Mulligan agt. Brophy. appointment, refused to act, and another was substituted by an order made before Justice MORSE at Brooklyn, in December 1851. This closed the third year of the litigation. It would appear, however, that the plaintiff had given up the contest early in the season, as the various unproductive orders above named were obtained without opposition. In 1852 he appeared again, and the case was heard before the referee who, after several litigated hearings, made his report on the 22d June, by which he reported due to the defendant $181.50. Upon this report judgment was perfected on the 3d July for $318 19. On the 6th July defendant issued execution. The defendant had previously assigned his interest in the suit to William Story, and an action was on the 8th July commenced in the name of Story against Lipsey, one of the sureties for the plaintiff on his undertaking given at the commencement of the first suit. Story obtained judgment by default against the defendants in the second suit. Execution was issued and a levy made on the property of Lipsey, who afterwards, about the 1st of September, appeared by attorney and applied to come in and defend. Thereupon the plaintiff by Mr. Brophy, his attorney, consented to vacate the judgment, and served a copy of the complaint upon Lipsey's attorney. No answer having been put in, plaintiff again recovered judgment by default, on the 12th October 1852, and issued execution, under which Lipsey's property is now held by the sheriff of Putnam county. It becomes necessary now to advert to various little episodes in the history of this interesting controversy. In July 1851, Brophy assigned, as he alleges, to Story his interest in the first suit, together with the undertaking executed by Lipsey and Hand. In September 1851, Brophy entered up judgment in the same action for his costs, up to and including the trial had in the fall of 1849, the amount being $45.26. This judgment was paid and a satisfaction piece executed by Brophy on the 29th June 1852, a few days before judgment was entered on the report of the referee: Mulligan claims that this payment was understood to be a settlement of the whole controversy. Brophy denies this. The satisfaction piece shows exactly what was settled. Mulligan agt. Brophy. On the 13th December 1852, Story was brought before Judge MOORE, County judge of Kings county to make discovery of his property at the suit of a judgment creditor, on which occasion he swore that he had never received the assignment from Brophy and had no interest in the claim or judgment. Upon this state of facts the plaintiff Mulligan, and defendan' Lipsey, move to set aside the judgments against them respectively The motion, on the part of Mulligan, is made on the ground of irregularity, although none is specified; and for "fraudulent practice," and on the ground that the payment of the 29th June 1852, was a settlement of the whole controversy. None of these reasons are well founded. It is very possible that the judgment entered in September 1851, was irregular. But the plaintiff has paid it, and can not now set it up as a reason for setting aside the subsequent judgment. The regular practice would have been adopted if the defendant had waited until final judgment, and then included in it his costs of the trial in October 1849. Instead of doing so he entered up a separate judgment for those costs. This can not render the subsequent judgment irregular. The substance of the thing is the same. He now gets in two judgments what he is entitled to in one. This disposes of the first and second objections to this judgment. In regard to the settlement of the controversy, as sworn to by Mulligan and others, and denied by Brophy, it is obvious that the written evidence of the satisfaction piece, must govern and control. This is fortified also by the circumstances that it is quite improbable that a man having a liquidated claim of upwards of $350, would cancel it on the payment of less than one sixth of the sum. I consider it altogether unsafe to admit parol agreements in relation to canceling judgments and settling suits to prevail in opposition to the oath of the adverse party, except under very special circumstances. It is best to adhere to the written evidence of what took place; and, as a general rule, to require written evidence of the settlement of a legal controversy. The motion on the part of Lipsey seems to be founded upon the disclosures made by Story, tending to show that Story is not the bona fide owner of the undertaking or claim. His application after suffering judgment by default twice, and an execution Johnson agt. Yeomans. to be issued, comes entirely too late. He does not pretend to have any defence upon the merits. Both motions must therefore be denied with $10 costs in each case. SUPREME COURT. JOHNSON, respondent, agt. YEOMANS, JR. appellant. On appeal by defendant from a judgment rendered at special term to the general term, the title of the cause must not be changed ( § 326 ). The action is not a new one. Although appealed it remains the same. No* to be treated like a writ of error under the old system, which required the plaintiff to file security for costs. Tompkins Special Term, August 1850. The plaintiff re covered a judgment on demurrer against defendant at special term, and the latter appealed to the general term under § 348, without giving security, or obtaining an order to stay proceedings. After the appeal was made, the defendant removed from the state, and the plaintiff now moves for an order obliging him to file security for costs under 2 R. S. 620, §. 