Volume 13 — Howard's Practice Reports

Present, Shankland, Gray, Mason and Balcom, Justices. The undersigned, appointed by the court to examine and report- upon the qualifications of the several applicants for admission to practice as attorneys and counsellors of this court, respectfully report—That they have made such examination; and that, upon full consideration, they recommend, of the class examined, the admission of George E. Pratt only.

<p>Application for a mandamus against the clerk of the marine court, New-York.</p>

Motion to make answer more definite. The complaint contained the allegations generally in a creditor’s bill, setting out the recov'ery of a judgment, and that defendant had fraudulently disposed of his real estate, and had equitable property, which he concealed, or had fraudulently disposed of.

<p>Motion for a new trial.</p>

Demurrer to answer. The complaint alleges a judgment in the supreme court, recovered against the defendants Henry and Edward Merchant, of $683.14, on a demand arising on contract, on the 15th of October, 1853, and docketed in Saratoga county, the issuing of an execution to that county, and the return of the sheriff, that nothing could be found to satisfy any part of it.

<p>Taxation of costs.</p>

Motion to strike out, &c. The actionyvas brought by the plaintiff, as receiver of the estate of Granger, Comfort & Co. The complaint alleged the sale and delivery of a large quantity of goods to the defendant by that firm, and that the sum of $>599.07 remained due and unpaid 'upon such indebtedness, for .which amount, yvith interest, the plaintiff claimed judgment. The answer, in form, contained four different defences.

<p>Where a mortgagee had proceeded to foreclose a, mortgage, and had obtained a decree of foreclosure and sale, and thereupon the owner of the premises, under an agreement with the mortgagee, executed to a third person a deed of the mortgaged premises in trust, to sell it in a manner pointed out by a declaration of the trust, and apply the proceeds in payment of the 'decree,</p> <p>Held, that the mortgagee had entered into a new contract, which, so far as it differed from'the former one, defined and established by his decree, superseded and controlled it. And an injunction was sustained, restraining the mortgagee from further proceeding under his decree of foreclosure and sale.</p>

This is a motion, on affidavit and notice, on the part of defendants, for an order enlarging time to make a case for the purposes of an appeal to the general term in the first judicial district. It is an equity cause, and was commenced in 1844 by bill filed before the chancellor.

<p>Motion to set aside judgment on confession.</p>

<p>The facts will sufficiently appear in the following opinion.</p>

<p>Motion for re-taxation of costs.</p> <p>The action was upon a bond executed by Thomas A. Larned, deceased, and James Corning. The defendants were Joseph B. Gay and George Gould, administrators of the estate of Larned, with the will annexed, Mary Larned, a devisee under the will, and James Corning, one of the parties who executed the bond.</p> <p>The defendants, Gay, Gould and Larned, each appeared by different attorneys, and each demurred to the complaint. Upon the hearing of the demurrers, judgment was rendered in favor of the defendant Mary Larned, with liberty to the plaintiff to amend his complaint, upon the payment of costs. Judgment was also rendered in favor of the plaintiff against the defendants Gay and Gould, with liberty to them to answer, on payment of costs. Upon the taxation of the costs, the plaintiff claimed to be allowed two separate bills against the defendants Gay and Gould, and the costs were so taxed and allowed: the one bill amounting to $106.37, and the other to $107.12. The defendants Gay and Gould moved that the costs be re-adjusted by striking out one of the bills allowed by the clerk</p>

<p>It seems, that the court of appeals, in the case of Hoyt agt. Thompson, (1 Seld, 320,) have settled the question, that no foreign statutory assignment in bankruptcy creates a lien here, so as to deprive creditors of this state of their remedy by attachment under our laws.</p>

The complaint in this action was substantially as follows■ That the plaintiff has lawful title as the owner in fee simple to the following described real estate, situated in the town of Dover and county of Dutchess, bounded and described as follows: (describing it.) And the defendant is in the possession of the said real estate, and unlawfully withholds the possession of the same from the plaintiff.

<p>Motion for an injunction.</p>

Motion to set aside judgment. On due proof that defendants were residents of the state of Pennsylvania, and had property in this state, and that a cause of action existed against them on contract, made to Justice Johnson, an order was made by him, dated February 27,1854, ordering the service, of the summons in the action by publication thereof, once in each week for six weeks, in a newspaper in Steuben county, and one in Chemung, and that a copy thereof be sent by mail to…

The plaintiff, who is the counsel of the corporation of the city of New-York, and head of one of the departments of the city government, in his individual capacity, and as one of the tax-payers, as well on his own behalf as on behalf of all other corporators and tax-payers of this city, who may be affected by the subject of his complaint, complains that the defendant and his associates, who compose the board of supervisors of the city and county of New-York, did, on the…

Motion to set aside judgment, &c., for irregularity. The suit was commenced by the service of a summons. On the 18th of March, 1856, the defendant served on the plaintiff’s attorney a notice of appearance, and a demand that a copy of the complaint be served on him at the White Lake post-office, in the county of Sullivan.” A copy of the complaint was served on the defendant personally at White Lake the next day.

Present, S. B. Strong, Brown and Rockwell, Justices. This was an action brought for the recovery of an undivided fourth part of a farm in Amenia, Dutchess county, containing about two hundred and sixty-two acres, worth about sixty dollars per acre; and was tried before Dean, Justice, at the Dutchess circuit on the 13th Dec., 1854.

