SUPERVISORS. selves, or controvert the possession of the claimant, and rejected the proffered evidence. The inquisition was traversed, and the proceedings removed by certiorari to the Supreme Court. Held, on appeal from an order refusing to quash the inquisition,— 1. That the interposition of the traverse was no waiver of any substantial objections to the procedure before the jury. 2. That it was not designed to give the summary remedy provided by the statute, for the acts of a party whose possession had been long continued and was peaceful. If such possession is without title or right, the law furnishes another, and in the end a more efficacious redress, and under proceedings where the rights and claims of the parties may be thoroughly investigated. The evidence tendered by the defendants, therefore, ought to have been received as pertinent to the question before the jury of investigation, and the decision of which was to control their action. If it had been received it might, and if it had gone to the extent of the offer, should have led to a result favorable to the defendants; and the inquisition should therefore be quashed. Supreme Ct., Gen. T., 1857, The People on rel. Davids a Wilson, 13 How. Pr. R., 446. SERVICE AND PROOF OF, 2. SUPERVISORS. 1. The expenses of providing the necessary books for the register's office of the city and county of New York, of keeping them in repair, and of accommodations for the courts, whether provided by the supervisors or by the sheriff, are county charges. The People on rel. McSpedon a. Stout, Ante, 22. 2. The audit and allowance of a county charge, by the board of supervisors, in cases where they are authorized to act, is final and conclusive. Ib. 3. But the audit and allowance of a charge which is not a legal charge against the county,-e. g., of a bill for work done, &c., for the corporation of the city of New York under private contract, and exceeding two hundred and fifty dollars in amount-is a nullity. Ib. 4. After the taxes are assessed in the city of New York, and warrants are issued and delivered to the receiver, the board of supervisors have no further control over the assessment rolls, and cannot thereafter strike a name from them. The Colonial Life Assurance Co. a. The Board of Supervisors of New York, Ante, 84. 5. The power of the supervisors of New York, upon application made to them within six months after the tax-rolls are delivered to the receiver, SUPPLEMENTARY PROCEEDINGS. to remit or reduce a tax, is discretionary with them; and they are the judges of the cause shown. Ib. 6. If an affidavit is furnished to the supervisors (pursuant to 1 Rev. Stats, 416, § 9) by a corporation, showing that it is not in receipt of any profit or income, it is the duty of the board to strike the name of such corporation out of the assessment rolls; and a mandamus lies to enforce this duty. Ib. 7. But if such affidavit is not furnished, the assessment of such corporation is conclusive evidence that the corporation was liable to taxation, and was duly assessed. Ib. 8. The powers and duties of county supervisors discussed. Supreme Ct, Sp. T., 1856, Shepard a. Wood, 13 How. Pr. R., 47. SUPPLEMENTARY PROCEEDINGS. 1. The judge granting an order for the examination of a judgment debtor on supplementary proceedings, may appoint the referee authorized by section 300 of the Code, in his discretion, either in the first order, or at any time. Code, § 300, as amended, Laws of 1857, ch. 723, § 12, Pub. Acts, 57. 2. The power to entertain proceedings supplementary to an execution cannot be transferred to any person not a judge of the court in which the judgment was rendered, excepting in the case of the county judges as authorized by section 14 of article 6 of the Constitution. Cashman a. Johnson, Ante, 256. 3. The act of 1849, conferring on the judge of the City Court of Brooklyn "the powers of a justice of the Supreme Court at chambers," does not, by its proper construction, embrace the powers exercised by a justice of the Supreme Court in proceedings supplementary to execution. Ib. 4. The provisions of the chapter of the Code relating to supplementary proceedings should be liberally construed, so as to effectuate the object of the proceedings. Supreme Ct., at Chambers, 1857, Webber a. Hobbie, 13 How. Pr. R., 382. 5. It seems that a receiver appointed in such proceedings must be subject to the order of the judge who appointed him; and the jurisdiction of the judge must continue until the creditor is paid, or the funds or property reached is exhausted. Ib. 6. An application for costs upon such proceedings is not too late at any time before the final order of the judge for the application or appropriation of the funds in the hands of the receiver. Ib. 7. To warrant an order, under section 292 of the Code, that a judgment debtor apply property towards the satisfaction of the judgment it should SUPPLEMENTAL PLEADING. clearly appear that the property is in his hands or under his control. Supreme Ct., Gen. T., 1856, Sandford a. Moshier, 13 How. Pr. R., 137. 8. Where the debtor under examination stated that he had received several sums, and paid out several, some of which he did not recollect, but that he had paid out all he had received. Held, that although the account of the disposition of the money was not satisfactory in all respects, an order that he apply it to the judgment must be reversed. Ib. 9. The provision of section 302 of the Code, bestowing upon the judge, before whom supplementary proceedings are commenced, the power to punish disobedience to his order made therein, does not limit or abridge the general power of the court to punish disobedience to the order of one of the judges of the court. Wickes a. Dresser, Ante, 93. 10. Under the Code a receiver of the property of a judgment debtor can only be appointed in proceedings founded upon the return of an order, personally served on the judgment debtor, and requiring him to appear and answer. Barker a. Johnson, Ante, 435. 