16. The judgment against the sureties on the limit bond is no estoppel in such case, because it was not between the same parties; and estoppels to be available must be mutual. Such judgment is not an equitable estoppel unless the sheriff has realized the whole amount which he would be obliged to pay for the escape. Nor will the sheriff be estopped from appealing from such judgment, though he has collected a part of the judgment against the sureties on the limit bond (Id).

See ASSIGNMENT FOR THE BENE-
FIT OF CREDITORS, 6.

STATUTE OF FRAUDS.

1. An agreement by a purchaser to pay and satisfy a mortgage upon the premises purchased as a part consideration of the purchase money, need not be in writing to be valid and binding, but is sufficient if in parol, where the agreement is fully performed by the grantor, by executing and delivering a deed, and giving up possession of the premises to the grantee. Holding the agreement fully executed on the part of the grantor, it does not lie with the grantee to refuse performance on his part (Ely agt. McKnight, ante 97).

2. A promise to pay for lands sold and conveyed, is not within the statute of frauds, and is not required to be in writing (Id).

3. An agreement to pay an existing mortgage as part of the consideration money on the purchase of lands, is not an agreement to pay the debt of a third person, and therefore void if resting in paro!; but it is an origina undertaking-it constitutes the consideration of the conveyance, and does not come within the statute of frauds, although not in writing (Id).

4. The purchaser's possession of a bill of lading for goods sold under a parol contract for over $50, if obtained without the seller's consent and without payment of any purchase money, will not take the case out of the statute of frauds (Brand agt. Focht, ante 313).

5. Where the parties to a sale agree that the vendeo shall, as a part of the consideration moving from him, pay a debt due from the vendor to a third person, a promise of payment made by the vendee to such third person, pursuant to the agreement, is not within the statute of frauds (Winfield agt. Potter, 10 Bosw. 226).

6. Thus where persons holding a contract for the supply of certain merchandise to the government, which was to be subject to inspection, delived a part of the goods, and pleaged the government receipts therefor, to the plaintiff as security for a debt due to him, and subsequently assigned the contract to the defendant, in consideration, among other things, of his assuming to pay all their debts, and the defendant, in order to obtain the receipts pledged, so that he might effect a settlement with the government, gave to the plaintiff a written promise that he would pay the amount of the debt whenever he received certificates from the government for the payment of so much upon the contract, in consideration that the plaintiff should aid in procuring the inspection and acceptance of the goods without charge, and the plaintiff at the same time gave to the defendant a written promise to assist him accordingly without charge; held, that the promise to pay the plaintiff was not void under the statute of frauds. 1. Taken together, these two instruments expressed a consideration. 2. Such a contract is not to be deemed an undertaking to pay the debt of another, within the It is to be regarded as assuming to pay a lien upon being put in possession of the indicia of title (Id).

statute.

7. The delivery of chattels to a creditor of a third person, and his acceptance of them in satisfaction of the indebtedness to him of such third person, without the latter being a party to the transaction, satisfies both such debt and any liability for the price of such chattels, and prevents the party so delivering them from recovering their value upon an implied agree

ment for goods sold and delivered, upon the ground that the special agreement upon which they were delivered was a parol promise to pay the debt of another, which was void by the statute of frauds. One so delivering the goods and inducing the creditor to accept them in payment, is estopped from alleging the contract to be void and recovering their price (Fowler agt. Mohler, 10 Bosw. 374).

8. To render valid a contract of purchase and sale of personal property amounting to more than fifty dollars, something more than mere words must pass between the parties. Under the statute for the prevention of frauds and perjuries, there must have occurred one of the three acts mentioned therein expressing the concurrence of both parties; as, 1. The memorandum, if in writing, must be signed by both; or, 2. If the delivery of the goods, in whole or in part, be relied upon, it must have been made by the one and accepted by the other of the parties; 3. Or if it be payment in whole or in part, of the consideration or purchase money, it must have been offered by the one and accepted by the other of the parties (Brabin agt. Hyde, 32 N. Y. R. 519).

mere

9. The object of this statute is to require something more than words, expressive of the meeting of the minds of the parties, to pass between the buyer and the seller (Id). 10. If the purchase money or consideration is the payment of a note, or the discharge of an indebtedness, the payment or discharge must be consummated at the time, so as to bind both parties by their acts rather than by their words (Id).

