6. Where a referee, to whom a disputed claim against an estate has been referred, under the statute, reports to the court that such claim is wholly unfounded, the court may, on the application of the executor, direct the referee to report upon any claim in favor of the estate and against the claimant. (Matter of Hendrickson agt. Dickson, 19 Hun, 290.)

7. Under the provisions of the old Code (sec. 272) giving to a referee the same power as the court to allow amendments to pleadings on trial, a referee had power on application to amend the complaint on trial (not simply so as to conform it to the proof, but by inserting material allegations as to which no proof had been given), to impose as a condition to the granting of the application that defendant be permitted to answer or demur to the amended complaint. (Smith agt. Rathbun, 75 N. Y., 122.)

8. Where such a condition was imposed and plaintiff availed himself of that portion of the order of the referee which allowed him to amend, and defendant interposed a demurrer to the amended complaint, held, that plaintiff having taken the benefit of the order was precluded from questioning the power of the referee to authorize the demurrer. (Id.)

9. Where a referee appointed to sell under a foreclosure judgment, at the request of the purchaser and for his accommodation, applies the sums received on the sale in different order from that directed in and by the judgment, the purchaser cannot be heard to complain of the referee's action. (Easton agt. Pickersgill, 75 N. Y., 599.)

10. The provision of the act of 1869 (sec. 4, chap. 569, Laws of 1869), entitled "An act in relation to the fees of sheriff of the city and county of New York, and to the fees

of referees on sales in partition cases," " which fixes the fees of referees, on partition sales, is not local, but public, and is not affected by the fact that certain local provisions of the act are violative of the constitutional provision (art. 16, sec. 3) prohibiting the passage of a private or local bill containing more than one subject, and requiring that to be expressed in the title. (Richards agt. Richards, 76 N. Y., 186.)

11. Under said provision, the referee is entitled to the commissions there provided, and also to the fees specified in section 2 of the act. (Id.)

12. A general finding of a referee is contradicted by a special finding of fact. (Bennett agt. Buchan, 76 N. Y., 386.)

13. An order of reference to ascertain the damages sustained by defendant, by reason of an injunction, recoverable upon an undertaking given under the Code of Procedure (old Code, sec. 222) cannot be granted until it has been determined by judgment or other decision of the court that plaintiff was not entitled to the injunction; it is not sufficient that this appears by the facts developed upon the trial. (Benedict agt. Benedict, 76 N. Y., 600.)

the loan was effected and the mortgage was recorded, and it was afterwards ascertained that a prior mortgage had been executed on the same premises. Upon foreclosure there was a surplus of $1,506.11. Plaintiff seeks to recover the amount of his loan from the register, because of the latter's neglect in returning in the search the prior mortgage. The search was made and certificate signed by a deputy. The defendant's liability is based upon the act of July 21, 1873, in relation to the office of register and the defendant claims exemption from liability on the ground that it is one for tort, and that he cannot be held personally liable as the certificate was not signed by him personally:

Held, that, by the act the register was authorized to appoint and pay a deputy who became his agent for the performance of the duties of the office. Such appointees, are in no sense public officers within the meaning of the statute, they being hired or discharged by the register at will, and the clear intent of the statute is not to absolve the register from any liability arising under its pro

vision.

Held, also, that, although the plaintiff in making his requisition at the register's office for a certificate of search designated the clerk whom he desired should make the search, he did not become the agent of the plaintiff. It was only a request and not an employment by the plaintiff, the defendant having control of his office. It was a mere matter of accommodation to the plaintiff that a man of experience should be allowed to make the search.

Held, further, that the plaintiff was not bound to make the search personally, but had the right to rely upon the official certificate of a public officer designated by law to perform the services, and the register is liable for any loss which was the direct and immedi

at the time of signing and verifying the petition, is fatally defective; it must appear that he was an alien at the time of the commencement of the action. (Tug man agt. Nat'l S. S. Co., 76 N. Y., 207.)

ment of the property retained. (Id.)

6. Where, after a denial of an application to remove a cause, de- 4. fendant consents to the appointment of a referee to determine the action, and proceeds to trial on the merits before him, as to whether this is a waiver on the part of defendant of his right to insist that a removal has been had, quære. (Id.)

1. Where the owner of two or more tenements sells one of them, or the owners of an entire estate sells a portion, the purchaser takes the tenement or the portion sold, with all the benefits which appear at the time of the sale to belong to it, as between it and the property which the vendor retains. (Outerbridge and Scott agt. Phelps, ante, 77.)

2. But no burden or servitude can be imposed by the vendor upon the tenement or portion sold, in favor of the property retained by him in derogation of his grant, without a reservation expressed in the grant, unless an apparent sign of servitude exists on the part of the tenement or portion sold, in favor of the property retained and the easement claimed is strictly necessary to the enjoy

The right of way from necessity over the lands of another is always of strict necessity, and this necessity must not be created by the party claiming the right of way. It never exists where a man can get to his property through his own land. That the way through his own land is too steep or too narrow, does not alter the case. It is only where there is no way through his own land that the right of way can exist. That a person claiming a way of necessity has already one way, is a good plea and bars the plaintiff. (Id.)

