Volume 5 — Howard's Practice Reports

<p>A misnomer of the court, in a recognizance, called “ General Sessions of the Peace," instead of “ Court of Sessions,” as designated by the Code (1849), held, to be immaterial—the unnecessary additions to the title may be regarded as surplusage.</p>

This was a motion to set aside an order for service of a summons by publication, made under § 135 of the Code, on the ground that it had been allowed on insufficient affidavits. The facts and the objections, made, appear sufficiently in the opinion of the court,

The complaint is on a promissory note against maker and endorsers. The defendants have answered, denying all the allegations of the complaint and have also demurred to the same. The plaintiffs now move for judgment on account of the frm l'ousness of the demurrer, under § 247.

<p>This was a motion on the part of the defendant Averill for a commission to examine his codefendant Shepard, now living in Wisconsin. The action was trover, to recover a quantity of timber, and was commenced in November 1847, and had been referred and considerable testimony taken before the referee, and an adjournment granted for the purpose of making this motion. No process had been served upon Shepard, nor had he appeared in the cause; but he was liable to the defendant Averill, who was his vendee, for the value of the property if the plaintiff should succeed. The papers made out a strong case of necessity for the testimony of Shepard, and Em excuse for not making the motion before.</p> <p>It was clear from the papers, that if the plaintiff has a cause of action against Averill, he has also against Shepard. But it was contended that any defendant on whom process has not been served may be examined for a codefendant in an action for a tort. That where there is no service upon him- and the suit proceeds without him, it is not a suit against him, and there being no privity of contract nor any contribution between them, the defendant not served, was always a competent witness. But that if this were otherwise, the Code has provided for the examination of a codefendant as a witness in ordinary cases {Code, § 397). On the other hand it was denied that a codefendant in an action for a tort can be a witness; and it was also insisted that there is no power under the Code to issue a commission to examine a coplaintiff or codefendant; those provisions only extending to witnesses and the opposing party. And again, thcit if this were not so, the delay in this case was fatal to the motion.</p>

Mr. Stevens, in behalf of the county clerk of Albany county, submitted in writing certain questions, asking a construction of the Code as to allowances for clerks’ fees.

<p>An answer is bad, wnere it controverts no allegation of the complaint, and sets up no new matter in bar, but merely denies a conclusion of law.</p> <p>An answer is bad, which merely alleges that the note sought to be recovered was obtained by fraud, and omits to set out any facts showing the existence of such fraud.</p> <p>An affidavit of “ a defence in the action,” without swearing to merits, or advice of counsel, is insufficient under Rule 39.</p> <p>The principles of pleading under the Code, as stated by Habkis J. in Russell vs. Clapp (4 How. Pr. R. 347), and by Sill J. in id. 98, approved.</p>

The plaintiffs having recovered a judgment against the defendants, upon which an execution had been issued and returned unsatisfied, an order was made, requiring the defendants to appear and answer before John Newland, Esquire, a referee, pursuant to the 292d section of the Code. Another order was made, under the 294th section, requiring Francis S. Low, who was alleged tb be indebted to the defendants or one of them, to appear and answer before the same referee.

This was a summary proceeding to remove a tenant, instituted in 1850 before the county judge of Essex county. The landlord obtained the usual order for the removal of the tenant, and then caused his costs to be taxed before the county judge. They were taxed on notice to the adverse party, and against his objection, at twenty-nine dollars and ninety-three cents.

<p>This was a motion to change the place of trial from Columbia to Rensselaer. The action was brought by the Attorney General in place of the former proceeding by quo warranto, and involves the question whether the defendant or Mr. Henry Hogeboom, was elected a Justice of the Supreme Court, in the third judicial district, at an election which took place in November 1849. Issue was joined by service of a replication on 3d August 1850. The facts to be inquired into all occurred in the county of Rensselaer. .</p>

<p>If it appears, on examination of witnesses on a proceeding supplementary to an execution, under the first branch of § 292 of the Code, that a third person, not a party to the proceeding, is in possession of property liable to an execution belonging to the judgment debtor, and is colluding with the debtor to enable him to defraud his creditors, the proper remedy of the judgment creditor is to levy on the goods and sell them under his execution; or to institute an action, in the nature of a creditor’s bill, against the judgment debtor and his fraudulent assignee.</p> <p>If a receiver can be appointed, in such case, he can only be appointed on notice to the judgment debtor. (Nee Corning agt. Tooker, ante page.)</p> <p>A referee appointed to report the facts, is not at liberty to report the evidence at large.</p>

The defendants demurred to the complaint. The plaintiff applied to Justice Willard, out of court, for judgment on the ground of the frivolousness of the demurrer, under section 247 of the Code. The Justice granted the motion, but gave the defendants ten days to answer the complaint. The order of the Justice granting the motion, gave no specific direction that judgment be entered.

The complaint alleged that defendants had been partners; had quarrelled, and dissolved the partnership; and that the effects of the firm had come into the hands of one of the firm, who was wasting them, and appropriating them to his own use. Plaintiff was a general creditor of the firm, but having no judgment against them, which, however, he sought in this suit.

<p>By noticing a cause for trial a party waives the right of moving subsequently to strike out redundant matter from his adversary’s pleading, under § 160 of . the Code.</p>

Motion to set aside an order for publication against a non resident defendant, made by a justice of this court' at chambers, under § 135, sub. 3, of the Code, on the ground that the affidavit on which it was made was defective in not proving positively that the defendant had property in this state.