<p>When a new trial is granted upon an appeal from a judgment founded on the re» port of a referee, the cause should be retried before a new referee. ( This is adverse to the practice heretofore.)</p> <p>So far as it is practicable, it is better that the same judge, though he decides nothing but questions of law, and his errors are more easily corrected than those of a jury, or referee, when deciding questions of fact merely, should not set in review of his own decisions.</p> <p>No party should be required to enter upon the trial of an issue, under the consciousness that, besides establishing his side of the issue, he has the preconceived opinions of the tribunal before whom he appears, to encounter</p>

Motion to strike out part of answer as frivolous, and for judgment. Action on a promissory note of $100, dated Sept. 12, 1854, payable to Benjamin F. Salisbury, or order, on the first of April, 1855, and transferred to plaintiff.

In the winter of 1851, Peter Walker was the owner of a farm at Summer Hill, Middlesex county, New-Jersey : he was desirous to make sale of it, and, on the 7th of February in that year, caused the same to be advertised in several of the New-York newspapers.

The cause being at issue as to two of the defendants, an order was made* upon motion of the defendants who had appeared in the action, for a commission to examine the third defendant, who resided in Michigan. The order was made in September, 1854, with a stay of proceedings until the return of the commission. The commission was returned in June, 1855.

<p>The complaint in this action is to recover the possession of certain personal property therein mentioned, and praying the aid of this court by way of injunction, to restrain the defendants from interfering therewith, or transferring or incumbering the same.</p> <p>On the complaint and affidavit annexed, an injunction was granted, and a motion is now made to vacate it.</p> <p>In the complaint it is alleged that the plaintiff" deposited with the defendant Berg a quantity of cabinet furniture for sale at retail, and that after.payment of the cost and expenses, the profits were to be equally shared between them. That about the first of August last, plaintiff called on Berg to sign an agreement to constitute them partners, provided Berg would give security; that Berg declined this, and immediately sold out the furniture to defendant Krahe, who purchased with full knowledge that Berg had no title, and that this was done to cheat the plaintiff out of his property. That defendants Berg and Krahe, put the defendant Elsraer into possession, and that all of the defendants knew of plaintiff’s rights.</p>

T. R. Strong, Welles and E. Darwin Smith, Justices. Appeal from an order at special term, setting aside a judgment on a report of a referee on terms, and directing a further réport.

<p>in an action for the foreclosure of a mortgage by an assignee, the answer au mitted all of the allegations of the complaint, except the recording of the mortgage, and of the assignment, and also claimed that the mortgagee should have been made a party, because he had guarantied the payment of the bond and mortgage.</p> <p>Held, that these were matters which raised no issues available by the defendant, and were no impediment to the plaintiff’s recovery.</p>

Motion to strike out, &c. The complaint is for slander. The charge stated is, that the plaintiff had stolen the defendant’s hay.

Motion to strike out part of complaint. The complaint in this action set out an indebtedness by defendants to plaintiff for a bill of goods sold and delivered. That a promissory note was given for the amount of the bill of goods, which was not paid at maturity, but the check of a third person on some bank given for the amount thereof, and the note given up at the time to the maker.

In Partition. The lis pendens in this case was filed by A. C. Griswold, attorney for above plaintiff, with the clerk of Dutchess county, on the 3d day of July, 1856. The plaintiff had not served upon any of the defendants any summons and complaint in the action up to 1st Sept., 1856, as appears by the affidavit of the plaintiff’s attorney.

The action is brought against the maker and indorsee of a promissory note. The complaint states the making of the note by the defendant Reynolds; that it was indorsed by the other defendant and transferred to the plaintiff; and that when it became due and payable, it was presented for payment and duly protested for non-payment.

<p>Motion on the part of defendants for an extra allowance of costs.</p>

<p>Motion to set aside judgment of foreclosure and sale of mortgaged premises—and that the purchaser be discharged.</p>

Proceedings by mandamus. The material facts established by the papers in this cause are as follows;—Solomon Wait, in June, 1855, applied for the laying out of a public highway through the inclosed, improved and cultivated lands of Augustus Ross, Daniel Wait and Arnold Wait, situated in the town of Preston.

<p>Application by plaintiff for judgment against non-resident defendants, after service of summons, &c., by publication.</p>

The defendant moved for a commission to examine witnesses in a foreign state. The venue in the action was in Monroe, and the motion was made before a judge in Albany. It was objected, on the part of the plaintiff, that the judge was not authorized to hear the motion.

<p>A complaint in an action to have delivered up and cancelled of record, a certifa cate given by the corporation of Brooklyn, on a sale for an alleged assessment or tax, which alleged that a copy of the certificate had been filed and entered in the county clerk’s office; (Sess. Laws 1834, p. 90;) that no tax or assessment was ever, in fact, made, and no proceedings had authorizing the sale; that the certificate, however, by reason of its having been filed and entered, was presumptively a lien on the land, and a cloud upon the title, diminishing its value, &c.</p> <p>Held, that it was sufficient to sustain the action. The corporation, on the. face of the certificate, which recited all the necessary prior proceedings, professed that these proceedings had taken place, and caused a copy of the certificate to be filed and entered. The certificate was not a real lien, if the sale was unauthorized, but an apparent or prima facie lien—a lien on its face, which the party was entitled to have removed by the aid of the court, it appearing that it obscured his title.</p>

<p>An order, under § 292 of the Code, that a judgment-debtor apply property towards the satisfaction of the judgment, will not be granted, unless it is clear beyond reasonable doubt that the property is in his hands or under his control.</p>

<p>Motion to vacate a judgment entered by one of two defendants, sued jointly, in respect to whom the complaint had been dismissed.</p>

Motion to set aside judgment, &c. The defendants, on the 19th of April, 1852, signed a confession of judgment, as follows :— We do hereby confess judgment in this cause for the sum of $2,822.75, and authorize judgment to be entered therefor against us.