11. A contract for the sale of goods is not binding on the vendor, unless a note or memorandum thereof in writing is signed by the vendee as well as the vendor, where no part of the goods are delivered, and no part of the purchase money is paid (Justice agt. Lang, ante 425).

12. The statute of frauds requiring that "a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby," is not satisfied by being signed by one of the parties to the contract only, but it requires the contract to be signed by both parties. (MCCUNN, J. in an able opinion dissents). (Id).

1.

2.

See CONTRACT, 3, 4, 5, 6, 7, 8, 9, 31. See MARRIED WOMEN, 18, 19, 20.

STATUTE OF LIMITATIONS.

The statute of limitations commences to run against a promissory note payable on demand, immediately from the date of the note. But the statute does not commence to run against a note payable on demand, with interest, or with interest annually, until actual demand made. Per BACON, J. (Scovil agt. Scovil, ante 246).

The Revised Statutes (§ 8, Art. 1, Tit. 3, chap. 6, Part 3) provide that the term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited by law for the commencement of an action, against his executors or administrators. This provision remains in full force and effect, notwithstanding section 102 of the Code, which provides that if any person against whom an action may be brought shall die before the expiration of the time limited for the commencement thereof, and the cause of action survive, it may be brought against his personal representatives after that time and within one year after the granting of letters testamentary or of administration (Id). 3. Therefore an action upon a promissory note brought more than a year after issuing letters of administration, but within six years after the note became due by excluding eighteen months after the death of the intestate in the computation of the time, is not barred by the statute of limitations (Id).

4. A defendant in a personal action, who is resident abroad, cannot avail himself of the statute of limitations of this state until he has returned to, and actually been a resident of, this state, and subject to process of its courts for the period of six years (Power agt. Hathaway, 43 Barb.214). 5. Where the plaintiff and defendant, at the time of contracting the debt, were, and have ever since been, residents of the state of Michigan: Held, that the courts of this state could not give effect to the statute of limitations of the state of Michigan; and that the defendant, being a non-resident of this state, could not set up our statute as a bar (Id).

6. In May, 1848, P. delivered to the firm of S. G. & H. $1,000, which they

received and credited to him on their books, and delivered a paper signed | by them, acknowledging the receipt of the money, and stating that the same was to P.'s credit on their books at six per cent interest. Held, that the transaction was a deposit and not a loan; hence there was no right of action against the depositories until actual demand was made; and that the statute of limitation began to run from the same time, and not before (Payne agt. Gardiner, 29 N. Y. R. 146).

7. But that if the transaction was to be treated as a loan, then the paper signed by S. G. & H. was in effect a promissory note on interest, and payable on demand; and the statute of limitations would not begin to run in favor of any of the parties to it, until such demand was made (Id).

8. A letter written by a debtor, in effect acknowledging the existence of an indebtedness, and proposing a compromise, but distinctly indicating an unwillingness to pay, and a determination to pay nothing if the offered compromise be rejected, is not such a recognition of the debt as will take it out of the statute of limitations (Creuse agt. Defigamiere, 10 Bosw. 122).

9. A new promise cannot be raised by implication from any act of an agent of the debtor, whose only authority is to effect a compromise upon specified terms (Id).

10. It seems, that an agent cannot bind his principal by an implied new promise made within six years before action, where the authority of the agent was given more than six years years before the action (Id).

See EJECTMENT, 1, 2, 3.

STAY OF PROCEEDINGS.

1. Where after service of the summons and complaint, the defendant stays the plaintiff's proceedings until the costs of a former suit are paid, the defendant cannot move under section 274 to dismiss the complaint, where the costs have not been paid and the stay is in force (Unger agt. Fortysecond street, &c., R. R. Co., ante 443).

STREETS.

