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of his standing in any theater." Held, that the jury have correctly found that the plaintiff was wrongfully discharged, the reason assigned being his refusal to act in a part inferior to the role of characters which he had agreed to represent. But it cannot be held that he earned wages for services to the defendant when he was engaged in his own pursuits or amusements at the south without having obtained any consent or license of the defendant, or having given him some notice of his remaining subject to immediate recall when wanted, or in some other way offering or continuing a tender of his service during the period. The absence of an effort to obtain other employment appeared by plaintiff's own testimony. If voluntarily idle he failed in his duty to his employer. If he desired to claim full contract compensation he could not accept the employer's dismissal as a license to indulge in a relaxation of its requirements and go about his own business. Judgment reversed. Polk v. Daly. Opinion by Robinson, J.

2. Where tender is equivalent to performance. -- The tendered performance can only be maintainable as a substitute for the actual upon the ground that the thing agreed to be sold has independent existence, and the corpus not being perishable or changeable the title had so far passed that the vendor remained but the trustee of the vendee in respect to it, and on subsequent payment of the price the specific thing may still be delivered over, or duly accounted for to the vendee, as upon an agreement for the sale and purchase of real estate, where the vendor has tendered a conveyance (21 Wend. 460), and for goods sold, the delivery whereof has been tendered. Ib.

TRUSTS.

1. Property charged with trust: demurrer: pleadings. — Appeal from order overruling demurrer. Prior to June 9, 1868, the plaintiff had agreed with the St. Paul and Pacific R. R. Co. to furnish certain sums of money to aid in the construction of a branch road of that company. On that day the St. Paul and Chicago Railway Co. (the successor of the former company) entered into a written agreement with one Childs, in behalf of plaintiffs, under which plaintiffs would be entitled to receive certain amounts in money bonds and stock of that company. The complaint then avers a subsisting indebtedness to plaintiffs of the equivalent of 3,000 shares of stock; also a transfer of the property and assets of the company to the defendant Rice in trust, and an agreement by him to deliver to plaintiffs said shares; the transfer by Rice to the Minnesota Construction Company with like agreement and trust; the transfer by the latter company to the defendant, the Milwaukee and St. Paul Railway Company; that this last transfer was in fraud of plaintiffs' rights, and was taken with full knowledge of the previous transactions and the trust thereby imposed.

Held, these averments raise the presumption of liability on the part of the defendants, and of a trust impressed upon the property and against the Construction Company, and the Milwaukee and St. Paul Company, so as to require an appropriation of said trust fund, for the payment of plaintiffs. Plaintiffs seem to be entitled to some relief, and if defendants are aggrieved by any of the averments of the complaint, which are unnecessary or indefinite, the remedy is by motion and not by demurrer. Order affirmed. Thornton et al. v. St. Paul and Chicago Railway Company et al. Opinion by Larremore, J.

2. Demurrer will not lie to the prayer of the complaint. 38 How. Pr. 97, cited. Ib.

3. Trustee of fraudulent trust: waiver of defense: resulting trust: creditor's bill.- Plaintiff brought action in the nature of a creditor's bill to assail the title to certain property of defendant, impleaded with one B. G. Stokes, who, as was alleged, had advanced money for the purchase of the house and lot, the title to which was taken in the name of defendant, while plaintiff was insolvent, and in fraud of the rights of plaintiff, his creditor. The referee, before whom the case was submitted, found in addition to the facts stated above, that said Stokes was indebted at the time of such transaction to plaintiff in a sum exceeding the purchase-money paid, for which plaintiff subsequently recovered a judgment, upon which execution was issued and returned unsatisfied.

