Volume 6 — Howard's Practice Reports

Motion to change the place of trial from Ulster to Orleans. The action is brought to recover for the wood work of six wagon's alleged to' have been sold and delivered by one Schoonmaker to the defendant, at the price Of $23 each. Oh the 20th of December Í850, Schoo'nmaker assigned the. demand to the plaintiff.

This was an action brought to recover possession of real property in the cqunty of Columbia. Dewitt Miller, Esq. appeared and answered fqr Rockefeller, and Henry Miller, Esq. for the two other defendants. Dewitt Miller, Esq. and Henry Miller, Esq. were copartners in the practice of the law. On trial at the circuit a verdict and judgment were given for the defendants.

The action was brought to restrain the foreclosure of a mortgage. The venue is in Schoharie. The cause was tried by a referee, who decided in favor of the plaintiff. The hearing and argument before the referee continued four days. The question litigated seems to have been whether the plaintiff, who was a purchaser of the mortgaged premises, was chargeable with notice of the defendant’s mortgage.

Motion by the defendants to set aside the amended complaint in each of these actions, on the ground that matters are alleged therein which had occurred after the service of the original complaint, or, in case such amended complaints are not set aside, that the matters arising after the service of the original complaints, and inserted in the amended complaints, be stricken out. The actions are brought for the partition of lands.

<p>In actions of slander where the defendant denies the charges in the complaint, he can not set out in his answer matters in mitigation of damages which do not constitute a defence to the action, or which could not be proved on the trial.</p> <p>And in such actions (under the Code), where the answer no where alleges the truth of the defamatory charges, but denies them—facts and circumstances which are proper subjects of proof in mitigation of damages can not be set up or alleged by the defendant. It is only matter constituting a defence to the action, which is properly pleadable, now as before the Code.</p> <p>But the Code has made one essential change in the pleadings and evidence in actions of slander and libel, that is, where the defendant alleges the truth of the defamatory charges, or justifies, he may allege and prove any mitigating circumstances (which the well established rules of law allow) to reduce the amount of damages (§ 165). And whether the justification is proved or not, such mitigating circumstances may be given in evidence.</p>

The plaintiff was a householder and owned a one-horse lumber wagon; he -was a mason by trade. The defendant was a constable and had an execution against the plaintiff, and took and sold the plaintiff’s lumber wagon, for which the plaintiff sued the defendant before a justice of the peace, and recovered $15 damages and $4-42 costs.

<p>Motion for judgment under 247th section of the Code.</p>

<p>A common law writ of certiorari issued to bring up the judgment and proceedings in a case of bastardy, can not bring up for review the evidence given upon the trial, or the admission or rejection of evidence.</p> <p>The scope and object of this writ, when issued to obtain the supervisory power of this court over inferior tribunals, removes nothing but the record or other entry in the nature of the record of the proceedings of the court below.</p>

<p>Where the defendant only, pptices the cause for trial, and omits to move it at the circuit, when he had opportunity, he cannot afterwards at a special term move for the dismissal of the complaint, because the plaintiff did not notice or bring to trial. The 23d rule, it seems, was not intended to embrace such a case.</p>

<p>A reference to ascertain damages upon an injunction bond filed under the 31st rule of the late Court of Chancery, is not required where the bond does not contain the clause providing for a reference. The remedy is by action on the bond.</p> <p>But such action can not be brought without leave of the court.</p>

In August 1850, E. Corning & Co. having obtained a judgment in the Supreme Court against Harlow L. Emerson, caused an execution to be issued thereon to the sheriff of Steuben county, by virtue of which, the defendant as under sheriff of said county, levied upon a drove of sheep and horses as the property of said H. L. Emerson.

<p>A toll gate and gate house of a plank or turnpike road company may be removed under the act of April 9th, 1851, by a county judge, if erected and put up within ten rods of the front of any dwelling house, barn or outhouse, without the written consent of the owner, where located, after the act took effect.</p> <p>The act was passed the 9th of April 1851, and took effect twenty days from its passage, on the 29th of April 1851. And where a Plank Road Company, on the 14th of April 1851, staked out their ground, dug a cellar and got’together materials for building a toll gate and gate house within the limits prohibited by the act, without the written consent of the owner. Held, that they had not thereby located their buildings before the act took effect. The term ‘1 located” was synonymous with “erect and put up,” within the meaning of the act.</p>

<p>Where the Court of Appeals remit their judgment and proceedings to the court helow to he executed, and the court helow become legally possessed of the case, it has no power or discretion to grant an order remitting back such judg- • ment and proceedings to the Court of Appeals (for correction) without the assent or direction of the latter court, by resolution or order.</p> <p> (This seems to be adverse to the decision in Murray vs. Blatchford, 2 Wend. 221.) </p>

Double costs. The defendant was sued for personal property, and justified as constable under an execution, and had a verdict.

C. Anthony, for defendant, moved for judgment of dismissal of the complaint, and for judgment for the value of the property, and for a reference or writ of inquiry to ascertain the value. The action was to recover the possession of personal property, consisting of a quantity of furniture, which had been taken from the defendant and delivered to the plaintiff by an affidavit and endorsement thereon, pursuant to § 208 of the Code.

Before Edmonds, Presiding Justice, and Edwards and Mitchell, Justices. The plaintiff filed her complaint against her husband, the defendant, in order to reach certain real estate held by him, and which she alleged to be her separate property. Judgment had been obtained against her at the circuit, and on a motion by her at special term to open that judgment, it had been objected that she had not appeared and prosecuted by her next friend.

This is an action of slander, and the case comes before the court on a demurrer to the answer. The answer in the first place denies all the material allegations in the complaint.

<p>Notice of motion to correct a pleading must he given within twenty days after service of such pleading (Rule 43). Hence the affidavit upon which the motion is founded, should show that the pleading was served and when served.</p>

Motion to strike out redundant or irrelevant matter. The complaint alleges that the defendant became a stockholder in the plaintiffs’ company in the manner prescribed by law, and that the sum of $950 is due from the defendant upon the stock subscribed by him. The action is brought to recover this amount.