C. G. Myers moved for an alternative mandamus to compel the county judge to file his decision in the case of Cahoon & Kelsey v. Northam. It appeared by the moving affidavits that the cause came to the County Court by appeal from a justice’s judgment, and by consent of parties, was tried by the judge of that court without a jury. The appeal was brought in 1847. The affidavit also stated, upon information and belief, that the judge had decided the case.

Application by the defendant for a new trial in ejectment, the judgment having been paid, pursuant to statute (2 R. S. 309). The action was commenced before the Code.

Toa complaint on a promissory note, the defendants pleaded the pendency of a suit for the same cause in one of the circuit courts of the State of Indiana; to which the plaintiff demurred.

<p>This was a motion to strike out those parts of the complaint which purport to set out portions of two affidavits. And also another part in which the plaintiff Carpenter, “ expressly charges and alleges that the said defendants (West & Van Benthuysen), some one or both of them, have been guilty of the crime of forgery, in crossing and obliterating the aforesaid endorsement made upon the aforesaid note with a pencil; and that the same was done to cheat and defraud the plaintiffs in this suit, and that the defendants have been guilty of other dishonest and fraudulent acts in obtaining the aforesaid judgment to injure and defraud the said plaintiffs.”</p> <p>The complaint stated that in May 1849, West recovered a judgment against the plaintiffs for $'93*33, in a justice’s court, upon the joint guaranty, as it was called, of Carpenter as principal and Wilcox as his surety, made in June 1846, to secure the payment of about $72, which was West’s only claim against Carpenter. That in October 1846, C. paid West $30, to apply thereon and took a receipt; and in December 1846, $19 more and also took a receipt therefor; and about that time turned out to said West a note against one Huling- for $40-60, on which there was then due S‘20'60, besides interest. That $20 had been endorsed thereon by Carpenter with a pencil, and C. turned it out to said West subject to said endorsement, and for the balance then due thereon only, being about $20'60 principal. Plaintiffs alleged, under information and belief, that West sued the note and recovered judgment against Huling for the whole, face of the note and interest, being about $43; and Huling paid this judgment to West or his attorney; and that when judgment was recovered there was no trace of the pencil endorsement, nor is there now. But Carpenter alleged, that when he let West have the note, he let him have it only for the balance, about $20-60, principal, and took a receipt to that effect. That including the whole of the note, West has received $92, or thereabouts, on account or the guaranty, and now seeks to'enforce the judgment. That besides these payments, before the guaranty, the plaintiff turned out a wagon, harness and buffalo robes, in security. After the guaranty C. sold the wagon, with West’s consent, to one Van Dosen, and took his note and turned it out to West; but he did not recollect the amount of the sale or of the note, nor whether paid; but is informed and believes that Van Dosen was good, and the note, he thinks, was payable in six months, and given in the summer of 1846. The harness and buffalo robes were left with West to be diposed of and the proceeds to be credited to C., but plaintiffs did not know what had become of them.</p> <p>That'Wilcox knew nothing of the judgment till March, and Carpenter in April last. That negotiations had been had to be let in to defend which had failed. West had assigned the judgment to Van Benthuysen and was insolvent and had left the county, and all the payments were made before the assignment. Wilcox only was served with process and appeared. Carpenter did not. The suit was on the guaranty and West and Carpenter both then lived out of the county. Wilcox’s attorney with the consent of plaintiff’s attorney, got it put off more than a year, he stating to the justice he understood C. had paid or arranged it in' some way with West. Wilcox had no idea that the suit before the justice would proceed, as they had an understanding with the attorney for West that he would not proceed without notice to the attorney of Wilcox. The complaint further stated that the plaintiffs had procured the affidavit of the justice, and this they incorporated in the complaint, in which the justice says the cause was adjourned definitely and indefinitely from time to time. The last adjournment was by consent from the 2d to 14th May 1849, and that the attorney of Wilcox, at the last adjourned day, did not appear, and the justice desired West’s attorney to have it adjourned again, which he declined, but said he would take a judgment and open it if Wilcox’s attorney desired, or it might be opened for an appeal. The affidavit of Wilcox’s attorney (before the justice) was also inserted in the complaint. He stated that the first he knew of the judgment was in March 1850, and then West’s attorney told him he' should let them put in a defence if they had any, or appeal, but afterwards refused to do so.</p> <p>Carpenter alleged that all of said guaranty had been paid. That when West received the Huling note, it was understood that when paid, that paid the balance due on the guaranty.</p> <p>The complaint then charged forgery and dishonest and fraudulent acts as already stated, and prayed for relief against the judgment.</p>

This cause was tried at the Montgomery circuit by the court.

On the 7th of June the respondent excepted to the sufficiency of the sureties in the undertaking, and served notice of the exception by mail. The notice was received by the appellant on the 10th, who on the same day gave notice by mail that the sureties would justify on the 17th, and the sureties did justify on that day.

<p>Landlord and Tenant.</p> <p>Tenants from year to year maybe removed by “summary proceedings,” under the landlord and tenant acts of 1830 and 1849, notwithstanding the omission from those acts of the phrase “from year to year”—which was employed in the statute of 1820.</p> <p>Such a tenant is included in the term ‘ ‘ Tenant at Will” as used in the statutes of ’30 and ’49, and may be summarily removed upon one month's notice to quit terminating with the year. x —^</p> <p>The affidavit, on which the summons issues, should state that the tenant is holding over “without the permission of his landlord." If it do not, and the objection is taken at the return of the summons and overruled, it is error, for which the proceedings will be reversed.</p> <p>The reduction of the term for which parol leases may be made, from three years to one, had no legal effect upon estates “ from year to year.”</p>

This is a complaint in the nature of a bill in equity. The case comes before the court on a demurrer to the complaint. The complaint sets up in short the recovery of a judgment in the Supreme Court against one William R. Kelsey, on the 1st day of February 1849, for $632,93, for goods sold and delivered. It also sets forth the issuing of an execution to the sheriff of the proper county and a return of nulla bona thereon.

