notice of motion was amended so as to designate that the motion would be made for the same causes, upon the minutes of the court. There is an amended notice, indorsed, filed, and served on the twentyfourth of May, 1882,-more than 60 days after the filing and service of the original notice, and more than 70 days after the verdict of the jury. Filed under those circumstances the amended notice was nugatory. The defendants could not abandon their first notice and file a second notice after the statutory time for giving the notice for motion had passed. Le Roy v. Rassette, 32 Cal. 171. The amended notice was therefore ineffectual to put in motion the jurisdiction of the court to grant a new trial. Bear River & A. W. & M. Co. v. Boles, 24 Cal. 354; Ellsassar v. Hunter, 26 Cal. 279; Allen v. Hill, 16 Cal. 113. And as the right to move for a new trial upon the original notice had been waived by the defendants and was lost, the right could not afterwards be restored, even by an order of the court permitting an amendment of the original notice out of season. Thompson v. Lynch, supra; Bear River & A. W. & M. Co. v. Boles, 24 Cal. 354. The order was of no force or validity, and the court should have dismissed or denied the motion for new trial for want of jurisdiction. Clark v. Crane, 57 Cal. 630.

Order reversed, and cause remanded for further proceedings.

We concur: Ross, J.; McKINSTRY, J.

(66 Cal. 524)

PARDEE v. GRAY. (No. 8,690.)

Filed March 19, 1885.

LANDLORD AND TENANT-ESTOPPEL OF SUBTENANT TO DENY RELATION. Where one person leases certain land of another, and moves on it a house in which is a tenant who refuses to leave, such tenant, by remaining in the house so moved, becomes the subtenant of the lessor of the land, is estopped to deny such relation, and is liable to be removed, under the unlawful detainer act, on default by the lessee of the land in the payment of rent.

Department 1. Appeal from the superior court of the city and county of San Francisco.

M. C. Hassett, for appellant.

E. B. Mastick and Frank Otis, for respondent.

Ross, J. The plaintiff executed to the defendant Gray a written lease of a certain lot of land in the city of San Francisco, and under it the lessee entered into possession of the premises. Subsequently Gray put the defendant Canavan in possession of a part of the lot by the somewhat novel method of moving a house that Canavan refused to leave, onto the leased lot. Default having been made by Gray in the payment of the rent, the statutory notice was given to him and Canavan, requiring the payment of the rent or else the surrender of

the possession of the premises; and default being still made, the plaintiff commenced the present action for the unlawful detention of the property. Gray suffered default in the court below, but defendant Canavan contested the plaintiff's right to recover possession from her, mainly on the ground that she did not occupy the position of subtenant to plaintiff.

That defendant Canavan was put in possession of a portion of the leased premises by the lessee, Gray, is clear, and she cannot be heard to say that she was put there without her consent. She was not obliged to go or remain there. We are of opinion that she must be regarded as having entered under Gray, and therefore as the subtenant of the plaintiff, and of course subject to be removed, under the unlawful detainer act, in default of payment of the rent by the lessee. The notice served on the defendants requiring the payment of the rent due, or, in default thereof, the surrender of the premises, was in substantial compliance with the provisions of the statute.

The questions to the defendant Canavan, which were ruled out by the trial court, and to which ruling exceptions were taken, were subsequently answered in substance by the witness, and therefore whatever error there may have been in the rulings was cured. There is no substantial error in the record, and the judgment and order must be affirmed. So ordered.

We concur: MCKINSTRY, J.; MCKEE, J.

(66 Cal. 530)

NALLY v. MCDONALD. (No. 8,813.)

Filed March 20, 1885.

1. ESTATES OF DECEDENTS-CLAIMS AGAINST ESTATE-BAR OF STATUTE OF LIM

ITATIONS.

An action cannot be maintained on a claim against the estate of a decedent, which has been presented to and allowed by the executor, until 10 days after its presentation to the judge, unless he rejects it within that period, and the statute of limitations does not, therefore, run against such claim during the time intervening between the date of its presentation to the executor and that of its rejection by the judge

2. SAME-APPROVAL OF COPY WHERE ORIGINAL CLAIM LOST.

Where the original claim against the estate of a decedent has been allowed by the executor and subsequently lost, the approval by the judge of a copy thereof has the same effect as an approval of the original.

Department 2. Appeal from the superior court of the county of Mendocino.

Henley & Hardin, for appellant.

Rogers & Gillispie, for respondent.

