fendants claim that they are relieved from liability on their bond by the fact that B., in addition to the duties of bookkeeper, was required to perform and did continuously perform the duties of treasurer of the department of docks. It appeared that B. was required to assist the treasurer of the department of docks in receiving and depositing to the credit of said treasurer the funds of the department; that from time to time. he embezzled sums of money amounting in the aggregate to over $40,000, concealing the same by false entries in the books or by a failure to enter receipts. It was not claimed that B. was hindered in properly performing the duties of bookkeeper by the additional duties imposed. D. J. Dean, for applt. Wallace Macfarlane, for respt. Held, That defendants were liable for a breach of their bond in the failure of B. to faithfully perform his duty as bookkeeper. The question of the damages resulting from such a breach was one for the consideration of the jury. The sureties upon a bond like the one in suit are not discharged by the imposition of new duties which are distinct and separable from those protected by the bond, unless such new employment renders impossible or materially hinders or impedes the proper and just performance of the duties guaranteed. The fact that the new employment exposed their principal to temptation, or gave broader opportunity for dishonesty, is immaterial. 90 N. Y., 116; 21 id., 881. Sup'rs v. Pennock, 60 N. Y., 426; Ward v. Stahl, 81 id., 406; People v. Vilas, 36 id., 460, distinguished. Judgment of General Term, affirming judgment dismissing complaint, reversed, and new trial granted. Opinion by Finch, J. All con cur. STATUTE OF FRAUDS. N. Y. COURT OF APPEALS. Ackley, ex'r., applt., v. Parmenter, respt. Decided March 10, 1885. A mortgage belonging to plaintiff's testator had been foreclosed by plaintiff and a sale was about to be had. Defendant then said to plaintiff that the mortgagor had placed in his hands stock to bid off the property and pay plaintiff his claim in full, if the sale was adjourned for ten days; that in ten days he would be prepared to pay. In reliance on this promise the sale was adjourned, and when had, resulted in a large deficiency. In an action on this promise, Held, That the promise was void under the statute of frauds, even though the stock had been placed in de fendant's hands as he represented. Affirming S. C., 18 W. Dig., 427. This action was brought on an alleged verbal promise made by defendant to plaintiff. It appeared that plaintiff held a mortgage executed by one S., which he had foreclosed and advertised for sale. At the time and place mentioned in the notice of sale defendant requested plaintiff to adjourn the sale ten days, and said that if he would do so he would then attend and bid off the property and pay plaintiff the full amount of his claim. Defendant also represented that S., the mortgagor, had placed in his hands certain stock, which Held, That defendant's promise was void under the Statute of Frauds, even though S. had placed the stock in defendant's hands as he represented. 75 N. Y., 446. A consideration is not of itself sufficient to supply the place of a writing where one is necessary. To take the case out of the statute there must be a consideration moving to the promisor, either from the creditor or the debtor. It must be beneficial to the promisor. That is the feature which imparts to the promise the character of an original undertaking. Forbearance or indulgence to the debtor, or the surrender to him by the creditor of a security for the debt, even at the request of the promisor, will not support a verbal promise by a third party to pay the debt. 21 N. Y., 412; 75 id., 446; 12 Johns., 291. Judgment of General Term, affirming judgment of nonsuit, affirmed. Opinion by Rapallo, J. concur. JUSTICE'S COURT. EXE- N. Y. SUPREME COURT. GENERAL Daniel S. Jones, adm'r, respt., v. Emory E. Newman, applt. Decided May, 1885. An execution issued out of a Justice's Court is not void although the docket fail to state all the particulars required by Code Civ. Pro., § 3140. The death of plaintiff in an execution in a constable's hands does not suspend the operation of the execution. It will not be a defence to sureties in a constable's bond that it does not comply strictly with the condition required by Chap. 788, Laws of 1872. This was an action under Code Civ. Pro., § 3039, against the sureties of a constable for not returning an execution. The County Court affirmed a judgment of a justice of the peace. The appeal is upon questions of law. J. B. Olney, for applt. Sidney Crowell, for respt. Held, That the judgment should be affirmed. The docket of the justice only stated that he issued the execution in question to plaintiff. We do not think the execution void because the docket did not show all the particulars required by Code Civ. Pro., § 3140. The execution was issued Jan. 9, and the plaintiff in the original judgment died March 10. We are not referred to any case showing that the death of plaintiff while the execution is in the officer's hands suspends its operation. The condition of the bond given All by the constable does not comply with the form required by Chap. 788, Laws of 1872. Its condition is that the constable shall faithfully discharge his duties, and shall account for and pay over all moneys received by him as such constable. It was approved by the supervisor and filed with the town clerk. Within the cases $1 N. Y., 573, and 30 Barb., 551, we think the bond was not invalid. It was the duty of the constable to give a proper bond, and of himself and sureties to see that it was in proper form. It would be inequitable that the sureties should now escape liability because of a variance not very important. Judgment affirmed, with costs. Opinion by Learned, by Learned, P.J.; P.J.; Bockes and Landon, JJ., concur. SUPPLEMENTARY PROCEED INGS. TAXES. