Statement of the Case. no evidence before the jury of the rendition of any services under said agreement or any sum due therefor, while defendant proved by two witnesses, whose testimony upon this point remained uncontradicted, that plaintiff had admitted to them that he had no claim against the company. The jury were even charged by the court that no evidence had been given in respect to any services rendered. The judgment and order appealed from must be reversed, with costs to appellant to abide the event, and a new trial ordered. EDMUND A. SMITH, ET AL., PLAINTIFFS AND RESPONDENTS, . GUSTAVUS ISAACS, DEFENDANT AND APPELLANT. Judgment will not be reversed for the refusal of the court to grant a nonsuit or dismiss the complaint, when the plaintiff rested his case, although at that time plaintiff had failed to prove his case; provided that afterwards during the progress of the trial, the necessary evidence was supplied by either party (Schenectady & Saratoga Plank Road Co. v. Thatcher, 11 N. Y. 102, per JOHNSON, J.; Kent v. Harcourt, 33 Barb. 491; Colvin v. Burnet, 2 Hill, 620; Hearsey v. Pruyn, 7 John. 179). Before FREEDMAN, CURTIS and SPEIR, JJ. Decided January 31, 1874. Appeal by defendant from a judgment entered in favor of the plaintiffs, upon the report of a referee. The action was brought to recover a balance due Opinion of the Court by FREEDMAN, J. for money loaned on March 24, 1871, and for work, labor and services as superintendent, from March 20 to June 8, 1871. The amount claimed as a loan was three hundred dollars, and that for services three hundred and twenty-six dollars. The jury rendered a verdict in favor of the plaintiff for two hundred and twenty-five dollars and twenty-five cents, and defendant appealed. Charles Matthews, for appellant. Freeman J. Fithian, for respondent. BY THE COURT.-FREEDMAN, J.-The two claims advanced by the plaintiff were submitted to the jury against the objection and exception of the defendant, who claimed that the plaintiff had failed in establishing any cause of action whatsoever. The jury disallowed the claim for loaned money, but for services a verdict for two hundred and twenty-five dollars and twentyfive cents was given. This verdict cannot be sustained. The evidence showed that the plaintiff was elected trustee of the same company on April 29, 1871, and consequently he could not, in any aspect of the case, recover from the defendant, as a co-trustee, as a penalty for the failure of the company to make and file the annual report required by statute, for services rendered subsequent to said date. This question was fairly raised by the answer, and although the printed case does not show that the attention of the trial judge was specifically directed to it, nothing appears which estops the defendant from insisting upon it. a still more serious question arises from the fact, that, although one witness called for the plaintiff testified to plaintiff's appointment as superintendent at a compensation to be paid at the rate of fifty dollars per month from March 20, 1871, to April 1, 1871, and at the rate of one hundred dollars per month thereafter, there was But Statement of the Case. no evidence before the jury of the rendition of any services under said agreement or any sum due therefor, while defendant proved by two witnesses, whose testimony upon this point remained uncontradicted, that plaintiff had admitted to them that he had no claim against the company. The jury were even charged by the court that no evidence had been given in respect to any services rendered. The judgment and order appealed from must be reversed, with costs to appellant to abide the event, and a new trial ordered. EDMUND A. SMITH, ET AL., PLAINTIFFS AND RESPONDENTS, . GUSTAVUS ISAACS, DEFENDANT AND APPELLANT. Judgment will not be reversed for the refusal of the court to grant a nonsuit or dismiss the complaint, when the plaintiff rested his case, although at that time plaintiff had failed to prove his case; provided that afterwards during the progress of the trial, the necessary evidence was supplied by either party (Schenectady & Saratoga Plank Road Co. v. Thatcher, 11 N. Y. 102, per JOHNSON, J.; Kent v. Harcourt, 33 Barb. 491; Colvin v. Burnet, 2 Hill, 620; Hearsey. Pruyn, 7 John. 179). Before FREEDMAN, CURTIS and SPEIR, JJ. Decided January 31, 1874. Appeal by defendant from a judgment entered in favor of the plaintiffs, upon the report of a referee. The action was brought to recover a balance due Opinion of the court, by FREEDMAN, J. upon an account for goods sold and delivered under a special contract. A. R. Dyett and G. A. Seixas, for appellant. William C. Barrett, for respondents. BY THE COURT.-FREEDMAN, J.-The issues in this case seem to have been fully, ably and fairly tried. They were determined upon a theory which in the main is correct. The facts found by the learned referee, although mostly found upon conflicting testimony, are supported by the evidence, and his conclusions of law legitimately follow from the facts thus found. No error was committed in refusing to find as requested by the defendant. If the reception in evidence of the book of plaintiffs' foreman constituted error, it will not avail the defendant, for the reason that he did not rest upon his exception, but that in the course of the defense he himself supplied the evidence upon which, independently of the said book, the referee rendered judgment. A judgment will not be reversed for the refusal to grant a nonsuit, though the plaintiff had at the time failed to prove his case, if the necessary evidence was supplied afterwards by either party (Schenectady & Saratoga R. R. Co. v. Thatcher, 11 N. Y. [1 Kern.] 102, per JOHNSON, J.; Kent v. Harcourt, 33 Barb. 491; Colvin v. Burnet, 2 Hill, 620; Hearsey v. Pruyn, 7 Johns. 179). The judgment should be affirmed, with costs. CURTIS and SPEIR, JJ., concurred. Statement of the Case. ISRAEL G. ATWOOD, PLAINTIFF AND APPELLANT, v. MARGARET J. LYNCH, ADMINISTRATOR, &c., OF JAMES LYNCH, DECEASED, DEFENDANT AND RESPONDENT. 1. SHERIFF.-TRESPASS.-EXECUTION.-Levy. 1. Trespass, action for, when it will not lie against the sheriff. a. Where the sheriff under an execution against A. levies on property of B., and thereafter an execution against both A. and B. comes to his hands, under which he makes no actual levy, and thereafter he sells under the exceution against A., he cannot be held liable in an action of trespass brought by B. where the complaint assigns the trespass as having occurred on the day of sale. 2. Application of proceeds, wrongful, SEMBLE. In such case the execution creditors of A. and B. might have an action against the sheriff for a false return, if he paid over the proceeds of the sale to the execution creditor of A.; and, perhaps, B. on showing special damage might have an action on the case against the sheriff. II. COMPLAINT.-RECOVERY UNDER, for a CAUSE OF ACTION NOT INTENDED TO BE PLEADED, WHEN ALLOWED, WHEN NOT. 1. Allowed only when, in addition to the facts which alone were necessary to constitute the intended cause of action, the complaint states other facts, which either by themselves or in connection with the facts necessary to the intended cause of action, constitute another cause of action. See Ladd v. Askell, post. III. DIRECTION TO JURY TO FIND A VERDICT.-TRIAL.-APPEAL. Before FREEDMAN, CURTIS, and SPEIR, JJ. Exceptions ordered to be heard at general term, and appeal from a direction to the jury to find a verdict. The action was brought against the late Sheriff |