1 and 2. S. C. JOHNSON, for the motion, argued that by appealing the defendant became plaintiff, within the meaning and spirit of said sections, and should be compelled to file security for costs, as such. He cited the following cases: 5 How. Pr. R. 366; 1 Code R. 112; 7 Term R. 337; 4 Den. R. 85; 4 Hill, 546; 3 How. Pr. R. 24; 8 J. R. 353. E. MORE, Opposed. SHANKLAND, Justice-Held that § 326, of the Code, forbids any change of the title of the action on appeal, and that the defendant can not in any legal sense of the term be called the plaintiff, so as to compel him to file security on appeal, under the provisions of the Revised Statutes. He also held, that the action although appealed was the same, and not a new one, and was pending in the same court. That it could not be treated as a new action, as the old action commenced by writ of error, to remove the cause from one court to another, was formerly treated (see Traver vs. Nichols, 7 W. R. 434, and cases there cited). The motion was therefore denied. Taggard agt. Roosevelt. NEW YORK COMMON PLEAS. TAGGARD, appellant, agt. ROOSEVELT, respondent. A parol agreement for renting real estate, made for one year, to commence at a future period, is not void under the provisions of the Revised Statutes, respecting fraudulent conveyances, &c. Where possession is taken under a parol lease, void by the statute, it enures as a tenancy from year to year, and can not be terminated by either party, except at the end of the year. A parol agreement for one year, to commence in future, is not void under the provisions of the Revised Statutes, declaring certain contracts void which are not performed within a year from the making thereof. General Term, May 1853-Present, INGRAHAM, First Judge, and Judges DALY and WOODRUFF. This action was brought to recover $100 for the rent of an office in a building in the city. of New York, pursuant to a lease thereof. The defendant in his answer denied the plaintiff's allegations, and denied any use or occupation of the premises. The case was referred to a sole referee by consent, who reported in favor of the plaintiff $47-35, being the real sum for the period which the defendant actually occupied the premises, and finding the letting void as to the residue of the year, because the lease was by parol for one year and was to commence in future Upon the hearing before the referee it appeared that the defendant hired the office from the plaintiff in March 1851, for one year from 1st May 1851 to 1st May 1852; that the agreement was not in writing; that the defendant actually occupied the premises from the early part of May 1851 to July 1851, and not afterwards. The plaintiff appealed to the general term. TAGGARD, Plaintiff, in person. POTTER, of Counsel. INGRAHAM, First Judge. The question in this case is whether or not a parol lease for an interest in lands made previous to the 1st of May, to commence on that day and to continue for one year is valid. The Revised Statutes (2 R. S. 135, §6) provide, that no estate or interest in lands other than leases for a term Taggard agt. Roosevelt. I not exceeding one year, should be created except by writing. Before the statute was altered, leases not exceeding the term of three years from the making thereof were valid. The statute was altered by leaving out the words "from the making thereof," and substituting one year as the term instead of three years. should not hesitate as to the proper meaning of this seetion were it not that the general term of the Supreme Court have expressly decided that such a lease is void (7 Barb. S. C. Rep. 191). This is the first and only decision that has come to my knowledge on this point, and the consequences to flow from it in this city at least, if the law is rightly construed, would render void a large portion of the agreements under which the houses of this city are occupied; a very large portion of such contracts being merely in parol. Heretofore the statute has been express in fixing the term to be three years from the making of the lease, where certain rents were reserved; and the alteration being such as to render valid only leases for a term not exceeding one year, evidently shows that the legislature intended materially to alter this provision. They altered it in the term reducing it to one year; 2d, in omitting the provision as to the extent of the rent reserved; and 3d, in striking out that provision which made the term to run from the time of making the lease instead of from the time of possession. There can be no good reason for saying the legislature did not intend to make the alteration lastly referred to, and that they did intend to make the other two. They struck out the provision. as to rent and also the provision as to commencing the term from the making of the lease. It appears to me that force and effect should be given to both alterations. In such a case the ordinary fair reading of the section would be, that a lease for a term not exceeding one year would be a lease for a term in which the tenant would be entitled to the possession for one year. No one construing such a lease would say to the tenant, your lease is for a term longer than one year, although you can only occupy from April to April, and are only bound to pay rent for that period. The term of a tenant under a lease is the period during which he is entitled to the possession and liable to the payment of rent. I know it is a well established rule that an alteration of the |