acted upon separately by the board of aldermen and the case of the relator was first considered and disposed of by itself, confirming his nomination but without any designation of the district which should be given to him:

Held, that although the proceeding in this respect was not entirely regular, it was evidence of the assent and approval of the board that he should receive one of the vacant offices, and as the first woud naturally be considered and filled in the first instance, it may be reasonably presumed that such was the intention and purpose of the board, and that rendered the relator's appointment as inspector for the first district effectual and lawful. (Id.)

15. By section 25 of chapter 335 of the Laws of 1873, an inspector of weights and measures can only be lawfully removed by the mayor after affording him an opportunity to be heard, and after that the removal cannot take effect without the approval of the governor in writing. (Id.)

See POLICE COMMISSIONER.

The People ex rel. Nichols agt.
Cooper, ante, 358.

NON-RESIDENTS.

1. A non-resident need not furnish security for costs if he begins suit in a justice court or municipal court, although such security could be compelled if suit was commenced in courts of record, but not when an appeal is taken to the county court. (Mellen agt. Hutchins, ante, 349.)

2. It seems that the statute permitting a plaintiff to prosecute as a poor person is not intended to apply to non-residents, but was solely for the benefit of residents of the state. (Christian agt. Gouge, and another, ante, 445.)

cannot be obtained against a nonresident of the state who is not personally served with process and does not appear in the action. (Bartlett agt. Spicer, 75 N. Y., 528.)

4. A state cannot authorize such a judgment, which will bind property not within the state at the time and not proceeded against in rem, in satisfaction of the claim. (Id.)

5. Where one of the associates in a joint enterprise is a non-resident, he is not a necessary party to an action brought by another of the associates, for an accounting and for contribution for losses and expenditures paid by him. (Angell agt. Lawton, 76 N. Y., 540.)

6. And, so, where a non-resident associate has died, leaving no property in this state which would authorize the appointment of personal representatives here, and his personal representatives are not within the jurisdiction of the court, they are not necessary parties to the action. (Id.)

NOTICE,

1. An action cannot be maintained upon an undertaking, given under section 348 of the old Code, upon appeal to the general term, without proof of service upon respondent, ten days before the commencement of the action, of a written notice of the entry of the order or judgment affirming the judgment appealed from. (Rae agt. Beach, 76 N. Y., 164.)

2. In an action upon such an undertaking the only paper claimed to have been served was what purported to be a copy of an order made at general term, April 28, 1875, marked as received by respondent's attorney, April twentyninth. There was no notice indorsed, and no intimation in or

upon the paper that the same had been entered. The judgment roll, which was produced on trial, contained the original order; there was nothing thereon to indicate that it had been filed or entered, prior to the entry of the judgment, which was on May 15, 1875:

Held, that the presumption, in the absence of proof, was that the order was neither filed nor entered until the judgment roll was filed and docketed, and that, therefore, the facts failed to show service of the required notice; and that the omission was not a mere irregularity, but a vital defect, fatal to a recovery; also, that defendants did not waive service of notice by not pleading the failure to serve; also, that they did not waive this defense by basing their refusal to pay, when called upon, on other grounds. (Id.)

3. Also, held, that an admission, upon the part of the appellant in the original action, without the knowledge or assent of the sureties, to the effect that he had received the notice required, could not affect the rights of the sureties. (Id.)

4. As to whether the said section did not require a notice of the entry of judgment, where judgment was in fact obtained; and as to whether the reference to orders was intended to apply where a judgment not an order was appealed from, quære. (Id.)

5. A notice of the entry of judgment, which is not indorsed or subscribed both with the name of the attorney and his office address or place of business, as required by the general rules of practice (rule 2), is irregular and ineffectual to limit the time for appealing. (Kelly agt. Sheehan, 76 N. Ÿ., 325.)

6. A warranty does not extend to known defects; and in an action to recover for an alleged breach parol evidence is competent to

show that at the time of entering upon the contract plaintiff had knowledge or notice of the real facts. (Bennett agt. Buchan, 76 N. Y., 386.)

