3. As the knowledge of the plaintiff who applies for an attachment must be shown, he personally must make the affidavit, or, if made by some other person, such facts, at least, should be stated as satisfy the court that the plaintiff has no knowledge upon the subject, because the entire transaction was with the affiant. (Id.)

4. The absence of any proof in an affidavit for an order of publication relating to the subject of diligence in the effort to serve the summons, especially where it appears the defendants are non-resi

5.

dents of the state and engaged in business at their residences, is not fatal to the jurisdiction of the court so as to invalidate an attachment where the motion to vacate such attachment is made, not by the debtors, but by another creditor. (Smith agt. Mahon, ante, 382.)

Where the affidavits on which an attachment is asked, are sufficient to establish the fact that the plaintiff was induced to part with his personal property by the fraud of the defendant, "the estate of another is lessened," and is so lessened by "an actionable act. (Weiller agt. Schreiber, ante, 491.)

6. An affidavit upon which an order for the service of a summons was issued stated "that defendant has not resided in the state of New York since March, 1877, and deponent is advised and believes is now a resident of San Francisco, California:"

Held, that this was not sufficient, under the Code of Procedure (sec. 135), to authorize the granting of the order; that it was merely an allegation of non-residence, and did not tend to establish that defendant could "not after due diligence be found within the state." (Carleton agt. Carleton, 85 N. Y., 313.)

AGENCY.

1. The plaintiff dealt with defendant under a written agreement whereby the former was to purchase goods from the latter under an exclusive agency, and was allowed a specific discount and the privilege of exchanging any of his purchases at any time:

Held, 1. That there having been no final settlement or adjustment at any time prior to the trial, and the agreement contained no clause as to interest, the defendant was not entitled to charge interest. 2. The loss upon goods sent by plaintiff to defendant for exchange, which were damaged by fire while in transit, should be borne by plaintiff, as the goods belonged to him when shipped, and the title remained in him until they reached defendant's custody. (Chase agt. Union Stone Company, ante, 336.)

court affirmed the judgment of the general term, and ordered judg ment absolute against the plaintiff, upon his stipulation, with costs:

Held, that the special term had power, upon the remittitur, to entertain a motion made by the defendant for an additional allowance. (Parrott agt. Sawyer, 26 Hun, 466.)

Semble, that when the allowances awarded to the parties by the surrogate, upon the settlement of an executor's account, exceed the limit prescribed by section 3254 of the Code of Civil Procedure, but the accounting has been difficult and intricate, and involved investigation exceeding over a period of several years, and the amounts involved are large, the court will not feel bound on appeal to modify the decree in that respect, when no objection thereto has been made by the parties. (Riggs agt. Cragg, 26 Hun, 89.)

AMENDMENT.

A legatee transferred by an assignment, absolute on its face, all his interest in the testator's estate to a firm which, at the same time, executed to him an instrument agreeing that, if more than a sum specified was realized, they would pay to him the excess. In an action by the legatee against the executor and his sureties, defendant set up the assignment, and claimed that the assignees were necessary parties. The assignment was proved on the trial, and defendant's counsel objected to the defect of parties; plaintiffs' counsel stated that one of the firm was in court, the court thereupon stated that it would direct the pleadings to be amended and the members of the firm brought in immediately as parties, and directed the trial to proceed. At the close of plaintiffs' case, defendants' counsel moved to dismiss, because of de

fect of parties. The motion was denied:

Held, error; that the assignees were necessary parties; and that the proceeding on the trial did not obviate the objection, as it did not make them parties on the record so as to bind them. (Hood agt. Hood, 85 N. Y., 562.)

APPEAL.