This was an action for libel. All the defendants appeared by one attorney, but two of them put in separate answers. On the trial of the cause, a verdict was rendered for the defendants. The defendants’ attorney made out two separate and full bills of costs which were allowed on adjustment by the clerk, the one bill at $157*37 and the other at $117*25. The plaintiff moved for a readjustment of the costs.

<p>Motion for new trial on the ground that defendant was irregularly tried in his absence.</p>

Demurrer to complaint against the indorsers of a promissory noté, because “ it does not state facts sufficient to constitute a cause of action.” The note declared on was payable at the Mbany City Bank, and the defect pointed out by the demurrer was in the averment of presentment and demand. They were laid in these words: “ When the said note became due, it was duly presented for payment to the defendant Thomas A. Paine, and payment thereof duly demanded.”

The defendant in July 1848, was judicially declared a lunatic, and a committee of his person and estate duly appointed. The commission of lunacy continues in force. On the 13th November 1849, the plaintiff commenced this action without having obtained any leave of this court for that purpose. The action is for a money demand. The summons and complaint were served on the defendant and also on the committee in pursuance- of subdivision 3 of § 134 of the Code of 1849.

<p>This case came before the court on a demurrer to the answer; the grounds of which sufficiently appear in the opinion of the court.</p>

An order was made, upon motion at the special term, dismissing the appeal taken from a judgment in the County Court of Ontario county to this court, upon the ground that the appeal was not brought in conformity with the provisions of the Code.

Motion by the defendants to put the cause over the circuit The notice of trial was served on the 11th of October for the 21st.

<p>The ground of the motion is sufficiently stated in the opinion of the court, which was delivered by</p>

<p>Ml litigated trials, are difficult or extraordinary. And within the meaning of the Code (§308), a percentage should he allowed to the prevailing party.</p> <p>The application should be made when the cause is tried, or at least to the justice who tried it.</p> <p> (There are various decisions upon this question. See 3d and 41h vols. Howard’s Pr. Sep.) </p>

This suit was commenced by summons unaccompanied by copy complaint. Defendant, in pursuance of section 130 of the Code, demanded a copy of the complaint. The plaintiff, twenty-two days after the demand, served a copy. But previous to this service (two days) defendant had prepared and served papers and notice of motion to dismiss the complaint under section 274 of the Code.

A notice of motion was served on the plaintiff in this case for a rule or order to change the place of trial from Albany to Montgomery county, “ and for such other and further rule or order in the premises as the court may deem proper to grant-;” but there was no notice of an intended application for costs of motion. ■ The defendant took the order for the change of the place of trial on the 27th of August, by default, and for ten dollars costs in favor of the defendant to be…

This is a motion on the part of the defendant to change the place of trial of this action from the county of Livingston to the county of Tompkins, on the ground that a great number of witnesses, material and necessary to sustain the defence, reside in Tompkins and the adjoining counties.

This is an action for the recovery of part of lot No. 32, in Legges patent, in the county of Essex. It was originally brought in the names of James Brown, David Russell and Solomon W. Russell. The defendants answered the original complaint, whereupon the plaintiffs, within twenty days thereafter, served an amended complaint, omitting» the names of David Russell and James Brown, as plaintiffs.

This is a motion made by the defendants for judgment against the plaintiffs, upon the defendants’ answer, for want of a reply. The action was brought under the Code to recover a lot of land in Legges patent and was commenced in February 1849. On the 26th May 1849, the answer was served. The plaintiffs have never replied to the answer. On the contrary they amended their complaint by striking out the names of David Russell and James Brown. (See opinion in Russell agt.

The venue in this cause was laid in Columbia county, and the cause referred by consent and tried before a referee, who reported $500 due to the plaintiffs.

The action was for goods sold and delivered. The complaint was for three separate bills of goods sold at different times. The answer, duly verified, made a specific denial as to one of the bills in the words of the complaint, but was silent as to the other two bills.

Upon an issue joined the whole matter was by consent referred, and upon the coming in of the referee’s report on the whole issue, judgment was entered for the plaintiff. In the mean time the defendant made a case which it now asks to have incorporated in the judgment record in order that it may have the decision of the referee reviewed.

This suit was pending when the Code was enacted and was referred agreeable to the former practice. In May 1850, the referees reported in favor of the defendant and judgment was perfected thereon on the 21st of May. On the 5th of June, and within the thirty days provided by the Code, the plaintiff gave notice of an appeal to the general term and filed an undertaking.

<p>An order for discovery may be enforced before issues joined in the cause</p>

This was an. action to recover the value of a note of which the following is a copy: “ $11664-100. New York, May 26th, 1848. “ Six months after date I promise to pay to the order of James Van Namee & Co,, one hundred and sixteen 64-100 dollars at the Troy City Bank, value received. (Signed) B. F. McNitt. (Endorsed) “James Van Namee Co. Pay John Paine, Esq cashier or order. T. Olcott, cash.” Paine was cashier of defendants.

This was a demurrer to a complaint in an action of slander. The pleadings are sufficiently stated in the opinion of the court.

