TABLE OF CASES REPORTED IN THE FIRST FIVE VOLUMES WHICH HAVE BEEN ACTED UPON BY APPELLATE COURTS. PAGE Ahern v. Goodspeed, IV, 6, Affirmed, Jan. Ins. Co., III, 113, Affirmed, Jan. 29, Barry v. Brune, III, 339, Affirmed.....V, 437 Brown v. Sigourney, III, 16, Appeal dis missed, Jan. 15, 1878. Bruce v. Griscom, III, 529, Affirmed, Sep. Burrows v. Whittaker, III, 502, Affirmed, Cameron et al. v. Seaman et al., III, 214, ..V, 157 Campbell v. Smith, III, 240, Affirmed. V, 181 Chase v. James, IV, 433, Appeal dismissed, Nov. 20, 1877. ed.... Comstock v. Drohan, III, 302, Affirmed. V, 248 ...V, 60 .V, 562 In re Peugnet, III, 518, Reargument denied... ..V, 199, 222 In re Security Life Ins. Co., IV, 503, Appeal dismissed.. 86 .V, In re will of Hathaway, IV, 17, Affirmed.... .V, 387 Kapelovitz v. Kersburg, IV, 303, Reversed..... ......V, 547 King v. Livermore, III, 576, Affirmed, Nov. 27, 1877. 311 Peck v. Collins, III, 338. Affirmed....V, 246 Peck v. The N. Y. C. & C. RR., III, 503, Affirmed.. ..V, 201 Peyser v. The Mayor, &c., of N. Y., III, 345, Reversed.. .V, 127 Pierce v. Keator, IV, 272, Affirmed....V, 111 Quinn v. The People, V, 236, Affirmed, Jan. 15, 1878. Randel v. Von Ellert, V, 253, Reversed V, 476 Rockwell et al v. McGovern et al., I, 393, .V, 433 The Marine Bk. of Buffalo v. Fiske, III, 504, Affirmed. The Merchants' Bk. of Canada v. Griswold, IV, 104, Affirmed, Feb. 12, 1878. The People v. Casey, V, 210, Affirmed, Feb. 5, 1878. The People v. Smith, III, 569, Revers- The People v. Stephens, II, 515, Affirmed, The People ex rel. Clapp v. The Mayor, The Standard Sugar Refinery v. Dayton, The Troy & Lansingburgh RR. Co. v. Kane, IV, 307, Affirmed, Feb. 19, 1878. Thompson v. Taylor, V, 98, Affirmed..V, 518 Tilton v. Ormsbee, IV, 193 Affirmed, Sept. 18, 1877. Underwood v. The Farmers' Joint Stock Ins. Co., III, 243, Affirmed, Nov. 27, 1877. Van Valkenburgh v. The Am. Pop. Life Ins. Co., IV, 171, Affirmed...... .V, 89 Ward v. The A. & P. Tel. Co., IV, 50, Waring v. Sanborn, V, 291, Appeal dis- Weeks v. The N. Y., N. H., &c., RR., Wilcox Silver Plate Co. v. Green, IV, 93, Affirmed, Jan. 15, 1878. Wilkinson v. 1st Natl. Fire Ins. Co., IV, 244, Affirmed, Feb. 19, 1878. Wood v. The Erie R. Co., III, 586, Affirmed, Jan. 22, 1878. THE NEW YORK WEEKLY DIGEST. VOLUME V. N. Y. COURT OF APPEALS. Thomas, respt., v. Nelson, applt. Decided March 20, 1877. In an action to recover rent under an alleged lease, an amendment to the complaint by averring a verbal letting for seven years is allowable. Where the keys of the premises have been sent to the lessor without his request or assent, a mere retention of them by him will not amount to a surrender and acceptance. When the lessee remains upon the premises until an arrangement is made by which he is to repair a defective flue at the lessor's expense, a failure to repair estops him from complaining of the flue. This was an action to recover rent under an alleged lease from plaintiff to defendant. The allegations of the complaint implied a valid written lease for a term of seven years. Plaintiff put in evidence a memorandum, signed by himself, as follows: "I am to give Mr. Nelson a lease of building 271 Broadway, for seven years, first three years at $1,400 per year, and four years at $1,500 per year." This writing was not intended to and did Vol. 5-1. not embody the contract between the parties. Defendant objected to plaintiff's showing the parol agreement to lease on the ground that such a lease was not alleged. The Court overruled the objection, saying that if necessary an amendment to the complaint would be allowed. After a verdict for plaintiff, defendant moved for a new trial upon the minutes. Plaintiff was permitted to enter judgment; a stay was ordered, and the motion adjourned for about a month, when it was heard and denied, and the Court then ordered that the complaint be amended by averring a verbal letting for seven years. Henry D. Birdsall, for applt. Held, No error; that under the complaint as originally drawn the verbal contract could have been proved; that even if this were not so, the allow ance of the amendment was proper. While a parol contract for leasing for a longer term than one year is void, if the tenant enters under it and occupies he may be compelled to pay for the use and occupation of the premises. 