Motion to strike out redundant or irrelevant matter. The action is brought upon an undertaking executed by the defendants upon an appeal, pursuant to the 334th section of the Code. The appellant was one Beardsley, who had brought an action against the sheriff of Saratoga, to recover the posession of personal property which had been seized by the sheriff under an attachment against a non resident debtor.

This is a civil action, and would have been debt before the Code, on the allegations contairied in the complaint. The cause was tried before me at the late Madison circuit in December 1849, without a jury. The following facts were established by the evidence to wit: that on the 13th day of March 1849, Holmes Hutchinson recovered a judgment in the Supreme Court against Abram Lathrop for $67-77, for costs.

<p>Motion for costs against an administrator.</p>

Motion to dissolve or vacate injunction order. The county specified in the complaint as the place of trial is Erie. A preliminary objection was made to hearing the motion, that Monroe county does not join Erie county, and the motion can not be heard in the former county, not being in the 8th district.

Before Welles, P. J. and Selden and Johnson, Justices. Motion to set aside proceedings subsequent to settlement of bill of exceptions. The defendant’s counsel also moves to bring on the argument of the writ of error, and presents the printed cases or error books for that purpose.

These are actions in which relief of an equitable character is sought. Before the adoption of the present constitution of this state, jurisdiction of these would have belonged to the Court of Chancery. They were noticed for trial by the defendants and put on the calendar at the last Erie county Circuit Court. The plaintiffs moved to put them over the circuit. These motions were opposed by the defendants, who moved that the complaints be dismissed unless the trial proceeded.

<p>Demurrer to an answer in an action of slander. The facts will sufficiently appear in the opinion of the court.</p>

<p>An auctioneer who receives goods for sale, under an agreement that he is to receive for his compensation all over a certain price, reserved by the owner, is liable to arrest under § 179, where he does not pay over the reserved price after sale,'according to the agreement, after demand.</p> <p>A special motion for an exoneretur to be entered on an undertaking, or that the sureties be discharged from all liability thereon, on the ground that the action is one in which the defendant can not be arrested, is irregular. The object of such a motion can only be obtained under § 204.</p>

This was an application for an injunction to restrain the defendants from closing the waste gate of their dam or reservoir. An injunction had been allowed by a justice of this court at chambers, which was subsequently modified on application of the defendants, and an order made to show cause at special term why an injunction order should not be made according to the prayer of the complaint.

The petition contained the allegations required by the law, and among them, that the company had not been able to acquire the title to the lands described in the petition, and that the reason of such inability was, that they had been unable to agree with the owner of the land as to the amount of compensation to be paid for the acquisition of the title. The defendant Reynolds showed cause against granting the prayer of the petitioners, and -denied the above allegation.

The action is for slanderous words. The complaint contains three separate causes of action, each alleging, substantially, the same words.

An- attachment was issued in a justice’s court and a judgment was rendered against the defendant of about twenty-five dollars, damages and costs, on the 10th December, 1847, which was reversed by the county judge of Cortland county, on the ground of the insufficiency of the affidavit.

The plaintiff is a foreign corporation having no residence in the state. The defendant’s road is located in the counties of St. Lawrence, Franklin and Clinton. The venue in this action is laid by the complaint in the county of Oneida, where it is conceded the defendant has no legal residence. Before the time for answering expired the defendant’s attorney demanded in writing, under section 126 of the Code, that the trial be had in the county of St. Lawrence.

Motion on behalf of defendant Locy for an order vacating certain orders made by a justice of this court. The orders in question were made in an action in the County Court of Livingston county, in which judgment had been entered in favor of Blake against Locy, under title 9, chap. 2, § 292 and 298 of the Code.

Demurrer to defendant’s answer. The action is brought for false imprisonment. The answer contains two grounds of defence. 1. The denial of the material allegations of the complaint; and 2.

Motion by the defendant to set aside a judgment entered in favor of the plaintiff for costs of a demurrer. The plaintiff sued to recover on a promissory note for $78'46, to which the defendant set up in his answer the defence of payment, and also other matters not necessary to state here. The plaintiff replied, denying the allegation of payment, and alleging other matters in reply to the other allegations contained in the defendant’s answer.

Motion by defendant for a commission to examine a witness in Wisconsin. Issue was joined on the 18th April last. Notice of the motion was served on the 6th inst; afterwards the plaintiffs noticed the cause for trial at the present circuit, and the cause is upon the calendar of the present term.

The judgment in this cause was recovered and docketed in September 1848. In March 1847, the treasurer of the county of Rensselaer had delivered to the sheriff seven warrants, issued pursuant to the provisions of the “ act to equalize taxation,” directing him to collect $ 1352-09, for unpaid taxes, and seven dollars for the expense of issuing the warrants. In March 1848, four other similar warrants were issued for the collection of $558-40.

On the second day of the last Orleans Circuit Court an inquest was taken in this cause out of its order on the calendar. The defendants’ counsel did not appear, and the plaintiff’s counsel waived a jury. The cause was heard by the court without a jury, and a report made and judgment entered in favor of the plaintiff. The defendants now move to set aside the inquest and judgment for irregularity, upon the ground that an inquest can not be taken without a jury.

<p>This case was an action of ejectment, in which the defendants recovered judgment for costs. On the third Tuesday in May 1850, at a special term held in Ontario county, a motion was made on behalf of the defendants, that the attorney for the plaintiff pay the costs adjudged against them, on the ground that the attorney was the owner of the alleged right of action; which motion was denied with $10 costs, to be paid by the defendants to the attorney for the plaintiff. The order denying the motion, bears date July 10, 1850, and was served on the attorney for the defendants on the 23d of the same month. On the 22d January 1851, the plaintiff’s attorney issued an execution in the nature of a writ offieri facias against the personal property of the defendants, to collect the ten dollars costs of opposing said motion. No personal demand of said ten dollars was made of the defendants, or either of them. There were, originally, seven defendants; one of whom, Thomas Noble, died about the first day of May 1850. A motion is now made to set aside the execution.</p>

Motion to vacate an in~ junction. The action was brought to recover the possession of lands which the plaintiff claimed to own in fee. The complaint alleged that the defendant, being in possession, had been, and then was, cutting, destroying, disposing of, and removing large quantities of growing and standing timber and wood from the premises, and had destroyed the fences thereon, and suffered them to go to decay.

