Volume 7 — Howard's Practice Reports

<p>Before Willard, Hand, Cady and Allen, Justices.</p>

The defendant moved to set aside the complaint served in this action on the following grounds: 1. The variance between the complaint and summons in the parties to the action. 2. The complaint contains a claim against Adam Mattice upon a separate liability alone in connexion with a claim for equitable relief. 3. The verification is irregular in being made by the attorney. The place of trial named in the complaint was the county of Schoharie.

<p>*• Subsequent pleading,.” in section 456 of the Code, means subsequent in the order of pleading. An amended complaint can not be called a subsequent pleading, when spoken of with reference to a previously served answer.</p> <p>An order of a justice of this court,, staying proceedings twenty days, when served with the affidavit on which it was granted, though unaccompanied by a notice of motion, can not be treated as a nullity. The proper remedy is by motion to vacate or set aside the order.</p>

<p>Motion to stay proceedings, fyc. The action is upon a promissory note. The defendants are makers and endorsers. The referee to whom it had been referred, made his report in favor of the plaintiffs on the 9th of A.pril. The defendants have made a case, which has been duly settled, and they now move for a .stay of the plaintiff’s proceedings upon the report, until they can make a motion to set aside the report of the referee.</p>

Motion to set aside a judgment. The action was commenced in November 1851, by the service of a summons, without a copy of the complaint. The summons, in conformity with the first subdivision of the 129th section of the Code, stated that if the defendant should fail to answer the complaint to be filed, the plaintiffs would take judgment for $333’41, with interest from'the 8th of October.

Motion founded upon the complaint alone to dissolve a temporary injunction. The injunction was granted by Justice Watson, on the 8th of the same month to restrain the defendant from selling a farm upon an advertisement of sale under a judgment in an action brought for the foreclosure of a mortgage which was executed by the mother and brother of the plaintiffs, in the spring of 1850, to secure the payment of $2600, and the interest.

Motion to set aside the entry of an amended verdict made at the Circuit. The action was for trespass upon lands, and also for taking and converting personal property found upon those lands. The defendant justified the entry by alleging title.

<p>Misnomer of defendants may be taken advantage of by motion to set aside the summons and complaint. It is doubtful whether under the Code there is a remedy in such case by answer.</p>

<p>Motion for a peremptory mandamus to compel the commisioners of highways to lay out and open a highway after the decision of the referees upon appeal reversing the decision of the commissioners refusing to lay out the same. _ .</p>

Before Willard, P. J. Hand, Cady and Allen, Justices. The plaintiff claiming title to certain real estate in Glenn in the county of Montgomery, under a deed from one Peter Putnam, dated about the 1st January 1839, some time in the year 1850, brought an action under the Code, against Peter P. Van Burén, to recover the possession of said land.

<p>Motion to set aside judgment, ^c. for irregularity. The action was brought upon a promissory note. A copy of the complaint, not verified, was served with the summons. Within the time for answering, the defendant served an answer denying generally all the allegations in the complaint. The next day the plaintiffs’ attorney returned the answer served on him to the defendant’s attorney, and perfected judgment for want of an answer, and issued execution</p>

Allen, Hubbard and Pratt, Justices. Demurrer to answer. The complaint in this action sets forth that on the 3d day of June 1851, the plaintiffs commenced an action against one Sylvester Levy, to recover a debt; that at the time of issuing the summons, an order of arrest was obtained under subdivision 4 of section 179 of the Code; that Levy was arrested thereon and discharged from custody upon the defendants in this action executing an undertaking of bail under section 187;…

It was objected that the application should be made to the county judge who granted the order, and that no other judge had any authority under the provisions of the Code to make the appointment.

Motion to vacate an order made at the Ulster Circuit, referring these causes to a sole referee. The causes were noticed, and were upon the calendar for trial. They were referable only by consent of parties. It was proposed, and finally agreed to by the counsel for both parties, that they should be referred, and the referee was agreed upon.