Held, that nothing in the conduct of the former suit raises the presumption that the action was not prosecuted with proper vigor, or that it was urged with the purpose, on the part of the plaintiff, to assail defendant's title or of any connivance between plaintiff and Stokes. Sections 51 and 52 of the statute of "Uses and Trusts," which provide that a trust created in favor of creditors of a party paying the consideration money of real estate conveyed to another, may inure to the benefit of all such creditors, must be deemed to have been waived (Code, §§ 144, 148), inasmuch as the absence of any other creditor was not presented by answer or demurrer. Defendant not only became trustee of a resulting trust to the extent of the money advanced in the purchase of the property, but should be held to an account, like any other trustee of a fraudulent trust, for all benefits she had received from the property. Judgment affirmed. Hiler v. Hettrick, impleaded, etc. Opinion by Robinson, J.

UNDERTAKINGS.

1. Liability of sureties on the dismissal of appeal: Code of Procedure. — Appeal from judgment in favor of plaintiffs. This action is brought to recover upon an undertaking given by the defendants, as sureties, under section 334 of the Code, on an appeal to the court of appeals, which was conditioned to pay all costs and damages which should be awarded against the appellant on that appeal, not exceeding $500. That appeal was dismissed with costs to the respondents (these plaintiffs), and judgment entered therefor. The appellants here claim, on the authority of Drummond v. Hudson, 14 N. Y. 60, that the appeal having been dismissed, no judgment against the sureties was warranted by the terms of the undertaking. Held, in the case cited, the undertaking was given under section 335 of the Code, to pay on affirmance, but made no provision for a case of dismissal. The undertaking in the case at bar is under section 334, for it provides for costs and damages awarded the respondents on the appeal. Judgment affirmed. McSpedon et al. v. Bouton et al. Opinion by Robinson, J.

2. Failure to justify no defense to the undertaking. — Though proof was allowed of exception to the sureties on the appeal, and their failure to justify, this constituted no defense to this action. Decker v. Anderson, 39 Barb. 346, cited. Ib.

3. Discharge in bankruptcy: non-joinder of parties: partnership: assignees of undivided interests.-The discharge of one of the plaintiffs in bankruptcy, pending the appeal in the former action, has no bearing upon the merits of the claim upon the undertaking. On his

becoming bankrupt his solvent partner and the assignee in bankruptcy become tenants in common of the copartnership assets, the latter having an undivided interest therein. 5 Johns. Ch. 70; 3 Paige, 527; 8 Wend. 444, cited. The non-joinder of any assignee of an undivided interest was only available as a defense for non-joinder by way of abatement. Ib.

WAIVER. See Trusts.

COURT OF APPEALS ABSTRACT.*

ATTACHMENT.

Action to recover a debt alleged to be due from defendants to A and B, which plaintiff claimed to have attached. Judgment was perfected in an action in which F. was plaintiff against said A and B, on the 31st of August, 1863. On the same day, and a short time prior to the entry of the judgment, an attachment was issued in the action to the plaintiff herein, under and by virtue of which after the judgment was perfected he claimed to attach the debt, to recover which the action was brought. Held, that the power to levy by virtue of the attachment did not survive the recovery of judgment in the action, and that no new right or interest in the property of defendants could be thereafter acquired under it. Lynch, late Sheriff, v. Crary et al. Opinion by Andrews, J.

ATTORNEYS' LIEN.

1. Plaintiff obtained a judgment in an action for assault and battery, which he assigned to his attorney as security for costs. Notice of the assignment was given to defendant. On appeal, the judgment was reversed and a new trial granted, costs to abide event. Before the new trial the parties settled, and plaintiff executed a release to defendants. Plaintiff's attorney proceeded with the action, and, upon default, obtained a report directing a judgment for plaintiff for fifty dollars and costs. Upon motion of defendant this report was set aside: Held, that, so far as the judgment was concerned, the assignment became a nullity by its reversal; that the cause of action was not assignable; that the provision in the order granting a new trial, making the costs to abide event, did not aid the attorney, as it still remained subject to plaintiff's control whether the cause should again be tried, and that, therefore, the attorney as against defendant had no lien, either legal or equitable, which could affect the settlement. Pulver v. Harris. Opinion by Grover, J. 2. Also, held, that the motion to set aside the report was not addressed to the discretion of the court, but defendant had an absolute right to the relief sought, and the court had no right to impose terms or conditions upon granting it. Ib.

