that they were damaged by unskilful performance of the services covered by such bill. Kellum, exrx., v. The Mayor, &c., of N. Y.
15 Adding to a note, after indorsement, the words" At S. B. Gavitt's Bank, Lyons, N. Y.," without his knowledge or consent, does not release the indorser. Shuler v. Gillett. 302 16 The defendant paid upon his note, with plaintiff's assent, interest not yet due. No writing was signed by either party then or ever. Held, That the time of payment of the 2 The Act of 1871, Chap. 583, conferring on note was not extended to the time up to the Board of Apportionment the right to fix which the interest had been paid. McDonnell the salaries of city officials and employees, v. Blanchard. 410 does not give them the power to reduce the salary of the Fire Marshal, as a subsequent Act, Laws of 1871, p. 1278. §5, specially provides that the salary of Fire Marshal, Assistant Fire Marshal and Chief and Assistant Clerks shall be regulated by the Board of Police. McSpedon v. The Mayor, &c., of N. Y. 18
17 Such a transaction, if it extends the time of payment, is a new promise, and should be in writing, under § 110 of the Code of Pro- cedure. Id.
18 The mere fact that a note given for a gam- bling debt is made payable to the order of a third person, who indorses it for the accom- modation of the real owners, by whom it is used to pay a note of their own, also indorsed by the same person, does not make the note a valid one. It is void under 1 R. S., 663, § 16. Anthony et al. v. Layng. 448
19 When one loans his note, that another may raise money upon it, he is not damnified until he has paid the note or been sued upon it; and until then he has no action against the borrower. Loomis v. Mowry et al. 456
20 An instrument in the form of a draft, which provides that the payment thereof shall be charged to apply on a certain contract between the drawer and drawee, is a bill of exchange; the direction as to the application of the payment does not make the draft payable out of the moneys due and to become due under the contract, but is a simple direction to the drawee how to reimburse himself. Hollister v. Hopkins. 563 21 An accommodation indorser, as between himself and a bona fide holder, where his liability has become fixed, becomes the principal debtor, and if he desires the benefit of any security held by the creditor, he must
3 The head of a department in the City of New York may, after consenting to the substi- tution of sureties in place of these originally proposed, by one secking to obtain a contract on a public letting, if he becomes satisfied that such substitution would be unwise, at any time before such sureties are approved by the Comptroller, withdraw his consent. The People ex rel. Mc Kone v. Green et al. 4 The Common Council of the City of New York, unless specially authorized by the char- ter, or by authority contained in or implied from legal enactment, cannot incur expense against the City, except for necessaries to per- form their official functions. Silcocks et al. v. The Mayor, &c., of N. Y.
manding the Auditor to examine and allow it, the Auditor has no right to reduce the claim, and his action in so doing will not estop either the claimant or the receiver from claiming the entire amount. Lanigan et al. v. The Mayor, &c., of N. Y. 130
7 The Supreme Court may review upon the whole evidence, by the writ of certiorari, the conviction and removal of a regular clerk in the Fire Department by the Board of Fire Commissioners of the City of New York. The People ex rel. Munday v. The Board of Fire Commissioners. 486 8 Section 28 of Chap. 335, Laws of 1873, re- quires some substantial cause shall exist for the removal of a regular clerk in the Fire De- partment by the Board of Fire Commissioners of the City of New York.
9 Where a party contracting with the Board of Education gives to a third party a draft on the Board for a part of the money due him under the contract, the Board discharges its duty to said third party by preparing a proper voucher, and sending the same with the draft to the Comptroller. Dannatt v. The Board of Education, &c. 499
10 Section 1 of Chap. 383, Laws of 1870, con- ferring liberal powers upon Commissioner of Public Works, relates only to the appropria- tions made by that Act. Guidet v. The Mayor, &c., of N. Y.
11 The determination of the Board of Audit is conclusive upon a claim voluntarily submitted, while such determination remains unreversed.
