Also held, That as an examina- | favor of the defendant and the tion of the records would have dis- report of the referee upon which closed the fact that the execution the same was entered, upon the did not conform to the statute, the ground that the referee had failed purchaser and his grantees were to deliver or file his report as reput upon inquiry as to its valid- quired by 8 1019 of the Code of ity. Civ. Pro., within 60 days after the final submission of the case to him and that the reference had been terminated under said section before the filing of said report. It appeared that before the expiration of the statutory time the referee had made his report in favor of the defendant and had offered to deliver it to the defendant's attorney upon the payment of his fees. It was claimed that there was, in fact, no personal property belonging to the judgment debtor out of which the execution could be collected. This claim is controverted. Held untenable; as if the claim had been established, it was immaterial. The invalidity of the process cannot depend upon the fact whether the execution could have been collected out of personal property. Order of General Term, reversing order of Special Term, affirmed. Opinion by Andrews, J. All concur. REFERENCE. PRACTICE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Robert F. Little, as receiver, respt. v. Theresa Lynch, applt. Decided Jan. 9th, 1885. Abram Kling, for applt. W. T. B. Milliken, for respt. Held, That such an offer was held to be equivalent to an actual delivery of the report under § 273, of the Code of Procedure, which provided, as the present code in effect does, that the referee should make and deliver his report within sixty days from the time the action should be finally submitted, &c. 14 Hun, 223. That the additional liberty given to the referee by § 1019 of the present code, of filing his report with the clerk within 60 days does not When a referee makes his report within the statutory time and notifies the attorneys prevent the other provision from that it is ready and at their disposal and being complied with by such an also of the amount of his fees, it is a suffi- offer as was made in this case for, cient delivery of such report to prevent the since the enactment is precisely forfeiture of his fees by the termination of the same concerning the delivery the reference under § 1019 of the Code of Civil Procedure, and in such a case, it is of the report to the attorney in not necessary for the referee to file his the Code of Civ. Pro. as it was in report with the clerk in order to have it the Code of Pro., what would conpreserve its validity. stitute a compliance with the latter should be held to be equally effective under the former for the Appeal from an order vacating and setting aside a judgment in additional privilege secured to the referee, of filing his report with the clerk, in no manner indicated what might be necessary to constitute a delivery to the attorney. That each proceeding was separate and distinct. 83 N. Y., 46; 66 How. B., 119; 12 N. Y. W. Dig., 216; 84 N. Y., 650, distinguished. Order reversed. Opinion by Brady and Daniels, JJ.; Davis, P. J., concurred. SPECIFIC PERFORMANCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Charles F. Willis, applt., v. Benjamin F. Dawson, respt. Decided Jan. 9, 1885. When a person who has contracted to pur chase real estate is unable, after making proper efforts, to obtain a search of the title to such property before the time fixed by the contract for the completion of the purchase, he is entitled to a reasonable adjournment to enable him to procure such search; and, if such adjournment is refused by the other party without a proper reason, the first party may refuse to accept the deed at that time; but after a reasonable delay spent in searching the title he may demand the completion of the contract, and if it is refused by the other party he may maintain an action, if commenced without delay, to enforce its specific performance, provided that he compensates the other party for the delay and no circumstances have intervened affecting either the situation of the defendant or of the property, rendering it inequitable to afford such relief. Appeal from a judgment dismissing the plaintiff's complaint on trial before the court. specific performance of an agree ment for the sale of land situated in the city of New York. The agreement was made on the 23d of June, 1882, and the purchase was to be completed on the 1st day of July. At the time mentioned for its performance the parties met at the place appointed for that purpose and the defendant was present with a deed which he was ready to deliver to the plaintiff, but the plaintiff had been previously endeavoring to obtain search of the title to the property and had been unable to procure it, and for that reason requested an adjournment. This was declined by the defendant and performance demanded at that time. The plaintiff was then unwilling to receive the deed and pay the residue of the purchase money and the parties thereupon separated. Subsequently the plaintiff, after obtaining the desired search of the title and in the latter part of July, brought this action, alleging that he was then ready and desirous of carrying out the contract but that the defendant was unwilling to perform it. It appeared that no change had taken place in the interim either in the situation of the defendant's affairs or of the property. William Settle, for applt. William D. Leonard, for respt. Held, That while the contract contained no agreement concerning the procurement of the search, it was a reasonable precaution on the part of the plaintiff to obtain one before completing his pur This action was brought for the chase and he could not be charged Decided Jan. 9, 1885. In an action by the receiver of an insolvent corporation, where the complaint alleges the receipt by the defendants of certain moneys as commissioners to receive subscriptions for stock of the corporation, and failure to pay the same over to the company, and the answers deny the failure to pay over said moneys and expressly allege payment of the same, the plaintiff must prove said non-payment in order to sustain his action. An award of separate bills of costs to several defendants is not required by § 3230 of the Code of Civ. Pro. to be made at the time of the trial, and the confirmation by the court of the taxation of such separate bills, upon a motion to set it aside, operates as such award. with laches during the time neces- | applt., v. George H. Moller and sary for that purpose, if he ex- others., respts. erted himself, as he appeared to have done, with all proper diligence, to obtain the requisite search of the title, and since his efforts in that direction had been unsuccessful it was entirely reasonable for the plaintiff to ask such further indulgence as had become necessary to obtain the search, and as long as the property was not in danger of depreciation or no other adequate reason could be assigned for it, it was unreasonable for the defendant to refuse such request, and since the plaintiff after a slight delay consumed in obtaining the desired search came immediately to the court to ask for a specific performance, that relief should have been afforded him for compensation for the delay could have been made to the defendant by adding interest to the purchase money, and no circumstances had intervened affecting either the situation of the defendant or of the property, rendering it inequitable to afford the relief applied for by the plaintiff. 