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Supplementary proceedings for the collection of a tax of Jacob Conklin. Decided May, 1885. In supplementary proceedings taken to collect a tax under Chap. 640, Laws of 1881, the affidavit will be sufficient if it state the facts required by § 1 of that act; it is not requisite that it state also the facts necessary to show the jurisdiction of the assessors and of the supervisors. The affidavit showed that the tax exceeded ten dollars; that it was levied by the board of supervisors of the county; that it was against a person who was a resident of the county, and that it had been returned by the town collector uncollected for want of goods and Vol. 21-No. 14b. chattels out of which to collect the same. Because it did not show jurisdiction in the assessors and supervisors the county judge, upon an order to show cause, set the original order granted aside. C. C. Van Deusen, for applt. Co. Treas. Newkirk & Chace, for Conklin. Held, Error. If the facts showing jurisdiction in the assessors and supervisors are to be stated it would seem that they might be denied. And the county judge might in these proceedings try those questions of jurisdiction. We do not think this was intended. The legislature had power to say upon what affidavit this proceeding might be taken, and § 1 specifies them. When they are not contradicted it is the duty of the county judge to proceed. The recitals in the warrant were enough for the collector, and the allegations in the affidavit were enough for the county judge. Order reversed, with costs. Opinion by Learned, P. J.; Landon, J., concurs; Bockes, J., dissents. PARTIES. N. Y. COURT OF APPEALS. Osterhoudt et al., respts., v. The Board of Supervisors of Ulster Co. et al., applts. Decided March 3, 1885. In an action under Chap. 161, Laws of 1872, against the Board of Supervisors and the town auditors to set aside certain audits, the persons in whose favor the audits were made are necessary parties. Although under SS 452, 499 of the Code an omission to object to a defect of parties by demurrer or answer is a waiver of objection to the granting of relief on that ground, yet where the relief granted against a defendant would prejudice the rights of others whose rights cannot be saved by the judgment, and without whose presence the controversy cannot be completely determined, the court must direct them to be made parties before proceeding to judgment. This action was brought under Chap. 161, Laws of 1872, as amended by Chap. 526, of the Laws of 1879, by plaintiffs as taxpayers of the town of Kingston against the Board of Supervisors of Ulster County and the board of auditors of the town, to vacate certain audits and to restrain the board of supervisors from Iveying a tax for their payment, on the ground that such audits were "illegal, inequitable, unjust, false and fraudulent." The persons in whose favor the audits were made were not made parties to the action. The only defendants are the board of supervisors and the town auditors. The question of defect of parties was not raised by demurrer or by answer. That point was taken at the commencement of the trial and was overruled. F. L. Westbrook and J. Newton Fiero, for applts. M. Schoonmaker, for respts. Held, That the persons in whose favor the audits were made were proper and necessary parties to the action. The enumeration in the act of 1872 of "the officers, agents, commissioners or other persons acting for or in behalf of any county, town or municipal corpora tion," as the persons against whom an action may be brought, does not dispense with the necessity of joining all other persons who will be directly affected by the judgment, and are necessary parties to a complete determination of the controversy. Under $$ 452 and 499 of the Code of Civ. Procedure a defendant by omitting to object that there is a defect of parties by demurrer or answer, waives on his part any objection to the granting of relief on that ground; but when the granting of relief against him would prejudice the rights of others, and their rights cannot be saved by the judgment, and the controversy cannot be completely determined without their presence, the court must direct them to be made parties before proceeding to judgment. Judgment of General Term, affirming judgment for plaintiff's, reversed. Opinion by Andrews, J. All concur. WILLS. VESTED ESTATES. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Henry Miller et al., v Francis Caragher. Decided March 27, 1885. The will of the testator contained the following clause: “I give and devise to my wife, J. M. D. E., all the rest and residue of my real estate as long as she shall remain unmarried and my widow; but on her decease or remarriage, the remainder I give and bequeath to my son H. or his heirs." Held, That H. having survived the testator the fee vested in him, and that a deed executed by him and testator's widow, conveyed the fee of property which was included in the residuum. those contingencies. That the word "or" in the connection in which it was placed evidently re Controversy submitted under § ferred to and was intended to pro1279 of the Code of Civ. Pro. vide against the death of H. prior F. H. M. by his will devised to to the testator. That, in other his wife, J. M. D. E., all the rest words, the testator meant to vest and residue of his real estate as the estate in H. if he should surlong as she should remain unmar- vive him, and if not, in his heirs; ried and his widow; but on her but it was not to be enjoyed in decease or remarriage, the remain- possession until the death or reder he gave and bequeathed to his marriage of his widow, 25 Wend., son H. or his heirs. The widow 119; 68 N. Y., 227; 52 id., 118; 18 of M. and his son H. by an instru- | W. Dig., 569, and that therefore ment in writing agreed to sell cer- the union of H. and the widow in tain premises which were con- the conveyance would confer an tained in the residuum of M.'s absolute estate in fee simple under estate to defendant, and, at the the provisions of the will. proper time, in pursuance of the agreement, tendered a warranty deed with full covenants executed in due form. Defendant refused to comply with the contract,, upon the ground that plaintiffs did not Judgment for plaintiffs. PLEADING. acquire by the will of M. an estate N. Y. SUPREME COURT. GENERAL in fee simple in the premises proposed to be sold, but that their estate in the property was merely contingent, and that they could not therefore perform their contract, which required them to convey the fee. Therefore it was agreed that this action should be commenced and submitted upon the facts stated for determination by the General Term. More, Aplington & More, for applts. Held, That the testator intended upon the decease of his widow, or upon her remarriage, that his son H. should have the estate if he survived him, and if not, then his heirs should have the estate upon the happening of either one of TERM. FIRST DEPT. The N. Y. Infant Asylum, applt., v. Theodore Roosevelt et al., respts. Decided March 27, 1885. The complaint in an action by a charitable corporation for a libel on account of which it is alleged that various persons declined to make charitable donations to plaintiff which it otherwise would have received should state the names of the persons who, for that reason, declined to make such contributions, and if it fails to state such names, the plaintiff will be ordered, upon motion, to serve a bill of particulars containing such statement. Appeal from two orders requiring the service by the plaintiff of a bill of particulars. This action was brought to recover damages for a libel alleged to have been published by the defend |