the commissioners, confirmed by the court. There is no occasion for action by the court, except to confirm a favorable report or to refuse confirmation. (Id.)

3. The court has power to determine whether the commissioners have performed their duties under the statute, and should it appear that they had refused to hear the parties or take any evidence, or the report was such as to plainly show fraud or irregularity, the report may be sent back. But an erroneous ruling in excluding . testimony, or, in admitting immaterial, or even incompetent or hearsay evidence is not sufficient to warrant sending a case back for future hearing. (Id.)

4. A railroad company, being desirous of acquiring for railroad purposes certain land owned by B., entered into a written agreement with B. by which she agreed, upon the payment of the full purchase-price, to convey to said company the premises. With a view of ascertaining the value of said premises and the compensation which should be paid therefor the railroad company agreed to institute proceedings under the general railroad laws for the condemnation of lands for railroad purposes; and it was further provided in said agreement that in said proceedings H. D. and . should be appointed commissioners to ascertain and determine the compensation to be paid, and the de.cision of a majority of them should be binding upon both parties, it being also agreed that said commissioners should be governed in estimating the said valuation by the rules of law applicable to proceedings under said statute (except as they may be modified by this agreement), and that all the rights of appeal given by law shall be reserved to either party. An order was obtained by the railroad company at special term appointing said persons commis

sioners. They entered upon their duties, and after viewing the premises and hearing proofs made a report. The railroad company not being satisfied with the report and award refused to move for the confirmation, and owner moved and obtained an order at special term confirming the report and appraisal. On appeal by the railroad company the appraisal and report were set aside by the general term on the ground of the admission by the commissioners of improper evidence. The hearing again came on before the commissioners, who, notwithstanding the objection of the railroad company, received the same objectionable evidence, the receipt of which on the first hearing was the cause of the reversal of their report, and two of the commissioners, "D." and "C." publicly stated that they did not consider themselves bound by the supreme court decision. After the hearing had procceded so far that the owner had introduced her evidence, the railroad company not having introduced its evidence, moved to vacate the order appointing the commissioners:

Held, first, that commissioners "D." and C." have been guilty of misconduct, such as is cause for their removal.

Second. That the court on this motion has power to remove them.

Third. That this is a proper case to exercise such power notwithstanding the contract existing between the parties. (Matter of the New York, Lackawanna and Western Railway Co., ante, 225)

5. Where, upon an application to the general term for the appointment of commissioners to determine whether a proposed railroad should be constructed through certain streets in New York city, it appears that such railroad cannot legally be built by reason of the refusal of other railroad companies already lawfully occupying

the streets with their tracks to consent to its construction, such application should be denied (DAVIS, P. J., dissenting). (Matter of the Thirty-fourth Street Railroad Co., ante, 369.)

6. Although in determining the value of railroad or canal property, for the purposes of taxation, the cost of creating it may be considered, yet its earning capacity should be the more controlling consideration or test. (People ex rel. Pres, etc., D. and H. Canal Co. agt. Roosa and others, ante, 454.)

7. The assessors in estimating the value of railroad or canal property, within a town, are not to be governed solely by its cost, but rather, though not exclusively, by its productiveness for railroad or canal purposes. (People ex rel. Pres., etc., D. and H. Canal Co. agt. Keator, ante, 479.)

8. The taxable value of the part of a canal which lies within a town in which the tax is laid, is to be ascertained by valuing, as a part of a whole a continuous way to

ary proceedings, to set aside as fraudulent a conveyance of real estate, executed by the judgment debtor, so as to subject the property to levy and sale on execution, where the receiver simply proves his appointment, without showing the proceedings necessary to vest in him title to the real estate, he is not entitled to recover the rents and profits. (Wright agt. Nostrand, 98 N. Y., 639.)

3. A court having power to, and which appoints a receiver of the assets of an insolvent corporation, may, in aid of that appointment, forbid any after interference, by way of levy and seizure by attach ment or execution, with the property in his possession. (Woerishoffer agt. N. R. Con. Co., 99 N. Y., 398.)

REFEREE.

1. The sixty days in which a referee must make his report do not commence to run until the cause is submitted. (Morrison agt. Lawrence, ante, 72.)

another, and the profits of its use for that purpose (See ante, 454). (Id.)

there is no submission of the cause until the time to hand in the briefs is passed. (Id.)

