clared that he made a levy on the right, title, and interest of Coxe, or anything else. On the trial at Special Term the complaint was dis missed. Coudert Bros., for applt. Held, No error; that these acts did not amount to an actual levy. In order to make a valid levy, it is not necessary that there should be a removal of the goods. Yet, there must be actual control or dominion of the property. The officer did nothing which would subject him to an action of trespass, if the execution did not afford him protection. The legal test of a valid levy, therefore, was wanting. The pretended levy was no levy at all, for the officer was careful to avoid liability for his acts, in case it should turn out that the judgmentdebtor had no interest in the property. Westervelt v. Pinckney, 14 Wend., 123; Roth v. Wells, 29 N. Y., 471; Camp v. Chamberlin, 5 Den., 198. The sale, also, was irregular and void. Neither the right, title, and interest of Coxe in the goods, nor the goods themselves were offered for sale, but the sale was of Coxe's interest in the firm. Such an interest is not the subject of a sale on execution. If we could infer that the officer meant to sell Coxe's interest in the goods only, still large quantities of the goods were not present, or within the view of those attending the sale, nor were they offered for sale in lots or parcels as required by statute (2 R. S., 367, § 22). To uphold such a sale would not only violate the law, but would open a door for the grossest frauds. Morgan v. Halliday, 48 How, 88; Sheldon v. Loper, 14 J. R., 352. When an officer sells the goods of a partnership on an execution against one of the partners, he must proceed in the manner pointed out by the statute cited, and sell as much of the interest of the judgmentdebtor as may be sufficient to satisfy the execution. Here there was not a sale or delivery of any specific goods, but only of the interest of the judg ment-debtor in the partnership, which, if effectual, would pass not only the title to leviable property, but to choses in action, and other property not leviable. Such a sale was clearly illegal. Judgment affirmed, with costs. Opinion by Gilbert, J. CONTRACT. RECISSION. Decided July 6, 1877. Defendant sold a cow to one Carey, the pur chase price to be paid in manure at a stipulated price, and delivered it to plaintiff as agent; subsequently, defendant took said cow from plaintiff's possession; Held, That the contract of sale was thereby rescinded, and plaintiff, as assignor of the claim, is entitled to recover for the manure delivered. The plaintiff was the agent of John Carey. As such agent, he sold the defendant a quantity of manure and bought from him a cow. The cow was valued at $65, and the price of the manure, at $1.50 a load, was to be applied in payment for the cow, and if this price proved insufficient, the balance was to be paid in cash. The cow was taken from defendant's residence during his absence by the plaintiff. On his return, the defendant went to plaintiff, and refused to leave the cow unless the difference SURROGATES. between the price of the cow and the N. Y. SUPREME COURT. GENERAL manure then delivered were then paid in cash. There had been eighteen loads of manure taken, worth, at the price agreed upon, $27. No more manure was taken, and the defendant has since kept the cow. Carey assigned to plaintiff the claim for the manure delivered. This action was commenced in a Justice's Court, to recover the value of the manure. The Justice rendered a judgment in favor of the plaintiff for the amount of the claim, with costs. The defendant appealed to the County Court, where the judgment was reversed. The plaintiff appeals to this Court. Held, That the County Court has fallen into error. There was but little conflict before the Justice, and the facts were sufficient to justify him in finding as he did in favor of the plaintiff. When the defendant took the cow from the plaintiff, who was in possession under the terms of the contract, he (the defendant) violated the contract, and his act operated as a recission of it on his part, and imposed the legal duty on him of paying for what manure he already had. Defendant claims he took the cow back as security. For what was he entitled to security? There was manure sufficient to satisfy his claim, and he was bound to take his pay in it. Other facts appear, but are controverted, and we leave them where the law does, and as the trial court has found them. Judgment of County Court reversed, and judgment of Justice affirmed. Opinion by Dykman, J. All con cur. TERM. SECOND DEPT. McNulty, adm'x., applt., v. Hurd, respt. Decided July 6, 1877. Surrogates have no power to adjudicate with reference to a disputed claim. This principle is not to be extended. Surrogates have power to pass upon the ques tion as to whether a judgment has been paid, and to decree payment thereof. Respondent is the owner of a judg ment obtained against the intestate of the appellant. The Surrogate of Kings