Motion to confirm report of Commissioners of Appraisal. At the late general term of this district the commissioners who had heen previously appointed to appraise the damages of the claimants in consequence of the rail road company running their road over their land, having made their report, the counsel for the company moved for its confirmation, under the provisions of the act entitled “ an act to authorize the formation of rail road corporations, and to regulate the same,”…

Motion on the part of the defendant to set aside the judgment and execution and all proceedings subsequent to the issuing of the summons tínd complaint. The defendant is a foreign corporation created by the laws of Michigan. The action was commenced by summons and complaint, which the plaintiff claims was on the 17th day of May 1850, served upon the managing agent of the defendant in the city of Buffalo.

This case came before the court on an appeal from an order granting an injunction, and on another appeal from a judgment in favor of the plaintiffs on a demurrer to the complaint. The case made by the complaint, was as follows: J. H. Rosevelt leased to A. & F. Roux, for eight years from May 1, 1845, the premises 478 and 480 Broadway, in New York.

<p>Motion to strike out a large portion of the defendant’s answer, for irrelevancy and redundancy The complaint is in trespass for taking and carrying away 400 sticks of pine timber of the value of $4000, &c. The answer first denies the taking of the timber, and second alleges the title of the timber to be in the defendant, and then proceeds to state how such title arose. This statement of the manner the defendant acquired his title to the timber in question,' contains about 26 folios, and is what the plaintiff asks to have stricken out.</p>

On an affidavit setting forth that this was an action for a tort and not arising on contract, against a non resident defendant against whom, an attachment had issued, and who had refused to appear in the suit except for the purposes of this motion,

Bill filed in 1845 to set aside a satisfaction piece, and satisfaction of a mortgage, which had been entered of record, and to foreclose the mortgage. In September 1847, the Supreme Court, in special term, on pleadings and proofs, made a decree setting aside the satisfaction piece, and the entry of satisfaction of record; declaring the mortgage a valid security and directing a foreclosure in the usual form.

<p>An appeal brought on the same day that the judgment roll was filed, but pie vious thereto and before the hour for which the costs were adjusted, held good.</p>

<p>Where a judgment of the court below has been paid before writ of error brought, but not satisfied of record; on reversal thereof, the plaintiff in error can not enter a suggestion and award restitution of payment in his record of reversal without leave of the court.</p> <p>It is otherwise where the judgment below is satisfied of record. There the evidence of payment comes up with the record, and restitution is a matter of course.</p>

The defendants had obtained a reference to ascertain the damages which they had sustained by reason of an injunction which had been dissolved. Upon the referee’s report they now moved for leave to prosecute the undertaking which had been given on suing out the injunction.

An answer was put in to the complaint in this cause, containing special matter which, if true, constituted a defence to all the causes of action contained in the complaint. On the same paper, and following the matters of fact contained in the answer, was a demurrer to the whole complaint. The plaintiff replied, denying the matters of fact set up in the answer, and also (as it is now stated by counsel) noticed the demurrer for argument.

This action was commenced to recover from the defendant the amount due on two promissory notes, and also to recover damages on a written contract in relation to a farm let by the plaintiff to the defendant. The summons without the complaint was- served on the 17th day of September last.

The plaintiffs, the Rochester City Bank and Ralph Lester, a banker in Rochester, in the summer of 1850, severally discounted bills drawn upon, and subsequently accepted by the defendants, Suydam, Sage & Co. and endorsed by the defendant Ely, to the amount in the aggregate of $68,440. Suydam, Sage and Co., the acceptors, having failed before the maturity of the bills, they were all protested and returned to the plaintiffs unpaid.

This was an action of trover for a carriage. The pleadings were drawn up under the Code of 1848.

<p>A summons issued without mentioning the court from which it emanates, is defective. (The form prepared by the Commissioners on Practice and ap~ pended to their Report of the Code of 1848, is bad in that particular.)</p> <p>A general notice of appearance given by the defendant, however, waives the irregularity. It is an admission that he has been regularly brought into court.</p> <p>Where the defendant has appeared, but not answered, in an action for the recovery of money only, and the complaint is duly verified, he is not entitled to notice of assessment. In such case there is no assessment—judgment is entered of course (§ 246).</p> <p>An adjustment of costs, without notice (where the defendant has appeared), does not render the judgment irregular. It is the adjustment of costs, only, that is irregular. It is the same, in principle, as the taxation without notice was formerly, irregular, and liable to be set aside; but never affected the judgment as to damages.</p> <p>A -readjustment on notice cures the irregularity, the same as a retaxation en notice did formerly.</p> <p>An affidavit of merits, for the purpose of being let in to defend, in a common law action, is not required to he special (as was required in chancery cases), where there are no suspicious circumstances attending the case. It must be ■special where such -circumstances exist.</p>

This was a motion by the defendant Hunt, to set aside the verification annexed to the plaintiff’s complaint. The summons and complaint claimed judgment for $400 and interest, upon a promissory note. The complaint was verified by the plaintiff’s attorney as follows: “ Otsego county, ss.

The defendant Thomas, moves to set aside the judgment, as respects himself, which was entered on the twenty-fifth of January last; and to he permitted to answer. The summons was served on the defendant Thomas, on the 2d of December; a notice of appearance and a demand of a copy of the complaint was served by the attorney for the defendant on the plaintiff’s attorney on the 10th of the same month.

This was a motion by defendant to set aside a judgment for irregularity. The ground was, that no court whatever was mentioned in the summons served upon the defendant. The service was made on the 5th December 1850. Judgment was entered on the 6th January 1851. There was no appearance by the defendant in the action.