<p>This is a motion on the part of the plaintiffs that the sheriff of Wayne county be required to apply on the execution in this action of moneys in his hands the sum of f-7926. The motion is founded on the following facts; After the commencement of their action the plaintiffs obtained an attachment against the defendant, by virtue of which the sheriff seized certain property of the defendant. Judgment was afterwards obtained and the execution issued and delivered to the sheriff. Subsequent to the seizure under the attachment, another creditor of the defendant commenced an action against him, and obtained an attachment, under which the sheriff seized the same property, which action was prosecuted to judgment and an execution- thereon was delivered to the sheriff. On the 17th day of February 1851, the sheriff had collected by sales under said executions, and from demands attached, a sum sufficient to satisfy the first execution, and more than the sum of $7926 in addition, but not enough to satisfy the second execution. On the third of February 1851, an order of this court was served on the sheriff, forbidding him to pay over any moneys on either of said executions, until the decision of a motion to set aside said attachments, which order was obtained by an attaching creditor, junior to those above named, and continued in force until the 13th January 1852, on which day the sheriff paid to the plaintiffs in this action the amount due upon their execution for principal and interest to the 17th of February 1851, but declined to pay interest after the day last named. The interest from the 17th February 1851 to the 13th January 1852, amounting to $79-26 is sought to be obtained by this motion.</p>

In April 1852, the plaintiff recovered a judgment in this court against the defendant Walker, for $67-51. Execution was duly issued; it was returned unsatisfied, and the present action is in the nature of a creditor’s bill to reach the interest of the debtor in certain real estate which it is alleged the debtor caused to be transferred to the defendant Learned in fraud of his creditors.

Motion by Jedediah H. Stark and wife to set aside the judgment and execution in this action; and if that shall not be granted, that they be let in to ’ defend, &c. upon the following facts: In January 1852, the' ' moving parties commenced an action against the present defendant, to recover possession of about seventy-five acres of land, claiming in their complaint that the wife was the owner thereof in fee.

Motion to set aside the summons upon the ground that the notice inserted in it is improper. The action was commenced by the service of the summons and complaint on the 4th May. The summons contains the notice that if the defendant fails to answer the complaint, the plaintiff will take judgment against him for $150, with interest, Sec. The facts stated in the complaint show a cause of action for wrongfully taking, detaining and converting personal property.

Motion by defendant for treble costs. The action was brought to recover the possession of personal property taken by the defendant, a constable, by virtue of a warrant issued by John D. Shaul, colonel of the 39th regiment, for the collection of military fines. Upon the trial at the Otsego June circuit, the plaintiff was non suited for the reason that replevin would not lie in such case.

Demurrer to the Answer. This is an action brought to recover of the defendant certain penalties for violation of the excise law regulating inns and taverns. The complaint alleges that plaintiffs are overseers of the poor of the town of Homer in the county of Cortland, and that the defendant has sold spirituous and intoxicating liquors in said town without having a license therefor, and states time, &e. The complaint is on oath.

This action was brought upon several notes of which the defendant Bennett was alleged to be the maker, and the defendant Tarbell, endorser. Copies of the complaint, purporting to have been verified, were served on the defendants on the 27th of May. The complaint had not, in fact, been verified. On the 29th of May the defendants served their answer without a verification.

This was a motion made at Cortland special term in July 1852, by Moses Sousa and others, junior judgment creditors of William H. Plummer, to set aside an older judgment confessed by Wm. H. Plummer to Sarah R. Plummer.

Present, Taggart, P. /., Marvin, Hoyt and Mullett, Justices. Appeal from a judgment of the County Court of Cattaraugus county, reversing a judgment of a Justice's Court. The action before the justice was commenced the 16th day of December 1849, and was tried by the justice and a jury, February 5th, 1850. The plaintiff complained of the defendants for taking and converting to their own use a horse of the plaintiff of, the value of $75, and 'claimed damages to $ 100.

