ACCOUNT.

1. Where an action for an accounting between partners is referred to a referee, with power to require defendant to produce an account, and the defendant, when required by the referee to produce such account offers proof that the partnership books have been taken from his possession by the plaintiff, and that he is unable to render such an account, it is the duty of the referee to receive such proof, and absolute direction to render the account, without inquiring into such fact, is proper (McCartan agt. Van Syckel, 10 Bosw. 694).

2. After a defendant has availed himself of the plaintiff's books of account, to establish certain credits in his favor, it is competent for the plaintiff to read from the same books charges and entries which show that those credits have been exhausted by counter charges of debit, made at about the same time and afterwards (Dewey agt. Hotchkiss, 30 N. Y. R. 497).

See USURY, 7, 8, 9.

AFFIDAVITS.

1. Where the affidavit is substantially an allegation forming a part of the

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statement of confession of judgment preceding it, stating that the matters before stated are true, and being signed by the party making it, it is a sufficient signing of the statement, under the provisions of the Code (Mosher agt. Heydrick, ante 161).

2. Where the affidavit states that the facts stated in the above confession are true, it is in effect that the statement is true, and not merely that the facts only are truc (Id).

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3. Notaries public, by the act of 1863 (Sess. Laws 1863, chap. 508), were authorised to take affidavits and certify the same in all cases where justices of the peace or commissioners of deeds might, at the passage of the act, take and certify the same. suming that an affidavit should only be taken in the county where the notary resides, or in which he was appointed, the presumption is that he acts where the venue of the affidavit is laid, and that he resides there. Consequently, it is unnecessary to add to his signature his place of residence (Id).

4. Clerks of counties, are by statute, classed among the judicial officers. An affidavit taken before a notary public may be used before any county clerk, and under section 384 of the

Code, judgment may be entered with any county clerk, and not merely in the county where the statement authorizing it was verified (Id).

5. Where an affidavit is required by law to be taken before the clerk of a district court, it may be taken before the deputy, and the latter may in such case properly sign the name of the clerk (People agt. Powers, 19 Abb. 99).

See SUMMARY PROCEEDINGS, 3, 4, 5.

AGREEMENT.

1. Where the plaintiff and defendants entered into a written agreement by which the former agrees, for a certain sum to be paid him by the latter, to do all the carpenter's work upon a school house to be erected, and to furnish and use all the requisite materials; and that he would commence said work, and would proceed therewith, without delay, and in such a manner as not to delay the contractor for the mason work. It was held that the latter covenant raised an implied obligation on the part of the defendants to have the building in readiness for the plaintiff to perform the condition; that it was a mutual covenant on both the parties; on the part of the plaintiff that he would commence and proceed at once, and on the part of the defendants that they would be ready to allow him to do so (Allanson agt. The Mayor of Albany, 43 Barb. 33). 2. The plaintiff having sustained damage by reason of the defendant's delay in having the building ready for him to do the work stipulated, held, also, that he could maintain an action to recover the amount (Id).

3. The plaintiff, while in the employ of the defendant, and working upon his farm at a specified sum per month, including his board, married the daughter of the defendant, who was then residing with her father, as a member of his family. She continued to reside with, and render services for, her father, being his principal housekeeper, and he furnished her and her two children, issues of the marriage, with food and clothing; without any agreement or understanding, or accounts kept, touching the services of the daughter and the food and clothing of herself and children. And the plaintiff continued to work for the defendant, and to board in his house:

Held, that the circumstances did not justify the implication of a promise by the defendant to pay for the services of his daughter, and a promise by the plaintiff to pay for the board and clothing of his wife and children. That the claims touching the wife and children should be considered together; and that the plaintiff was not entitled to anything for the services of his wife, nor was the defendant entitled to anything for the food and clothing of the wife and children (Conger agt. Van Arnum, 43 Barb. 602).

4. An agreement to pay liquidated damages, in the event that in a suit thus pending the court shall fail to make an order with a specified provision affecting substantial interests, is void. If it contemplate an order which would be inequitable or contrary to settled practice, it is against publie policy; and even if it contemplates an order, such as is usual to make in like cases, it is in the nature of a wager, and prohibited by the statuto of betting and gaming (Coudry agt. Carpenter, 19 Abb. 373).

5.