3. An attorney acquires a lien for his costs upon the recovery of a judgment, and where notice of the lien is given to the judgment debtor, the court will protect the lien. But retaining an attorney to prosecute

* In the case of the Mechanics and Traders' Bank v. Dakin, decided by the commission of appeals, an abstract of which is given in No. 11 of the present vol., p. 167, a motion was made at the September term of the commission for a reargument upon the ground that the decision was directly in conflict with Thurber v. Blanck, 50 N. Y. 80. The commission denied the motion upon the ground that, as a new trial had been ordered, either party, if dissatisfied with the result, could go to the court of appeals for a final settlement of the controversy. The question, therefore, as to the right of an attaching creditor to attach a bond and mortgage fraudulently assigned by the debtor, and his right to maintain an action to set aside the fraudulent transfer, may perhaps be considered as not yet entirely free from doubt.

an action, and its commencement by him, gives him no lien upon what may in the event of a trial be recovered therein. Ib.

CONSTITUTIONAL LAW.

1. Chapter 580, Laws of 1872, "An act in relation to certain local improvements in the city of New York," is not unconstitutional, because one owner of land assessed, who has failed to institute proceedings to vacate the assessment until after the time limited for that purpose by the act, is not released therefrom, while other owners may have procured its vacation as to their lands. No inequality of taxation is legally produced thereby, as the lands relieved are required to be re-assessed, and if any inequality is practically produced by the vigilance of some and the neglect of other owners in availing themselves of the prescribed remedy, it is no fault of the law. In re petition of De Lancey to vacate assessment. Opinion by Church, Ch. J.

2. Proceedings instituted to vacate an assessment under the act in relation to frauds in assessments for local improvements in the city of New York (chap. 338, Laws 1858), are applicable only to the lands described in the proceedings; and the vacation of the assessment as to those lands does not operate to render the assessment for the whole improvement invalid. Ib.

COSTS.

The statute (Code, § 367, subd. 6) gives full costs, where costs are allowed upon appeals from orders to this court. Brown v. Leigh. Per curiam opinion.

NEW YORK.

1. Commissioners of records: constitutional law. One of the commissioners of records for the city and county of New York, appointed under the act of 1855 (chap. 407, Laws of 1855), died. Another ceased to be a resident of this State. The three remaining commissioners united in certificates to accounts for services rendered under their employment by the assignor of relator. The accounts thus certified were presented to defendant, the county treasurer, for payment, under the provision of the act directing the necessary expenses to be paid by the county treasurer, upon the certificate of the commissioners. Money had been regularly appropriated to pay the expenses, of which a sufficient sum to pay the accounts remained in the treasury. Defendant refused to pay. Held, that as the act made no provision for a vacancy or for an appointment in the place of the commissioners named, the three commissioners still in office had power to act; and all having joined in the certificates, the presumption was that such acts were legally done, and at a meeting of all, the accounts were therefore properly certified; that as the act provided for a special service by an agency outside the city or county government, the accounts did not require to be audited by an auditing officer of the city or county; that said act was not repealed by any of the acts subsequently passed, reorganizing and remodeling the city and county governments, and that the relator was entitled to a peremptory mandamus directing defendant to pay the accounts. That the duties of the office of commissioner of records of the city and county of New York, are entirely outside of and independent of the duties of the office of register of said city and county, and the former does not supersede or in any way interfere with the latter, and that the office of commissioner of records was not an existing office at the time of the adoption of the present State constitution, and

said act is not repugnant to the provision thereof (art. 10, § 2), which substantially declares that all county officers whose offices then existed, and whose election or appointment was not provided for in the constitution, shall be elected or appointed by the electors of the county, or such county authorities as the legislature shall direct. People ex rel. Kingsland v. Palmer, County Treasurer, etc. Opinion by Allen, J.

2. The policy of the law is to guard against the failure of a public service, and a grant of power in the nature of a public office to several does not become void upon the death or disability of one or more. Ib.