1. Where a power, authority, or duty is confided by law to three or more

1.

persons (not a court), they must all confer, unless otherwise specially authorised; and if, after entering upon proceedings, one of them resigns his appointment, the others cannot, upon a subsequent meeting, proceed with the exercise of the powers conferred. This rule applies to assessors in street cases in the city of New York (Beekman's Petition, 19 Abb. 244).

See RAILROADS, 1, 2, 3, 4, 5, 6, 8, 9.

SUMMARY PROCEEDINGS

Under the Revised Statutes, in summary proceedings against a tenant for holding over, it is provided (3 R. S. vol. 3, 5th ed p. 836, § 30): "On receiving such affidavit, such officer shall issue his summons, describing the premises of which the possession is claimed, and requiring any person in the possession of said premises, or claiming the possession thereof, forthwith to remove from the same, or to show cause before such magistrate, within such time as shall appear reasonable, not less than three nor more than five days, why possession of said premises should not be delivered to such applicant; provided, however, that in the cases where a person continues in possession of the demised premises after the expiration of his term, without permission of his landlord, the magistrate may direct such summons to be made returnable on the same day" (Russell agt. Ostrander, ante 93).

2. Held, that it is discretionary with the magistrate where the summons is issued, in the case of holding over after the expiration of his term without permission, to make it returnable on the same day, or on any day within the five days (Id).

3. Where an affidavit of the service of a summons, under the statute relative to "summary proceedings to recover the possession of land," alleges a service upon an under tenant, on the demised premises, and that the tenant was absent from his last and usual residence, without stating that such residence was upon the demised premises, it is insufficient (People agt. Platt, 43 Barb. 116).

4. A demand of the rent claimed to be due, made of an under tenant, who is described in the affidavit as a person in the possession of the demised premises, is not sufficient to give the

justice jurisdiction. The demand must be made of the tenant, or three days' notice requiring payment or the possession of the premises, must be served in the manner specified in the statute for the service of the summons (Id).

5. The affidavit which is the foundation of "summary proceedings to recover the possession of lands" shall make out a plain case, and should not be uncertain or contradictory. If it shows neither the relation of landlord and tenant, nor that any particular specified term of the defendant has expired, the summons will be unauthorised, and all subsequent proceedings void (The People agt. Mathews, 43 Barb. 168). 6. To authorise the institution of summary proceedings to recover the possession of land, the relation of landlord and tenant must be shown to have existed between the parties by agreement, and not a tenancy created by the mere operation of law (The People agt. Simpson, 28 N. Y. R. 55).

7. Where the affidavit upon which a summons was issued, stated that J. M. leased the premises to M. M. for the term of ten years; that M. M. entered as tenant, and assigned the lease to A. S., who assigned the same to H. and H. assigned it to J. S.; that upon the assignment by M. M. to A. S. the latter became entitled to the possession of the premises, and the former became the tenant of the latter by sufferance; and that by reason of said transfers and assignments, M. M. became the tenant at sufferance of the said J. S.; it was held that the facts stated did not show the conventional relation of landlord and tenant, but the contrary, and were not sufficient to give jurisdiction to the justice (Id).

SUMMONS.

1. Where a summons in the form prescribed by law for the case in which a copy of the complaint is served with it, is served without the complaint, and does not state where the complaint will be filed, the omission does not render the judgment void. It is an irregularity, of which advantage should be taken by motion (Foster) agt. Wood, ante 284).

2. Where after service of the summons and complaint, the defendant stays the plaintiff's proceedings until the

1.

2.

3.

costs of a former suit are paid, the defendant cannot move under section 274 to dismiss the complaint, where the costs have not been paid and the stay is in force (Unger agt. The Forty-second street, &c., Railroad Company, ante 443).

See VARIANCE, 1.

See JUDGMENT, 10, 11. See PROCESS, 1, 2, 3. See ATTACHMENT, 8.

SUPERVISORS.

Where a board of supervisors accept and act upon an account containing various items, presented to them for audit and allowance, they are estopped from objecting subsequently, that the account only is verified, and not the items of the account, as required by the statute (People agt. Supervisors of St. Lawrence, ante 178).

