RECORDER OF TROY. of the corporation made after the filing of the petition for dissolution, are void as against the receiver and creditors,―cannot take possession of the property of the corporation, or be deemed vested with the estate before the filing the required security. But when his appointment is thus completed, the estate vested in him relates back to th time of granting the order for reference to appoint a receiver. Supreme Ct., Gen. T., 1857, Matter of Berry, 26 Barb., 55. 2. The selection and appointment of a receiver, and taking security from him, is a proper matter of reference. Wetter a. Schlieper, Ante, 92. 3. Relationship to a party is not alone a sufficient ground for the removal of a receiver; at most, it is but a circumstance to be taken into con sideration at the time of making the appointment. Ib. COMPLAINT, 5; CORPORATION. RECORDER OF TROY. The recorder of the city of Troy has jurisdiction in proceedings supplementary to execution, in actions commenced in the Supreme Court. Ct. of Appeals, 1858, Hayner a. James, 17 N. Y. (3 E. P. Smith's) R., 316. REFERENCE. 1. Of the practice of referring causes equitable in their nature. Elmore a. Thomas, Ante, 70. 2. In what case a reference may be ordered, to ascertain the facts involved upon a motion to vacate an order of arrest. Stelle a. Palmer, Ante, 181. 3. A referee proceeded upon only two days' notice of hearing. Held, that the parties who had appeared on such notice, and asked and obtained an adjournment, had thereby waived the irregularity. Wetter a. Schlieper, Ante, 92. 4. Where there is a variance between the pleading and the proofs, on a trial before a referee, instead of dismissing the complaint, he should, if the evidence is sufficient, give his decision, leaving it to the discretion. of the court to amend the pleadings in support thereof. N. Y. Supe rior Ct., Gen. T., 1857, Hart a. Hudson, 6 Duer, 294. MOTIONS AND ORDERS, 6, 11; RECEIVER, 2. RES ADJUDICATA. JUDGMENT, 4, 7 REVIVOR. REVIVOR. PARTIES, 17. SATISFACTION OF PART OF PLAINTIFF'S CLAIM. Where a defendant, by his answer, admits part of the plaintiff's claim to be just, the court may, on motion, under subdivision 5 of section 244 of the Code as amended in 1857, direct judgment to be given for the plaintiff for the amount of the claim admitted to be just, without prejudice to his right to proceed in the suit for the balance claimed by him. Supreme Ct., Gen. T., 1857, Duncan a. Ainslie, 26 Barb., 199. SECURITY FOR COSTS. 1. A non-resident plaintiff, in an action for chattels, took proceedings of claim and delivery in the action, under section 209 of the Code, and gave the usual undertaking, and, thereupon, the defendants obtained a return of the chattels, under section 211. Held, that the plaintiff might be required to file security for costs, notwithstanding he had already given one undertaking. Gelch a. Barnaby, Ante, 19. 2. Whether the defendant, after having obtained a return of the property, could maintain an action upon the plaintiff's first undertaking,— Query? Ib. 3. A person residing in a county of this State, other than the city and county of New York, and bringing an action in the New York Superior Court, may be required to file security for costs, as being not a resident within the jurisdiction of that court. Hicks a. Payson, Ante, 326. SERVICE, AND PROOF OF. 1. A plaintiff's attorney, on whom an answer was served, handed it back to the messenger who brought it, telling him that it would not be received, because the time to answer had expired. The messenger, on reaching the office of defendant's attorney, was instructed to carry it back and re-serve it on plaintiff's attorney, and leave it, and he did so, and the plaintiff's attorney did not return it the second time. The affidavits tended to show, that the boy, when he returned with the answer after the first attempt to serve it, did not report the reason given by plaintiff's attorney for not accepting it, and it was urged that he was not an authorized agent to receive such communications, and that the plaintiff's attorney, by not returning it when served the second time, had waived the default. SHERIFF'S JURY. Held, that in once returning the answer, when served after the time to answer had expired, informing the messenger by whom the answers were sent that they would not receive them, because the time to answer had expired, the plaintiff's attorney did all which the rules of practice or just notions of candor and fair dealing required. The agent employed by the defendant's attorney to make the service, was as competent to receive from the plaintiff's attorney the reasons why the answers were rejected, as he was to carry back the answers themselves. Nor could the defendant's attorney, by again sending the answers to the office of the plaintiff's attorneys and forcing them upon them, make it their duty to send them back a second time. N. Y. Superior Ct., Gen. T., 1857, Jacobs a. Marshall, 6 Duer, 689. 2. Section 146 of the Code-requiring an amended complaint to be served on the defendant-is to be construed by section 417-requiring service of papers to be made on the attorney, if a party has an attorney; and where a defendant has appeared by attorney, an amended complaint is to be served on the attorney, and not on the defendant personally. Mercier a. Pearlstone, Ante, 325. 3. A judgment, entered as upon failure to answer an amended complaint, which was served on the defendant personally, after he had appeared by attorney, is irregular, and should be set aside on motion of the defendant. Ib. SURROGATE'S Court, 1. SHERIFF'S JURY. ASSESSMENT OF DAMAGES. SPECIAL PROCEEDINGS. 