action.

Emerson agt. Spicer.

(Lawrence agt. Miller, 2 N. Y., 245; Ritchie et al. agt. Putnam, 13 Wend., 524; Siglar agt. Van Riper,

10, Wend., 414.)

IV. It is submitted that the defendant had no interest in the premises at the time this action was commenced, and no right to the possession, or to retain possession thereof, and that judgment was rightfully ordered for the plain

tiff.

Decision and opinion of MULLIN J.

The plaintiffs are entitled to judgment. The mother was guardian in socage, and as such had power to lease the lands of her wards until they became 14 years of age, or another guardian was duly appointed. (3 R. S. 5 ed., p. 2 §§ 5, 6, 7.)

the appointment of another guardian, her power to lease, and all leases made by her, of the ward's lands ceased. (Sylvester agt. Rolston, 31 Barb., 286; 2 Kent's Com., and note f; Roe agt. Hodgson, 2 Wil., 129, 135; Field agt. Schieffelin, 7 J. C. R., 150; Holmes agt. Seely, 17, Wend., 75; Putagt. Ritchie, 6 Paige, 399; Byrne agt. Van Hoesen, 5 It follows that the lease of the mother was valid,

Nam

J. N.) only until Clark was appointed guardian, and the defendant is not protected by it. Judgment is therefore ordered in favor of the plaintiffs for the premises described in the complaint, in fee.

By the Court, BACON J. The mother of the infants was guardian in socage of her children, who were owners of the fee, and she had as such, power to lease the lands until they should become of age. The lease under which the defendant claimed to hold, was prima facie a valid instrument, but it

was

subject to be avoided either by the coming of age of the

infants,

or by the appointment of another guardian. The youngest child was not fourteen when this suit was commenced, but on the 12th of March, 1868, George Clark was duly appointed guardian of the infants, and as such on that day he demanded of the defendant a surrender of the premises, and on the 23d of April, 1868, commenced this suit.

Emerson agt. Spicer.

The statute (3 R. S., 5 ed. p. 2 sec. 7,) provides, that the rights and authority of every guardian in socage, shall be superseded in all cases where a testamentary or other guardian shall have been appointed.

The question is, whether by this appointment the lease was absolutely avoided, or was only voidable at the election of the guardian. In Roe agt. Hodgson, (2 Wil., 129,) this question was discussed without a definite decision; but on a subsequent day the court unanimously held that the lease was void, (p. 135). It is somewhat singular, but this precise question does not seem to have been passed upon in any case reported in this state, nor in this country except in the case of (Snook agt. Sutton, 5 Hal., 133), which holds that the lease of an infant's lands, extending beyond the period of fourteen years, is voidable provided the infant be then entitled to choose a guardian, or it may be avoided by the guardian chosen by the infant. If not absolutely void by the supersedeas of the statute, the guardian is authorized to determine the lease, and that was done in this case by the notice, or at all events by the commencement of this suit, which was an express determination and notice that the lease was determined, and the defendant was holding over without right. The defendant took his lease subject to this contingency, and was bound to leave upon the election of the guardian to terminate his tenancy.

I think the judgment should be affirmed.

Egan agt. Rooney.

N. Y. SUPERIOR COURT.

THOMAS EGAN agt. JAMES ROONEY.

On the entry of judgment, the authority of the attorney for the defendant ceases, and he is at liberty to employ another attorney in the action without an order of substitution.

If it is desired to obtain possession of papers in the action in the hands of the former attorney, an independent proceeding against him is necessary.

Judgment will be opened, and the defendant let in to defend, &c. on terms, where he shows an excusable neglect.

Special Term, October 1869.

MOTION for substitution of attorney for defendant, and to open the judgment in this action &c.

A. H. REAVEY, for the motion.

GEO. DOUGLASS, & Mr. KENT, opposed.

JONES J. The authority of Mr. Philip, in this action as attorney for the defendant ceased on the entry of the judgment; and therefore defendant was at liberty to employ any other attorney to take such action in relation to the judgment and cause as he desired, without any order of substitution. The motion for substitution is therefore unneccessary, and for that reason is denied. If it is designed. to obtain possession of papers now in Mr. Phillips hands, that must be done by an indepennant proceeding against

him.

From the papers used on the motion, I think defendant derived the impression from his conversation with plaintiff's friends that this action so far as the action itself was concerned was abandoned and that there was no neccessity for further attention to it. it. The defualt then was taken through the excusable neglect of the defendant.

Egan agt. Rooney.

Defendant must be let in to answer on payment of $10 costs of opposing this motion, the disbursments included in the judgment roll, and the sheriff's fees and expenses. The judgment and levy if any to stand as security. The defendant to consent to a reference to a referee to be named by the court if the plaintiff deserves it. Answer to be put in in ten days. If there is a levy, and defendant desires to have it removed, he may do so by bringing the amount of plaintifi's claim and $100 into court, to the credit of this action to abide the event thereof, the same to be applied on motion of plafntiff on notice to defendant to the payment of any judgment the plaintiff may recover herein, and the surplus to be repaid to the defendant.

Schermerhorn agt. Burgess.

SUPREME COURT.

JOHN D. SCHERMERHORN, respondent agt. CHARLES BURGESS and others, appellants.

It seems that where a U S. revenue stamp is left off of an instrument by mistake. without any intention to evade the provisions of the acts of congress, not only is the instrument not void, but it may be read in evidence without any stamp. (This is adverse to Beebe agt. Hutton, 47 Barb., 187.)

Where a stamp has been left off of an instrument by mistake, application to the collector to allow the stamp to be affixed, and to remit the penalty, may be made not only by the person or persons executing the instrument-the makers, but also by any person having an interest therein, which in an action upon a promissory note, includes the plaintiff as well as the defendant. (This is adverse to Myers agt Smith, 48 Barb., 614.)

When the application to the collector is not made by the maker of the instrument, but by another party having an interest therein, as payee or holder of a note or the like, the "proper district" in which the application is to be made, is the district in which the party making the application resides, although the maker may reside in another collection district.

Seventh Judicial District, General Term, September, 1869. Present, E. D. SMITH, DWIGHT and JOHNSON, Justices. THIS was an action upon a promissory note made by Charles Burgess and Closson P. Burgess for $3,000, and indorsed by William J. Moses and Elon Sheldon.

The makers appeared and answered by Thomas & Lyon, their attorneys; the indorsers answered separately, claiming that the note had been altered in its date since its indorsement, whereby they were discharged. The case was tried before Benoni Lee, Esq., sole referee, who reported in favor of the plaintiff against the makers for the full amount of the note, and dismissed the complaint with costs as to the indorsers. The makers appeal.

The makers in their answer set up a defense in no way connected with the question of stamps upon the note, and