This was a motion by defendant Kidd for a readjustment of the costs in this cause, and for an extra allowance. Kidd was prosecuted as Treasurer of Albany County, and having succeeded in the suit at the circuit and on appeal at the general term, claimed double costs under the statute, which had been disallowed by the clerk on adjustment.

<p>The venue in a complaint is to be fixed irrespective of convenience of witnesses, where some or one of the parties reside, if either reside in the state (Sections 125 and 126 of the Code, in connection with the 46 th and 49 th sections of the judiciary act).</p> <p>A change of the place of trial for the convenience of witnesses, is properly made, when the venue has been fixed in the proper county.</p>

The plaintiff having recovered a verdict proceeded to have his costs adjusted by the clerk on notice. The defendant appeared and opposed the allowance of $ 10 for each of three circuits when the cause was regularly on the calendar, but postponed at the request, and fy the accommodation of the plaintiff, by consent of the defendant. This appeared by the affidavit of the defendant’s attorney, and also that the defendant \vas ready for trial at each of these circuits.

The plaintiff’s attorney gave the defendant’s attorney notice that he would move this day at the office of the justice “for an order that the answer of the defendant to the complaint in this action be stricken out on the grounds of the frivolousness thereof with costs, or for such other or further order as the said justice shall deem proper to grant.” The plaintiff’s counsel now moves upon this notice and the complaint and answer, that the answer be stricken out, or that the…

Action for Libel. The defendants obtained an order to show cause why the order of arrest made in this action by the Hon. S. E. Johnson, county judge, should not be vacated or the bail required thereby be reduced. The motion to vacate is made upon the ground that no cause for requiring bail is set up in the affidavit presented to the county-judge.

This is a motion in behalf of the defendants, to strike out or suppress the affidavit of the defendant Ely, annexed to the complaint, together with certain portions of the complaint itself.

This suit was commenced by summons served the 13th day of November last. On the 19th of the same month, the defendant’s attorney in pursuance of sec. 130 of the Code, demanded in writing a copy of the complaint; the demand not being complied with on the 21st the papers for this motion to dismiss the complaint under section 247 were served.

This was a motion to dissolve. a temporary injunction granted by a judge at chambers, re straining the defendants from erecting any church edifice or other building upon the old burying ground situate in the village of Kingston, or digging up or removing any earth therein, or therefrom, or doing any other act or thing, so as in any way or manner to interfere with the graves, or grave stones, erected at the graves of the ancestors, brother, husband and children of the…

The defendant V. R. Cary, made a general assignment of his property to the other defendants, who are his sons, for the benefit of his creditors The plaintiff is a judgment creditor of V. R. Cary. His judgment was recovered upon an indebtedness which was contracted, and due before the assignment Was made. The object of this suit is to set aside the assignment, on the ground that it was made to hinder and delay creditors in the collection of their debts.

This was an action commenced to recover $1000, money alleged to have belonged to Isabel Fox, deceased, wife of the plaintiff, in her life time, and to have been her separate property, held by the defendant as her trustee. The cause was referred at the last December circuit upon the motion of the plaintiff, without previous notice, the defendant appearing prepared for trial.

This was a bill filed in June 1848, for the purpose of proving a lost will. The complaint alleged that Johannes Hollenbeck ■ died on the 18th of March 1848, seized of real and personal estate.

Wheeler sued Cropsey before a justice of the peace in the city of Troy, in trespass for taking a horse. The defendant justified the taking under an execution against Wheeler. The justice gave judgment for the plaintiff and the defendant appealed and the cause was tried in the Troy Mayor’s Court in 1847.

This was an actioh for libel. On the trial Waters was called as a witness in behalf of the four other defendants. The witness was objected to as incompetent.

Motion by defendant for judgment, as in case of nonsuit for not going to trial. The reply, merely denying that the plaintiff had sufficient knowledge of the matter in the answer to form a belief of its truth, was served by mailing on the 31st December 1850; and the Clinton Circuit (where the venue was laid) was held on the 3d of February 1851.

<p>This was a suit for a divorce on the ground of adultery, in which the defendant had put in an answer denying the offence charged, thus bringing the case within section 38 of 2 R. S. 145, which requires the court in such cases to direct a feigned issue to be made up for the trial of the facts by a jury, at some Circuit Court.</p>

The defendant had recovered judgment in this court for costs, and issued an execution which had been returned unsatisfied. On an affidavit of those facts, an order had been obtained to appear and answer, &c. under § 292 of the Code.

<p>The time of service of notice of appeal under § 327, upon the clerk, when made by mail, does not date from the time of depositing in the post office.</p> <p>Where such notice was served on the clerk and the attorney on the last day for bringing the appeal, by depositing in the post office, and was not received by either until two days after the time for appealing had expired. Held, that the appeal was not taken in time. The service was good upon the attorney (§ 408), but bad upon the clerk.</p> <p>Under § 173 of the Code, the court have power to authorize an appeal, taken after the expiration of the time limited by the Code (§ 332 and 348), to be considered good and valid.</p>

<p>Where a common law certiorari issued against a corporation, who neglected to appear and make return thereto, Held, that a writ of sequestration ought not to issue until a distringas should be tried.</p>

In this case it appeared that Charles Godfrey and Reuben Lafever, on the 26th December 1848, entered into an agreement in writing, under seal, by which, among other things, the parties agreed to refer certain matters of account therein particularly mentioned to Hiram H. Seelye, John M. Bradford and James H. Wickes, who should decide on the allowance or rejection of such accounts, which decision should be final.