1. The act of 1855 (Laws of 1855, ch. 327), providing for apportionment of taxes and assessments, and sales of property, is constitutional, and under the act it is competent for the court to order a sale in fee. Ct. of Appeals, 1857, Jackson a. Babcock, 16 N. Y. (2 E. P. Smith's) R., 246. 2. Of proceedings under the act of 1821 (Laws of 1821, ch. 204), to remove intruders upon Indian lands. The People a. Dibble, 16 N. Y. (2 E. P. Smith's) R., 203. STATUTE OF FRAUDS. 1. An assignee, for benefit of creditors, was requested by the preferred creditors to transfer the assigned property to them in payment of the preferred debts; and the attorney who drew the assignment objecting SUMMARY PROCEEDINGS. that there would be nothing left wherewith to pay his charges, the creditors promised to pay them, but without ascertaining the amount, and the transfer was thereupon consummated. Held, that the promise was an original undertaking, and not void by the statute of frauds, because not in writing. The creditors who made it were liable to pay a reasonable bill to the attorney; and their liability was not at all affected by the liability of the assignee for the same debt. Stillwell a. Otis, Ante, 431. SUMMARY PROCEEDINGS. The provision of the Revised Statues (3 Rev. Stats., 512), providing summary proceedings to recover the possession of lands in certain cases, with the amendments of chapter 193 of the Laws of 1849, are all applicable to the case of a person claiming possession under sale on execution, against the judgment debtor, or his assigns, who holds over; and an appeal may be taken in such case. In such cases the term "rent," in the provisions of the act of 1849, must be construed to mean a compensation to the purchaser for use and occupation. Ct. of Appeals, 1858, Spraker a. Cook, 16 N. Y. (2 E. P. Smith's) R., 567. SUPERIOR COURT OF BUFFALO. The jurisdiction of the Superior Court of Buffalo is to be presumed unless the contrary appear (Laws of 1854, 222, §1). Ct. of Appeals, 1857, Bidwell a. The Astor Mutual Ins. Co., 16 N. Y. (2 E. P. Smith's) R., 264. SUPERVISORS. SUPPLEMENTARY PROCEEDINGS. 1. Before supplementary proceedings can be instituted, the creditor's remedy by execution must be really exhausted. Nagle a. James, Ante, 234. 2. Where it appeared that the execution had been returned by the sheriff unsatisfied, at the request of the plaintiff, and not by the sheriff upon his official responsibility; Held, that the order for the examination of the judgment debtor must be set aside. Ib. 3. A judgment against a foreign corporation may be enforced by supplementary proceedings, under section 294 of the Code, to reach property belonging to it in the hands of third parties, or debts due to it from third parties. McBride a. The Farmers' Savings Bank, Ante, 347 SUPPLEMENTARY PROCEEDINGS. 4. It seems, that the proper construction of section 294 would apply it to the case of a judgment against any corporation. Ib. 5. Public moneys raised by a municipal corporation pursuant to lawe. g., by tax-for purposes of government, and in the hands of its fiscal officer, are not the property of the corporation, or a debt due to it within the meaning of section 294 of the Code, so as to entitle a judg ment creditor of the corporation to an order requiring the officer to pay over the moneys in satisfaction of the judgment. Lowber a. The Mayor, &c., of N. Y., Ante, 248. 6. It seems, that section 294 is not, however, inapplicable to the case of a judgment against a corporation. Ib. 7. A receiver, appointed in supplementary proceedings, applied to the court, showing that the judgment debtor was a cestui que trust, under the provisions of a will, by which the testator conveyed his property to executors, in trust, to convert it into money, and invest it, and apply the annual income to the judgment debtor, and, on his death, to divide the principal, and any accumulation of income there might be, among his issue; and the receiver asked leave to sell the interest of the judgment debtor in this trust. Held, that such leave could not be granted. If creditors can derive any benefit from such provisions, it must be by a proceeding to which the executor is a party, and in which the benefit sought should be derived, not by a sale, but by sequestration of such portion of the annual fund as is not required for the maintenance of the debtor. The interest of the cestui que trust is inalienable, and there is nothing to pass by assignment to the receiver, or which can be sold by him, so long as there is no income in the executor's hands unappropriated. The proper mode to reach such surplus as might in future accrue, would be by a creditor's action. N. Y. Superior Ct., Sp. T., 1857, Scott a. Nevius, 6 Duer, 672. 8. It seems, that an existing surplus might be reached by an order to apply it to the judgment. Ib. 9. The obvious purpose of the provisions of the Code, respecting supplementary proceedings (§ 294-299), is to give the creditor an immediate and summary remedy against the debtor's property; but not to permit the rights of third parties to be brought into litigation, except in a regular way, by suit. (Goodyear a. Betts, 7 How. Pr. R., 187; The People a. King, 9 Ib., 97, 100; Gasper a. Bennett, 12 Ib., 307.) To sustain an order that he apply property in his possession to the judgment, it is not enough that he has it in possession. It must appear to be his property. If the contrary appears, the remedy to test the title is, for the receiver to bring action for the property. Ct. of |