F. Lynde Stetson, for applt. Gerardus C. King, for respt. Held, That, as the law now stands, all that was necessary on the part of the Board of Education was to furnish, in proper form, a voucher for the action of the Auditor and Comptroller. We are of opinion that it discharged all the duty and obligations to the plaintiff imposed on it by law, and that no right of action arises against it because it did not make a draft directly upon the Chamberlain, as was formerly required by the Act of 1851; inasmuch as it did furnish to the Finance Department a proper and sufficient voucher, together with all the evidence it had in its possession of the right of the plaintiffs to a portion of the money. The fault of negligence, if any, from which the plaintiff has suffered, is not chargeable upon the Board of Education. Judgment reversed, and demurrer overruled.

Opinion by Davis, P. J.; Brady and Daniels, JJ., concurring.

STATUTE OF LIMITATIONS.

an action was commenced in the Marine Court in November, 1867. The complaint was dismissed and plaintiff appealed to the General Term of the Common Pleas, where the judgment dismissing complaint was reversed. Defendant after obtaining permission, appealed therefrom to this Court, which affirmed the judgment of the Common Pleas. The present action was commenced within one year thereafter. Defendant now insists that to prevent the running of the statute of limitations, a new action should have been brought within one year after the reversal by the Common Pleas of the Marine Court judgment in the first action according to the provisions of § 104 of the Code.

Moses Ely, for applt.
C. H. Winfield, for respt.

Held, That defendant's claim was not tenable; that the statute gave plaintiff the right to bring a new action within a year after the affirmance in this Court, as that was the final reversal of the judgment originally rendered; that defendant having compelled plaintiff to continue the contest by a second appeal, and the question whether the judgment

Decided December 18, 1877.

An affirmance by the Court of Appeals of an order of General Term reversing a judgment is the final reversal of such judgment, and

the limitation prescribed by § 104 of the Code of Procedure ( 405, Code Civ. Pro.) begins to run from the date of such affirm

ance.

Plaintiff brought an action to recover damages for injuries to his horse, alleged to have been caused by defendant's negligence. The cause of action accrued April 24, 1864, and |

versed depending upon the judgment of this Court, the statute could not be so construed as to require plaintiff to bring a second action while the appeal to this Court was pending.

Judgment of General Term, reversing judgment on verdict for defendant, affirmed.

Opinion by Andrews, J. All concur, except Rapallo, J., absent.

An objection to a judgment on account of discrepancies in the description of lands thereby required to be conveyed, cannot be raised on appeal where such discrepancies are not pointed out by any exception.

This action was brought to compel the specific performance of a contract to convey to plaintiff one hundred and eighty-three acres of land commencing at the northwest corner of defendant's farm. The judge at Special Term found that defendant conveyed to plaintiff, by a deed which he knew did not describe or convey the lands agreed to be conveyed, one hundred and eighty three acres of his farm commencing at the southwest Plaintiff accepted the deed, believing it to convey the lands according to the contract. Upon discovering that it did not, he tendered. it back to defendant and demanded that he should execute a deed according to the contract. He refused to

corner.

do so. The complaint alleged that the agreement was that defendant should convey his whole farm to plaintiff, which was described, in a map annexed to the complaint and referred to therein, by metes and by the adjoining lands of other owners. It then alleged that defendant executed and delivered a deed which did not describe and convey the lands

thus agreed to be conveyed, and that the lands conveyed were described in a map also annexed to and referred to in the complaint. That map described the land by the same external boundaries and differed from the other map only in the length of some of the lines. Both maps described the lands as extending from the north to the south end of the farm. No objection was made to the complaint on the trial. A judgment was rendered in favor of plaintiff.

H. V. Howland, for applt.
J. T. M. Davie, for respt.

Held, No error; that as no objection was made to the complaint on the trial, none could be entertained. here.

Evidence was given by plaintiff as to the value of the lands conveyed by defendant and as to the difference in value between the lands on the north end and south end of the farm.

Held, No error; as it was immaterial, and could not have influenced the result.

Defendant offered in evidence the deed by which he held his farm. It was excluded as immaterial.

Held, No error.

Defendant claimed that the description in the judgment of the land required to be conveyed, is erroneous as not agreeing with the complaint or any survey. There are a few slight discrepancies in the distances, but the points from which and to which the lines are run and the monuments are accurately described. These discrepancies or errors were not pointed out by any exception.

Held, That the objection could not be raised here.

Judgment of General Term, affirm

ing judgment in favor of plaintiff, affirmed.

Opinion by Earl, J. All concur.

BAR.

N. Y. COURT OF APPEALS.

surrender of the receipt operated as a bar to this action; that plaintiff's omission to prove a demand for a return of the deposit in the action against the railroad company prevented his recovering interest thereon, and

Decided December 4, 1877.

A recovery by a purchaser of land at auction against the owner of such land for a breach

of the contract of sale, a satisfaction of the

judgment, and surrender to such owner of the receipt for the deposit made on the sale, will operate as a bar to an action by the purchaser to recover such deposit from the

auctioneer.

was

This action was brought to recover of defendants, who were auctioneers, a percentage, deposited with them by plaintiff on his purchase of a lot sold for the N. Y. & H. RR. Co., who had signed the terms of sale. Plaintiff, before this action brought, sued said company for breach of the contract of sale, and recovered the amount claimed herein, but no allowance was made for interest, and plaintiff indorsed on the trial of that action the receipt for the percentage paid defendants, and delivered it to the company. There was no evidence in the action against the railroad company of a demand for a return of the amount paid by plaintiff. In this action it was proved that a demand was made for a return of the deposit in July, 1868, and plaintiff claimed to recover interest from that time. The Court at trial dismissed the complaint.

Chas. N. Black, for applt. Geo. II. Forster, for respts. Held, No error; that the recovery against the railroad company, and the satisfaction of the judgment, and the

could not recover interest, although but for that he would be entitled to do so.

Judgment of General Term, affirming judgment dismissing complaint, affirmed.

Opinion by Allen, J. All concur, except Earl, J., absent.

OPTIONAL CONTRACTS.
N. Y. COURT OF APPEALS.
Story, respt., v. Salomon, applt.
Decided December 11, 1877.

In the absence of proof that it was intended

as a bet or wager, an optional contract for the purchase or sale of stock at a fixed price, purporting to be based upon a valuable consideration, is valid.

This was an action based upon the following contract, "For value received the bearer may call on the undersigned for one hundred shares of the capital stock of the Western Union Telegraph Company, at seventy-seven and one half per cent., any time in thirty days from date. Or the bearer may, at his option, deliver the same to the undersigned at seventyseven and one-half per cent., any time within the period named, one day's notice required. All dividends or extra dividends declared during the time to go with the stock in either case, and this instrument is to be surrendered upon the stock being either called or delivered." Defendant suspended payment before the thirty days expired, and thereupon the parties came together, and defendant indorsed