Present, Harris, Watson and Gould, Justices. Motion to correct case by striking out exceptions. The action was brought to restrain the defendant from prosecuting the plaintiff as indorsed upon a note held by the defendant, and to have the indorsement declared void, upon the ground that it had been obtained fraudulently.

The action is upon a premium note.- The place of trial named in the complaint is Genesee eounty-^the coifnty in which the plaintiff resides, and in which the Genesee Mutual Insurance Company transacted its business. The defendant resides in the county of Rensselaer.

<p>Shankland, Gray, Balcom and Mason, Justices,</p> <p>After a judgment was rendered in this cause against the defendant, and after the defendant had appealed from such judgment to the general term, and while such appeal was pending, the defendant died. After a year and three months from the death of the defendant, the administrators of the defendant make this motion to be substituted as defendants upon the record. In the meantime the appeal has been argued and decided, and the judgment was affirmed. The judgment in the action was rendered April 24, 1854. In May, 1854, the defendant appealed to the general term. Defendant died December 25th, 1854. His cause ivas decided on appeal, May term, 1855, and the administrators who moved to be substituted, were appointed January 8, 1855, and this motion for substitution Was made at the last May term.</p>

Marvin, Mullett, Bowen and Greene, Justices. This was an appeal from a judgment of the county court of Genesee county, affirming a judgment of a justice’s court on appeal. The action before the justice was for the recovery of damages for the loss or destruction of sixteen sheep, delivered by the plaintiff and one Willis Benham to the defendants, at South Byron, to be carried to Albany in their railroad ears.

The plaintiff brings this action to recover the money paid upon a contract between the parties, bearing date March 2, 1853, in respect to three hundred thousand dollars of the capital stock of the Genesee Valley Railroad Company, for which the defendants, in their corporate capacity, had become subscribers under the provisions of Chapter 389 of the Laws of 1851, and in part payment for which they had issued and sold the bonds of the city to the amount of one hundred thousand…

Motion to strike out, &c. The complaint alleged that the defendant, in a certain dis» course, See., spoke and published, of and concerning the pi aim tiff, the following slanderous words: “ Your wife is a damned Irish woman, and has got the palsy; and your son is insane, and you are a damned thief A The'defendant moved to strike out the words, your wife is a damned Irish woman, and has got the palsy, and your son is insane,” as irrelevant and redundant.

<p>The practice of moving to set aside an answer for want of a sufficient verifica• tion is not to be commended, although it may not be improper.</p> <p>Where the verification is so clearly defective that the attorney is willing to take the risk of treating it as insufficient, the better practice is, promptly to return the answer, with the reasons for not receiving it.</p> <p>If it be doubtful whether the verification is sufficient or not, it is better, generally, to make no question about it, and treat it as sufficient.</p> <p>In this case, the verification was made by the attorney, (it being a proper case,) who stated that his knowledge of all the material allegations in the answer was founded on communications made to him by the defendant’s son, &c» The language, although inappropriate, was held sufficient. He should have stated his information instead of knowledge»</p>

Demurrer to complaint. The action was upon a promissory note, made by the defendants. The objection to the complaint was* that it did not allege the incorporation of the defendants, and did not state facts sufficient to constitute a cause of action.

<p>A cause of action for Carelessness and negligence, by titean s of which injury antil death ensued, may and should be stated in one count in the complaint.</p> <p>The plaintiff is not permitted, under the present system of pleading, to put into' his complaint different counts for the same cause of action, varying them as to form and manner of statement. (Sec, to the Same effect, the several reported eases cited in the opinion.)</p>

Motion by defendant to strike out part of complaint, as irrelevant and redundant. The complaint alleges an indebtedness of the defendant, and that the debt was fraudulently contracted, and prays judgment for the amount of the debt, $164, and interest, and an execution against the body of the defendant. The motion is to strike out of the complaint that part of it relating to the fraudulent contracting of the debt, and the prayer for execution against the body of the defendant.

The complaint in this action shows,- that on the 22d day of September, 1856, the parties made an agreement in writing, whereby, for and in consideration of $250, which the plaintiff paid to the defendant, the defendant agreed to sell, and did sell and deliver to the plaintiff, all the furniture, fixtures and appurtenances belonging to the barber-shop of the defendant, situated in the village of Owego, (with the exception of the razors and tools of his trade,) and all his…

The complaint states, that defendant made his promissory note, dated March the 1st, lb54, whereby he promised to pay to the order of Moore & Van Valen, one year after its date, $200, and delivered it to the payees: they, before its maturity, for a valuable consideration, duly indorsed it to the plaintiff; that no part of it has been paid, and plaintiff is the lawful owner and holder of itand defendant is indebted to him thereupon in the sum of |200, with interest from the…

C. L. Allen, James, Paige and Rosekrans, Justices. Held: on the trial at the Montgomery circuit in June, 1855, that the cause of action in the complaint stood admitted, and also that the claim for a deduction to the amount of $21.88, as set up in the answer, constituted a counter-claim, and, not having been replied to, stood admitted, and directed a judgment accordingly for the plaintiff…

