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Digest.

6. Where a referee, to whom a dis of referees on sales in partition

puted claim against an estate has cases,” which fixes the fees of been referred, under the statute, referees, on partition sales, is not reports to the court that such local, but public, and is not affectclaim is wholly unfounded, the ed by the fact that certain local court may, on the application of provisions of the act are violative the executor, direct the referee to of the constitutional provision report upon any claim in favor of (art. 16, sec. 3) prohibiting the passthe estate and against the claim age of a private or local bill conant. (Matter of Hendrickson agt. taining more than one subject, Dickson, 19 Hun, 290.)

and requiring that to be expressed

in the title. (Richards agt. Rich7. Under the provisions of the old ards, 76 N. Y., 186.)

Code (sec. 272) giving to a referee the same power as the court to 11. Under said provision, the referee allow amendments to pleadings on is entitled to the commissions trial, a referee had power on ap there provided, and also to the plication to amend the complaint fees specified in section 2 of the on trial (not simply so as to con act. (Id.) form it to the proof, but by inserting material allegations as to 12. A general finding of a referee is which no proof had been given), contradicted by a special finding to impose as a condition to the of fact. (Bennett agt. Buchan, 76 granting of the application that N. Y., 386.) defendant be permitted to answer or demur to the amended com- 13. An order of reference to ascerplaint. (Smith agt. Rathbun, 75 tain the damages sustained by N. Y., 122.)

defendant, by reason of an injunc

tion, recoverable upon an under8. Where such a condition was im taking given under the Code of

posed and plaintiff availed him Procedure (old Code, sec. 222) canself of that portion of the order not be granted until it has been of the referee which allowed him determined by judgment or other to amend, and defendant inter decision of the court that plaintiff posed a demurrer to the amended was not entitled to the injunction; complaint, held, that plaintiff hav it is not sufficient that this aping taken the benefit of the order pears by the facts developed upon was precluded from questioning the trial. (Benedict agt. Benedict, the power of the referee to au 76 N. Y., 600.) thorize the demurrer. (Id.)

9. Where a referee appointed to sell REGISTER (OF NEW YORK).

under a foreclosure judgment, at the request of the purchaser and 1. The register of the city of New for his accommodation, applies York is liable for all errors, inacthe sums received on the sale in curacies or mistakes made in a different order from that directed return, where the usual requisiin and by the judgment, the pur tion has been made at his office chaser cannot be heard to complain for a certificate of search. (Van of the referee's action. (Easton Schaick agt. Sigel, ante, 211.) agt. Pickersgill, 75 N. Y., 599.)

2. Where the usual requisition was 10. The provision of the act of 1869 made at the register's office for a

(sec. 4, chap. 569, Laws of 1869), en certificate of search, which was titled “An act in relation to the returned, showing that the premfees of sheriff of the city and coun ises in question were clear of inty of New York, and to the fees cumvrance, and relying upon this

Digest.

Such ap

the loan was effected and the ate result of negligence or error mortgage was recorded, and it of the register, that is, the imwas afterwards ascertained that a pairment of the value of plainprior mortgage had been executed tiff's security by means of his on the same premises. Upon neglect. (1.) foreclosure there was a surplus of $1,506.11. Plaintiff seeks to recover the amount of his loan from

RELEASE. the register, because of the latter's neglect in returning in the search See MORTGAGE. the prior mortgage. The search Kendall agt. Niebuhr, ante, 156. was made and certificate signed by a deputy. The defendant's liability is based upon the act of RELIGIOUS CORPORATIONS. July 21, 1873, in relation to the office of register and the defend. See BURIAL PLOTS. ant claims exemption from liabili The People ex rel. Coppers agt. ty on the ground that it is one Trustees of St. Patrick's Cathefor tort, and that he cannot be dral, ante, 56. held personally liable as the certificate was not signed by him personally:

REMOVAL OF CAUSES. Held, that, by the act the register was authorized to appoint 1. An action pending in a state court and pay a deputy who became his against an alien defendant cannot agent for the performance of the be removed into the United States duties of the office.

circuit court for trial, under the pointees, are in no sense public acts of congress, upon the ground officers within the meaning of of such alienage, if the plaintiff be the statute, they being hired or also an alien. (Barrococliffe agt. discharged by the register at will, La Caisse Generale, ante, 131.) and the clear intent of the statute is not to absolve the register from 2. For the purpose of federal cogany liability arising under its pro nizance a corporation created unvision.