The defendants put in a demurrer to a complaint upon a promissory note which was overruled as frivolous on an application to a judge at chambers, and judgment ordered accordingly, but with leave to amend {Code, § 247). From this judgment the defendants appealed as from an order and not as from a judgment, and gave an undertaking accordingly.

<p>On the foreclosure of a mortgage, where there are infant defendants, the complaint must allege the requisite facts to show what the interests of the infants in the premises are; and then such facts in all cases must be sustained by legitimate proof, because they are never admitted in cases ofinfants.</p>

Before Morse, Barculo and Brown, Justices. This suit was commenced by the service of summons and complaint on the defendants, Scoville, Clapp, Wells, and the Dutchess County Iron Company, on the 20th April, 1850. The defendants, Scoville, Clapp, and the Dutchess County Iron Company appeared by William Eno. The defendant Wells, appeared by William. Stewart Eno. The defendant Samuel C. Scoville demurred to the complaint. His demurrer was served May 4, 1850.

This is a motion by the plaintiff to strike out portions of the defendant’s answer as irrelevant and redundant. The action is brought upon the equity side of the court to obtain compensation in damages for the flowing of certain lands of the plaintiff, situated upon a stream called Little Black Creek, by reason of the defendant’s mill dam, lower down upon the same stream;, and for a perpetual injunction against such flowing.

This was a motion in behalf of Van Husen, who had appeared, to dismiss the complaint, for unreasonable neglect on the part of the plaintiff to serve the summons on the other defendants; and was made under section 274 of the Code.

<p>A demurrer will lie to a denial in an answer as well as to new matter.</p> <p>The complaint alleged “ that defendant assaulted the plaintiff, and seized him by his collar, and shook him violently.” The answer “ denies that he did assault the said plaintiff and seize him by his collar and shook him violently”; held, that this was bad pleading under the Code. The answer grouped together all the charges on a general denial, so that defendant might have been guilty of two and not of one separately; whereas, if he intended to deny them all, he should have done so disjunctively.</p>

<p>Present, Welles, Sellen and Johnson, Justices. The case is sufficiently stated in the opinion of the court.</p>

This action was commenced in February 1849, and issue was joined therein in May following. It was brought against the defendant as late sheriff of Montgomery county, for not paying money collected on several executions as sheriff. The cause was noticed for trial at the Montgomery circuit in February 1851, and was dismissed for the want of prosecution by the defendant, and the defendant now asks for double costs, according to the Revised Statutes (2 R. S. 617, §24).

Mason, Shankland and Mon-son, Justices. This case was brought into this court by certiorari to reverse an ordér of the judges of Broome Common Pleas, reversing a certain order of the commissioners of highwáys of the town of Vestal, laying out a highway in said town. The judges met, due notice having been given to all parties, and heard the appeal, and separated without making any determination of the matter, with the understanding that they should meet at a future day.

Upon the trial of the traverse, the defendants were found guilty. The defendants then sued out a common law certiorari, removing the record of proceedings into the Supreme Court, which certiorari was quashed on motion of the relator.

Motion to vacate an order made by a County Judge for an injunction. Hiram Denio, read a notice of the motion, which was entitled in the suit, stating that the application would he founded on the copy of the injunction and the papers served on the defendant. No affidavit, or other papers except the notice, had been served on the plaintiff.

Gridley, Allen and Hubbard, Justices. This is' an action for breaking and entering the close of the plaintiffs and tearing away and demolishing a mill dam there erected, and obstructing a water course or ditch, &c. The defendant denied the allegations of the complaint, and by his answer alleged that at the time when, &c. he was seized in fee simple of a certain piece of land described by metes and bounds, &c., and stating facts to justify the entry under his title to remove…

<p>In all cases of appeal from the Circuit Court, the judgment on the appeal should be certified to the clerk with whom the roll is filed, to be there entered and docketed.</p> <p>Where the defendants entered judgment of nonsuit and filed the roll in Ulster county, where the venue was laid, and on appeal to the general term at Albany, judgment was affirmed, and the defendants entered judgment and filed another roll in Albany county, held, that the latter judgment was irregular.</p>

Action against wife for a divorce for adultery. The petition of the defendant’s father and brother, duly verified, stated that the defendant resided with her brother, apart from her husband, and had done so for many years, and the summons and complaint were served on him.

The complaint is ejectment for a piece of land, described by metes and bounds, containing thirty-two acres; being the same lot purchased by the plaintiff of Adam I. Walrath.

This cause comes up on a case made to set aside the verdict of the jury. The cause was tried in December last at the Madison circuit, and resulted in a verdict for the plaintiff, upon which a judgment was entered. There was no order granted under § 264 of the Code, reserving the case for argument or further consideration and there was no stay under § 265.

<p>A defendant has twenty days to appear and answer, after the expiration of the time prescribed by the order for publication of the summons.</p> <p>The same rule applies in cases of publication, where service has been personally made out of the state.</p>

The action in this case was commenced by service of summons and complaint not verified. The defendant put in his answer without oath. The plaintiff then served what purported to be an amended complaint, in precisely the words of the original complaint, with the addition of a verification. The defendant refused to receive it, and the plaintiff in due time took judgment against him for want of an answer. A motion is now made to set aside the judgment for irregularity.

