Glenney, pltff and respt. v. The World A party may be examined before issue Rule 21, as so amended, does not necessarily call for the construction that there can be no examination except for the purpose of the trial. Appeal from an order granted for the examination of a party before issue joined. construction that there can be no examination except for the purpose of the trial; "but if it did the Rule would be inoperative, in case the authority exists independently of the Rule, for the Constitution would not sanction a delegation of power to a convention of judges to change the statutory law of the State." 3. "This court has steadily maintained, by an unbroken series of decisions. that the authority is conferred by the Code, and that the true intent and meaning of Sec. 391 is, that in case of necessity, the examination may be had immediately The suit was commenced by the ser- after the service of the summons, Me Vickvice of a summons for relief. The plaintiff, then, under the proper affidavit, applied for an order for the examination of several of the defendants, as parties before trial, under sec. 361 of the Code. To this the defendants objected that the examination could not be legally had until after issue joined. The 21st Rule adopted by the convention of judges, which met under the requirements of chap. 408, Laws of 1870, was: "The application for an examination under sec. 391 of the Code, shall be upon an affidavit disclosing the nature of the discovery sought, to enable the party to frame his complaint or answer, or to prove his case or defense upon the trial, and how the same is material in aid of the prosecution or defence." er v. Greenleaf, 4 Robt, 657; Winston v. English, 44 How. 398." Order affirmed with cost. Opinion by Freedman, J., Speir, J., concurring. N. Y. SUPERIOR COURT-GENL. TERM. Seaman, pltff. and respt. v. McReynolds deft. and applt. Decided December 6, 1875. Clerical error. Cause reserved. Defauit. Appeal from an order denying a motion to vacate a judgment by default. The case was reserved generally, and the plaintiff gave notice of trial, but he did not give two days notice of motion to put the cause on the day calender to the defendant, who has appeared sepThis rule was amended at the conven- arately. Judgment was entered by deconven-arately. tion of judges, held in 1874, as follows:- fault, and a motion to vacate this judg"The application for an examination ment was made on this ground, and reunder sec. 391 of the Code, shall be upon fused.. an affidavit disclosing the nature of the discovery sought, to enable the party to prove his case, or defence, on the trial, and how the same is material in aid of the prosecution or defence." On this appeal the respondent moved to dismiss the appeal because the notice of appeal was signed D. T. R "of counsel," and not by the party, or his attorney. Held, 1. That the error in using the The order was granted and the defend- words "of counsel" is a mere clerical error, ants appealed. and may be amended. Held, 1. That the order was properly granted. 2. That the amendment of the 21st le, does not necessarily call for the 2. That the course of the plaintiff was irregular. The deponent was entitled to a notice of motion. Order reversed, with costs. Opinion by Monell, C. J.; Sedgwick, J. the action, and judgment was entered concurring. N. Y. SUPERIOR COURT-GENERAL TERM. Harnett, et al., pltff. and respt., v. Decided December 6, 1875. Papers in evidence with the jury. against them by default, May 14, 1872. Papers on a motion to open the default were served on plaintiff, May 31st, indorsed F. W. Townsend, attorney for defendants, Lowenstein. An ex parte order was afterwards entered, substituting Samuel J. Crooke as attorney for the Lowensteins. The premises were sold, and the referee's report filed Sept. 23, 1873. No Appeal from a judgment entered on a notice of the filing was given to appel verdict of a jury. The court refused the request of the plaintiff to allow the jury to take with them three certain bills which had been put in evidence, to which the plaintiff excepted. Held, This is not a reviewable matter, since it rests in the discretion of the court, and the exercise of such a discretion is not properly reviewable, on an appeal from a judgment merely. Judgment affirmed, with costs. lants. Appellants' attorney filed exceptions to the report on Oct. 27, 1873, and served copies on referee and on plaintiff's attorney. These were returned with the endorsement that it was served too late, as the report had been filed more than eight days. A motion that the exceptions be heard. was denied, on the ground that defendants did not appear until after judgment had been taken by default, and under Rule 39 were not entitled to file excep Opinion by Freedman, J.; Speir, J., tions. concurring. Held, That the service of papers with the endorsement as above stated, was a N. Y. SUPREME COURT-GENL TERM. sufficient appearance. That appellants FIRST DEPT. Martine, respt., v. Lowenstein, et al, applts. could appear even after the judgment for the purpose of taking care of their interests in all the subsequent proceedings which plaintiff must necessarily take. Decided December 6, 1875. By Rule 39 of this court, notice of filing In a foreclosure