1 A receiver, appointed in proceedings supple- mentary to execution, cannot bring an action
See ASSESSMENTS, 1, 6, 9; EVIDENCE, 14; for the partition of real estate in which the SALARY; SURETYSHIP, 6. judgment debtor has an interest. Dubois, recr., v. Cassidy. 210
N. Y. MARINE COURT.
1 The Marine Court may issue an attachment at the commencement of the action, or any time before final judgment, against a non- resident of New York County. People ex rel. Garvey v. Justices of the Marine Court. 35 2 Under Chap. 582, Laws of 1870, the reap- pointment of a former attendant of the Ma- rine Court and the raising of his salary were authorized, although Chap. 382, Laws of 1870, prohibited the Board of Supervisors from in- creasing the salaries of those then in office or their successors. Wines v. The Mayor, &c., o, N. Y.
1 An action to have an assignment set aside as fraudulent against creditors is one to re- cover money upon an implied contract, and one in which, under § 1 of the non-imprison- ment act, the defendant could not be arrested, and hence is a proper case for a warrant of arrest under § 6 of the same act upon a proper case presented to the Court. Section 262 of the Code of Procedure, prohibiting the use of the testimony of the person examined in a
2 The mere possession of the original letters patent by the patentee. after they have been surrendered for a reissue and the patent has been declared void, is not a return of the orig- inal patent. Peck v. Collins. 246
As to patent right notes, see CONSTITU- TIONAL LAW, 7.
7 Where a prior award made upon the same subject is set up as a defence to an action for an accounting between partners, and the re- feree has given defendant the benefit and ad- vantage of such award, the defendant cannot, on appeal, gainsay the action of the referee in adopting it as the basis of his determination of defendant's rights. Flannagan v. Madden. 176 8 Where such prior award directed defendant to make collections and pay off debts, sell stock on hand, &c., to close the business, and defendant has been guilty of wilful delays in disposing of the property, and finally sold it to his son at an inadequate price, such acts ope- rate as a fraud upon his partner's rights, and he may be charged with its full value at the 2 The question whether an established state Id. of facts is sufficient to rebut presumption of payment by lapse of time, is for the Court. Beale's ex'rs v. Kirk.
time it should have been sold.
9 In actions for dissolutions of copartnerships, unless some special circumstance be shown as against it, the appointment of a receiver is proper. Llorens v. Costa. 484
10 Where articles of agreement of copartner- ship called for an accounting every six months, and provided for the withdrawal of any dis satisfied member of the same, in case such accounting should exhibit any discrepancy, on thirty days' notice, an actual accounting, had five months and eleven days after formation of the partnership, is within the provision of the articles. ld.
11 A threat by a partner to close the firm's store, unless $6,000 be advanced by the other partners, is good ground for dissolution. Id.
12 Dictum, That a partner has no authority to sell all the partnership effects at once, without the assent of his copartner. McKoon v. Geils et al.
1 Payment of money under protest to obtain property cannot be regarded as voluntary, and is sufficient to sustain an action where the exe- cution is illegal. Baldwin v. The Liverpool & Gt. W. Steam Co.
3 An admission by defendant of payment to an unauthorized person is not sufficient to re- but such presumption, but in the absence of a demand it will be presumed that plaintiff re- ceived the money through such person. Id.
Where payments have been made upon an illegal contract which remains unexecuted, and the parties are in pari delicto, a recovery may be had as for money had and received. Knowlton v. The Congress & Empire Spg. Co. 418
5 That the payment was made by crediting a dividend as such payment does not alter the Id.
See ASSESSMENTS, 4, 5, 6; CONTRACTS, 39; MORTGAGE, 1, 17, 20, 23.
1 An action to recover a penalty cannot be maintained where no penalty has been ex- pressly created and imposed. A penalty can- not be raised by implication. Health Dept. of N. Y. v. Knoll. 248
1 It is error to instruct a jury to judge from the appearance and manner of a person six
months subsequent to the commission of a crime, whether at the time of such commis- sion he was so far suffering under the influence of delirium tremens as to be irresponsible for his acts; and where it cannot be said that no injury was done to the prisoner by the errone- ous charge of a judge, a new trial will be granted. Bowden v. The People. 289
PERPETUATION OF TESTIMONY.
1 The testimony of a party to an action can- not be taken conditionally before trial, al- though he is sick and may never recover. Montague v. Worstell. 180
PERSONAL PROPERTY.