1 Story's Eq. Jur., 12th Ed., § 776; 49 N. Y., 326; 49 id., 485; 55 id., 1; 88 id., 131. Judgment reversed, new trial the company. The answers of the trial ordered. Opinion by Daniels, J.; Davis, P. J., and Brady J., concur. DEFENCES. PAYMENT. N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Henry C. Andrews, as Recr., Vol. 20.- No. 16b. Appeal from a judgment entered on the dismissal of the complaint, and also from an order denying plaintiff's motion to set aside taxation of separate bills of costs on the part of the defendants. This action was brought by the plaintiff as receiver of the Rockaway Jockey Club (limited) to recover $15,250.00, alleged by the complaint to have been received by the defendants as commissioners to receive subscriptions for stock of the corporation, and not to have been paid over by them to defendants admitted the receipt of the money, but denied that it had not been paid over to the company, and expressly alleged such pay separate bills of costs, and the plaintiff moved to set aside such taxation upon the ground that no award of costs had been made under § 3230 of the Code, and, upon such motion, the taxation was confirmed.. John Brooks Leavitt, for applt. Leopold Wallach, Abram Kling, J. Homer Hildreth, G. H. Hinnan, A. D. Birdsall, for respts. taxed or sought to be enforced by execution, and that the motion of the plaintiff on the subject called into requisition the power of the court to award the costs separately, and then it was exercised by confirming the taxation. Opinion by Brady, J.; Daniels, J., concurred. Davis, P. J., dissented on the ground that it was for the defendants to prove payment, for it was an affirmative defence necessary to be pleaded and to be proved, and defendants could not insist that plaintiffs were bound to prove non-payment in the first instance. Davis, P. J., also held that the separate award of costs was error. ATTORNEY AND CLIENT. TERM. FIRST DEPT. Held, That the omission on the part of the plaintiff to prove the non-payment of the money to the corporation was a failure to establish the cause of action alleged. That the mere fact of the receipt of moneys by the commissioners would not justify an action, and, therefore, the allegation, not only of the receipt of the moneys, but also of the non-payment of them to the company, should have been N. Y. SUPREME COURT. GENERAL. proved. That under the existing law relative to pleadings it would. defeat the object of the codification accomplished by it if a defendant were required, in an action for money had and received, to appear and answer upon the mere allegation of such receipt. That when the facts both of the receipt and of non-payment are alleged, they should be proved, and that there should have been some evidence upon the fact of non-payment before the defendants could have been called upon to establish any defense. That there is nothing in § 3230 of the Code of Civ. Pro. requiring the award of costs to be made at the trial, and it may be made, therefore, at any time upon application to the court for the sums In the matter of John Swerarton, respt., v. Walter H. Shupe, an attorney, &c., applt. Decided Jan. 9, 1885. On an application to compel an attorney to pay over money received as trustee from his client to pay out in a specified way and for a certain purpose which was not accomplished, when the attorney does not deny the receipt of the money or the failure of the purpose for which it was received, and asserts that the larger part of it is deposited in bank in his name as trustee, but shows no substantial reason entitling him to retain the same, and a reference has been ordered to take proof of the matter alleged in the petition of the applicant, the attorney may be ordered to deposit the money in question in court to await the result of the proceeding. Appeal from order requiring the appellant Shupe to deposit in court the sum of $6,500, to await | paid into his hands for a specific the result of the application requiring the same moneys to be refunded to the petitioner. The respondent claims to have paid over the sum of $6,500 to the appellant, who was his attorney, as trustee, to pay out the same in the settlement of a contest over a will; that the settlement was never made, owing to the fact that some of the parties interested refused to agree to it; but that the appellant still retained the money and refused to pay over the same, and he therefore brought these proceedings to compel him to pay over such money. The appellant admitted the receipt of the money, that the purposes for which it had been received had not been accomplished, and that $5,700 of said money was deposited by him to his own credit as trustee in a banking house, with the knowledge of the respondent, and that it still stood on deposit to his credit as such trustee. A reference was ordered to take proof of the matters alleged in the respondent's petition, and, subsequently, an order was obtained by him directing the appellant to deposit the sum of $6,500 in court to await the result of the proceeding. It was claimed by the appellant that the court had no power to make such an order until it was proved that he had been guilty of misconduct. Foster & Stephens, for applt. MacFarland & Reynolds, for respt. Held, That the appellant showed no substantial ground or reason entitling him to retain the moneys purpose after the failure of that purpose; and that, under the circumstances, it was entirely proper that he should be directed to bring the money into court to abide the result of the controversy. That this course could not harm the appellant, as it was necessarily a matter of indifference to him whether the money remained in the banking house or in the hands of the court. That his rights were capable of protection in either event, while the rights of the petitioner, if he should be correct in his charges, would be more effectually secured if the money should remain in the custody of the court. Order affirmed. Opinion by Davis, P. J.; Brady and Daniels, JJ., concurred. JUDGMENTS. APPEALS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Thomas W. Harris, as assignee, etc., applt., v. Lavinia Taylor et al., respts. Decided Jan. 9th, 1885. A party to an action cannot avail himself of such parts of a judgment therein as are favorable to him and then appeal from those which are adverse, where the provisions of the judgment are so connected and dependant as to make it inequitable to permit such an appeal. Appeal from a judgment entered upon the report of a referee. This action was brought by the plaintiff as assignee for the benefit of creditors of Walter A. Tay |