der the laws of the republic of Held, also, that, although the France is an alien. (Id.) plaintiff in making his requisition at the register's office for a 3. A suit by a corporation created certificate of search designated by the United States, is a suit aristhe clerk whom he desired should ing under the laws of the United make the search, he did not be States and may be removed under come the agent of the plaintiff. section 2 of the act of March 3, 1875 It was only a request and not an (18 U. $. Stat. at Large, 570). employment by the plaintiff, the (Union Pacific Railroad Company defendant having control of his agt. McComb, ante, 478.) office. It was a mere matter of accommodation to the plaintiff 4. The mere allegation in the comthat a man of experience should plaint that the plaintiff is a corporbe allowed to make the search. ation created by act of congress,

Held, further, that the plaintiff shows that the suit is one arising was not bound to make the search under the laws of the United personally, but had the right to States. (Id.) rely upon the official certificate of a public officer designated by law 5. A petition to remove a cause to perform the services, and the from a state court into the United register is liable for any loss States circuit court, which simply which was the direct and immedi states that defendant was an alien

Digest.

at the time of signing and verify ment of the property retained. ing the petition, is fatally defec (Id.) tive; it must appear that he was an alien at the time of the com- 3. In the latter case visibility and mencement of the action. (Tug strict necessity must both concur, mam agt. Nati 8. S. Co., 76 N. Y., as in the case of a party wall, and 207.)

especially in the case of a claim

of right of way. (Id.) 6. Where, after a denial of an ap

plication to remove a cause, de- 4. The right of way from necessity fendant consents to the appoint over the lands of another is al. ment of a referee to determine the ways of strict necessity, and this action, and proceeds to trial on the necessity must not be created by merits before him, as to whether the party claiming the right of this is a waiver on the part of de way. It never exists where a man fendant of his right to insist that can get to his property through a removal has been had, quære.

his own land. That the way (Id.)

through his own land is too steep

or too narrow, does not alter the REPUGNANCY.

It is only where there is no

way through his own land that See WILL.

the right of way can exist. That Browon agt. Cleveland, ante, 293.

a person claiming a way of necessity has already one way, is a good

plea and bars the plaintiff. (Id.) REVOCATION.

case.

See WILL,

RULES. Matter of Doud, ante, 107.

1. A notice of the entry of judg

ment, which is not indorsed or ŘIGHT OF WAY.

subscribed both with the name of

the attorney and his office address 1. Where the owner of two or more or place of business, as required

tenements sells one of them, or by the general rules of practice the owners of an entire estate sells (Řule 2), is irregular and ineffectual a portion, the purchaser takes the to limit the time for appealing. tenement or the portion sold, with (Kelly agt. Sheehan, 76 N. Y., 325.) all the benefits which appear at the time of the sale to belong to it, as between it and the property

SALE. which the vendor retains. (Outerbridge and Scott agt. Phelps, ante, 1. One purchasing in good faith, at 77.)

a sheriff's sale, under execution,

goods in the possession of the 2. But no burden or servitude can judgment debtor, is not liable to

be imposed by the vendor upon an action brought by the true the tenement or portion sold, in owner to recover the goods, or favor of the property retained by their value, until a demand therehim in derogation of his grant, for has been made and refused. without a reservation expressed (Rawley agt. Brown, 18 Hun, 456.) in the grant, unless an apparent sign of servitude exists on the part of the tenement or portion (SERVICE), AND PROOF OF. sold, in favor of the property re. tained and the easement claimed 1. Upon the thirtieth day after the is strictly necessary to the enjoy granting of a warrant of attach

Digest.

ment, an order for the publication him to the custody of the jail. of the summons in this action was He cannot exonerate himself by obtained, and it was published on surrendering him to the coroner, the same day in one of the papers as the coroner has no right to redesignated; it was delivered upon ceive him or to detain him in custhe same day to the other paper, tody. (Id.) but was not published until the next day. Copies of the summons 4. It is only when the sheriff is a and complaint were mailed to the party to the action, in which the defendants, as directed in the or order of arrest was issued, that der, on the day it was granted: the coroner is authorized to act.

Held (RAPALLO, MILLER and (Id.) EARL, JJ., dissenting), that the publication of the summons was 5. It is the duty of a sheriff, having not commenced within thirty days power to appoint deputies, to after the granting of the attach make the best appointment in his ment, within the meaning of sec power, according to his judgment tion 638 of the Code of Civil Pro at the time when he makes it, and cedure (new Code); and that the a promise by him, though for a attachment was properly vacated. valuable consideration, to appoint (Taylor agt. Troncoso, 76 N. Y., a certain person to the office of 599.)

deputy sheriff, is void as against

public policy. SHERIFF.