Motion to set off Judgments. The first action was replevin, and was brought in February 1847, to recover a quantity of wool which was owned by the defendant, and which having been sunk in a canal boat, in the Hudson river, had been rescued by the plaintiff. He claimed that he was entitled to hold the wool until he was compensated for his services. The plaintiffs in the second action had executed the replevin bond as sureties for the plaintiff in the first action.

<p>The sum paid to a witness, on serving a subposna, for one day’s attendance and for mileage, can not be recovered back by the party paying it, unless the witness has failed, without a reasonable excuse, to attend the court in obedidience to the subpoena.</p> <p>If the cause be settled by the parties, after the service of the subposna, or be put off by the court or the parties, the witness is not bound to refund, though he is then excused from attending.</p> <p>It seems, the witnesses fees are intended, as well to compensate them for their trouble and expense in arranging their afliairs preparatory to attending court, as for their actual expenses and loss of time in attending.</p>

At Chambers, August 1851. Motion to dissolve an injunction. The injunction was granted to restrain the defendant Terry, from selling, a piece of land, upon an advertisement for the foreclosure of a mortgage pursuant to the statute. It was allowed on a complaint duly verified, and an affidavit.

The complaint shows that the defendant received goods from the plaintiffs to sell as a commission merchant for them, and that he was to guaranty the sales; that he rendered an account of the sales showing that part of them were due 20th April 1851, the rest on the 4th June or 23d June 1851. That after the account was rendered the plaintiffs demanded payment of the defendant, but that he neglected to pay, and that the whole is now due from the defendant to the plaintiffs.

<p>The court may remove trustees and receivers, for insolvency, but is not bound to do so.' And especially an application for a removal on such ground should be denied, where it appears there is no other valid objection, and the insolvency existed and was known to the parties previous to the appointment.</p>

Motion to set aside report of referee for irregularity. The action was brought to recover on an account and was referred by stipulation. The defendant noticed the cause for hearing before the referee for the 10th of July, and it was postponed by stipulation to the 21st of July. On the latter day the plaintiff served an order staying proceedings which the defendant disregarded. The plaintiff did not attend before the referee to try the cause.

Motion by assignee to be substituted as plaintiff, and for leave to continue suit in Ms name. After this action was commenced the plaintiff assigned his interest in the claim to his brother, who assigned it to Mr. Clarke, brother of the plaintiff’s attorney. Subsequently a report of referees, after a long contest, was made in favor of the plaintiff, but was set aside on account of the admission of improper evidence.

The complaint is on a promissory note against maker and indorsers, and alleges the presentment to the maker and notice to the indorsers, in this way: “ he believes that when the said note became due and payable it was duly presented for payment, and payment thereof was duly demanded, but the same was not paid; and that due notice thereof was given to the defendants, the indorsers.”

At the last February special term, upon the petition of the respondents, commissioners were appointed to ascertain and appraise the compensation to be made to the appellant, for real estate proposed to be taken by the said company for their road. The commissioners made their report, and at the May term it was confirmed.

Motion to set aside judgment roll for irregularity. The action was tried before the circuit judge, a trial by jury having been waived. The judge having made his decision in favor of the plaintiffs, judgment was perfected thereon on the 4th of October 1851. Notice that judgment had been entered, was served on the defendant’s attorney on the 6th of October 1851, and on the next day the defendant’s attorney served the necessary papers for an appeal.

<p>Demurrer to Complaint. The complaint alleged that the plaintiff was driving along the highway, in a one-horse wagon; that a short distance behind the plaintiff a person was driving a team, drawing a two-horse wmgon and travelling in the same direction the plaintiff was; that a short distance behind this person, was the defendant’s team, drawing a two-horse sled, and travelling in the same direction. That the defendant carelessly and negligently left his team to go along the said highway without any driver, and went and got into the wagon with said person, so driving between the plaintiff and defendant’s team, and rode with said person; and that said team of defendant being so left, started into a run, and run over the plaintiff, his horse and wagon; injured the plaintiff’s person, broke the wagon and harness, and damaged the horse. The complaint, at the conclusion of the statement of the cause of action, averred that the injuries were occasioned by the “gross and wilful carelessness and negligence of defendant.”</p>

<p>A guardian of an infant plaintiff should be a responsible person, for he is liable for costs (Code, § 316),</p> <p>It seems, that part of rule 56, requiring the guardian ad litem to be the general guardian, or an attorney, £c. or other officer of the court, does not apply to a guardian for the plaintiff.</p> <p>A guardian for an infant wife, who joins with her husband as plaintiff, is not necessary, unless the action is to recover her separate property.</p> <p>It seems, where the action is to recover her separate property, the husband can not be a guardian or next friend.</p>

<p>An allowance for extra costs must be made by the “ court,” and not by a justice at chambers (Code, § 308).</p> <p>It seems, that the application may be made without a formal notice, before the justice at the trial of the cause at the circuit, if he at the same time holds a special term.</p> <p>When the motion can not, for any cause, be made before the justice trying the cause, it may be made upon notice at a proper term, held by another justice.</p>

<p>An action to recover damages for the breach of a special contract, comes within the 1st sub. of §129 of the Code, and is essentially an action for the recovery of money only. (This agrees with the decision in Williams agt. Miller, 4 Sow. Pr. R. 94).</p>

<p>On the appointment of commissioners to appraise the damages to the owner of lands tobe taken fora Rail Road (Laws of 1850, ch. 140, § 14, 15, 16), the parties whose lands are to be appraised, or their attorneys, may in case they appear, name six persons, and the company a like number, but each owner is not entitled to name six persons.</p> <p>The court appoint five of the persons so named, as commissioners (§ 15), who . may appraise all the lands proposed to be taken in the county.</p> <p>And § 16 contemplates a succession of appraisals by the same commissioners. And one report may embrace all the cases.</p> <p>The court has the power, and may fill more than one commission, when good cause is shown.</p>

<p>This cause was submitted upon printed arguments and points at the last September term (1851) held at Syracuse.</p>

Mason, Monson and Shankland, Justices. This was an action for false imprisonment, brought by the plaintiff, a merchant of Ithaca, Tompkins co., against the defendants, who are merchants residing in the city of New York, and was tried at the Tompkins circuit in December 1850, without a jury, and a judgment rendered for the plaintiff, from which the defendants appealed to the general term.