made an order requiring the appellant to show cause why he should not be required to pay the same. The appellant denied that respondent was the owner of the judgment; claimed that it had been paid, and denied the jurisdiction of the surrogate to determine the issues raised. The objection to the jurisdiction was overruled, and a decree for the payment of the amount due on the judginent made. Testimony had established the judgment, the respondent's ownership thereof, and the amount due. From this 'decree the appeal is taken to this Court. Held, Surrogates' Courts are of limited jurisdiction. Their powers are special, and are given and defined by statute (2 R. S., 220, § 1; 2 R. S., 95, § 71). These statutes have been construed to give no power to a surrogate to adjudicate upon a disputed claim. Such adjudications would involve tedious litigation, and intricate questions of law and of fact, and would give to surrogates and their courts labor and responsibility beyond the object of their institution. Though this rule may be considered settled, REFERENCE. the reasons for it are not entirely N. Y. SUPREME COURT. GENERAL satisfactory, and are not so strong that the rule is to be extended. There is reason neither in the analogies of the law, nor in public policy why the surrogate should not have entertained jurisdiction of this case. The original claim against the appellant's intestate bad been liquidated, and freed by the judgment; and, therefore, to compel the claimant to establish his judgment before any other tribunal would be idle ceremony, especially as the validity of the judgment was not questioned. We do not think there was a disputed claim within the meaning of the statute. The judgment was the claim, and about it there was no dispute. True, the judgment is not conclusive upon the appellant. She might prove its payment, and destroy its existence as a claim. But should the surrogate refuse to proceed with the respondent's petition because of an allegation of payment? Whether the judgment was, or was not paid in whole, or in part, and whether it be owned by the claimant or no, are questions relating to the claim, which assume its existence, and this very class of questions, the statute in terms requires the surrogate to settle. In Kidd v. Chapman, 2 Barb. Chan., 414, the chancellor held that the surrogate had power to decree payment of a judgment recovered against the testator in his lifetime, although the executor does not ask for a final settlement of his accounts. Decree affirmed with costs. TERM. FIRST DEPT. Middleton Bell, respt., V. The Mayor, etc., applt. Decided July 6, 1877. An action where the jury will be obliged to examine a number of separate items constituting the damages for breach of contract, is not a referable action involving the examination of a long account. Appeal from an order directing a reference. Action brought to recover the sum of $306,200, the amount of damages alleged to have been sustained by reason of the breach of defendant's contract to deliver to the plaintiff's assignor the contents of the sinks and privies in this city from November 1st, 1872, to May 1st, 1875. The contract provided that the defendant should deliver at the Lodi Man'f'g Co. the contents of the sinks and privies of the city of N. Y., on of being paid therefor the sum $4,000 per annum, payable quarterly, and in consideration of the premises, one Gallagher, plaintiff's assignor, agrees with the defendant to receive the contents of the sinks and privies of the city of N. Y., for the term of ten years, and to pay the sum of $4,000 per annum, quarterly. The answers deny any breach on the part of the defendant, allege default and breach of contract on the part of plaintiff's assignor, and of plaintiff himself. W. P. Prentice, for applt. Thomas Hooker, for respt. Held, This is an action sounding in damages. The plaintiff's case de Opinion by Dykman, J. All con- pends chiefly upon the number of cur. Vol. 5-No. 4*. loads or quantity of soil which could have been taken from the sinks and privies during the period covered by the contract. But this proof does not involve the examination of a long account. The number of sinks and privies form one or two items, the average size one, and therefore the property another, the value per load of the quantity, aggregated and reduced to loads, another, and doubtless one or two other matters of figures, which a jury could readily handle and easily understand, under the direction of the Court and a tabular statement prepared for them. It is the commercial or financial account to which the Code relates, the account in trade or in finance, and not a statement of items or elements of damage for a contract broken, which, if fulfilled and prosecuted, might require an examination of items in detail. It may be said, indeed, that there is in this case no account whatever within the meaning of the Court. The action was not one in which a compulsory reference should have been ordered. ty, when there