This was a suit in partition, wherein a decree of sale was made, directing the premises to he sold by a referee on giving three weeks notice. On such a notice, the premises were sold and the purchaser paid his ten per cent, but afterwards refused to take a deed and complete his purchase, on the ground that the notice of sale was defective.

This is a motion on behalf of the defendant, for an order compelling one Justus Parce to pay the costs of defending the above action, on the ground that he commenced and prosecuted the action to its termination, and was beneficially interested in the recovery in the same, within the provisions of 2 R. S., 619, §47.

<p>Motion for judgment upon the complaint upon the ground of the insufficiency of the answer.</p> <p>The action is upon a premium note given by the defendant to the planitiff. The note is in the words and figures following: “$70. For value received in policy No. 7295, dated Nov. 27th 1848, issued by the ‘ Genesee Mutual Insurance Company,’ I promise to pay the said Company or their treasurer for the time being, the sum of seventy dollars, in such portions and at such time or times as the directors of said company, may, agreeably to their act of incorporation require. ’ Andrew Moynihen.” The complaint sets forth the note, the issuing of the policy of insurance, together with other facts by reason of which the plaintiff claims the defendant is liable to pay the note.</p> <p>The answer is in the following words: “The said defendant, Andrew Moynihen, for answer to the complaint of the plaintiff, says that he admits the execution of the said note and the delivery of the said policy of insurance; and the defendant further says that as to each and every other allegation in the said complaint set out and not herein expressly admitted, this defendant has not any knowledge thereof sufficient to form á belief.”</p>

This was an action brought in January 1849, to recover $247*09, the amount of two promissory notes executed by the defendant Hinkston. The defendant alleged in his answer that on the 29th day of November 1848, he appeared before a justice of the peace of the county of Genesee, with the plaintiff Daniels, and duly confessed judgment on said note in pursuance of sections 113 and 114 of the 8th article of title first chapter second part third of the Revised Statutes.

This is an appeal from an order made at chambers, discharging an order for the arrest of the defendant made under the third subdivision of section 179 of the Code of procedure. The defendant had been arrested under that order, and imprisoned for default of bail. The action was brought, in form, for the recovery of the possession of personal property.

<p>Where two defendants appear and defend separately, and each demurs to the complaint, and. both demurrers are allowed with leave for the plaintiff to amend on payment of costs; each defendant is entitled to costs, as follows; Proceedings before notice of trial, $5'00. 2. Subsequent proceedings before trial, $7'00. 3. For the trial of the issue of law, $12'00,</p> <p>A motion for a readjustment of costs should be made before payment thereof and without the loss of a term, or some reasonable excuse must he shown. •</p>

Judgment was rendered at a special term on the 27th day of June 1850, for $457-70, in favor of plaintiff against defendants. Notice of judgment was received by defendants’ attorneys on the 1st.day of July 1849. On the 29th July the defendants filed the requisite undertaking with a view to an appeal.

<p>The facts are sufficiently stated in the opinion of the court.</p>

The complaint in this cause is in the nature of a bill in equity, to correct an alleged mistake in a deed of conveyance executed by Joseph Clary in the year 1830. Erie county is specified as the place of trial. The plaintiff claims through various mesne conveyances, under Clary’s grantee.

This was an action of assault and battery and false imprisonment, commenced since the Code of 1849, and was tried at the Saratoga circuit on the 4th February 1851, when the plaintiff obtained a verdict against the defendants for thirty dollars damages.

The affidavit upon which the motion is made, shows that the appeal was brought on or about the 19th August 1850, and that no return has been made by the surrogate.

The plaintiff moved for judgment for want of an answer. It appears that the complaint was duly verified, and an answer thereto was prepared and duly verified in season, and a copy thereof served on the plaintiff’s attorney; but in the copy served the name of the magistrate before whom the affidavit to the answer was sworn to, was omitted by mistake. It was immediately added, and re-served, but not in time.

The summons was served on the defendant on the 10th day of August 1850, and required the defendant to answer the complaint, &c., which the summons stated would be filed with the clerk of the county of Oneida, and to serve a copy answer on the plaintiff’s attorney’s at Utica within twenty days, &c. On the 12th August 1850, the defendant handed the copy summons to his attorneys residing in Rochester, and retained them to defend the action, and they on the next day (13th Aug.)…

Motion on behalf of defendant to set aside complaint. The affidavits on the part of the defendant show that the complaints which were served on the 20th day of September 1850, did not contain the name of the county in which the plaintiffs desired the trials to be had, according to section 142 of the Code. On the part of the plaintiff it is shown that the name of the county was omitted by mistake.

This is an appeal from a judgment on the report of a referee, the decision of the referee to stand as the judgment of the court. The appellant put the cause upon the calendar, and in the note of issue, stated the time the last pleading was served, according to which the clerk gave it precedence on the calendar.

Motion to dismiss an appeal from an order made at a general term of the Supreme Court held at Albany on the 20th September 1850, denying a motion made on the part of the defendants for a stay of proceedings on the judgment, and for liberty to move to set aside the report of the referee without an appeal, or for an order extending the time to appeal,

Motion to dismiss an appeal from a judgment of the Supreme Court, by which an order of the surrogate of the city and county of New York, allowing letters of administration to issue to Harrison, was reversed, with costs both in the Supreme Court and in the Surrogate’s Court. The order for judgment of reversal bears date on the 8th of March 1851. Harrison appealed on the 13th of the same month.