These suits were commenced by the respondents against Cleveland, as collector, and the other defendants as trustees of a school district, for acts done officially, before a justice of the peace, who rendered judgment for the defendants for costs. The plaintiff appealed, and the County Court reversed the judgment, and then the defendants appealed and the Supreme Court reversed that of the County Court, and affirmed that of the justice.

<p>In slander, an answer justifying the speaking of the words, must confess the speaking thereof.</p> <p>An answer merely stating that the words spoken are true, is insufficient as a justification: it should state the facts which go to constitute the crime imputed, so that an issue, either of law or fact may be framed.</p> <p>Where the ground of demurrer to an answer is that “ it does not state facts sufficient to constitute a defence” it is sufficient merely to state that fact as the ground thereof, without pointing out wherein it is insufficient in other respects.</p> <p>[This case agrees with Sayles vs. Wooden, ante page 84, and Pike vs. Van Wormer, ante 99, and s. c, 5 Howard, Pr. R. 171],</p>

The plaintiff brought his action against three persons upon a joint contract for work, &c. The allegations of the complaint were denied by the answer.

Two mortgages were executed by Thomas Moss, now deceased, to Andrew D. Lansing, by whom they were assigned to Stephen H. Alden. These mortgages were foreclosed by Alden, by advertisement under the statute. The mortgaged premises sold for more than enough to pay the mortgaged debt and costs.

Motion to set aside an execution and two processes in the nature of a fi. fa., and also for retaxation of costs. This cause was tried and verdict taken for plaintiff at the Montgomery June circuit, 1851, defendant not appearing, and costs were adjusted on notice to defendant’s attorney at $58*22, and judgment entered on the 20th day of June. An order to stay proceedings was obtained by defendant on the 18th of June, served by depositing in post office, &c. on the 20th.

<p>This was a motion to set aside an amended complaint. The facts sufficiently appear in the opinion of the court.</p>

This action is founded upon two promissory notes given by defendant to the plaintiffs. A demurrer to the complaint was overruled as frivolous and judgment ordered for the plaintiffs, which was accordingly entered without giving to the defendant or his attorney, a notice of assessment under section 246 of the Code. This motion is made to set aside the judgment as irregular, for the want of such notice.

<p>An issue of law on demurrer, under the Code of 1849, might he brought on to argument at a special term held in a different county in the district from that indicated as the place of trial in the complaint, without first applying to the court to change the place of trial.</p>

<p>This was a motion to dismiss the complaint, under rule 23.</p>

<p>Harris, Parker and Watson* Justices. This was an appeal from an order of Justice Wright at the Albany special term, held in May 1850.</p> <p>The cause was referred by a written stipulation of the parties in January 1850, to a referee, “ to hear and report thereon.”</p> <p>The referee on the hearing decided that the complaint did not state facts sufficient to constitute a cause of action, and reported that nothing was due the plaintiff. Judgment was entered by defendants on the report.</p> <p>The plaintiff moved to set aside the judgment for irregularity, on the ground that the referee had not been sworn in the cause, and on the ground that no rule of court had been entered upon the stipulation appointing the referee.</p> <p>The motion was denied, and the plaintiff appealed.</p>

This was a motion by plaintiff to set aside the proceedings in an action for partition, commenced by the defendant, on the ground that an action for the partition of the same premises had been previously commenced by the plaintiff.

<p>The provisions for reviewing a report of referees, by a rehearing, under { 272 of the Code of 1849, is repealed by the Code (or act) of 1853.</p> <p>And this repeal applies to pending and inchoate proceedings ¡ that is, to actions commenced before the passage of the act of 1851, and in progress for a rehearing at the time of its passage. There is no saving clause in the act, and it sweeps away every thing except a vested right, such as a judgment.</p> <p>Where judgment has been entered, and the right to appeal has been lost (by proceedings instituted for a rehearing), the court has no power to grant any relief under the provisions of § 468 of the Code. But the party seeking relief in such a case should be allowed a motion to set aside the judgment, with a view to its being entered anew, in order to have an opportunity to bring an appeal.</p>

In this case a judgment was recovered on 12th January 1852, for $514-88. On the same day an execution was issued to the sheriff of Albany county. On the 13th of January, at a few minutes before ten A. M., the sheriff endorsed his certificate of nulla bona, and delivered the execution to a clerk in the office of the plaintiffs’ attorney, for the purpose of having it filed in the clerk’s office.

The complaint is in slander, and contains two counts, or separate statements. The first charges that the defendant on or about the 23d day of January 1849, and on divers other days and times between that day and the commencement of this suit, at, fyc., in a certain conversation then and there had with divers good and worthy citizens, of and concerning the plaintiff, then and there spoke (setting out actionable words, with proper inuendo'es).

This is a motion by the defendant to set aside the judgment and report of referees, made and perfected the 10th of May 1850, and for a new trial; which judgment was appealed from and affirmed at the general term of the Supreme Court, in September 1851.

