payments, but claimed a balance
due thereon, after deducting pay-
ments made; the answer denied
each and every allegation, &c., and
set up a counter-claim. On the
trial defendant proved the counter-
claim, but no payments were
proved or admitted, except as
admitted by the complaint; the
referee regarded the difference
between the balance claimed by
the complaint, and the sum therein
stated as originally due, as repre-
senting payments made, and found

at the defendant was entitled to
be allowed the amount of such
difference, together with the
amount of his counter-claim; he
found, however, that a less amount
was originally earned, or due, than
the complaint stated in that respect,
and deducting such lesser amount
from the sum of the counter-claim
and payments, gave defendant the
balance.-Held, the referee erred
in deciding that the plaintiff
conceded the payments
upon
any smaller sum than the com-
plaint stated to have been originally
due. White v. Smith.
469

See EVIDENCE, 1, 2.

AGENT.

See PRINCIPAL AND AGENT.

made in writing, under his hand,
"and ready to be delivered to the
said parties in difference, or such
of them as shall desire the same,"
on or before a certain day. After
hearing had thereunder, the arbi-
trator drew up his award, and, on
the day preceding that named in
the submission, delivered a signed
copy to the prevailing party,
retaining in his possession his
unsigned draft only. On the next
day, the other party, knowing of
the award and its amount, called
on the arbitrator, talked with him
about it, made no request for the
award, or that a counterpart should
be made and delivered to him;
but, after the specified day, deman-
ded a copy. The arbitrator offered
to sign and deliver to him the draft,
which was refused.-Held, in an
action by an assignee of the award,
against the unsuccessful party
therein, that the right of the latter
(the defendant), to insist on formal
delivery, had, under the circum-
stances, been waived, and the
award was valid. Burnap v. Losey.
111

2. That the defendant was bound, by
the terms of the submission, to
make known to the arbitrator a
desire to have the award delivered
to him before the time for its mak-
ing and delivery had expired, and
could not defeat it by showing that
if he had done so, it would not
have been ready for him. Id.

ASSUMPSIT

See PROMISE, 1, 2.
MARRIED WOMAN, 5.

ATTACHMENT.

1. In an action founded on an alleged
breach of the contract to marry,
no warrant of attachment is allow-
ed by the provisions of the Code;

to 12

Id.

268

of the relator, directing the trea-
surer to pay by check on the Me-
chanics' and Farmers' Bank, and
the treasurer having drawn the
check in payment of the warrant
on the Merchants' National Bank,
the auditor refused to countersign
the same because it was not drawn
on the bank specified in the war-
rant.-Held, on appeal from an
order at Special Term, directing a
mandamus to issue requiring the
treasurer to draw the check as
required by the warrant, that the
treasurer, and not the auditor, had
the right to select the bank on
which the check should be drawn,

Id.

gestions in, doubted.

20

COMPARISON OF WRITINGS.

See EVIDENCE, 11.

COMPLAINT.

See DISCRETION, 1.
SUMMONS, 4.

TELEGRAPH COMPANIES, 9.
FORCIBLE ENTRY AND DETAIN-
ER, 1, 10.
PRACTICE, 16, 17.

COMPTROLLER.

94), explained.

494

Murdock v. Chenango Mut. Ins. Co.
(2 Coms., 210), explained. 20
Norton v. Hayes (4 Denio, 245), ex-
plained.
494
Parsons v. Nash (8 How. R., 454),
explained.
488

66

People v. Bennett (6 Abb., 343), upon
a certain point approved.
People v. Fields (52 Barb., 198), ap-
proved in part.

222

Pilling v. Pilling (45 Barb., 86), re-

viewed.

150

of the town of Watertown (under
§13, Laws 1859, chap. 312), from
the decisions of the supervisors of
Jefferson county, in the equaliza-
tion of assessments, the comptrol-
ler made his determination, upon
proofs taken before a referee, ap-
pointed by him for the purpose,—
Held, the statute gave him author-
ity to do so. People v. Hillhouse.

See MANDAMUS, 1.

87

4. A contract with a railroad com
pany for the performance of labor,
&c., upon its road, in the construc-
tion thereof, by which the con-
tractor agrees to abide by the
opinion of an engineer in such
company's employ, as to the ade-
quacy of his labors to accomplish
the contract work within a speci-
fied time, and upon notice from
such engineer, that he will make
the exertions and arrangements,
necessary in the latter's opinion, to
compensate for previous neglect
and to insure fulfillment, as stipu-
lated; and for failure so to do that
the contract shall, at the option of
the company, be at an end, and
that he will be liable for damages
or expenses incurred on account of
his neglect, and will surrender
possession of the road, &c.; and,
also, further providing that in case
of failure to fulfill, he will forfeit,
as a penalty, a percentage of the
price of services, &c., rendered, to
be retained by the company from
amounts becoming due for such
services, &c., until completion of
the contract; and that no sums
due over and above such percent-
age shall be paid until completion
of the contract, and that such sums
shall be appropriated to expenses
incurred, if any, by the company,
in obtaining completion of the
contract beyond the expense pro