<p>Where an attorney has been retained, and has appeared in the action, the party will not be allowed to revoke his authority and appoint a new one without an order of the court, or of a judge at chambers, duly entered in the minutes of the court.</p> <p>And this rule applies to all suitors without distinction, artificial as well as natural persons—corporations and individuals must observe it at their peril. Municipal corporations, having a law department created by their charter, and an attorney and counsel elected or appointed for a given period of time, are no exceptions to the rule.</p> <p>Without the usual order of substitution entered, and without the usual notice of substitution served,, the adverse party will be entirely justified in treating only with the attorney who first appeared in the action.</p>

<p>The fact that a defendant has set up, in his answer, a counter-claim,, is not of itself sufficient to prevent the plaintiff from discontinuing his action at any time before judgment, on payment of costs, where the plaintiff has replied or demurred to the counter-claim. {This seems to be adverse to the case of Cockle agt. Underwood, 3 Suer, 676, and agrees with the case of S. ¿y S. B.B. Co. agt. Ward, 18 Barb. 595.)</p> <p>Where a defendant, by the plaintiff’s discontinuance, would lose his remedy on his counter-claim—as a running of the statute of limitations, &e., the court, under its general power, would refuse the discontinuance.</p> <p>But there is no more reason to deny to the plaintiff since the Code, the right to discontinue, where the defendant has set up. a counter-claim, than there was previous to the Code, in the case of a plea or notice of a set-off.</p>

The plaintiffs’ complaint in this action was as follows :— The plaintiffs above named complain against the defendant above named, that on the 25th day of March, A. D. 1856, at the city of New-York, made his certain promissory note in writing, whereby he promised to pay to the order of A. H. Guston fifty dollars, for value received, which note was then and there delivered, by the defendant, to said A. H. Guston, who afterwards endorsed and delivered the same to Hartshorn,…

A preliminary injunction had been issued in this case on the application of the plaintiff, an owner of real estate on Forty-eighth street, to restrain the defendant from paving that street, otherwise than in accordance with his contract with the mayor, &c. It would appear that the corporation had determined that this street should be paved, and, in pursuance of the charter and ordinance, entered into a contract with the defendant, M'Cabe, to do the same in a…

, commanding him to allow an appeal to be placed on the calendar, &c., and to hear the argument thereof, and to give judgment thereon, Sec. The justice’s return to the appeal was filed on the 10th July, 1855, and the appeal was noticed for argument by the appellant for the fourth Monday of August, 1855. On the 27th August, 1855, the appellee obtained an order that the justice make and file an amended return.

<p>Demurrer to the complaint.</p> <p>This is an action for the use and occupation of a pier, and to recover the wharfage received' therefrom. The plaintiffs had agreed to lease to the defendant one of the piers and bulkhead. He was let into possession and receipt of the wharfage, and then refused to fulfil his contract and take the lease»</p>

S. B. Strong, Barculo and Gray, Justices. This was an action brought by the plaintiff against the defendants to recover the sum of $1,070 commissions, for services, &c.', as the agent and real estate broker of the defendants in effecting a sale, for the sum of $107,000, to one Cyrus P. Smith, of a parcel of land containing about five hundred and thirteen lots, lying in the Seventh ward of the city of Brooklyn, belonging to the defendants.

This was an action in which it was sought to foreclose a mortgage upon premises situated in the Central Park, despite the taking of the same by the city under the act of 1853, for the purposes of a public place. The answer of the city set up the fact of the premises having been taken under the act aforesaid, by them, and of the awarding of damages to the plaintiff, to the extent of $5,000, for his interest in the land.

Motion to set aside complaint for irregularity. The action was commenced by summons without complaint. The summons was entitled, “ Supreme Court, New-York,” and required the defendant to answer the complaint, which Would be filed in the office of the clerk of the city and county of New-York, at the city hall in the city of New-York. The defendant appeared by an attorney, and demanded a copy of the complaint, which was duly served.

This case came up on an application for judgment in a foreclosure case, on the report of a referee and the evidence taken before him. The facts are stated in the opinion.

The complaint having been dismissed, on a trial of this action by the court, the defendant O’Hara, and the defendants Campbell and Smith, composing the firm of John Campbell & Co., who appeared by different attorneys, and answered separately, move, severally, for an allowance, under §§ 308 and 309 of the Code.

This is a motion to strike from the bill of costs, as settled by the clerk of Dutchess, and inserted in the judgment three several items of $10 each, upon the ground that they are not authorized by law.

<p>Motion to set aside judgment for irregularity.</p> <p>The action was brought upon a promissory note. The complaint was verified by one of the plaintiff’s attorneys.. The verification was as follows:—-</p> <p>“ Albany County, ss.—Orlando Meads, of the city of Albany, being duly sworn, says, that he is one of the plaintiff’s attorneys in this action; that said plaintiff is not now within the county of Albany, where deponent resides; that this, action is founded- upon a written instrument for the payment of money only—to wit, the promissory note set forth and described in the foregoing complaint, and which note is now in the possession of deponent as such attorney; that the said complaint is true of ‘deponent’s own knowledge, except as to those matters therein, stated on information and belief, and as to those matters he believes the same to be true.”</p> <p>All the material allegations of the complaint were made apon information and' belief.</p> <p>The defendant, regarding the verification, as insufficient, served an unverified answer, which the plaintiff’s attorneys returned, stating that they declined' to receive it because it was not verified. No other answer being served, the plaintiff’s attorneys perfected judgment, as upon default, and issued execution. These proceedings the- defendant moved to- vacate.</p>

Present, Bowen, P. J., Mullett, Greene and Martin, Justices. Appeal from a judgment of the county court of Genesee county reversing a judgment of a justice’s court, on an appeal by the defendants in that court. The action in the justice’s court was for taking and detaining personal property.