<p>A defendant who seeks to open a judgment, which he has suffered voluntarily and under the advice of counsel, must show the court specifically, whatin his defence consists; general allegations will not answer.</p> <p>A formal affidavit of merits under rule 39, should be made on such a motion. An affidavit of merits is defective which states that the defendant has stated ■“ his case in this cause" to his counsel, instead of “ the case" as required by rule 39. Such a statement is not equivalent to the statement that “ he has stated his case" generally.</p> <p>The particular grounds of a motion should appear plainly, either by the notice of motion or the affidavits.</p>

<p>In all cases in common law actions, where a complaint contains more than one cause of action, it must he divided into distinct counts,“like a declaration at common law. The causes of action should he distinguished hy the phrase. “And for a further cause of action the plaintiff.complains,” fyc., or some other equivalent words.</p> <p>A failure to do this, subjects eveey allegation which is not essential to a single cause of action, to be stricken out, if objected to, as redundant.</p> <p>The court is not to be taxed at the trial, with the burden of analyzing every complaint which may contain several causes of action, thrown in together in one undistinguished mass, and separating them; nor is the defendant required to do this at his peril.</p> <p>And in relation to answers, the Code is still more explicit; the provision (§ 150) which authorizes a defendant to put in several defences, says that “ they shall each be separately stated, and refer to the causes of action which they are intended to answer in any manner by which they may be intelligibly distinguished.” Thus showing that defences must be single and stated separately; and also showing that the causes of action should be separately stated. The words “And for a further defence” (or cause of action), fy c. would probably be a sufficient designation.</p> <p>How and to what extent has the Code changed the rules of the common law in regard to the mode of stating defences?</p> <p>Whenever an answer contains a traverse or denial of any one or more of the material allegations in the complaint, every thing else which it may contain is redundant, and must be stricken out on motion; unless it belongs toa separate and distinct defence.</p> <p>Every denial of the whole or any material portion of a complaint must stand by itself as a separate and distinct defence, and must be so pleaded.</p> <p>Every special defence which consists of matter which goes to disprove any material allegation in the complaint is defective, and must be stricken out on motion.</p>

Motion to set aside judgment, $fc., for irregularity. The action was brought to recover the value of a carpet bag and its contents, alleged to have been lost by one Sullivan, a passenger on the defendants’ road. The summons is in the usual form with a notice that upon the defendants’ failure to answer, the plaintiff will take judgment for $150 and interest.

This is an action against the maker and endorser of a promissory note. The complaint is in the usual form. The answer professes to deny specifically each and every material allegation of the complaint, but does not particularize any allegation. The plaintiff moves to strike it out as a, sham and irrelevant answer, or defence, under the 152d section of the Code of 1851.

Motion to set aside execution against the defendant’s person.

Taxation of Costs. This was an appeal from a decree of the surrogate of Yates county on final settlement. The decree of the surrogate was reversed at the last Monroe general term, with costs, and the appellants’ attorney now presents his bill of costs in items, according to the fee bill as it existed prior to the first Monday in July in 1848, for taxation.

Motion to strike out amended answer. The action is on two promissory notes, made by the defendant, dated August 22d 1848, payable to Richard Lusk and Charles Toll, assignees of D. C. Lusk & Co. or bearer; one for $100, payable July 1st, 1850, and interest annually; the other for $90-21, payable to the same persons, September 1st 1850.

Motion to modify or . vacate a judgment under section 174 of the Code. This cause (which was an action under the Code for the delivery of personal property) was noticed and brought to trial in December 1850, and the plaintiff not appearing, the defendant took judgment for a dismissal of the complaint; which judgment was perfected on the fourth of January 1851, for five dollars costs, against the plaintiff.

<p>This was a motion to strike out the defendant’s answer as “ frivolous,” and for judgment under section 247 of the Code.</p> <p>The complaint alleges that on the 3d day of June 1851, the defendants made their promissory note in writing, by which they promised, for value received, to pay to the order of the plaintiff one thousand dollars at the Otsego County Bank, six months from the date of the note; that the said note became due before the commencement of this action, yet the defendants have not paid the same. The plaintiff further alleges in his complaint that he is now the lawful owner and' holder of said note, and that the defendants are justly indebted to him thereupon in the sum of $1000 principal, with interest from the 3d day of December 1851, and demands judgment for the same. The complaint is duly Verified by the oath of the plaintiff.</p> <p>The defendants put in their answer under oath, and allege in the commencement of it, “ that they have not .sufficient knowledge or information to form a belief as to whether the said plaintiff is now the lawful owner and holder of said promissory note, mentioned in said complaint, therefore can not admit or deny the same.”</p>

The moving papers show that from January to 10th September 1850, the relator was collector of the school district No. 13, in the towns of Busti and Harmony, in Chautauque county, during which time he was sued for acts done in his official capacity as such collector, and was put to great costs and expenses in defending the suits.

The plaintiff, in person, moved to set aside the nonsuit in this cause for irregularity and surprise.

On the 8th day of October 1851, the plaintiff made an affidavit and obtained an order from a justice of this court, directing the sheriff of Monroe county to arrest the defendant and hold him to bail in the sum of $600. &c. The affidavit stated in substance that the plaintiff was the owner of certain personal property, describing it, worth $300j that he was entitled to the possession thereof, and that it was wrongfully detained by the defendant, upon certain pretences…

Before Justices Harris, Parker and Wright. This was an appeal from an order of Justice Harris, allowing an injunction. The action was commenced in December 1850, to recover a balance of between four and five thousand dollars, which the plaintiffs claimed to be due them for cash advances made to the defendant.

The plaintiff having, on the 21st of August 1851, obtained the report of a referee upon certain matters referred to him by a rule of this court, previously made in this cause, on the next day applied to the recorder of Troy, and obtained from him an order requiring the defendant to show cause, at the special term of this court to be held on the 26th of the same month, why the report should not be confirmed and why the plaintiff should not have certain other relief mentioned…

Motion to strike out complaint, on the ground “ that it states the evidence, and not the facts which constitute the cause of action, and that it is not in ordinary and concise language, without repetition, as required by the 142d section of the Code; and also that the same is irrelevant and redundant.

Motion to strike out answer as sham, irrelevant and frivolous. The complaint alleges that on the 23d June 1851, the defendant made and delivered two promissory notes for $200 each, payable in two, and four months; and that the defendant was also indebted on account, for goods sold, in the sum of $684-48; that being a balance of an indebtedness of $1084’48; for a portion of which said notes were given; and prays judgment for the sum of $1084'48, and interest.