is no intention on the one side to sell and deliver, or on the other to buy and take, but merely that the difference shall be paid according to the fluctuation in market values, is a wager and void. Affirming S. C., 4 W. Dig., 274. This action was brought to recover damages for the breach of a contract, whereby defendant, in consideration of $250 paid him by B., plaintiff's intestate, agreed to receive from him at any time within six months from date of the contract $2,500 in gold coin of the United States, and pay therefor in good current funds, at the rate of $195 in currency for every $100 in gold, and the contract expressly declared that B. did not contract to deliver the coin, but paid $250 for the privilege of delivering it or not, at his option. Defendant. claimed the contract was a wager, and therefore void. The contract was the only evidence of the intent of the parties and of what took place when it was made; no prior dealings of a similar nature were shown between the parties. The breach of the contract was proved. The case was tried by a judge without a jury, who Order reversed, with costs to abide found the contract was not a bet or wager, and directed judgment for the event. Opinion by Brady, J.; Davis, P. plaintiff. J., and Daniels, J., concurring. A. P. Laning, for applt. OPTIONAL CONTRACTS. L. W. Thayer, for respts. Held, no error; That the contract on its face did not disclose an illegal transaction; that the burden was upon defendant to show that it was il Bigelow, adınrx. &c., et al., respts., | legal, and he failed to do so; that v. Benedict, applt. Decided June 19, 1877. An executory contract for the sale of stocks or goods at a fixed price is valid, although the vendor neither owns them nor has them in possession when the contract is made. mercantile contracts of this sort are consistent with a bona fide intention on the part of both parties to perform. There is no inherent vice in such a contract. 3 J. Ch., 81; 2 Sand, 240; But an optional contract for the sale of proper- 43 N. Y., 240; 5 Lans., 180. An executory contract for the sale of stocks or goods at a fixed price is valid, although the vendor neither owns them nor has them in possession when the contract is made. 5 M. & W., 442. When an optional contract for the sale of property is made and there is no intention on the one side to sell or deliver the property, or on the other to buy or take it, but merely that the difference should be paid according to the fluctuation in market values, the contract would be a wager within the statute. 75 E. C. L., 525; 34 E. L. & Eq., 219; 1 Bos., 207; 13 Am. L. R., (N. S.) 310. Judgment of General Term, affirming judgment for plaintiffs, affirmed. Opinion by Andrews, J. All con cur. FORECLOSURE. SALE. RE SALE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Abingdon Square Savings Bank, applt., v. Patrick Cassidy et al., respt. Decided July 6, 1877. Inadequacy of price of itself may furnish grounds sufficient to justify a suspicion of fraud or mistake and to set aside a judicial sale. In May, 1871, the defendant Cassidy made to the plaintiff and appellant two mortgages, one for $10,000 and one for $5,000. In December, 1871, he made a third for $8,000. On the 4th day of June, 1873, judgments of foreclosure and sale were entered in actions to foreclose these mortgages. The amount then due on all these was $23,596.61. Defendant Cassidy immediately commenced making payments on these judgments. On Nov. 24, 1875, there remained due and unpaid $10,664.08. Some time previous to this day, Mr. Brown, the attorney of the Bank, had an interview with Mr. Cassidy and several gentlemen in his interest, when it was agreed that, to lessen expense, the property should be sold by the referee, and bid in by the Bank for Cassidy's benefit, so that he might pay off the amount remaining due and get back the property. Under this agreement, on Nov. 24, 1875, two parcels were put up, sold and bid in by the Bank, one for $11,000 and one for $3,000. In December following there was a sale of the remainder of the land. Mr. Brown attended and bid for the Bank. A Mr. Watson also attended and made eleven bids, when Mr. Brown told him he was injuring Mr. Cassidy, as the bidding was for his benefit. Mr. Watson thereupon ceased bidding. In November, 1876, Cassidy offered to the Bank the sum remaining due on the judgments and claimed the right to have the property conveyed to him thereupon. The right was denied. A motion was made for a resale and granted, and from the order this appeal is taken. Held, It is safe to lay down as a general rule that judicial sales may be set aside in all cases of fraud, misconduct, surprise or well grounded misapprehension. It has been said and written that mere inadequacy of price will not of itself be a sufficient reason for the interference of the courts. This has, however, come to be regarded as a mere form of expression. Certainly the price may be so grossly inadequate as of itself to furnish good |