<p>Where'a sheriff receives money, in gold or silver, m payment o an execution in his hands, in favor of the plaintiff, he may make a direct and immediate application and payment of that money on an execution in his hands against the same plaintiff. (The dicta in some of the cases which seem to favor the idea that the money must first be paid over to the plaintiff before the sheriff can levy and apply it, examined and commented on.)</p>

<p>Manner of making out notes of issues, and placing causes on the calendar for the circuit.</p>

<p>An action is not referable, except by consent of parties, merely because the trial of it will require proof of various small items of damage. To justify a compulsory reference, the trial must involve the examination of a long account— according to the ordinary acceptation of the word account, of one party against the other.</p>

Motions by the defendant to set aside attachments issued in these actions. The affidavits on which the attachment in the first above action was granted, were those of the plaintiff Furman, and of the deputy sheriff J. T. Easton.

<p>Upon the question of the sufficiency of a complaint, where a demurrer is interposed under the 6th sub. of § 144 of the Code, the true and beneficial rule is well stated in Richards agt. Edich, (17 Barb. 260,) and will be so regarded in this court. That a demurrer under the 6th sub. applies only to such defects as would render the count bad on general demurrer at law, or bad for want of equity in chancery.</p> <p>The complaint, therefore, to be overthrown by such demurrer, must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever.</p> <p>Where the demurrer admits facts enough to constitute a cause of action, the complaint will be sustained; and if the defendant requires a greater degree of certainty than is found in the complaint, he must seek his relief by a motion under the Code, that the pleading be made more definite and certain.</p>

<p>Before T. R. Strong, Welles and Smith, Justices.</p> <p>Appeal from a judgment rendered upon the report of a referee. The facts, so far as they are essential to show the points decided, are stated in the opinion.</p>

Before Oakley, Ch. J., Duer, Bosworth, Slosson, HofEman and Woodruff, Justices. This action comes before the court on an appeal by the defendant, from an order made on the 21st of October, 1856, by Mr. Justice Slosson, denying a motion to vacate an order of arrest, on which the defendant had been held to bail in the sum of $45,000. The action is brought against the defendant, as indorser and guarantor of a promissory note for $38,596, dated December 1, 1853, signed “Benj.

Motion by defendants, that complaint be made more definite' and certain, &c: The action is brought to recover money alleged to have been paid by the plaintiff as surety for James Van Demark upoii two notes, given by the latter to Luther James, and' signed by the plaintiff together with Henry Van Demark, the testator, and Charles Van Demark, as co-sureties for the said James Van Demark;, both notes hearing date March 20,1847—one for $208.94, payable two years from date, with…

Motion to set aside proceedings for irregularity, &c. The action was brought upon a promissory note. The place of trial specified in the complaint is the county of Genesee. The defendant resided in Rensselaer. At a special term, held in Albany in May, 1856, a motion was made, on behalf of the defendant, to change the place of trial from Genesee to Rensselaer. The motion was opposed, upon the ground that the court in Albany had no authority to entertain the application.

<p>Application for an order that the sheriff deliver property to the plaintiff.</p>

Supplementary proceedings on the return of execution unsatisfied. A receiver having been appointed after examination of the debtor before a referee, application is now made for an allowance of costs, under § 301 of the Code,

On the 18th of January, 1854, the justices’ court of the city of Troy rendered two judgments against the relator, one for $53.67, in favor of Horace Chappill, and the other for $38.69, in favor of… Held: and refused to hear the causes argued upon the appeals, and made an order that the same be dismissed.

The plaintiff recovered a judgment in this court against James Martine. He appealed to the general term of the court. The other two defendants united with him, in an undertaking given on such appeal: the undertaking being one to pay the judgment if affirmed, and the costs of the appeal. The judgment was affirmed by the general term on the 11th of November, 1856, and thereupon this action was brought against the three defendants, as parties to the said undertaking.

Motion to set aside judgment, &c., for irregularity. The action was brought for partition of lands.

<p>Where the referee does not pass upon all the issues in the cause, or when he has not separately found the facts from the evidence necessary to a proper disposition of all the issues in the cause, the correct and settled practice, requires the application to set aside the report for either of these causes to be made, on motion to the court at special term.</p> <p>Such errors ought not to be entertained on appeal from the judgment, unless the court has first refused to correct them, on special motion to refer the matter back to the referee. {See Lakin agt. .A'". Y. Erie R. R. Co., 11 How. Pr. R. 412.)</p>

<p>The Code, by requiring suits by infants to be brought and defended exclusively by guardian, (§ 115,) has got rid of the name “prochein ami,” (which was probably its chief object,) but it has not at all changed the law requiring the pleading to show, by proper averments, the due appointment of the guardian, by tfie court or a judge.</p> <p>That is, a complaint which alleges that “A. B., an infant under the age of 21 years, plaintiff, by C. D., his guardian, complains,” &e., is not sufficient, because it does not allege how he is guardian, whether specially appointed by the court, or otherwise. This is a traversable fact, and must be so stated that it may be traversed. It is a case where there is a legal disability to sue, without the express authority of the court.</p> <p>Where a complaint is thus defective, a demurrer in the language of the Code, “ that the plaintiff has not the legal capacity to sue,” is sulKient to raise the objection.</p>

Before Oaklet, Ch. J., Boswoeth, Hoffman and Slosson, Justices. The defendants were sued as the maker'and indorser of a promissory note: they appeared by different attorneys arid answered separately. On the 29th of November, 1856, after the action had been noticed for the December term, and a note of issue had been filed, the parties settled.