11. A receiver appointed without proceedings founded upon the service of such notice has no authority. Ib. 12. Whether the debtor in a judgment obtained on a summons served only by publication, and not personally, is a judgment debtor within the meaning of the provisions respecting supplementary proceedings,— Query? Ib. MOTIONS AND ORDERS. SUPPLEMENTAL PLEADING. ANSWER, 8, 9, 10, 11, 12, 13, 14, 15; APPEAL, 13. SUPREME COURT. 1. A justice of the Supreme Court who is selected to act as judge of the Court of Appeals (Const. 1846, Art. 6, § 2) is not, while judge of the Court of Appeals, deprived of his jurisdiction to preside in a court of Oyer and Terminer, or to discharge any of the ordinary duties appertaining to that office. Supreme Ct., Gen. T., 1855, McCarron a. The People, 3 Kern., 74; aff'g S. C., 2 Park., Cr. R., 183. 2. In respect to appeals taken to the Supreme Court from decisions of a surrogate which were formerly taken to the circuit judge of the circuit (2 Rev Stats., 66, §§ 55-62; Ib., 608, §§ 90-99), and, from his decision to the Court of Chancery (Ib., 609, § 100), but now lie to the Supreme Court (Const. 1846, art. 6; Laws of 1847, 324, § 17)—the powers of the Supreme Court are not limited to those formerly possessed by the circuit judge. The Supreme Court takes the place not SUPREME COURT COMMISSIONER. only of the circuit judge, but also that of the Court of Chancery, in respect to such appeals. It has all the powers of the circuit judge in such cases, and also all the powers of the Court of Chancery on appeal from that officer. There is no express restriction of the court to narrower limits, and no manifestation of an intention to curtail the remedy, or the authority of the court upon appeals. The only substantial change which has been made, or which was intended, is in regard to the tribunal to which appeals are to be made, and by which the pow ers of the former tribunals are to be exercised. (Watts v. Aiken, 4 How. Pr. R., 439; Mead v. Mead, 11 Barb., 661.) In particular the Supreme Court possess the power to impose costs of such an appeal upon the appellant or respondent, which was formerly vested in the Court of Chancery. But the Supreme Court have nothing to do with the costs of an ap peal taken from their decision to the Court of Appeals. Whitbeck a. Patterson, 1856, 22 Barb., 83. 3. Where an appeal is taken to the Supreme Court from a judgment of a county court, and the decision of the Supreme Court is that the county court had no jurisdiction of the cause, the Supreme Court has power to reverse the judgment of the county court, and may award costs of the proceedings in the Supreme Court. 1856, Gormly a. McIntosh, 22 Barb., 271. APPEAL, 2, 10, 11, 25; SPECIFIC PERFORMANCE. SUPREME COURT COMMISSIONER. Notwithstanding the abolition by the Constitution of 1846 of the office of Supreme Court commissioner, it is still competent to the Legislature to confer the powers formerly exercised by those officers. Cashman a. Johnson, Ante, 256. SURROGATE. 1. In respect to the authority of the surrogate to decree the payment of claims against estates, no distinction exists between debts recoverable at law and such as are recoverable in equity only. Sellis' Case, Ante, 272. 2. The statute (2 Rev. Stats., 157, § 5) is imperative that the surrogate shall assign a day for the hearing upon a petition presented to him for the appointment of a guardian. But he may assign the day on which the petition is presented, if he shall determine that notice to the relatives need not be given. And where there is nothing to show that this course was not taken, it will be presumed that the surrogate TENDER. assigned the day of the application for the hearing. The People on rel. Wilcox a. Wilcox, 22 Barb., 178. ARREST. 1; DISTRIBUTION OF ESTATES; PARTNERSHIP; SERVICE AND PROOF OF, 12, 13, 14, 15, 16, 17, 18, 19. TENDER. 1. In an action brought to recover back a consideration advanced by plaintiff on an agreement for the sale of real estate by defendant, on the ground of defendant's failure to convey, the defendant may make tender of a conveyance at any time before answer, and then plead it and have the benefit of it. Such was the rule in equity in like cases, under the old system (Willis v. Chipp, 9 How. Pr. R., 568; Houghton v. Skinner, 5 Ib., 420; Beals v. Cameron, 3 Ib., 414; Lyon v. Brooks, 2 Edw. Ch., 110; Brush v. Vandenburgh, 1 Ib., 21; 1 Barb. Ch. Pr., 140), and there is no good reason why it should not prevail under the Code. Strictly a tender is not necessary to entitle the defendant to a specific performance. An offer in the answer to perform would be sufficient in the place of it, even if that were necessary. The defendant might sustain an action for that relief without a tender; but the omission of a tender might affect the question of costs. (Stevenson v. Maxwell, 2 Comst., 408.) Beebe a. Dowd, 22 Barb., 255. 2. A party under contract to convey land, is bound if he executes the deed in another State, or in a county other than that in which the lands lie, to procure such certificate of the official character, &c., of the commissioner taking the acknowledgment as is necessary to entitle the same to be recorded. Smith a. Smeltzer, Ante. 3. A tender of a deed properly executed and acknowledged, but which cannot be recorded by reason of the want of such certificate, is insufficient. Ib. TRIAL. 1. Section 123 of the Code,-which declares that actions brought "for the recovery of real property or of an estate or interest therein, or for the determination in any form of such right or interest," shall be tried in the county in which the subject of the action or some part thereof is situated, may perhaps embrace suits for a specific performance of contracts for the sale of lands where they are situated in this State. (Ringv. Mc Coun, 3 Sandf. S. C. Rep., 524.) Conceding that it is sufficiently broad to embrace such suits, it clearly has no application. to cases where the subject of the action does not lie within any county in this State. The object of the section is to determine the venue in the classes of actions to which it refers, and it does not profess to limit VOL. IV.-37 |