1 The law raises no presumption as to the character of the occupation of one cultivating the farm of another with the beasts and im- plements of the owner, or as to the right of either to the growing crops and products of the farm, but leaves it a question of fact to be determined by the jury. Rawley v. Brown.
2 The fact of such possession by the occupant is merely presumptive evidence of ownership of the crops, liable to be overcome by evi- dence showing the character of the possession. Id.
1 Where an answer contains a denial of know- ledge or information sufficient to form a be- lief as to the truth of the facts set forth in the complaint, the words " except as to the mat- ters therein stated to be alleged on informa- tion and belief," need not be used in the vefi- fication. Boughen v. Nolan. 100
2 There are no particular words prescribed, by the Code to be used in a verification. Id.
3 In alleging an agreement required by law to be in writing, it is sufficient in the pleading to allege that an agreement was made, without specifically alleging that it was in writing. The N. Y. State L. & T. Co. v. Helmer et al.
&c.," as provided by § 526, such words are mere surplusage, and do not impair its force. ld.
8 Unless the allegations are stated in the plead- ing to be on information and belief, they are to be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. Id.
9 An answer more than two folios in length, not folioed, is good unless returned within twenty-four hours after its service. De Witt v. Simons. 307
10 A judgment as for want of an answer, en- tered after service of such answer and before its return, is irregular. Id
11 An allegation in an answer that defendant has no knowledge or information of the exist- ence of the Corporation and therefore denies the same, is insufficient, under the statute, to bring that question in issue. City Bank of Rochester v. Drake. 477
12 A defence will not be stricken out as frivolous where argument is needed to show its frivo- lousness. $545 of the Code of Civil Procedure is not intended for cases where a demurrer would be the proper remedy; it is intended to afford relief against matters palpably irrele- vant, redundant or scandalous. Robbins v. Palmer.
See BAILMENT; BILLS OF LADING, 2.
POLICE COURT OF TROY.
1 The Police Court of Troy has jurisdiction of offences of the grade of misdemeanors to the same extent as Courts of Special Sessions in towns, and no further. The People v. Elliot. 382
POSTHUMOUS CHILDREN. See WILLS, 32. POUNDAGE.
See SHERIFFg, 5.
7 Where the verification to such a pleading 1 The construction of the abbreviation "etc." contains the words "except as to the matters, in this case was a question of law for the
4 The Court is not bound to charge a proposition of law based on a state of facts which there is no evidence in the case to support. Id. 5 Where, in an action against a married woman for goods sold, the complaint demands that her separate estate be applied to the payment of the judgment, and that a receiver of such estate be appointed, the action is not thereby changed to an equitable one so as to deprive her of her right to a trial by jury. Litchfield v. Dezendorf. 68 6 A general objection to evidence is not available as ground of error on appeal. Cushman v. The U. S. Life Ins. Co. 86
7 Where, in an action for an accounting of sales, in which the complaint claims that defendants had made fraudulent statements of their sales to plaintiff's damage, the complaint is dismissed on the ground that such statements were correct, it is error for the General
Term to base its affirmance of the judgment solely upon the ground that the complaint stated an equitable cause of action and the cause of action proved was a legal one. Williams v. Slote et al.
8 The filing of a paper in violation of an order of the Court is, in legal contemplation, no filing. Marshall et al v. Macy et al.
19 When an improper rule has been stated and a motion is made for a new trial, on the ground that the damages given are clearly unauthorized, the General Term may require that the amount be reduced, or grant a new trial, although there be doubt as to whether an exception was taken. De Lavalette v. Wendt. 236
9 Where the evidence is sufficient to sustain the findings of a referee, it is error in the Court to refuse to confirm the report and to order judgment thereon. Knox v. White et al. 20 An order for the examination of an adverse 111 party before trial must be served upon the 10 The better practice in actions at law, in party and his attorney; service upon the atcase of a defective general denial contained in torney alone will not authorize the Court to compel the party's attendance by attachment an answer, is by motion to strike ont such an or to punish him for his non-attendance. Rid answer as not allowed by the Code, or by modle v. Cram. 277 tion to make same more definite and certain, instead of by motion for judgment on the answer as frivolous. Chamberlin v. The Am.
21 Laches alone is sufficient ground for denying an application to set up a defence by way of supplemental answer. McDonald et al. v. 290
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