This action was referred to a referee, who reported in favor-of the plaintiffs, January 24, 1850. On the22d February 1850, a copy of said report was duly served on the defendants’ attorneys, who reside at Buffalo. On the 8th day of March 1850, Justice Sill, at Buffalo, granted a stay of proceedings for twenty days before judgment, in order to give the defendants liberty to move to set aside the report.

Motion to set aside inquest. On the 23d September last, at a special term held at Albion in Orleans county, the defendant’s counsel, upon regular notice, applied for and obtained an order for a commission to examine a witness in New Orleans, which order contained a provision that all proceedings on the part of the plaintiff be stayed until the return of the commission. The order was duly served on the plaintiff’s attorney on the 26th September.

This was an action of ejectment for lands in Saratoga county, and was commenced in 1843. The cause was tried and the defendant succeeded at the circuit, which was affirmed by the Supreme Court. The judgment of the Supreme Court was reversed by the Court of Appeals and a new trial ordered; afterwards, and a few months previous to 1850, the defendant Jones died.

<p>Motion to set aside summons and complaint.</p>

Judgment as in case of non suit, for not proceeding to trial at the last Wayne circuit, being ordered, the defendants’ counsel asks to have the costs of the motion liquidated and inserted in the order; in other words that the motion be granted with costs. The suit was pending before the first day of July 1848.

At the special term of this court, in February last, a certiorari was allowed in open court, on the ex parte application of the plaintiffs, directed to the defendants, commanding them to certify the tax list, warrant and apportionment of tax in school district No. I, in Fort Edward, in April 1850, together with the assessment roll, resolutions of said district, records and proceedings upon which the same were founded with all things touching the same, and the mode and manner…

<p>Motion to set aside an execution.</p>

This is an appeal from an order made at a special' term denying defendant’s motion to set aside an attachment, issued pursuant to sections 227, 8 and 9 of the Code.

This was a demurrer to the complaint. The complaint is as follows: “The Oswego and Syracuse Plank Road Company plaintiffs, by Ransom H. Tyler, their attorney, complain of Charles Rust and Spencer Rust defendants, for this, to wit: That the plaintiffs now are and have been ever since on or about the 28th day of December 1848, an incorporated company, organized pursuant to the provisions of the act of the legislature, entitled “ an act to provide for the incorporation of…

<p>Public officers, sued as such, where they succeed in the action, are entitled to double costs under 2 R. S. 617, § 25. The Code has not repealed that provision. (There are adverse decisions on this point. See 4 and 5 How. Pr. R.)</p> <p>Such costs can not be allowed upon a report of referees; it is only in cases of verdict, demurrer, non suit, non pros or discontinuance (2 R, S. supra).</p>

<p>The Code (§290) requires that “the execution shall he returnable within sixty days after its receipt by the officer,” §-c. Upon the proper return of the execution, therefore, by the sheriff at any time within the 60 days proceedings supplementary to execution (in the nature of a creditor’s bill) may be commenced.</p> <p>Prior to the act of 1840 executions were made returnable on a particular day in term. And by the act of 1840 they were made returnable sixty days from the receipt thereof by the sheriff. A creditor’s bill could not properly.be filed in such cases until after the return day.</p>

<p>Under the 5th article, title 3, chap. 8, 2 R. S. 398, which treats of proceedings to perpetuate testimony-, it must he made to appear to the officer, before whom an application is made for the examination of witness, that the object is in good faith to perpetuate testimony.</p>

This action was brought to recover the amount of a promissory note for $7000, signed by the defendants jointly, dated June 12, 1848, and payable to the order of the plaintiffs’ cashier, four months after date. The defence was usury. The cause was tried at the Albany circuit in June 1849, before Mr. Justice Parker. Upon the trial, each defendant offered his codefendant as a witness to prove all the facts stated in his answer.

<p>The nature and office of an execution is not changed by the Code; as formerly, it can only issue to enforce the judgment. It can not be predicated upon ail order of arrest, alone.</p> <p>If the judgment does not show that the action is wholly in tort, a ca. sa. can not issue founded upon the order of arrest, previously issued under § 179, sub. 4 of the Code.</p>

This suit was tried at the late Oneida circuit, and resulted in a verdict for the plaintiff. It was brought against the defendants, who were trustees of a school district in Whitestown, to recover the amount of a school house tax of $1069.09, imposed on the Bank of Whitestown, and collected of the bank.

This was a motion for leave to plead a former judgment against a codefendant. The suit was on a joint and several promissory note, and the attorney for plaintiff and defendants stipulated that the plaintiff might take and perfect judgment in the action against Emerson alone for the amount of the debt claimed in the complaint and costs; leaving the liability of the defendant Skinner, in this action to be determined on the trial thereof.

Motion to dismiss an appeal. On the 8th of April 1850, the plaintiffs recovered, in the Albany Justices’ Court, a judgment against the defendant for $67-40. On the 27th of April, the defendant made his affidavit and served upon the justices and the plaintiffs copies thereof, with a notice of appeal. The fee prescribed by the 371st section of the Code, was not paid to the justice, at the time the notice of appeal was served.

A. Meeker, moved to amend an answer. The suit was commenced before a justice of the peace; a plea of title interposed, &.C., and on a suit being brought in this court, the same answer in totidem verbis was put in, and the cause referred; and before report, this motion was made upon sufficient ground if the suit had originated here. He cited the Code, sections 122, 173, 177, and insisted that the court might amend all pleadings for the furtherance of justice.

