entitled to under section 3, chapter 52 of 1852. (See People ex rel. Kurzman agt. Green, 7 Hun, 231.)

Arising from refusal to accept merchandise under contract - Measure of sale by vendor for benefit of vendee-how soon it must be made. (See Smith agt. Pettee, 7 Hun, 334.)

Where on a sale of cabbage seed, which although properly planted and cultivated produced plants of a worthless variety-held plaintiffs were entitled to recover all their damages, including gain prevented. (See White agt. Miller, 7 Hun, 427.)

Evidence in an action of slander

of a reiteration of the slander on an occasion other than that alleged in the complaint is admissible for the purpose of enhancing the damages. (See Distin agt. Rose, 7 Hun, 83.)

Nuisance what amount of damage is necessary to enable party to maintain action to abate. (See De Laney agt. Blizzard, 7 Hun, 7.)

Measure of, on sale of a canal boat, which was proved to be unfit to navigate the canal. (See Zuller agt. Rogers, 7 Hun, 540.)

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sold under process in his own favor, this affords him no protection and is no defense in an action against him for the wrong. (Wehle agt. Butler, 61 N. Y., 245.)

Where an insurance company, after a loss, has adjusted the claim therefor and has agreed to pay a certain sum in consideration of the surrender by the assured of his policy, in an action to recover the amount so agreed to be paid, the company cannot avail itself, as a defense, of a clause in the policy limiting the time within which an action can be brought thereon; the action is not upon the policy but the independent agreement. (Smith agt. G. F. Ins. Co., 62 N. Y., 85.)

Nor can it, in the absence of fraud, set up a breach of warranty as a defense, though ignorant of such breach at the time of the agreement; the time for investigation as to breaches of warranty is when a claim is made, and if the company elects to adjust the claim this operates as a waiver of any warranty, and it cannot afterward retract or avail itself of an alleged breach. (ld.)

4. In the absence of fraud a vendee of personal property cannot set up a defect of title in his vendor and a notice of claim by a third person as a defense to an action for the purchase money, unless he has either returned the property to the vendor, has had his possession interfered with, has had a recovery against him by the claimant, or has paid such claimant for the property. (McGiffin agt. Baird, 62 N. Y., 329.)

5. He can only rely upon an express or implied warranty of title, the effect of which is to guarantee him against eviction or injury from other parties, and until this occurs he is entitled to no indemnity. (Id.)

When properly overruled as frivolous. (See Barker agt. Seaman, 61 N. Y., Mem., 648.)

CITY).

1. By section 65 of chapter 334 of the Laws of 1857, it is enacted, that the corporation of the city of

New York shall furnish, at the expense of the city, all necessary attendance, &c., for the district courts. By resolution of the common council, approved March 16, 1870, it was resolved, "that the justices assigned to each of the police and district courts of this city, be and they are hereby authorized and empowered to appoint a janitor of each of said courts, at an annual salary of $1,500." Where a janitor was appointed by one of the civil justices, under this authority, held, that he was properly appointed and entitled to the compensation prescribed (McCullough agt. Mayor, ante, 486.)

2. The duty imposed by the legislature on the corporation, in respect to such employment being executive and ministerial, it can be exercised as well through the authority given to the civil justices, as by a direct employment by the common council itself, and so long as the purposes of the act are accomplished, it is of no legal importance how the corporation performs the duty. (Id.)

3. Such janitor is not a public officer, but a mere employe or servant, his duties being servile in their character; therefore, the provision of the charter (chap. 335 of 1873, sec. 97), by which it is provided that the salaries of all officers paid from the city treasury, whose offices now exist but are not embraced in any department, shall be fixed by the "board of apportionment," does not apply to this case. (Id.)

4. The distinction between such a janitor and one having care of public buildings under the commissioner of public works, is pointed out by DANIELS, J., in Bergen agt. The Mayor (12 N. Y. S. C. R., 243). (Id.)

5. In order to give a district court of the city of New York jurisdic

tion to issue an attachment, a bond must be given in the form prescribed by the Revised Statutes upon the issuing of an attachment by a justice of the peace (sec. 20, chap. 344, Laws of 1857; 2 R. S., 230, sec. 29), and an attachment issued without such bond, and a judgment founded thereon, are void. (Van Loon agt. Lyons, 61 N. Y., 22.)

6. An attachment was issued by a district court upon affidavits stating the amount and nature of the debt; that defendant had said that she could not pay, had disposed of her property and was about to depart from the state to reside in Canada; and averring that she was about to secrete or dispose of her property for the purpose of defrauding plaintiff. Held, that

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the affidavits were sufficient to confer jurisdiction. (Id.)

The legislative intent in the passage of the provision of the act of 1872, relating to courts in the city of New York (sec. 1, chap. 438, Laws of 1872), which declares that "there shall be a clerk and an assistant clerk in each of the district courts of said city, who shall be appointed by the justices of said courts," &c., was to provide for the appointment of an additional clerk for each of said courts, and to apply to both the then existing laws relative to the tenure of office, powers and duties of clerks. (People ex rel. agt. Hogan, 62 N. Y., 375.)