3. The repeal of statutes by implication is not favored by the law, and when a latter and former statute can stand together, both will stand unless the former is expressly repealed or the legislative intent to repeal is very manifest. Ib.

PARTNERSHIP.

1. The firm of J. C. D. & Co. consisted of five members, S., G., W., H. and R. W. and H. assigned their interests to S., and retired. The remaining partners continued the business under the same firm name. S. and R. executed chattel mortgages upon their respective interests to secure individual debts; the mortgagees took possession of the firm property under their mortgages, and upon the same day G. sold his interest to a stranger. Plaintiff, the mortgagee of S., purchased the latter's interest upon sale under the mortgage, and took an assignment from the purchaser of the interest of R. Defendants, under executions issued upon judgments against the members of the old firm for firm debts, levied upon the property and took it from the possession of plaintiff. In an action for conversion Held, that the levy was valid; that, after the dissolution of the old firm, occasioned by the retirement of W. and H., the joint property continued liable for the firm debts; that the transfers by the remaining partners simply conveyed their respective interests in any surplus after paying partnership debts; that the effect of the transfers was not enlarged, nor were the rights of the creditors as between them and the assignees of such interests affected by the fact that the separate interests of all the partners were disposed of. Menagh v. Whitwell. Opinions by Rapallo and Allen,

JJ.

2. It seems, however, that the new firm acquired the absolute right of disposal of the property, and if it had transferred the same, in the absence of fraud, the right of the creditors of the old firm would have been lost, or if it had incurred liabilities and contracted debts, as between the creditors of the old and new firms, the latter would have the preference. Ib.

3. Lease: interest. — In an action for the settlement of partnership accounts - Held, that a lease for a term of years, from one of the partners to the firm, for the purposes of the business, is subject to the continuance of the business, and upon a dissolution of the partnership by the death of either of the partners, the lease terminates. Where, however, the demised premises cannot be actually employed during the whole year, and the firm has received, at the time of the dissolution, the substantial benefits thereof, and the use during that portion of the year for which for the purposes designed the premises are of any value, the lessor is entitled to be credited for the rent for the year in the settlement of the partnership accounts. Johnson, adm'r, v. Hartshorn, ex'r, etc. Opinion by Church, Ch. J.

4. There is no fixed rule as to the allowance of inter

est in the settlement of partnership accounts, it depends upon the circumstances of the case. Ib.

5. Compound interest cannot be allowed upon balances in favor of one partner, but may be charged upon debits, in cases of bad faith, refusal to account and private use of the money of the firm, and the question of its propriety in such cases is one of fact for the trial court, whose decision is conclusive. Ib.

VALUABLE CONSIDERATION.

1. Husband and wife: purchaser for value: collateral security.-Action to foreclose a mortgage. It appeared that, in the fall of 1866, John White, the mortgagor, being indebted to his wife, defendant Jane White, conveyed the premises in question to his son, the defendant John P. White, who, at the same time, conveyed them to said Jane White. John White, at that time, was not indebted, except to his wife and son, and there was no fraud in the conveyances. The deeds were delivered to Jane White, who kept them until March, 1868, without having them recorded, when John P. White, without her consent, destroyed them. In November, 1868, John P. White, to secure an indebtedness of $1,000, gave the bond and mortgage in question. No securities were surrendered, nor did it appear that any agreement was made to extend or suspend the time of payment.

Held, that the title of Jane White was good as against the mortgagee; that he was not a purchaser for a valuable consideration, within the meaning of the Opinion by Allen, J. recording act (1 R. S. 856, § 1). Carey v. White et al.

2. An extension of time by a valid agreement for any time, however short, is a valuable consideration, but the mere taking of collateral securities on time is not, per se, and in the absence of any agreement beyond it, an extension of time for the payment of the original debt. (Platt v. Coman, 37 N. Y. 440, limited.) Ib. 3. The authorities upon the question as to what constitutes a valuable consideration, collated and discussed. Ib.

WILL.