This was an action brought to recover damages for an injury sustained by the plaintiff while a passenger in the defendant’s cars. It was tried before Mr. Justice Parker, at the Albany circuit in March 1850. The jury rendered a verdict in favor of the plaintiff for $11,000; from the judgment rendered upon this verdict the defendants appeal. The facts in the case sufficiently appear in the opinion of the court,

G. M. Beckwith moved to dissolve an injunction granted by a local officer, residing in the county of St. Lawrence, restraining the defendants “ from making an assignment, transfer, or other disposition of goods, effects, choses in action, or other evidences of debt to them belonging, for any purpose, until the final perfection of judgment in this action or until the further order of this court; and in case of disobedience to this order the said defendants, H. & W., will be…

Motion to set aside complaint, or to strike out redundant matter. The action is brought to recover the value of a quantity of iron delivered by the plaintiffs to the defendants to be carried from Hudson to Cold Spring. The complaint contains six different counts, or causes of action,, stated, substantially, according to the forms of counts in a declaration at common law, in an action against common carriers.

<p>One of several plaintiffs having been discharged under the two-third act, and assigned his property to a coplaintiff, after suit commenced, issue joined, cause referred and some testimony taken, plaintiffs were allowed to amend by striking out the name of the plaintiff discharged, and to show in the complaint the assignment to the coplaintiff.</p>

The action was brought by the plaintiff, as receiver to set aside an assignment executed by the defendant Williams to the defendant Clark. The assignment was made on the 5th of January 1850. It embraces all the property and effects of the assignor, except such articles as are by law exempt from levy and sale. It is made for the benefit of creditors, giving preferences.

<p>In proceedings supplementary to execution under §292, of the Code, a county judge has no authority or jurisdiction to issue an order, for the defendant to answer, <j-c. until after an execution has been issued against his property. And this fact, and all others upon which jurisdiction rests, must be shown affirmatively; they are not to be deduced by inference or presumption.</p> <p>Where the creditor claims the application of a demand or debt due to the debtor from a third person, and such demand or debt is denied, the judge can not proceed and try such disputed question of fact; he is only authorized to issue an order forbidding the transfer or other disposition of the claim, until a sufficient opportunity is given to the receiver to commence an action (§ 299).</p> <p>A receiver may be appointed in such case, without any reference to the return of the execution.</p> <p>The judge has no authority to order an assignment from the debtor to the receiver. Nor is an assignment necessary, as the title and authority for such purposes to rights and property of this description vests in the receiver immediately upon his appointment. (Sec Porter agt. Williams and Clark ante page 441.) In relation to real estate, an assignment is necessary to transfer 1 he title to the receiver. And it seems that the Supreme Court has power, without any statutory provision, to order such an assignment.</p> <p>A demand of the kind mentioned in this case, can not be levied upon and sold under an execution against the debtor.</p> <p>A judge has no power to adjourn these proceedings from time to time, without the consent of the party against whom the proceeding is had.</p>

Mr John Ganson, defendant’s counsel, applies for an order, directing the plaintiff to permit the defendant to inspect and take copies of certain entries on his books, or that the plaintiff furnish the defendant copies of them. The cause is at issue and the discovery is desired to enable the defendant to prepare his defence and for trial. The application is made upon an affidavit and not upon petition.

<p>The Hudson River Rail Road Company, under their charter, and to the extent therein specified, are directly liable for all sums due to “laborers” upon their work, in all cases of non payment by the contractors.</p> <p>And the term “laborers” includes not only those who personally perform labor, but all who do so by their servants and agents; also all superintendents over others engaged in actual labor upon the road.</p>

On the 25th day of April 1851, the costs in this cause were adjusted upon notice, and opposition, by the clerk of the county of Schenectady at $34-82.

This was a motion to set aside a judgment and for leave to answer. The facts sufficiently appear in the opinion of the court.

Plaintiffs had agreed to purchase of defendants a farm in Westchester, and to pay therefor by installments as follows: $750 at the time of the execution of the agreement, March 12th, 1850; $250 on the 13th May, and $1620 on the first of October, when a mortgage was to be given for the residue of the condition, $6000. The plaintiffs entered into possession and paid the installments prior to the 1st of October. On that day plaintiffs were not ready to perform.

<p>l~t is not necessary that the complaint should contain the allegations which authorize the defendant's arrest or imprisonment, in order to issue an execution against his person, where he has been arrested after the service of the complaint and befOre judgment under 179. (This is directly adverse to the case of Gridley agt. McCumber, ante page 414).</p>

Motion to strike out irrelevant and redundant matter. The action was brought to restrain the defendant from foreclosing a mortgage executed by the plaintiff and his wife to one Boughton, and to have the same cancelled.

This was a motion to strike out certain parts of the defendants’ answer for irrelevancy, impertinence and immateriality, and was made on the complaint and answer, and on a short affidavit stating the time of serving the same. The suit was brought for an injunction to restrain the defendants from proceeding with a statute foreclosure of a certain bond and mortgage, conditioned for the payment of a sum of money ; and to have the bond and mortgage delivered up and cancelled.

This was an action of assumpsit cómmenced in 1846. It was referred to Robert Monell, sole referee, 19th October 1846, and heard before the referee 27th Nov. 1846. A report was made for plaintiff for $5151'47, damages and costs, 28th November 1846. A case was made and stay of proceedings ordered and motion to set aside report, made in Supreme Court. An order denying motion, made at general term held in Rochester, Monroe county, 29th January 1849.