As by the then existing law (sec. 7, chap. 514, Laws of 1851) the tenure of office of the clerks of said courts was the same as that of the justices thereof, a justice of one of said courts has no authority to remove at pleasure its assistant clerk appointed under said act, and such a removal is illegal and void. (Id.)

9. Under said provision of the act of 1872, the appointment of the clerk

and assistant clerk of a district court is to be made by the justice thereof, not by the justices of all the courts as a body. (Id.)

EASEMENTS.

1. Where a common owner of two tenements the windows of one of which overlook the yard of the other and receive light and air therefrom, its shutters swing out over such yard, and access from its fire-escapes, which overhang the yard, being had to such yard

severs the same by conveyances to different persons, an easement in favor of the tenement so overlooking the other, it being the one first conveyed, is created in respect to light and air, the swinging of the shutters, and access to and from the fire-escapes. (Havens agt. Klein, ante, 82.)

2. Such easement is an apparent one. The grantee of the servient tenement, the one later conveyed, is deemed to have actual notice of such easement, and takes his title subject thereto. (Id.)

3. In such case it is immaterial whether such severance be by deed or mortgage, inasmuch as by foreclosure the mortgage is ripened into a deed. (Id.)

EJECTMENT.

1. In an action of ejectment, the plaintiffs founded their title on a statutory foreclosure, in which the service of notice of foreclosure on the mortgagors was by mail, and it did not appear, except on information and belief, that the mortgagors resided at the place to which the envelopes containing such notices were addressed and mailed. Held, that the proceedings in foreclosure were defective. (Mowry agt. Sanborn, 7 Hun, 380.)

2. On the trial the plaintiffs offered oral proof supplementary to the affidavits, to the effect that the mortgagors actually resided at the place to which the notices mailed were addressed at the time they were so mailed, as stated in the affidavit. Held, that this evidence was inadmissible. (Id.)

3. On a foreclosure and sale by advertisement under the statute, there is no transfer of title, sufficient to authorize an action of ejectment by the purchaser, until all necessary affidavits have been made and recorded. The recorded affidavits operate as the statutory transfer of title. (Id.)

Action in, what must be averred -not necessary to state in detail the facts constituting the estate or interest claimed in the land, but the general form or character of the estate or interest must be averred. (See Austin agt. Schluyter, 7 Hun, 275.)

is a married woman and has no joint interest with the other defendant in, or control over, the cattle doing the damage, such facts should have been set up in the answer and proved on the trial. (Id.)

3. Bare possession of a chattel is sufficient to maintain trespass against a wrong-doer. Therefore evidence offered to show title or an interest in the crops damaged, in a third person, was properly excluded, it appearing that the plaintiff was in the exclusive possession of the premises and of the property damaged. (Id.)

5. It appeared that the witness was abundantly qualified to give such evidence, and consequently there was no error in its admission. (Id.)

6. This action was brought to recover for goods sold to defendant, who set up a counter-claim, alleg ing that the plaintiff had agreed to sell him 129 dozen sheep skins at three dollars and twenty-five cents per dozen, but had only delivered ten dozen, whereby the defendant was compelled to purchase the remainder at an increased price. Upon the trial, the defendant, after stating that he was forced to purchase these skins, testified: "I bought a lot at five dollars and fifty cents, which was the best I could do, and these, I admit, were altogether better, but

here; I do not charge the difference, which would be two dollars and sixty cents, but allow for the size and quality of the skins, and make it one dollar and ninety-six cents." Held, that this evidence was admissible and that the jury were authorized to find that defendant's damage on each dozen of skins, not delivered by the plaintiff, was one dollar and ninety-six cents. (Robertson agt. Schumann, 7 Hun, 79.)

Y., defendant's president, purchased certain shares of Gregory mining stock through B., one of defendant's clerks, to whom a loan for its price was made by the defendant, and the stock taken as collateral. Subsequently B. loaned to Y. 410 shares of Mariposa stock, to enable him to meet the examination of the affairs of the bank, by board of directors. Y. delivered both the Gregory and Mariposa shares to the bank, as collateral to the loan to B., and the same was subsequently retained by the defendant. In this action, brought to recover the Mariposa shares on the ground that they belonged to plaintiff's testator, and had been placed by him in B.'s hands, B. was allowed to testify against the defendant. Held, that this was error, under section 399 of the Code; that B. was interested in the action, as a judgment against the defendant would relieve him from liability for converting the plaintiff's testator's stock, and that the defendant was an assignee of Y. (Andrews agt. Nat. Bank of North America, 7 Hun, 20.)

In an action to recover for over payment for land sold by the acre, because of mistake in the survey, it is competent to prove what transpired between the parties prior to the execution and delivery of the deed. (Wilson agt. Randall, 7 Hun, 15.)

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