suit, a motion to open a the report must be given to all who are default by the owners of the equity of entitled to notice, and the report is redemption, indorsed by 1, as their not confirmed at the expiration of eight attorney is a sufficient appearance. Parties interested in a judgment in fore- days from filing, but eight days from the closure can appear, even after judgment, service of such notice of filing. Appelto take care of their interests in the subse-lants were entitled to this notice, and, as quent proceedings, which the plaintiff it was not given them, their exceptions must necessarily take. were in time, and should have been are By Rule 39, notice of the filing of the report must be given to all who entitled to notice. The report is confirmed eight days after the notice of filing is served. Appeal from order denying motion to argue exceptions to report of referee. Action to foreclose mortgage. Appellants, the owners of the equity of redemption, failed to appear in heard. The refusal to confirm the report of a The relator, who is the treasurer of the Master, and reference thereof back to Inebriates' Home for King's County, bases him with instructions, is not a defini- his claim upon Sec. 1, Chap. 687, Laws of tive decree from which an appeal will 1872, which provides that twelve per cent. lie. Commissioners of Excise in and for the of the moneys received for licenses by the City of Brooklyn shall be paid to the Appeal from the Common Pleas of Westmoreland County. Plaintiff filed a bill in equity in the Court below to enforce the specific performance of a contract for the convey ance of real estate. The cause was re ferred to a Master, who reported in favor of the plaintiff. The Court refused to confirm the Master's report, upon the ground that under the circumstances of the case the plaintiff was not entitled to specific performance as prayed for in the bill; but, being of cpinion that it was a case for damages, referred the cause back to the Master to ascertain the plaintiff's damages. The plaintiff appealed, assigning as error the refusal of the Court to decree specific performance as prayed for in the bill. treasurer of the Inebriates' Home for King's County. The amended charter of the city of Brooklyn, (Chap. 863, Laws of 1873,) under which the defendants act, and from which they derive their authority to demand and receive the excise money, affirms the right of the relator to the twelve per cent. of such moneys. There are no other claimants of claimed that assuming the validity in this part of the money. Defendants their inception of the said statutory provisions, by the late amendment to Article 8 of the Constitution adopted in 1874, (Sec. 10), which prohibits the gift of moneys of the State, and prohibits municipal corporations from giving their funds in aid of any corpora Agnew, J. We have no record of a tion or private undertaking, the said decree. Appeal quashed. PUBLIC MONEYS. N. Y. COURT OF APPEALS. The People ex rel. Buckley, Treas. etc., respts. v. The Board of Police and Excise of the City of Brooklyn, applts. Decided November 23d, 1875. Where a certain percentage of moneys received by a municipal board is given for a definite purpose, the officers of the board receive the moneys as public agents, in a ministerial capacity, for the recipient of the percentage, and have no discretion as to its disposition. This is an appeal from an order of the General Term granting a peremptory writ of mandamus, requiring the defendant to pay to the relator twelve per cent. of the moneys in their hands collected for licenses granted thereby. statutory provisions were abrogated. Held, That defendants were not in a position to contest the rights of the relator; that they received the money as public agents, in a ministerial capacity for the relator, and had no discretion as to the disposal of it, and cannot refuse to pay it over to the institution for which they received it. Order affirmed, with costs. SALE. N. Y. SUPERIOR COURT-GENL TERM. On a sale by sample it must appear that peal to give the court the means of de- the sample on an agreement or underciding it. standing that the bulk corresponded with Goods sold after a refusal to take them must it. There was no sale by sample in this be sold separately. If sold in a lot the highest price got must be credited. On exceptions ordered to be heard in the first instance at General Term. case. 2. There is nothing to show here whether the memorandum was sufficient or not. It was the duty of the defendPlaintiffs sold lemons to the defend-ants in making up his case to furnish ants at public auction, and defendants this court with the means of deciding it. refusing to receive them, they were sold. 3. The goods should have been sepat public auction for account of the de-arately sold for account of the defendants, fendants. Plaintiffs sued to recover the on the refusal to take them. In this case difference between the price bid and it could not be done, and the defendants that yielded on the sale. The defence must be allowed the best price obtained in was that the fruit was sold by sample, selling the lot. and that it did not come up to sample, being in a damaged condition. The lemons were sold at public auction, in pursuance