The action was tried before a referee, and judgment entered on his report on the first day of March, against the defendants for $678.

<p>Wright, Harris and Watson, Justices.</p> <p>Discovery of books, &c.</p> <p>The plaintiff, upon notice to the defendants’ attorneys, presented to one of the justices of this court, at chambers, a petition, stating that this action had been brought upon a promissory note made by Greene & Mather, as the agents of the defendants, who were the proprietors of the Albany and New-York line of freight barges, of which note the plaintiff was the indorsee; that the cause was at issue upon an answer of the defendants, denying the allegations of the complaint, that “certain books and paper writings, to wit, the bill-book, or books, ledgers, and day and cash book, or books of the said line, for the years 1845, 1846, 1847, 1850, 1851, 1852, 1853 and 1854, and also the articles of association of said line, are in the custody, or under the control of the defendants, and that a discovery and production of the books and paper writings are material to enable the plaintiff to sustain his complaint on the trial of the issue, and to prepare for the trial, as the petitioner was advised by counsel and believed.</p> <p>It was further stated that the books and writings were not in the custody or control of the plaintiff. The plaintiff thereupon asked for an order, pursuant to the statute in such case made and provided, and the rules of the court, requiring the defendants to produce and discover the books and paper writings mentioned in the petition, so as to enable the petitioner to use the same in preparing for the trial. The petition/ was verified by the affidavit of the plaintiff.</p> <p>Upon the hearing of the application, the justice made an order requiring the defendants to produce and deposit, at the office of their counsel in the city of Albany, at a time therein specified, “the bill-books, ledgers, day and cash books of the Albany and New-York line of freight barges for the years 1845, 1846, 1847, 1853 and 1854, also the articles of association of said line, and that the said books and paper writings, on being so produced and deposited, remain with the said counsel for the space of ten days, and that said plaintiff, during the said ten days, have leave to inspect the same. From this order the defendants appealed to the general term.</p>

<p>The power conferred by the constitution of the United States upon congress to establish, a rule of naturalization, is of that class which leaves authority in the states, until congress exercises the delegated right. And when so exercised, the act of congress becomes necessarily exclusive over the whole subject—lhat is, a power exclusively to constitute citizens—not merely a power to prescribe how the states shall do so. It involves the whole power of effecting</p> <p>. the object as well as all details of its exercise. (This is adverse to the case of ex parte Knowles, decided by the supreme court of California. Am. Law Reg. for Aug. 3850.)</p> <p>In 1802, a new statute was passed by congress upon the subject of naturalization, repealing the former statute. It contains the following clause:—</p> <p>“ Whereas, doubts have arisen whether certain courts of record in sortie of the states are included within the description of district or circuit courts—Be it enacted, that every court of record, in any particular state, having common-law jurisdiction, and a seal, or clerk, or prothonotary, shall be considered as a district court, within the meaning of this act.”</p> <p>Although the several statutes of the states, passed from time to time, regulating the fees of the clerics of the courts in reference to naturalization—prohibiting courts from naturalizing on certain days, &c.,—cannot be considered as conferring a. power to naturalize, which the state legislatures are incompetent, even by the most explicit words, to bestow, yet they operate in this manner * The power of legislation upon this subject existed in the states prior to the constitution : The legislation would have been executed in the ordinary tribunals of justice: The power has been superseded by an act of congress passed under the constitution: Congress adopted the state tribunals as the agents to exercise the power, as they would have performed it before: The concurrence of the state legislatures, expressed or fairly implied, adds the sanction of the state to this delegation of power.</p> <p>Whether such tribunals are bound to act may admit of controversy. That their acts are. lawful, if they do so, seems undeniable. {The California case, supra, holds, that the power to naturalize, conferred by the act of 1802, was a judicial power; that congress had no authority to confer jurisdiction upon the courts of the states ; that the states had originally the power to naturalize ; that the provision of the constitution, giving power to congress to establish a uniform rule of naturalization, did not exclude the states from naturalizing, although they must follow, in doing so, any rule prescribed by congress; that the power is not given to congress at all, but only the power to direct the states in what manner and according to what rules they shall naturalized)</p>

Motion by plaintiff to refer. This action was against the late sheriff of Otsego county.

<p>An application to vacate or modify an order of arrest, when made to the judge who granted the order, is a motion within the terms of § 401,—an ex parte motion, which the judge can grant within the terms of § 324.</p> <p>But such an application to any other judge must be made to the court, on notice, in the same manner in which other motions are made.</p> <p>The legislature never intended to impose upon the judges the duty, or confer the right, to review at chambers each others’ ex parte orders.</p>

S. B. Strong, Emott and Birdseye, Justices. This was an appeal from an order made at the Orange special term, refusing to quash an inquisition found against the defendants for an alleged forcible entry and detainer. After the inquisition was traversed before the county judge, the proceedings were removed into this court by certiorari, and the motion made to set aside the inquisition, which was denied. It was heard in this court on appeal from that order.