RULES.

SALE.

ment, an order for the publication of the summons in this action was obtained, and it was published on the same day in one of the papers designated; it was delivered upon the same day to the other paper, but was not published until the next day. Copies of the summons and complaint were mailed to the defendants, as directed in the order, on the day it was granted:

Held (RAPALLO, MILLER and EARL, JJ., dissenting), that the publication of the summons was not commenced within thirty days after the granting of the attachment, within the meaning of section 638 of the Code of Civil Procedure (new Code); and that the attachment was properly vacated. (Taylor agt. Troncoso, 76 N. Y., 599.)

SHERIFF.

1. Where an action was commenced by plaintiff against the defendant and he was arrested by the sheriff, who took from him an undertaking signed by two sureties, who failed to justify on being excepted to:

Held, that upon the failure of the sureties to justify the sheriff became liable as bail. The sureties were not liable thereafter as bail, but they remained liable to the sheriff for all damages which he might sustain by reason of their omission to justify. (Douglas agt. Warren, ante, 264.)

4.

him to the custody of the jail. He cannot exonerate himself by surrendering him to the coroner, as the coroner has no right to receive him or to detain him in custody. (Id.)

It is only when the sheriff is a party to the action, in which the order of arrest was issued, that the coroner is authorized to act. (Id.)

5. It is the duty of a sheriff, having power to appoint deputies, to make the best appointment in his power, according to his judgment at the time when he makes it, and a promise by him, though for a valuable consideration, to appoint a certain person to the office of deputy sheriff, is void as against public policy.

Quare, as to whether, in any event, such a contract could be enforced at law, if the officer could, without cause, immediately remove the person from the office to which he claimed the right to be appointed. (Hager agt. Čatlin, 18 Hun, 448.)

6. Where an officer acting under an execution requires a bond of indemnity from the plaintiff therein, it will be presumed, unless the contrary clearly appear, that such bond is intended to relate only to property already levied upon, and not to property which may thereafter be levied upon, especially where the plaintiff in the execution has not directed such subsequent levy or approved thereof. (Clark agt. Woodruff, 18 Hun, 419.)

One Huntington, after the recovery of a judgment against him by the defendant, and shortly before the issuing of an execution thereon to the sheriff, executed and delivered to an assignee an assignment for the benefit of creditors, but at the time the execution was received the assignment had not been recorded, nor had the assignee given a bond or taken pos

session of the property. The sheriff, under the direction of the attorney for the judgment creditor, levied on certain of the property assigned by Huntington, but, in accordance with further directions from the attorney, took no further proceedings. Subsequently the property was sold by the assignee and a portion of the proceeds applied to the payment of defendant's judgment.

In an action by the sheriff to recover poundage on the value of the property so levied on, not exceeding, however, the amount collectable under the execution, held, that he was entitled thereto. (Benedict agt. Wright, 19 Hun, 27.)

8. Where the sureties to an undertaking, given by a defendant on his arrest, fail to justify, on being excepted to by the plaintiff, the sheriff becomes liable as bail, and can only exonerate himself by rearresting the defendant and holding him in actual custody. (Douglass agt. Warren, 19 Hun, 1.)

9. He cannot surrender him to a coroner, and any undertaking taken by the coroner on releasing him after such surrender is void. (Id.)

10. On December 3, 1875, the plaintiff delivered an execution to one Paine, a deputy of the defendant. The defendant was then sheriff of Monroe county, his term of office expiring on the last of that month. The execution not being paid within sixty days, it was held by Paine, with the knowledge and consent of the plaintiff and the sheriff, in the expectation that the debtor would pay it later. Thereafter the debtor paid the amount thereof to Paine, who returned the execution as satisfied, in the name of the defendant, as late sheriff, but did not pay over the money so received to either the plaintiff or the sheriff.

In an action against the sheriff to recover the amount so received

by his deputy, held, that the plaintiff was entitled to recover. (Ross agt. Campbell, 19 Hun, 615.)

11. On December 18, 1878, a decree in foreclosure was, in pursuance of chapter 439 of the laws of 1876, delivered to Albert Daggett, the sheriff of Kings county, with directions to execute it. His term of office expired December 31, 1878. On receiving the decree he advertised the property for sale on January 10, 1879, and on that day sold it in pursuance of such advertisement:

12. Under an execution, in the usual form, in an action for the claim and delivery of personal property, it is the duty of the sheriff to take and deliver the property as commanded, not only if he finds it in the possession of any person named therein, but also if he finds it in the possession of any other person; unless he can justify his refusal to do so by showing that such person has a title or right of possession superior to that of the party to whom he is commanded to deliver it. (Hoffman agt. Connor, 76 N. Y., 121.)

13. Where, therefore, to such an execution, the sheriff returned that he could not find the property so as to make delivery, and it appeared, in an action against him for a false return, that he knew where the property was within his county, and could have found it, but refused to take it or to take any action in regard thereto, upon the sole ground that it was in the possession of one M., held, that in the absence of proof that M.