6. While courts should be careful to see that no improper relations exist between a referee and one of the parties to an action, and that nothing occurs during the progress of the trial which shall in anywise tend to produce a favorable impression in behalf of one of the parties to the reference, yet such scrutiny should not be carried to the extreme length of holding that because a referee sustains friendly relations to the kin of one of the parties, relations so close as to lead to his employment as his legal | adviser, and the legal adviser of his estate, that such relations would bias his judgment in the action in which he had been appointed referee. (Durant agt. O'Brien, ante, 313.)

7. When the referee had heard the proofs, and made his report finding in favor of the plaintiff, and from the judgment perfected upon such report defendant had appealed to the general term, which general term had affirmed the judgment, and the defendant had appealed to the court of appeals, and while such appeal was still pending defendant made a motion to set aside the report of the referee upon the ground that such referee was biased in favor of the plaintiff:

Held, that the motion resting solely and only upon the ground that the referee was the friend and legal adviser of the nephew of the plaintiff such fact of itself would not warrant the inference of bias and partiality, and especially when it appeared that this was known to the counsel of the party moving before the trial of the action was commenced. (Id.)

REFERENCE.

1. In a proceeding for the revocation of probate all necessary parties, including the infant son of the decedent, were duly served with citation. (In the Estate of Tunis Cooper, deceased, ante, 38.)

2.

No application was made for the appointment of a special guardian for such infant and none was appointed, but all the parties who appeared, consented to the entry of an order directing the stenographer of the surrogate's court to take testimony as a referee. The trial proceeded before such referee, and, at its conclusion the evidence was submitted to the surrogate, who decided that the probate should be revoked. entry of a decree upon that decision being opposed by the respondents, and it being contended that the order of reference was without authority and that all proceedings subsequent thereto were void:

The

Held, that the order of reference and the proceedings thereunder should not be vacated upon the motion of any party who had consented to its entry and to the submission of its results to the surrogate for his determination.

Held, also, that a special guardian should be appointed to represent the infant, and to ascertain and report whether it would be for the best interests of the infant that the proceedings should stand as theretofore conducted, and a decree be entered accordingly, or that the trial should be commenced de novo. (Id.)

3. That in view of section 3355 of the Code, sections 90 and 25:1 must be construed as if they had simultaneously become law, and that so construed, "a clerk or other person employed in the surrogate's office" is competent to act as referee, in a proceeding pending in the surrogate's court, provided he is appointed with the written consent of all the parties appearing. (Id.)

4. That the stenographer of the sur rogate's court is not within the scope of section 90 or of section 2511. (Id.)

See COSTS.

Overheiser agt. Moorehouse,ante,257

REMOVAL OF CAUSE.

1. Where the petition for removal of a cause from the state court to the United States court is made by a plaintiff who claims that he is a resident of New Jersey and that the defendant is a resident of New York, before or at the time of filing such petition, the petitioner must make and file in the state court an affidavit that he has reason to believe, and does believe, that from prejudice or local influence, he will not be able to obtain justice in such state court. (Thatcher et al. agt, Rankin, ante, 459.)

2. Where a petitioner fails to comply with this requirement he cannot accomplish the removal of the action. (Id.)

3. Where the petition and bond have been "accepted, allowed and approved" by a justice of the state court, such acceptance, allowance and approval imply that said justice was satisfied, and decided that the amount in dispute did exceed the sum of $500; and if such decision can be reviewed at all in the state court, the application, if made to a judge other than the one who made such decision, must be on notice of motion to set aside. such acceptance, allowance and approval as having been improvidently made. (Id.)

REPLEVIN.

1. Where a sheriff has attached goods under process against one Toledo, and the plaintiff claims title through the same person, it is entirely irrelevant who owns the goods if Toledo does not (Siedenbach agt. Riley, ante, 143.)

2. A denial of plaintiff's title alone is not a good defense. (Id.)

3. If the bill of sale to plaintiff was bona fide and was followed by pos

Held, that such agreement, if it had been made, was voidable, and the horse having been awarded to be delivered to her, the plaintiff, under such an agreement, had no right to the possession of it. (Id.)

In the replevin suit the verdict of the jury should fix the value of the property at the time of the trial, as required by the statute. This omission cannot be supplied by the court by inserting in the judg ment a sum of money as the value of the property. (Id.)

REPLY.