2 Cow., 660; 8 Id., 226; 23 Wend., 616; 31 N. Y., 514; 33 Id., 245; 22 Conn., 425. When defendant left the premises he sent the keys to plaintiff in a letter, and he claimed, because they were not .returned, that plaintiff accepted the surrender of the premises. The Court held that the mere retention of the keys, they having been sent without plaintiff's request or assent, did not of itself amount to a surrender and acceptance. Held, No error. The life of plaintiff's husband was insured in the H. L. Ins. Co. On Nov. 26, 1872, defendant received from him his note for $54.75, and interest, payable in 40 days, and gave him a paper by which it acknowledged the receipt of the H. policy, describing it, and agreed to "issue its policy of the same amount, and deliver the same within a reasonable time, and in the meantime keep the insurance good." Before the next annual premium became due, defendant had refused to take payment of the note, and repudiated the whole arrangement, and was only willing to negotiate on the basis of a new arrangement stated by its agent. No There was a defective flue which made the occupancy of the premises extremely uncomfortable and incon-payment was made after this on the venient. Defendant remained until it was arranged that he was to repair the flue at plaintiff's expense. Held, That defendant was estopped from complaining of the flue if he failed to repair it under the agree policy. The insured died September 22, 1873, and plaintiff brought this action to recover the amount of the policy. F. A. Lyman, for applt. E. W. Gardner, for respt. Held, That plaintiff was entitled to recover; that the note given by the insured was the note of a third person, and furnished an adequate consideration for the agreement with defendant; that the latter, having repudiated the agreement and all obligation to plaintiff, a tender of the premium by her was not neces sary. Where one party to a contract declares to the other party to it that he will not perform on the future day fixed therefor, and does not before the time arrives for an act to be done by the other party withdraw his declaration, the other party is excused from performance on his part, or offer to perform, and may maintain his action for a breach of the contract when the day has passed. 6 B. & C., 325; 5 Cow., 506; 23 Wend., 66; 6 E. L. & Eq., 230; 20 Id., 157; 7 L. R., Ex. Ch., 111; 42 N. Y., 246. It is no more incumbent upon a party to a contract to offer performance of the conditions precedent, because they are many and of periodical recurrence than upon the other party who has but one act to perform. 34 Barb., 378. Judgment of General Term, affirming judgment for plaintiff on verdict, affirmed after deducting the amount of the premium due September 15, 1873. denying a motion for a new trial on the minutes. Action on a bill of exchange, drawn by George R. Mills on N. F. Mills, care Morgan, Stoddard & Co., No. 114 South Main Street, St. Louis, Mo., payable to the order of the defendant Chapman, and indorsed by him and the defendant Higby, and accepted by the drawee. The defendants Higby and Chapman answered, and denied that the draft was duly presented for payment or protested, and alleged that the draft was usurious. At the trial, the plaintiff read in evidence, under objection and exception, the certificate of a notary, Opinion by Folger, J. All con- stating among other things, that he cur, Andrews, J., in result. .NEGOTIABLE PAPER. TEST. presented the draft "at the place of business of N. F. Mills, St. Louis, to the person in charge thereof," &c. PRO- It appeared by evidence, introduced by plaintiff, that N. F. Mills had two places of business at St. Louis, one of which was at No. 114 South N. Y. SUPREME COURT. GENERAL George M. Brooks, respt., v. Harris Main Street, and the other was else S. Higby et al., impl'd, &c., applts. Decided June, 1877. A draft addressed to the drawee at a particular place in a city must be presented and a demand of payment made at that place in order to charge the endorsers. where. The defendant moved for a nonsuit on the ground that there was no evidence that the draft was presented at the place where it was payable. The motion was denied, and the defendant excepted. The defendants called George R. Mills, the drawer of the draft, as a witness, who Where the acceptor of such draft has two places of business in such city, the certificate of a notary that the draft was pre-testified that the draft was discounted sented and payment demanded "at the place of business" of the acceptor, is no evidence of presentment at the place where it was payable. A new certificate of the notary showing that the draft was presented at the proper place cannot be first produced on the argument on appeal to conclude the endorsers; they are entitled to meet it on the trial. Appeal from a judgment entered on a verdict for the plaintiff, ordered by the Court, and also for an order under an agreement with the plain- |