1. Construction: parol evidence. - A bequeathed certain sums of money to "The society for the relief of indigent aged females." In an action to determine which of the parties was entitled to the bequest Held, that the name of the defendant more nearly assimilated to that used in the will, and its objects, as disclosed by its charter, were more in harmony with the description of the corporation intended, that the testator having with reasonable accuracy described and named defendant, it was not competent to show by parol, that an institution of a different name and character was intended, and that defendant was entitled to the bequests. St. Luke's Home for Indigent Christian Females v. An Association for the Relief of Respectable Aged Indigent Females in the city of New York. Opinion by Allen, J.

2. The construction of a written instrument is a question of law, and every court to whom the question of construction is submitted is entitled to the benefit of every circumstance which the law permits to be considered in determining the meaning of the particular words used. An appellate court, therefore, is not bound by the conclusions of the court below as to those circumstances. Ib.

Ex-Judge Louis Dent, brother-in-law of President Grant, is very ill, and his speedy death is expected.

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1. Company: director: warranty of authority: misrepresentation of fact. The directors of a railway company which had fully exercised the borrowing powers conferred upon it by its special act, in August, 1864, advertised that they were "prepared to receive proposals for loans on mortgage-debentures," to "replace loans falling due." W. W. (the plaintiff's testator), offered a loan of 500l.; and, his offer being accepted, he in the same month sent his check for 500l. to the directors, for which he requested that a debenture should be issued to him. In pursuance of a resolution of the directors to that effect, the check was handed to H., the contractor for the works, who had been (but had then ceased to be) the holder of seven debenturebonds for 500l. each; and H. was requested to transfer one of them to W. W.; and it was, by the same resolution, directed "that such bond be on the 1st of October exchanged for a new one." H. kept the check (which was duly honored), but was unable to transfer the debenture; and in pursuance of a resolution of the directors of the 5th of October, a new debenture-bond for 500l. was sealed and sent to the plaintiff, as executor of W. W. The defendant, a director of the company, was a party to each of the above transactions. By a decree of the court of chancery of the 14th of February, 1868, the above-mentioned debenture was declared void, as being for a sum in excess of the borrowing powers of the company. Upon a case stated for the opinion of the court, without pleadings, and upon the argument of which it was agreed that no question of non-joinder was to be raised. Held, that the defendant was liable as for a breach of warranty; that the directors had power under the circumstances to issue a debenture, which would be valid and binding upon the company; and that the plaintiff was entitled to recover as against him the 500l., together with interest by way of damages. Weeks v. Propert, L. R., 8 C. P. 427.

2. Indemnity of agents: stock exchange usage: defaulting broker. The plaintiffs, brokers on the London Stock Exchange, bought for the defendant (who was not a member of the Stock Exchange), certain shares for the account of the 15th of July, 1870, and on that day, by his instructions, carried them over to the account of the 29th of July, and paid differences amounting to 1688 pounds. The defendant, and various others, principals of the plaintiffs, not having paid the amount due from them in respect of contracts for the 15th of July, the plaintiffs became defaulters, and on the 18th, in conformity with the rules of the stock exchange, they were declared defaulters, and their transactions were closed, and accounts were made up at the prices current on that day. On the closing of the accounts,

a further sum became due from them, in respect of differences upon the contracts carried over by them for the defendant. In an action to recover this sum and the 1688 pounds

Held (reversing the decision of the court below), that the defendant was not liable for any thing beyond the 1688 pounds, there being no implied promise by a principal to his agent to indemnify him for loss, caused, not by reason of his having entered into the contracts which he was authorized to enter into by the principal, but by reason of his own insolvency. Duncan v. Hill, L. R., 8 Exch. 242.

FOREIGN SOVEREIGN.