<p>The right of a plank road company to erect a toll-gate, and to exact tolls thereat, depends (under the plank road acts of 1847 and 1849) upon their having at least three consecutive miles of the road completed and inspected, as provided in said acts.</p> <p>The evidence of such completion is the certificate, or certificates of the inspectors, “ that the road so inspected is made and completed according to the true intent and meaning of this act.” Such certificates are required to be filed in the proper county clerk’s office.</p> <p>These certificates should describe, with reasonable certainty, the part of the road inspected, and which the inspectors are satisfied is completed. They should also show that the number of miles therein mentioned are consecutive miles.</p> <p>The statute having settled the kind and character of evidence to establish the fact of the completion of the road, or any part or portion of it—that is, the certificate of the inspectors—parol evidence on that subject is inadmissible It is not only inadmissible under the statute, but upon general principles.</p> <p>Under the Revised Statutes (1 JR. S. 5S8) a penalty of $25 is given for forcibly or fraudulently passing a toll-gate, which, by the act of 1849, is applied to the companies organized under the act of 1847. Therefore, where there is a prosecution for such penalty, in violation of this statute, it must appear from the evidence that the defendant forcibly and fraudulently passed the tollgate.</p> <p>By an act of the 14th April, 1855, (Sess. JL. 1855, ch. 4S5,p. 874,) it is declared that any person who shall pass any turnpike or plank road gate, without paying the toll required by law, and with intent to avoid the payment thereof, shall, for each offence, forfeit and pay, to the corporation injured thereby, $10</p>

<p>Our ancestors, in transferring themselves from the island of Great Britain, transferred with their persons only such parts of its common law as were applicable to their new abode. They did not adopt the whole system, nor was it imposed upon them in gross.</p> <p>It is clear, that the common law of England on the subject of what constitutes a navigable stream, is not the common law of America. Rules which reason and convenience may have dictated, in reference to such streams as the Thames and the Avon, to an island like Great Britain, may be wholly inapplicable to the Mississippi, the Ohio and the Hudson, aind to a continent like America, either North or South. The timber trade alone, on such a river as the Hudson, in this state, would of itself create an exception.</p> <p>In granting the public lands of a state, bounded on such a river as the Hudson, to private individuals, no legislature without express words, could be presumed to have intended to divest itself of the power of protecting so important a public interest. The grants were made, it is to be presumed, in reference to the common law, not of England, but as used in New-York.</p> <p>The rule, that grants of land on the petty creeks and untimbered streamlets of England, carried the right of exclusive ownership to th emiddle of the water, so as to bar the general public of the privilege of boating and floating upon it, is not such a part of the common law of England as will be adopted and applied to such rivers as the Hudson.</p> <p>Usage, i t appears, allows of the construction of floating booms in the upper portion of the Hudson River; which allowance is in aid, and not in obstruction of the timber business.</p> <p>Those who desire to have the benefit of what may be called the “boom law of the river,” must comply with its conditions. That is, they are bound to provide an opening in their boom, and to assort and pass the logs of others descending the river, as fast as can reasonably (not conveniently) be done.</p>

Trial by court. This was an action for the recovery of rent, upon a lease given by John T. Van De Sande to the defendant, and assigned by John T. Van De Sande to the plaintiff. The plaintiff claimed in his complaint to recover $200.

This was a motion, that the judgment in this action be entered upon the clerk’s'docket as “secured upon appeal,” according to § 282 of the Code.

Motion to stay proceedings, &c. The action is brought to recover a farm in the town of Peters-burgh, in the county of Rensselaer. All the plaintiffs claim title as heirs at law of Abraham Ten Broeck, deceased. Margaret S. Gibson, one of the plaintiffs, and who claims title to one-third of the farm, brought an action, in 1849, to recover her undivided share, against Peleg Brown, who was the tenant of Thomas Reynolds, now deceased.

<p>It is the usual practice, in setting aside a regular judgment, to make the order conditional, requiring payment of the costs incurred in entering it up. But where a judgment is obtained by default, through a misapprehension of defendant’s attorney, and it appears clearly that the plaintiff has no cause of action, and should have known, if he did not, that he had none when he commenced proceedings, the judgment and execution (if any) will be set aside, toiih costs of the motion,</p>

This action was brought to recover on an open account of $510, of which the plaintiff was assignee. The cause was referred, and the referee reported for the plaintiff $100. He found, as a fact, that the defendant had agreed to pay the plaintiff $100 in settlement of the account, and based his decision on that finding.

Motion to set aside judgment. On the 7th day of April, 1855, the defendant signed and verified a statement, for the purpose of having judgment entered thereon, as follows:— “I, Francis C. Shuman, the above named defendant, hereby confess myself indebted to George F. Von Beck, the above plaintiff, in the sum of two thousand and seventy dollars, and interest thereon from the 4th day of April, 1855, and hereby authorize him or his executors, administrators, attorney, or assigns…

Mitchell, Roosevelt and Davies, Justices. Appeal from an order declaring that a sale under a decree in partition gave to the purchasers a good and sufficient title, and requiring them to complete their bids.

Application by C. W. Campbell, receiver of the Steuben Farmers’ and Merchants’ Insurance' Company—a mutual insurance company under the act of 1849—for authority to make an assessment upon the premium notes, to pay the debts of the company, with the expenses of executing the trust, &c. The receiver had been duly appointed under § 36 of article 2, chapter 8, of the 3d part, of the Revised Statutes, upon the application of a judgment-creditor, upon the return of an execution…

This was a motion, made by the defendant Morse-, to set aside a referee’s sale upon a judgment of foreclosure. The facts upon which the motion was based are stated in the opinion. An appeal was taken to the general term from the order, which was entered in conformity to the opinion delivered, at the special term, and at the April general term, 1856, held in the 5th district, the order was affirmed.