7. The notice which will estop the party from claiming a breach of a covenant, may be either actual or constructive. Notice to the agent who negotiated the contract on his part is notice to him. (Id)

8.

If the agent acquires knowledge of a fact while engaged in the business of his principal which should put him upon inquiry, and fails to institute the proper inquiries by reason of forgetfulness, it is negligence, and the doctrine of constructive notice applies. (Id.)

9. The possession which will consti

tute constructive notice of an unrecorded deed to a subsequent purchaser must be under the deed, and actual, open and visible, so that the subsequent purchaser could have gone upon the land and obtained by inquiry information of such deed. (Page agt. Waring, 76 N. Y., 463.)

10. While every person is chargeable with notice of bankruptcy proceedings legally and properly conducted, such notice is only for the protection and efficacy of the proceedings. A party to a controversy, who does not claim under, and bases no right upon, said proceedings, cannot claim that the opposite party is charged thereby with any notice whatsoever. (ld.)

11. Such proceedings are in no case constructive notice of facts not needful or proper to be stated or to appear therein. (Id.)

12. It is not necessary for the bankrupt to make any statement in his schedules or otherwise as to property formerly owned by him, but which he did not then own, and in which he had for a long time ceased to have any interest. (Id.)

13. There can therefore be no constructive notice of statements in the bankrupt's schedules as to such property. (Id.)

14. The constructive notice which every one has, at common law, of proceeding in courts of record is only of pending proceedings; after judgment fixing the rights of the parties, no such notice is implied. (Id.)

OFFICIAL SEARCH.

See REGISTER (OF NEW YORK). Van Schaick agt. Sigel, ante, 211.

ORDERS.

1. A writ of certiorari should not be allowed before a final order is made. (Matter of Hamilton and Deane, ante, 290.)

2. The defendants are railroad commissioners of the town of Cobleskill, in the county of Schoharie, and proceedings were taken against them under chapter 307 of the Laws of 1879, entitled "An act to provide for the summary investigation of unlawful or corrupt expenditures by officers of towns or incorporated villages, and for re- 5. straining the same." Objection was made to such proceeding on the ground that they were not town officers, and, therefore, not amenable to the provisions of said act. This objection was overruled and they were directed to account:

'At special term of the supreme court of the state of New York, held at chambers. Present, hon. ABRAHAM R. LAWRENCE, justice;" it recited: "The plaintiffs having presented to me the verified complaint in this action,

* * *

and having also made proof to my satisfaction that said defendants are not residents of this state;" it was signed "Enter. A. R. L., J. S. C." It did not appear that the order had ever in fact been entered as a court order, but it was shown that the order was in fact made and signed out of court, in the judge's private room:

Held, that it was good as a chambers order of the judge, and a service of the summons by publication in pursuance thereof was effectual (Âffirming S. C., 19, Hun, 116). (Phinney and others agt. Broschell and others, ante, 492.)

The caption of the order and the

direction to enter are not conclusive as to its character, but the court will look at the facts as proved by the papers to exist to determine its character. (Id.)

had been acted upon, by striking out the superfluous portions. (Mojarietta et al agt. Saenz et al., ante, 494.)

PARTIES.

1. Where a deed of trust directs, in plain terms, in what particular securities funds coming into the hands of the trustees shall be invested and how, until so invested, they shall be held, the court cannot, by its judgment, defeat the intentions of the creator of the trust, and the beneficiaries thereunder, by directing different investments. (Clark agt. St. Louis, Alton and Terre Haute R. R. Co., ante, 21.)

2. Without the consent of those beneficially interested in the trust, investments directed to be made in first mortgage securities, cannot be made through the judgment of the court, in those of an inferior lien. (Id.)

3. For the purpose of securing such change in investment, the trustees do not represent the beneficiaries, and an action to this end cannot be prosecuted in their names, the beneficiaries not being parties defendant, and having no opportunity to be heard in relation to the propriety of granting such relief. (Id.)

See COMPLAINT.