Jurisdiction of the court to entertain a suit of damage instituted against a vessel belonging to the Khedive of Egypt: sovereign prince: maritime lien: proceedings in rem: waiver of privilege.—In a cause of damage instituted by the owners, master, and crew of the Batavier against the vessel Charkich and her freight, an appearance under protest was entered on behalf of his highness the Khedive of Egypt and his minister of marine. A petition on protest was filed on their behalf, stating that the Charkieh was the property of the Khedive as reigning sovereign of the State of Egypt, and a public vessel of the government and semi-sovereign State of Egypt, and concluding with a prayer to the court to declare that the vessel was not liable to arrest. It appeared from the answer filed on behalf of the plaintiffs, and from evidence which was adduced at the hearing of the petition on protest, that the Charkieh, though carrying the flag of the Ottoman navy, had come with cargo to England and had been entered at the customs like an ordinary merchant ship, and that, at the time of the collision, which happened in the Thames, she was under charter to a British subject and was advertised to carry cargo to Alexandria. The court held that the Khedive was not entitled to the privilege of a sovereign prince, and pronounced against the protest. Semble, that a suit in rem to enforce a damage lien may be entertained without any violation of international law, though the owner of the res be the sovereign of a foreign State, and that such a suit may possibly be entertained even against property connected with the jus coronæ. Semble, that if a sovereign assumes the character of a trader, and sends a vessel belonging to him to this country to trade here, he must be considered to have waived any privilege which might otherwise attach to the vessel as the property of a sovereign. The " Charkieh," L. R., 4 Adm. 59.

NEGOTIABLE INSTRUMENT.

Debenture payable to bearer: promissory note: custom. -In May, 1869, the defendants, a limited company registered under the act of 1862, sold to M. a document under the seal of the company and signed by two directors and the secretary. It was numbered and headed with the name of the company, and called "Debenture," and proceeded, "The company hereby promise, subject to the conditions indorsed on this debenture, to pay to the bearer 1007. on the 1st of May, 1872, or upon any earlier day upon which this bond shall be entitled to be paid off according to the conditions, and interest at eight per cent on the 1st of November and the 1st of May in each year; and also a further sum of 10. by way of interest or bonus at the same time as the principal sum is paid off. In witness whereof the common seal of the company has been affixed this 9th of May, 1869." By the conditions indorsed, a certain numer of the bonds were to be drawn for twenty-one days before

the days for the payment of the half-yearly interest, and any bond drawn was to be advertised and paid off with the interest and bonus due, the bond being given up and no further interest being payable. In July, 1869, the bond was stolen from M. In October, 1871, the number of the bond was drawn. At the end of 1871, the plaintiff purchased the debenture from S., who had since absconded. The defendants, having notice of the robbery, refused to pay the debenture to the plaintiff, and he brought an action in his own name, alleging that he was lawful bearer of the debenture. At the trial it was admitted that similar documents had been treated as negotiable; it was also admitted that the plaintiff derived title from the thief; but the jury found that the plaintiff had given value for the debenture without notice. Held, first, that the contract contained in the conditions prevented the debenture from being a promissory note, even if it had been under hand only; secondly, that it was not competent to the defendants to attach the incident of negotiability to such instruments, contrary to the general law; and that the custom to treat them as negotiable, being of recent origin, and not the law merchant, made no difference, as such a custom, though general, could not attach an incident to a contract contrary to the general law. And the plaintiff, therefore, could not recover. Quare, whether an instrument under the seal of a corporation can be a promissory note? Crouch v. The Credit Foncier of England, Limited, L. R., 8 Q. B. 374.

NUISANCE.

Insecure coal-plate in a public footway: liability to repair. The defendant let premises to a tenant under a lease by which the latter covenanted to keep them in repair. Attached to the house was a coal cellar under the footway, with an aperture covered by an iron plate which was, at the time of the demise, out of repair and dangerous. A passer by, in consequence, fell into the aperture and was injured. Held, that the obligation to repair being by the lease cast upon the tenant, the landlord was not liable for this accident. Pretty v. Bickmore, L. R., 8 C. P. 401.

SHIP.