1. In an action for broker's commissions, in procuring a loan of $35,000, tried by a jury in the marine court, there was a contention of fact upon the trial over the question of an original employment. The trial resulted in a verdict for $400 in plaintiff's favor. The defendant's motion for a new trial upon the minutes was denied, and an appeal taken from the order and judgment entered upon the verdict to the general term of the marine court, where the judgment was affirmed, upon the plaintiff stipulating to reduce the recovery from $400 to $175. The case was given to the jury under an absolute instruction to allow plaintiff $400 in case they found in his favor upon other questions:

Held, that the general term of the marine court exceeded its authority by directing an aflirmance should the plaintiff stipulate to reduce the recovery to $175. The statute limits the plaintiff's right to that amount, but the jury had power to award him less. (Bur ling agt. Gunther, ante, 68.)

2. Neither the plaintiff's right, nor the defendant's liability, with reference to amount, has ever been passed upon by the jury, as they were misled by an erroneous instruction, and the general term, by endeavoring, instead of ordering a new trial, to adjudicate what the plaintiff was entitled to, exceeded their powers, the needed facts not having been found on the trial. (Id.)

3. An appeal lies to the general term of the court of common pleas from the general term of the marine court in landlord and tenant proceedings. (Shaw agt. McCarty, ante, 286.)

See UNDERTAKING.

Morss agt. Hasbrouck, ante, 84.
Morss agt. Hasbrouck, ante, 201.

4. An appeal to the general term of the supreme court from the decree of a surrogate, refusing to admit a will to probate, is a separate and independent special proceeding within the meaning of subdivision 11 of section 3347 of the Code of Civil Procedure, which provides that chapters 14 to 20 of that act shall only apply to actions or special proceedings commenced on or after September 1, 1880; and an appeal taken after that date from a decree previously entered is governed and must be regulated by the provisions of the said Code. (Matter of Gates, 26 Hun, 179.)

5.

A failure to specify in a notice of appeal, to what court the appeal is taken, is a mere irregularity which the respondent waives by appearing, noticing the appeal for argument and putting it on the calendar. (Id.)

6. Where the right of one claiming to be a residuary legatee, to call the executor to account, is contested by the latter on the ground that the petitioner has no interest in the estate, the order of the surrogate granting the application and compelling the executor to account involves a substantial right, and is appealable. (Fiester agt. Shepard, 26 Hun, 183.)

7. In a case tried by a jury it is not necessary that an order of reversal by the general term should state whether the reversal was on questions of law or fact, and where it does not state that the reversal was upon questions of fact, if the facts were properly before the court for

review, it is not to be presumed that the reversal was upon questions of law only. (Goodwin agt. Conklin, 85 N. Y., 21.)

8. The rule applicable to cases tried by a referee or by the court without a jury (Code of Civil Procedure, sec. 1338) does not apply to cases tried by jury. (Id.)

9. Where the facts are before the general term, and it reverses the judgment, but instead of granting a new trial directs judgment absolute. its decision is reviewable here. (Id.)

10. In such case, however, if it is determined by this court that the general term went too far in directing final judgment, it is not necessary to wholly reverse, and to restore the original judgment; but the decision of the general term may be modified so as to award a new trial. (Id.)

11. L. died in this state leaving personal property in this state and in Michigan, and leaving a will by which she bequeathed legacies to certain persons residing in this state, and to others residing in Michigan and elsewhere. She appointed defendant executor for carrying out the provisions of the will so far as they relate to parties and property in this state," and she appointed G. and J., residents of Michigan, executors "for everything so far as they relate to parties and property in the state of Michigan and elsewhere." She directed her New York legatees to be first paid. The will was admitted to probate in this state and letters testamentary issued to defendant alone; thereafter the will was admitted to pro bate in Michigan, and letters issued to G. and J. Defendant took possession of the personal property within this state, and filed an inventory thereof; G. and J. took possession of that in Michigan and no part of it has come into this

state. On settlement of defendant's accounts, he rendered an account for all the property inventoried, and which came to his hands, all of which was used in the payment of debts, expenses, &c., leaving nothing for legatees; the testatrix left sufficient assets in Michigan to pay her debts in that state and to pay the New York legatees. Defendant requested the Michigan executors to surrender to him some portion of the assets in their hands, which they refused:

Held, that assuming the surrogate before whom the accounting was had, had the power, under the statutes (2 R. S., 220, sec. 1), to direct defendant to institute legal proceedings for the recovery of the Michigan assets, it was a matter in his discretion, and his refusal so to do was not reviewable here. (Sherman agt. Page, 85 N. Y., 123.)