De Witt agt. McDonald, ante, 411. 4. The firm of Haas, Pike & Co. transferred all its property, real and personal, to S. N. Pike, one of the partners, upon the agreement that he should sell the property, pay the firm debts from the proceeds thereof, and divide what might remain between the plaintiff and himself. Pike died in

possession of the firm property, leaving a will, by which he devised his estate to the defendants, in trust, to manage the same and

apply the profits thereof to the use of his children until the youngest should become of age, and then to divide the same equally among them. After all the children had come of age, the plaintiff brought this action against the defendants, as executors and trustees, to compel them to account for the property received by their testator from the firm, and to pay to plaintiff his share thereof. One of the children applied to be made a party to the action, to enable him to protect his interest in the estate:

Held, that the application should have been granted. (Haas agt. Craighead, 19 Hun, 396.)

5. Where, upon the trial of an action, brought by a legatee and next of kin, to procure the removal of an executor, and compel him to account, it appears the plaintiff has assigned his interest in the estate as security for a debt, the court may direct a party holding it as security to be brought in as a defendant. (Hood agt. Hood, 19 Hun, 300.)

6. So far as mere legal rights are concerned the only proper parties to an action of foreclosure are the mortgagor, the mortgagee, and those who have acquired rights under them subsequent to the mortgage, and these parties only are affected by the judgment. (Em. Ind. Svgs. Bk. agt. Goldman, 75 N. Y., 128.)

7. The plaintiff may make prior incumbrancers parties for the purpose of having the amount ascertained and paid out of the proceeds, but where no such purpose is indicated in the complaint, and no such provision is incorporated in the judgment, the prior lien is not cut off. (Id.)

passage of the public, and where because of neglect to perform the duty a cause of action arises against the municipality, the action may be brought by the party injured directly against the contractor. (McMahon agt._Second Avenue R. R. Co., 75 N. Y., 231.)

9. Where it distinctly appears from

an instrument under seal that the seal affixed is the seal of the person subscribing, who designates himself as agent, and not the seal of the principal, the former only is the real party who can maintain an action upon the instrument. (Schaefer agt. Henkel, 75 N. Y., 378.)

10. In order to take a case out of the general rule, where the contract is one valid without a seal, it must appear from the instrument that it was really made on behalf of the principal, or that he has derived benefit from and accepted and confirmed it by acts on his part. (Id.)

11. B. having oral authority from plaintiffs to lease certain premises owned by them, executed in his own name, adding thereto the word "agent, a lease under seal, in which he described himself as "agent and party of the first part," but without stating for whom he acted as agent. In an action upon the lease, held, that in the absence of proof that the lessee had knowledge that such agent was acting for the owners, or had recognized their rights, and in the absence of an assignment of the lease, said owners could not maintain an action thereon in their own name to recover rent accruing thereunder; that such an action was not authorized by the provision of the Code (old Code, sec. 111) requiring an action to be prosecuted in the name of the real party in interest, as the parties executing such an instrument are the real parties in interest, they only being bound there

by; also that the contract could not be regarded as a simple contract and the seal rejected as surplusage. (Id.)

12. The lessee went into possession and paid rent, but it did not appear that he was in possession, otherwise than under the lease, or that any payment of rent had been made to plaintiffs:

Held, that the presumption was that the occupancy was under the lease; and that the evidence failed to show a ratification of the lease by plaintiffs. (Id.)

13. Conceding that plaintiffs might have maintained an action for an occupation upon showing that B. had acted without authority in taking the lease in his own name, or that upon setting forth the want of authority, the lease might be resorted to as evidence of the terms of the agreement, although it could not be enforced as a specialty, this does not authorize a recovery where the action is founded solely upon the instrument, and where upon the trial plaintiffs claim to recover solely by virtue thereof. (Id.)

14. Where one of the associates in a joint enterprise is a non-resident, he is not a necessary party to an action brought by another of the associates, for an accounting and for contribution for losses and expenditures paid by him. (Angell agt. Lawton, 76 N. Y., 540.)

15. And, so, where a non-resident associate has died, leaving no property in this state which would authorize the appointment of personal representatives here, and his personal representatives are not within the jurisdiction of the court, they are not necessary parties to the action. (Id.)

PARTITION.

1. A purchaser under a sale in partition is protected against all ir