The duty of a board of supervisors in auditing and allowing accounts, is First: To examine and determine whether an account is properly verified: If so, Second: To see if it is properly chargeable against the county: If so, Third: To settle or fix its amount: Fourth: Allow it as thus settled; and Fifth: To provide means for its payment (Id).

If an account is not properly verified, it should be returned to its claimant with notice, that he may appear and correct it. If it is not properly chargeable against the county, it should be rejected. In settling the amount, if it is for any matter the price of which is fixed by lau, by custom, by authority, or by contract, with one having authority to contract on behalf of the county, the board have no discretion. It must settle or declare the amount in each case according to such law, custom, authority or contract (Id).

4. But if the amount is for any matter which does not come within either of said classes, the board in settling or fixing amounts is vested with a discretion, and acts in the light of such information as it may possess or seek, or as may be furnished to it by claimants. In such cases, when the board has once acted and exercised its discretion, a mandamus will not lie to compel further action (Id).

5. But in all cases where the exercise of discretion is required, and the board

a

7. A resolution of a board of supervisors providing for the issuing of county bonds to each supervisor who may call for the same, to pay bounty of a specified amount to each recruit that shall be mustered into the service of the United States, to the credit of their respective towns, is a provision to issue the bonds upon the credit of the county; and the bonds issued under it are a county charge, and binding on the whole county (Id).

8. Such bonds, being issued under the authority of the board of supervisors, upon the credit of the county, are valid bonds of the county; and it is the right and duty of the board of supervisors to provide accordingly for their payment, as legitimate public debts of the county (Id).

9. After a claim against a county has been presented to the board of supervisors for allowance, and has been examined and passed upon by that body, the amount determined to be actually due declared, and its payment provided for in the mode prescribed by law, no action will lie against the county, to recover the same claim, upon the ground that the decision of the board was erroneous in respect to the amount actually and legally due to the plaintiff (Martin agt. Supervisors of Greene county, 29 N. Y. R. 645).

10. A board of supervisors can only audit the damages assessed for the land of an individual taken for a highway, with the charges, &c., as provided in the highway act, (2 R. S. 399, § 93, 5th ed.) and no more can be levied and collected of the town (People agt. The Supervisors of Richmond, 28 N. Y. R. 112).

turn to a mandamus sued out by an individual whose land is taken for a highway, and the relator has been kept out of the damages to which he was entitled from the town, the supervisors may be properly made liable in damages, to the extent of the interest upon the damages assessed (Id). 12. Where, upon application for a peremptory mandamus, in such a case, the material issues are found in favor of the plaintiff, the judgment should be that a peremptory mandamus issue to the board of supervisors commanding them to audit the claim as commanded in the alternative writ. A direction to the jury to render a verdict for the relator for the amount of the damages assessed, and the interest thereon as damages, is erroneous (Id). 13. But on appeal to this court, from such a judgment, the facts being before the court, it may modify the judgment by reversing it as to the sum assessed as damages, and affirming it as to the interest allowed as damages, and directing that the judgment be so amended as to grant to the relator the writ of mandamus without delay (Id).

14. The metropolitan police act imposes on the district attorney of each county embraced in its provisions, the duty of prosecuting for penalties incurred by the sale of intoxicating liquors on the Sabbath, or on any election day, within the limits of such county (The People agt. Supervisors of New York, 32 N. Y. R. 473).

15. District attorneys are county officers; and moneys necessarily expended by them in executing their official duties, in the absence of provision for specific compensation, are chargeable to the respective counties (Id).

16. Expenditures properly incurred by a district attorney in prosecutions for penalties, and paid by a subsequent incumbent after succeeding to the charge of the suits and the rights and duties of the office, are within the protection of the statute (Id).

17. Mandamus is the appropriate remedy to compel the board of supervisors to audit and allow the claims of county officers for such expenditures (Id).

See CERTIORARı, 1, 2, 3.

See BONDS, 2, 3, 4.