Demurrer to Complaint. The plaintiff sets forth in his complaint that he is a trustee of a school district in the county of Westchester, and that the defendants, in a written application to the superintendent of common schools, to remove the plaintiff from his office, composed, signed and published “ falsely, wickedly and maliciously,” “ a certain false, scandalous, malicious and defamatory libel,” imputing to the plaintiff the guilt of having embezzled moneys coming into…

Motion to set aside judgment and subsequent proceedings. An issue of fact having been joined in the action, it was referred and noticed for trial before the referee on the 3d of March. The place of trial stated in the complaint is Saratoga county. The defendants reside in Rensselaer county. On the 2d of March the defendants’ attorney, upon the usual affidavit for that purpose, gave notice of a motion for a commission to examine a foreign witness.

George Truscott recovered a judgment in this court against the defendant. In July 1851, Truscott died. By his last will, &c. he appointed executors who proved the will and took upon themselves its execution. They then sold and transferred the judgment to the present plaintiffs who sued out a writ of scire facias to obtain execution of the judgment. The defendant moves to set aside the scire facias, upon the ground that this remedy is abolished by the Code.

Motion to strike out irrelevant matter. The action is for slander. The plaintiff alleges that, being a clerk for the mercantile firm of Newcomb & Warren in the city of Troy, the defendant spoke and published of him and of and concerning him, as such clerk, the following false and scandalous words: “He is dishonest and is not to be trusted about the store. He has taken things, while a clerk for Newcomb & Warren, and has not accounted for them.

This is a bill filed by a judgment creditor of the late firm of Suydam, Sage & Co. against the members of the firm as the original debtors, and Ferdinand Suydam, the elder, and B. R. Robson, in whose favor the firm, or its members had given certain preferences by assignment and mortgage.

The defendants had demurred to the complaint, and the plaintiff now moves to strike out the 3d and 6th causes of demurrer “ as irrelevant, redundant and impertinent in its allegations”; also, the last cause of demurrer specified in the defendants’ demurrer, as irrelevant, redundant, impertinent, indefinite and uncertain in its specifications. The 3d, 6th and last specifications, or causes of demurrer, assigned, were as follows: “ Third.

This is a complaint arising out of an assessment for the expense incurred by the corporation in flagging the sidewalks of the plaintiffs in 17th street, between the 5th and 6th avenues.

<p>Motion by plaintiff to amend his complaint.</p>

The affidavit verifying the plaintiffs’ complaint, purported to have been made before F. L. Durand, commissioner of deeds. There was no venue to the affidavit, and nothing upon its face to show where it was taken, nor of what place or county Durand was a commissioner. The defendants’ attorneys served their answer without its being verified which the plaintiffs’ attorney refused to receive, and proceeded to enter up judgment as though no answer had been served.

<p>Meld, that a husband is a competent witness to prove a marriage (where the wife sues alone for her separate property).</p> <p>That a feme covert can take a gift or assignment of a debt, as well as of other personal property, and hold the same “ to her sole and separate use, S¡c. in like manner and with the like effect as if she were unmarried.”</p> <p>That in an action concerning her separate property, she is not bound to join her husband but may sue alone.</p> <p>That she must, however, have a next friend, although she sues alone.</p> <p>That the objection may be taken at any stage of the suit, but the court may, in its discretion, allow an appointment of a next friend nunc pro tunc.</p> <p>That an admission of a fact alleged in an answer by failure to reply, authorizes the court to disregard a report of referee or the verdict of a jury found to the contrary of such allegation; but a reply may be allowed nunc pro time.</p> <p>Where a demand is transferred merely for the purpose of making the assignor . a witness to prove it, the defendant should be allowed to become a witness on the opposite side.</p>

This is a petition by the defendant to compel a discovery from the plaintiff of certain deeds and other instruments in writing, to enable the defendant to answer the complaint.

This was a motion to set aside or strike out an answer for a defective verification, which was as follows: “ Clinton County, ss: A— B—, attorney for Joel E. Meacham, being duly sworn says, that the said defendants, JoelE. Meacham and Henry F. Royce, are both absent from the state of New York, and this defendant is unable to procure the verification of either of the said defendants to this plea or answer.

Demurrer to defendants’ answer. The action was brought for a libel.

This was an action upon contract, alleged to have been made jointly by the defendants as partners. The partnership was denied, and the referee to whom the action was referred, found that there was no partnership and made a general report for the defendants. Upon the adjustment of the costs, several questions arose which were decided by thev clerk adversely to the plaintiff, who moves for a readjustment.

<p>A charge of $7, forall subsequent proceedings before trial ($ 307) can-be allowed only once, though the cause may have been several times noticed for trial. (This agrees with Perry agt. Livingston, ante page 404.)</p>

■ The plaintiff was nonsuited on the trial at the Ontario circuit. The clerk on the taxation of the costs allowed the defendant attendance and travel fees for nine witnesses. ' The affidavit of the defendant, presented to the clerk, stated that each of said witnesses “ attended as a witness on the trial of this cause the number of days and traveled the number of miles in going to and returning from said trial hereinafter stated,” stating the same.

This was a motion on the part of the defendant for an order fixing the amount of costs to be paid by defendant to the plaintiff upon a judgment or order of a single judge, overruling the demurrer of the defendant to two counts of the complaint, and allowing the defendant to answer upon payment of costs, or for an order readjusting the costs as adjusted by the clerk of Oneida county, and for leave to serve said answer.

This cause was put over the term on payment of costs, and the plaintiff’s counsel insisted ..that-the plaintiff was entitled to $17, besides the fees of witnesses, within, the rule .laid down in Mitchell agt. Westervelt (6 How. Pr. R. 265).'

<p>COSTS.</p> <p>Where the case is directed to be first heard at a general term, the successful party can not have costs as on an appeal.</p> <p>It seems, that on a motion for new trial in such cases, the court may grant the costs of a motion, not exceeding ten dollars.</p>

The action is upon a note. The answer puts in- issue the material allegations of the complaint; and by way of new matter states a set off, composed of sundry items, among which are four notes. The defendant in that part of the answer relating to the notes, alleges the plaintiff’s indebtedness to the defendant of the further sum of five hundred dollars on four several notes, executed and delivered by the plaintiff, &c.; and the copies of the notes are then given in the answer.