SHARPSTEIN, J. This is an appeal from a judgment, and the questions presented by the record relate to the order sustaining the de

fendant's demurrer to the plaintiff's complaint. One of the grounds of demurrer is that the right of action is barred by section 337, Code Civil Proc. The allegations on which this is based are that defendant's testate made a promissory note which had not been paid in full at the date of her death, and that a claim for the balance was duly presented to and allowed by her executor within four years after said note fell due, but was not presented to the judge of the superior court for allowance within that period, and that he rejected it. The claim was presented to and allowed by the executor within the time prescribed by section 1493, Code Civil Proc.; and the Code provides that after a claim has been allowed by an executor or administrator, it must be presented to the judge of the superior court for his approval. But it does not prescribe the time within which it must be presented to such judge. It however does provide that "if the claim be presented to the executor or administrator before the expiration of the time limited for the presentation of claims, the same is presented in time, though acted upon by the executor or administrator, and by the judge after the expiration of such time." Id. § 1496.

The provision of the Code relied on to sustain the alleged bar of the statute of limitations reads as follows: "No claim must be allowed by the executor or administrator, or by a judge of the superior court, which is barred by the statute of limitations." Id. § 1499. And the respondent contends that this claim, when presented to the judge, was barred, because the note on which it was founded fell due more than four years before it was presented to the judge, notwithstanding its presentation to and allowance by the executor within four years after it became due. To sustain that contention it must be assumed that the running of the statute was not interrupted by the presentation of the claim to the executor and his allowance of it within four years after a right of action accrued on it. The holder of the claim could not have maintained an action on it until after it had been presented to the executor. Id. § 1500. And as the executor allowed it within 10 days after its presentation to him, no action could be maintained on it until 10 days after its presentation to the judge, unless he rejected it within that period. So that the action on the claim was staid by statutory prohibition from the date of its presentation to the executor, to that of its rejection by the judge, and the intervening time "is not part of the time limited for the commencement of the action." Id. § 356.

Excluding that time from the computation, the action was commenced within four years after a right of action accrued on the claim; and the demurrer ought not to have been sustained on the ground that the right of action set out in the complaint was barred by section 337, Code Civil Proc. And if not barred by the statute, we think the right of action cannot be held to be lost by reason of the negligence of the plaintiffs in the prosecution of the claim on which the action is founded. We think in the title of the action it

appears, quite as clearly as in the body of the complaint, that the defendant is sued as executor of the estate of Anna McDonald, deceased.

It appears by the complaint that after the allowance of the claim by the executor he offered to present it to the judge for allowance, and that the offer was accepted by the plaintiffs; and, in the language of the complaint, "that said claim was accordingly then and there intrusted to said McDonald, who failed and neglected to file the same, and who, as plaintiffs believe, either lost or destroyed it; that it cannot now, after the utmost endeavor, be found; that plaintiffs have searched the files of said probate court for said claim, have interrogated the said McDonald as to its whereabouts, and have been unable to find it;" and that a copy of said lost claim, verified by the oaths of Barnes and Nally, plaintiffs, with a copy of the allowance thereof by the executor, was duly presented to the judge of the superior court, and by him rejected.

In addition to the ground that the claim, when presented to the judge, was barred by sections 337, 1499, Civil Code Proc., which we have already considered, it is urged that the judge could not allow the claim because it purported to be a copy of the claim on which the executor had indorsed his allowance. The demurrer, of course, admits that the papers presented to the judge were true copies of originals which had been lost or destroyed. That being so, we think the judge was bound to treat them the same as if they had been the originals. Section 1496, Civil Code Proc., in our opinion, has no bearing upon this question.

Judgment reversed and cause remanded, with directions to the court below to overrule the demurrer to the complaint, with leave to the defendant to answer within 10 days after being notified thereof.

(66 Cal. 533)

BURK v. ALTSCHUL and others. (No. 7,524.)

Filed March 20, 1885.

SAN FRANCISCO-STREET WORK-ROCK GUTTER-WAYS-SUPERVISORS, POWER OF. Under the California statute of April 1, 1872, the board of supervisors of the city and county of San Francisco had power, when a street was ordered to be macadamized, to order the construction of rock gutter-ways.

Department 2. Appeal from the superior court of the city and county of San Francisco.

Jas. C. Bates, for appellant.

Jos. M. Woods, for respondent.

BY THE COURT. This is a street assessment case. The first point presented, that an item of $40 for printing was included in the assessment, has been repeatedly passed upon by this court adversely to the appellant. The second point is that the board of supervisors, when a street was ordered to be macadamized, had not power, under the act of April 1, 1872, (St. 1871-72, p. 804,) to order the construction of rock gutter-ways. By section 3 of the act the board was authorized to order the street to be macadamized, "and to order any other work to be done which shall be necessary to make and complete the whole or any portion of said streets," etc. We think it was competent for the board to determine that rock gutter-ways were necessary to complete the macadamizing of the street. The only substantial difference between the two methods seems to be that in constructing the gutter-ways the rock was to be hand-laid, instead of being spread as in macadamizing. Doubtless the board deemed this process necessary in order to protect the work from washing.

The judgment was for less than $200. We think there was no merit in the appeal, and that it was taken for delay.

The judgment and order are affirmed, with 25 per cent. damages.