An agreement establishing a corner or boundary line between adjoining land owners, made under a mistake of facts, is not binding upon the party injured by the mistake, if he disowns the agreement upon discovering the mistake. He may then insist upon the true line, notwithstanding the former agreement. There is no difference, in this respect, between agreements establishing boundary lines, and agreements upon other subjects (Coon agt. Smith, 29 N. Y. R. 392). 6. An agreement by a plaintiff, with one of several defendants, that the cause shall be tried without delay, and if the defendants prevail, the defendant entering into the agreement shall pay the plaintiff a certain sum, and receive an assignment of the claims and securities on which the action is brought, is valid. The plaintiff's stipulation to transfer the securities, is a sufficient consideration for the defendant's promise to pay in the contingency contemplated. Nor is such agreement void on grounds of public policy (Gray agt. Bowen, 10 Bosw. 67).

7. Under an agreement for the employment of a clerk, at a commission on all business done by him, a monthly allowance to be paid to him on account of it, and the balance not to be paid until the end of the year, he

agreeing to forfeit such balance if he should not remain till then, the employer has a right to discontinue his services during the year, and thus prevent him from being entitled to the balance of commissions, provided a sufficient cause therefor arises, such as his intoxication, unfitting him for his duties. The employer is not bound under such circumstances to dismiss him instantaneously upon such misconduct; and his permitting a day to pass, before discharging him, is not a waiver of the forfeiture (Huntington agt. Claflin, 10 Bosw. 262).

See INSURANCE, 1, 2, 3, 4, 5.
See STATUTE OF FRAUDS, 1, 2, 3.
See CONTRACT.

See INSOLVENT DEBTORS, 4, 5, 6.
See BILLS OF EXCHANGE,

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PROMISSORY NOTES, 11, 12. See MARRIED WOMEN, 18, 19, 20.

ALIEN.

1. A child born here, of non-resident parents, and now residing here, is prima facie a citizen of this state, notwithstanding his mother was only here for the purpose of being confined (Munro agt. Merchant, 28 N. Y. R. 10).

2. An alien may take by purchase, and hold against all parties except the state claiming under an inquest of office (Id).

AMENDMENT.

1. An amended answer takes the place of and supercedes the original answer, and the plaintiff may demur to any amended answer, which upon its face does not constitute either a counterclaim or defence (Sands agt. Calkins, ante 1).

2. An answer may be once amended by the party, of course, but where a demurrer has been interposed to an answer, and the defendant amends, of course, to which amended answer the plaintiff also interposes a demurrer, the defendant cannot serve second amended answer without leave of the court (Id).

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3. The terms upon which an amendment of a pleading is granted are in the discretion of the court, unless they violate some absolute right of a party,

and, except in such cases, are not appealable (Schermerhorn agt. Wood, ante 316).

ANSWER.

1. The plaintiff may, in all cases, demur to an answer containing new matter, where upon its face it does not constitute a counter-claim or defence (Sands agt. Calkins, ante 1). 2. An amended answer takes the place of and supercedes the original answer, and the plaintiff may demur to any amended answer, which upon its face does not constitute either a counterclaim or defence (Id).

3. An answer may be once amended by the party of course, but where a demurrer has been interposed to an answer, and the defendant amends of course, to which amended answer the plaintiff also interposes a demurrer, the defendant cannot serve a second amended answer without leave of the court (Id).

4. The court will not, without special reasons shown, allow a defendant, after having interposed an answer, to withdraw it and put in a demurrer instead (Finch agt. Pindon, 19 Abb. 96).

5. Although the Code does not expressly require the defendant, in his answer, to state the relief he demands, he must set forth whether he interposes a mere defence or counter-claim (Clough agt. Murray, 19 Abb. 97). 6. An answer, setting up as a defence a failure of consideration, must state whether it is a partial or total failure (Id).

7. An answer in terms merely denying "each and every material allegation in the complaint," is evasive and obnoxious to a motion that it be made more definite and certain. A denial in an answer should, by its words, so describe the allegations of the complaint which the pleader intends to controvert, that any person of intelligence can identify them (Mattison agt. Smith, 19 Abb. 288).

8. A plaintiff in an action who does not demur to an answer therein, which sets up as a counter-claim a demand not properly admissible as such in such action, but takes issue upon it by replying thereto, thereby agrees to try in such action the merits of such demand, and to have the result of such trial avail therein, as though such demand were the proper subject of a