Quære, as to whether, in any

event, such a contract could be 1. Where an action was commenced

enforced at law, if the officer by plaintiff against the defendant

could, without cause, immediately and he was arrested by the sheriff, remove the person from the office who took from him an undertak

to which he claimed the right to ing signed by two sureties, who

be appointed. (Hager agt. Catlin, failed to justify on being ex

18 Hun, 448.) cepted to:

Held, that upon the failure of 6. Where an officer acting under an the sureties to justify the sheriff execution requires a bond of inbecame liable as bail. The sure demnity from the plaintiff thereties were not liable thereafter as in, it will be presumed, unless the bail, but they remained liable to contrary clearly appear, that such the sheriff for all damages which bond is intended to relate only to he might sustain by reason of property already levied upon, and their omission to justify. (Doug not to property which may therelas agt. Warren, ante, 264.)

after be levied upon, especially

where the plaintiff in the execu2. Where the sheriff is liable as bail tion has not directed such subse

he has all the rights and privi quent levy or approved thereof. leges, and is subject to all the (Clark agt. Woodruff, 18 Hun, 419.) duties and liabilities of bail. One of the rights and privileges of 7. One Huntington, after the recovbail is, that they may surrender ery of a judgment against him by the defendant in their own exon the defendant, and shortly before eration. Such surrender, how the issuing of an execution thereever, must be made to the sheriff. on to the sheriff, executed and (Id.)

delivered to an assignee an assign

ment for the benefit of creditors, 3. When the sheriff seeks to exon but at the time the execution was

erate himself from liability as bail received the assignment had not by surrendering the defendant, he been recorded, nor had the asmust rearrest him and surrender signee given a bond or taken pos

Digest.

session of the property.

The by his deputy, held, that the plainsheriff, under the direction of the tiff was entitled to recover. (Ross attorney for the judgment cred agt. Campbell, 19 Hun, 615.) itor, levied on certain of the property assigned by Huntington, but, 11. On December 18, 1878, a decree in accordance with further direc in foreclosure was, in pursuance tions from the attorney, took no of chapter 439 of the laws of 1876, further proceedings. Subsequent delivered to Albert Daggett, the ly the property was sold by the sheriff of Kings county, with diassignee and a portion of the pro rections to execute it. His term ceeds applied to the payment of of office expired December 31, defendant's judgment.

1878. On receiving the decree he In an action by the sheriff to advertised the property for sale recover poundage on the value of on January 10, 1879, and on that the property so levied on, not ex day sold it in pursuance of such ceeding, however, the amount col advertisement: lectable under the execution, held, Held, that the advertisement of that he was entitled thereto. the property was a “seizure” (Benedict agt. Wright, 19 Hun, 27.) within subdivision 4, of section

184 of the Code of Civil Proced8. Where the sureties to an under. ure, and that under section 186 taking, given by a defendant on

thereof the sheriff was authorized his arrest, fail to justify, on being

to sell, though his term of office excepted to by the plaintiff, the

had expired before the day of sheriff becomes liable as bail, and

sale. (Union Dime Savings Inst. can only exonerate himself by re

agt. Andariese, 19 Hun, 310.) arresting the defendant and holding him in actual custody. | 12. Under an execution, in the usual (Douglass agt. Warren, 19 Hun, i.) form, in an action for the claim

and delivery of personal property, 9. He cannot surrender him to a it is the duty of the sheriff to take

coroner, and any undertaking and deliver the property as comtaken by the coroner on releasing manded, not only if he finds it in him after such surrender is void. the possession of any person (Id.)

named therein, but also if he finds

it in the possession of any other 10. On December 3, 1875, the plain person; unless he can justify his

tiff delivered an execution to one refusal to do so by showing that Paine, a deputy of the defendant. such person has a title or right of The defendant was then sheriff of possession superior to that of the Monroe county, his term of office party to whom he is commanded expiring on the last of that month. to deliver it. (Hoffman agt. ConThe execution not being paid nor, 76 N. Y., 121.) within sixty days, it was held by Paine, with the knowledge and 13. Where, therefore, to such an exconsent of the plaintiff and the ecution, the sheriff returned that sheriff, in the expectation that the he could not find the property so debtor would pay it later. There as to make delivery, and it apafter the debtor paid the amount peared, in an action against him thereof to Paine, who returned for a false return, that he knew the execution as satisfied, in the where the property was within name of the defendant, as late his county, and could have found sheriff, but did not pay over the it, but refused to take it or to take money so received to either the any action in regard thereto, upon plaintiff or the sheriff.

the sole ground that it was in the In an action against the sheriff possession of one M., held, that to recover the amount so received in the absence of proof that M.

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