12. Upon a reference, under the statute, of a disputed claim against an estate the referee sustained the claim. His report was set aside by the special term, but on appeal to the general term the order of special term was reversed and judgment ordered for the claimant on the report:

Held, that the judgment was appealable to this court; but that only the questions of law raised by the exceptions could be here considered; that, so far as the order of the special term was based upon its view of the facts, this court was to be governed by the findings of the referee, where there was any evidence to sustain them. (Fredenburgh agt. Biddlecom, 85 N. Y., 196.)

13. In an action to foreclose a mortgage in which defendant E. was sought to be charged for any deficiency upon a subsequent guaranty of payment of balance due on demand, it was averred in the complaint that a demand was made; the answer contained a general de

nial of the allegations of the complaint, save the execution of the mortgage and the subsequent agreement. There was no proof of demand on the trial, and it did not appear that the question was there raised of suggested; there was no finding that demand was made, and no request to find, and it did not appear that the point was taken at general term:

Held, that the denial in the answer was not one that would positively indicate a purpose to make the question of demand one of the contested issues on trial, although sufficient to authorize the question to be there raised; and that the question could not be raised here. (Penn. Coal Co. agt. Blake, 85 N. Y., 226.)

14. Where an order of general term granting a new trial is affirmed on appeal to this court and judgment absolute directed against the appellant, the sureties upon the undertaking given to perfect the appeal as prescribed by the Codes (Code of Civil Procedure, sec. 1326; Code of Procedure sec. 334), are only liable for costs of the appeal to this court, not for all the costs in the action. (Burdett agt. Lowe, 85 N. Y., 241.)

15. A correct decision will not be reversed, on appeal, because founded upon a wrong reason; at least, unless where the ground of decision can be seen to have misled a party to his injury. (Marvin agt. Un. L. Ins. Co., 85 N. Y., 278.)

16. The provision of the act of 1873, in reference to the equalization of taxes (sec. 1, chap. 327, Laws of 1873, amending the act chap. 312, Laws of 1859), providing that an appeal made by a supervisor, in behalf of his town, from any decision of the board of supervisors in the equalization and correction of assessment rolls, should be null and void in case the determination thereof was not made and filed with the clerk of the

board before the commencement of the next annual session, was repealed by the provision of the act of 1876 (sec. 3, chap. 49, Laws of 1876), declaring that the State assessors shall certify their determination on such an appeal to the board of supervisors, "and forward the same by mail, within ten days thereafter, to the clerk of said board." (People ex rel. Robinson agt. Bd. Sup'rs. 85 N. Y., 323.)

17. Where, upon motion to compel a referee appointed to sell under judgment in a partition suit to pay to the purchaser the amount of a lien, the questions of fact were referred to a referee to take proof and report thereon, and the report of the referee was confirmed by the special term, and where it appeared that, at the general term, both parties stood upon the report, neither questioning the findings of fact:

Held, that it was no objection to the order of the general term that the testimony, which made part of the papers upon which the matter was heard at special term, was not before it; that neither the Code (Code of Civil Procedure, sec. 1353) nor the rule (rule 14) were to be so literally construed as to require the printing and presentation of unnecessary and superfluous papers (Weseman agt. Wingrove, 85 Ñ. Y., 353.)

18. Upon the trial of an indictment for murder, a witness for the prosecution having testified to a conversation with the prisoner, was asked, on cross-examination, if the prisoner made a certain statement in another conversation, which was conceded to be no part of the conversation already testified to; this was excluded:

Held, no error. (Moett agt. People, 85 N. Y., 373.)

19. Where a judgment, entered upon a decision of the court on trial, without a jury, is reversed by the general term on questions