of an advertisment that a quantity of Menton lemons would be sold, and that they could be seen at pier No. 20, North river. The defendants saw some of the lemons which had been discharged, and some of them were damaged. At the sale, the auctioneer gave express notice that the fruit would be sold as it was, and that no allowance would be Exceptions overruled, and judgment modified by deducting $168. Opinion by Speir, J.; Freedman J., concurring. SLANDER. CITY COURT OF BROOKLYN,-GENL TERM. Middleton, respt. v. Walter, applt. made. The price bid by defendants was In slander the jury determines the lan $5.50 per box, and the regular market price for sound lemons was $6.50, which the defendants knew. There was no further evidence of sale by sample. In the sale for defendants' account, which was made in a lot with other lemons, credit was not given for the highest price got, but for a less price. guage used, and its significance. Appeal from judgment entered on verdict. In the latter part of November 1874, defendant was in a saloon on Myrtle Avenue, with several others, and on plaintiffs entering the room, he said "here comes Ben Middleton the dthief, and I can prove that he is a dthief, and that he has robbed me out of three thousand dollars." On these words -d d Defendants contended that as there was no memorandum of the sale and no acceptance of the goods as required by the stat-plaintiff sues damages for slander. ute, they could not be held. The The Judge charged the jury that if auctioneer's book was read in evidence they believed defendant had called plainwithout objection, and the auctioneer was examined, but the defendants made no special point on the trial to show in what respect the statute was not complied with. Held, 1. That on a sale by sample it must appear that the parties mutually understood that they were dealing with tiff a thief as imputing a felony, they should award to the plaintiff such damages as they thought just, but if they believed the words were used in a qualified sense, not imputing a felony, their verdict should be for defendant. Jury found for plaintiff, assessing damages at $1000. Held, stock. That the case was given to the his own account, wherein he charged jury with proper instructions; they were himself with one half of the value of the to determine what language was used, and in what sense. They have shown by their verdict that they believed that it was used in the sense charged in the complaint. Judgment affirmed. Opinion by Neilson, Ch. J.; Reynolds, J., concurring. STATUTE OF FRAUDS— CONTRACT. The Yorkville Building and the East Side Association were the same. The plaintiff claimed that the agreement to buy the stock was void by the Statute of Frauds. The defendants had judgment on the counterclaim. Held, 1, That the act of the plaintiff in asking that he should be charged by $125 for one half of the stock, and his agreement at the same time to pay the N. Y. SUPERIOR COURT,-GENL. TERM. balance was a part payment on account, Napier v. French, et al. Decided December 6, 1875. Part payment on account binds for the balance. Memorandum. Memorandum not made at the time of the agreement, but in consummation of a verbal agreement, is in fact anu law, the actual agreement of the parties. Action to recover for services. Answer. General denial and counterclaim. Plaintiff was employed by defendants as a travelling agent, and he agreed, verbally, to receive in part payment, for his services, $250 worth of the stock of the East Side Association. After the services had been rendered plaintiff wrote the following note and sent it to the defendants: Mr. Ward. "New York Nov. 30, 1869. Dear sir; Will you let me have a settlement of account. You can hold one half the price of the 25 shares in the Yorkville Building, and I shall pay the balance in the spring, or when the scrip is issued. I do this in order to keep my word, although under existing circumstances I am not able, but I will look to you for the interest which you assured me would be paid yearly on the stock. Yours etc., R. Napier," and bound him for the balance. 2. That the memorandum, (the note stated,) was subscribed by the party to be charged, in writing, and met all the requirements of the Statute. It was not a mere proposition made to the defendants and not accepted, but it was acted upon by the parties in submitting their accounts. The memorandum was not made at the time of the agreement, but it was made in consummation of a verbal agreement, and is, in fact and law, the actual agreement between the parties. Judgment affirmed, with costs. Opinion by Speir, J.; Freedman, J., concurring. TITLE-STOREKEEPER. N. Y. SUPERIOR COURT-GENL. TERM. Willner, applt. v. Morrell respt. Decided December 6, 1875. No condition in a storage receipt will avail to defeat the ownership of the Storekeeper can protect himself against property stored. contending owners by an interpleader. The special clauses in the storage receipt are notices only, unless there is an assent shown. Action to recover the posssession of personal property. Defendant is a keeper of a storehouse The account was sent to plaintiff, who in which there had been deposited the returned it with a written statement of property sought to be recovered. This |