Motion to set aside judgment, Sfc., for irregularity. The action having been referred, and the referee having made his report, a copy of the report was served on the defendants’ attorney on the 19th of November 1851. On the 28th of the same month the defendants’ attorney obtained from the recorder of Troy an order enlarging the time to make and serve a case for twenty days, and staying the plaintiff’s proceedings in the mean time. This order was served on the same day.

The first count in the complaint is, among other things, for a large quantity of brick sold and delivered by the plaintiff to the defendant, and the several items are set out as in a bill of particulars, together with the time when they were delivered and their value; and it claims that $696‘68 remains due therefor to the plaintiff.

The relator and the defendants were trustees of school district No. 2, in Erin.

<p>As under the former practice, so, under the Code, “ that after a general appearance by the defendant, he can not be heard objecting on account of the irregularity of the process by which the action was commenced.” (Seethe authorities cited in the case.)</p>

Pratt, Gridley, Allen, and Hubbard, Justices. This was an action for work and labor performed by the plaintiff for the decedent. It was tried before a referee. On the trial Loretta Hatch was offered as a witness for the defendant and objected to on the ground that she was one of the residuary legatees under the will of the decedent; the objection was sustained.

This action was tried at the Erie circuit in April 1851, before the late Mr. Justice Sill. The plaintiff had a verdict. The defendant’s attorney, within the time allowed for that.purpose, prepared and served a bill of exceptions to which amendments were proposed. Notice of settlement was given, but before the settlement could be had, Judge Sill died.

<p>On an appeal from an inferior court to the Supreme Court, the respondent should have information of the residence of the sureties.</p> <p>R seems the undertaking must state their residence.</p>

Allen, Hubbard and Pratt, Justices. Action upon contract by plaintiffs claiming as assignees. The defendant in his answer set up several matters in bar, and then averred the commencement of an action by capias in 1847 by the original party in interest (the plaintiff’s assignor) and that such suit was still pending.

The plaintiff in her complaint set forth nineteen different claims against the defendant, for which she demanded judgment for $3000 besides costs. After issue joined the cause was referred and tried before a referee; a part of each of four days was consumed in the trial, but the whole time actually spent would not exceed two days if the same number of hours in each day had been devoted to the trial that is usually devoted to the trial of causes at thé circuit.

Motion to dissolve injunction. The substance of the complaint is, that Peter P. Miller made a fraudulent purchase of merchandise of the value of seven hundred dollars, from the plaintiffs in October 1851, in the city of New York, with intent to cheat and defraud the plaintiffs of the same, and that he soon after sold the said merchandise, with others, without consideration, to the other defendant, with intent to avoid the payment of his debt to plaintiffs, and to cheat his…

This was an action on a contract made by the firm of Clapp & Townsend, which consisted of Ruell Clapp, deceased, and the defendant Townsend.

Motion to set aside judgment for irregularity. On the 28th June 1851, judgment was entered for the plaintiff on the direction of a single judge, for $2324*20. The .defendant appealed to the general term, but without obtaining a stay of proceedings. The judgment was affirmed at the general term in January 1852.

In this case the plaintiff brought on his cause at the trial term, and on a motion for a non suit was permitted to withdraw a juror and move to amend his complaint on payment ' of the defendants’ costs of the term. In making up their costs of the term, the defendants claimed seven dollars for their costs subsequent to the notice of trial and before trial, and twelve .dollars for the trial.

Present, Welles, Sellen and Johnson, Justices. This was an appeal from the appraisal and report of the commissioners appointed to ascertain and appraise the compensation to he made to the appellant for his land proposed to be taken by the Rail Road Company, to the general term of the Supreme Court. The facts will sufficiently appear in the opinion.

Before Justices Sblden, Johnson and T. R. Strong. This was an action upon' a contract, a copy of which is hereinafter given. The plaintiff alleged in his complaint that he, by James H. Hotchkin jr., his agent, entered into a contract with the defendant, setting forth the substance of it in like manner as if it had been made With himself in person, and assigning several breaches.

This action was commenced in October last by summons and complaint.- The plaintiff claims to be the owner of two judgments against Alfred Hamilton, recovered in 1851, on which execution against the real and personal property of the said Alfred had been returned by the sheriff of Saratoga county, nulla bona, &c. It alleges that before these judgments were obtained, Alfred Hamilton in 1850, with a view of placing his property beyond the reach of his creditors, conveyed it all…

Motion to change the venue. The action was brought upon a promissory note. The plaintiff resided in the state of New Hampshire. The defendant resided in the county of Madison. The defendant’s attorney, before the time for answering had expired, served on the plaintiff’s attorney a demand in writing that the trial be had in the proper county. The venue was laid in the county of Albany. The defendant’s answer was served on the 24th of November 1851, by mail.

This was a motion to strike out certain portions of a reply as immaterial, &c., for the reason that they took issue upon immaterial portions of the answer.

Motion to set aside judgment as against the defendants James Johnson and Lois S. his wife, and S. Franklin Hill and Mary his wife. The facts in the case are as follows: John Olmsted being indebted to Cyrus D. Shelden died seized of real estate which was inherited by his eight surviving children, of whom Mrs. Johnson and Mrs. Hill were two—the plaintiff, as assignee of the debt due to Shelden, brought this action against the heirs to recover his debt against the ancestor.

This was a motion to set aside the report of a referee in favor of the plaintiff, “ as being against the weight of evidence, and also for a rehearing.”

This was a motion for the purpose among other things, of having the judgment entered up. on a report of a referee set aside; and. that the referee, state the facts found by him and his conclusions of law.

<p>COSTS (On statute foreclosure).</p>