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Construction of charter party: warranty as to time of ship's arrival at the port of loading: pleading: contemporaneous agreement. — By a charter party it was agreed that the ship Ceres, of the measurement, etc., "expected to be at Alexandria about. the 15th of December," being tight, etc., should, "with all convenient speed," sail and proceed to that port, and there receive from the charterers a cargo of cotton seed. In an action against the owner, the breach alleged in the declaration was, that the said ship was not expected to be at Alexandria about the 15th of December, 1871, but was then in such part of the world and under such engagements that she could not perform those engagements and arrive at Alexandria about the said day. Held, a good breach - the descriptive statement amounting to a warranty that the ship was in such a position that she might reasonably be expected to arrive at Alexandria by the day named. Plea, that, at the time of making the charter party, the ship was, to the plaintiff's knowledge, engaged for a certain voyage, and that the charter party was made subject to a condition that she should, with all convenient speed, fulfill her engagement and then proceed to the port of loading, and that she did so. Held, upon the authority of Young v. Austen, L. R., 4 C. P. 553, a good plea. Corkling v. Massey, L. R., 8 C. P. 395.

REVIVOR AND ABATEMENT. We give below the opinion of Mr. Justice Barrett at the special term, supreme court, first department, In re Alker, public adm'r., etc. His views are sustained by the general term in same case, see 8 Alb. L. J.

Barrett, J. The referee non-suited the plaintiff, judgment was entered thereon, and subsequently, upon the plaintiff's motion, the court, at special term, vacated the judgment, set aside the report, declared the reference ended, and ordered the cause back upon the circuit calendar for trial. From this order the defendants appealed, and intermediate the perfecting of such appeal and the hearing at general term, the plaintiff died. Nothing was done to continue the action, and the appeal was heard and decided as though the plaintiff upon the record were alive. The question is, whether this was regular, and whether the order having been reversed except as to the vacatur of the judgment, the defendants could, without the presence of the plaintiff's legal representatives, lawfully re-enter judgment. If the appeal had been from the judgment, there would have been no question about it, this court, at the general term, having decided that in such a case, the only proper course to obtain an affirmance is to have an administrator appointed and the action revived in the name of such administrator. (Warren v. Eddy, 13 Abb. Pr. 28.) The claim is of an analogy between the case at bar and that of the death of a party between verdict and judgment. In the latter case, the statute expressly confers the power within two terms after such verdict, of entering judgment as was done here, in the names of the original parties. (2 R. S. 387, § 4.) It has been held, however, that the statute only applied to a verdict or plea of confession, and that a nonsuit was not included. (Spaulding v. Congdon, 18 Wend. 543.) The same rule has been laid down in England under a similar statute. (Doubiggin v. Harrison, 10 Barn. & Cres. 480.) It is true that a report of a referee comes within the spirit of the act. (Burham v. Burham, 10 Wend. 601.) But it must be final in its character. This distinction is recognized in all the cases, and it is the test of the right to enter judgment, under the statute, in the names of the original parties. (North v. Pepper, 20 Wend. 677, and see Scranton v. Baxter, 3 Sandf. S. C. R. 660, in which Seymour v. Deyo, 5 Cow. 289, is cited and distinguished in this particular of finality.)

Here the referee merely dismissed the complaint. The statute was, therefore, inapplicable, and even the original judgment would have been irregular if the plaintiff's death had occurred prior to its entry, though subsequent to the report. Apart from the statute, the court has no inherent power to enter judgment directly against a party deceased, and the provisions of the act in question cannot be extended. (Lewis v. Rapelyea, 1 Barb. 29, and cases above cited.) The only power which the court exercises independent of the statute is, where a party dies after verdict and before the decision, on a motion, for a new trial to direct the entry of judgment as of a date preceding such death. (Ryghtmyre v. Durham, 12 Wend. 245.)

But here no application has been made to enter either the order of affirmance or the new judgment nunc pro tunc, as of a date preceding the plaintiff's decease; on the contrary the defendants have entered their judgment directly against the plaintiff, as of course, and as of a date when he was not in existence. This as we have seen can only be done under the statute, and then only in the cases specified or contem

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