Motion to vacate order of arrest. The affidavit upon which the order was granted states that, in March and April, 1856, the defendant was acting as the agent of the plaintiff; that a contract had been entered into between the plaintiff and one Moyer, by the terms of which Moyer was to deposit with the plaintiff $200, as security for the performance of the contract on his part, and a similar contract had also been entered into between the plaintiff and one Straw; that, in…

<p>Where the defendant was sued before a justice of the peace on several items of account, among which was $10, borrowed of plaintiff’s wife, held, on the trial, that the admissions made bj' plaintiff’s wife, to third persons, that the defendant had repaid her that sum, Was admissible as proper evidence.</p> <p>In such a case, the wife acts as the agent of her husband, and the latter is bound by all her acts and assertions in relation to the transaction.</p>

Gray, Mason and Balcom, Justices. These actions were of an equitable character. The defendant Hudson appeared by A. Becker, Esq., his attorney, and demurred to the complaints. The other defendants appeared by Burnside & Ten Eyck, Esqs., their attorneys, and put in joint answers to the complaints in both actions.

T. R. Strong, Welles and Smith, Justices. Motion by defendants to set aside the service of the summons and all other proceedings in the cause. The defendants appear to make this motion, and for no other purpose. The facts are sufficiently stated in the opinion of the court.

<p>The plaintiff brought his action against the defendants to recover damages for the obstruction of his premises, and consequent loss of custom, by reason of the defendants’ ordering, directing, or permitting to be built upon and about the sidewalk and street, adjoining the plaintiff’s premises, (which were situated directly opposite to a public market,) divers stalls for the sale of meat, vegetables, and other articles usually sold at market, so as to render the street inconvenient for use, and collect around the plaintiff’s premises garbage and filth, offensive and injurious, &c.</p> <p>The. defendants answered by a general denial of all the plaintiff’s allegations.</p> <p>Upon the trial, the jury were instructed, unqualifiedly in these terms s “ The plaintiff is entitled to recover, and you have only to assess the damages.”</p> <p>Held, that under the pleadings the plaintiff was bound, in order to entitle himself to such an instruction, to establish by evidence, uncontroverted and admitting of no reasonable doubt, every fact essential to his right to recover. The Case, as disclosed by the evidence, did not warrant any such peremptory direction.</p> <p>The evidence showed that the reason for the temporary obstruction of the passage and sidewalk was the rebuilding of the market. The defendants were the proper party and fully authorized to cause such rebuilding, and the plaintiff, with all others similarly situated, were bound to submit to whatever inconveniences necessarily resulted from the exercise of such authority—the defendants causing no unnecessary or unreasonable obstruction, or for an unreasonable length of time, or suffering any nuisance in the sense of that which is noxious or offensive, beyond what is ordinarily incident to a market-place, when kept in proper order, concerning which there was no proof in the case. If the plaintiff was entitled to recover at all, he would be entitled to the damages unnecessarily produced by the defendants, as before stated; and the loss of custom is the proper ground of such recovery, and evidence upon that point properly admissible.</p>

Motion to set aside judgment in favor of the plaintiff, founded on an inquest at circuit, on the ground of irregularity in notice of trial. The venue in the action is laid in the county of Otsego.

Demurrer. Action upon a justice’s judgment. The complaint states the recovery of the judgment as follows : That the plaintiffs, in the month of May, 1850, commenced an action in a justice’s court against the defendant, before Ichabod Thurston, Esq., who was a justice of the peace, and had full authority and jurisdiction over both the person of the defendant and the subject matter of the action, to try the same, and that such proceedings were thereupon had that on the 4th day…

Petition for discovery of books, &c. The plaintiffs state that the action is brought upon a promissory note, made by Greene & Mather, as agents for the defendants, who, from the year 1845 to the year 1855 inclusive, were engaged in the transportation of goods and merchandise upon the Hudson River $ that the defendants’ association was known by the name of the New-York Freight and Passage Association ; that in 1845 Charles S. Olmsted was the agent of the defendants, and one…

Motion to set aside judgment for irregularity. The action was brought to recover money received by the defendant, contrary to the statute against betting and gaming. The complaint alleges that the defendant received of the plaintiff $50 contrary to the provisions of the statute, but does not specify whether it was received by the defendant as winner or as stakeholder. The complaint was verified.

<p>Application for judgment to abate a nuisance, and for an injunction.</p> <p>The facts will appear in the opinion of the court.</p>

Motion to set aside sheriff’s sale, by plaintiffs, who recovered, in this action against defendant, a judgment for $651.53. The real estate sold was situated in the city of Brooklyn, and consisted of several city lots, and of two separate parcels not connected with, or contiguous to each other; and the whole was sold together as one parcel, and bid off for $38. The property was worth $8,000. The plaintiffs are'judgment-creditors of defendant.

<p>Motion by the defendant to vacate order of arrest.</p> <p>The facts are stated in the following opinion.</p>

<p>Motion for injunction.</p>

Motion to set aside execution. Judgment was recovered in November, 1838, for $88.06, and execution issued 23d Nov., 1838. The sheriff received $50 on the execution, and indorsed a return of nulla bona as to the residue. The $50 was paid to J. Sacia, September 14, 1839.

<p>Where defendant moves to change the place of trial for the convenience of witnesses, and the plaintiff outnumbers him—both swearing that their witnesses are. necessary and material on the trial, the defendant gets beat.</p> <p>An affidavit, which states the nature of the controversy, and shows how the witnesses are material, may not be defective, although it does not conform literally to all the requirements of the former practice.</p>