Present, Parker, Wright and Harris, Justices. This was an appeal from an order of Mr. Justice Watson, made at special term, awarding costs to plaintiff under § 304 of the Code.

This is a motion, in behalf of Messrs. Kidder & Burrett, to be made parties defendants in the above action, under § 122 of the Code, on the ground that they, as subsequent mortgagees and judgment creditors, have a lien on the surplus moneys in the hands of the defendant; and which surplus arose on the sale of certain premises, by virtue of an older mortgage owned by the defendant.

Alternative Mandamus to the Mayor of the city of New York. The writ shows that George Houston, the relator, is a citizen of the United States, a free citizen of this state, a freeman of the city of New York, over twenty-one years of age, and that he has for about five years been a driver of omnibuses in that city, and was licensed in 1849 as a stage driver, which license being about to expire,, he applied to the defendant in February 1851, for another license, and tendered…

The plaintiff obtained judgment for $148‘68 in May 1845, against the defendant, and issued execution thereon. Since then no other execution was issued until the 27th of May last. In the mean time the defendant had obtained a discharge from his debts under ■ our insolvent law. The last execution was issued without any application to the court, and is now attempted to be sustained on the alleged ground that the discharge was fraudulently obtained.

In November 1850, the plaintiffs issued a summons in this action, and stated therein that if the defendants failed to answer the complaint, the plaintiffs would apply to the Court for the relief demanded in the complaint, being the clause required by the 2d subdivision of § 129 of the Code.

This was an appeal from an order of the county judge of the county of Oswego, directing the removal of toll gate No. 4, on the Oswego and Syracuse Plank Road, under the provisions of § 37 of chapter 210, Laws of 1847. The appeal was referred to three referees pursuant to § 1 of chapter 487, Laws of 1851. The referees reported that the location of the toll gate was unjust to the people residing upon a road known as the Telegraph road, and roads diverging from it.

This was a motion under the 247th section of the Code, for judgment, on the ground that the defendants’ answer was frivolous.

<p>In July 1851, M. & L. Lippman filed their complaint against E. Kantorwich, J. Jorlson and M. Lowenstein, claiming $415" 12, as due by them on a joint indebtedness to the. plaintiffs. Kantorwich, on 31st July, admitted service of the summons, and offered to allow judgment to be taken pursuant to §385 of the Code, for $410 and costs, and waived notice of adjustment of costs. On 1st A ugust the plaintiffs filed notice of their acceptance of the offer and entered judgment against all three of the defendants for the $410 and costs. On the same day Kantorwich made affidavit that Lowenstein was his partner and had received $2000 cash for the firm, and $1600 in goods, which he converted into cash or notes, and still held. On the 11th day of August the plaintiffs applied for and obtained a Stilwell warrant against Lowenstein alone, alleging that he was indebted to them on a judgment on contract against him and the other defendants; that they requested him to apply the funds of the firm in his hands, mentioned in K’s affidavit, to the payment of the judgment, but that he refused to do so. Lowenstein denied that he had property of the firm, or that he refused to apply it to the payment of the judgment, or that he owed the plaintiffs any thing, or that the judgment was against him: and also denied the specific.charges made by Kantorwich.</p> <p>A habeas corpus was issued on behalf of Lowenstein, and the same issues were joined on it. The judgment was proved in the form above stated, and the parties were at issue as to the facts:</p> <p>1. Whether Lowenstein was a partner; and</p> <p>2. Whether he had partnership property;</p> <p>3. Whether he refused to pay as alleged.</p> <p>And on the point of law, whether such a warrant could issue against Lowenstein, on such a judgment, even if he was a partner and the other facts were found against him.</p> <p>The evidence showed that Lowenstein was a partner as early as January last and that he received property of the him and refused to apply it to. the payment of this judgment. This left only the question of law-to be passed upon.</p>

This cause was tried at the Rensselaer circuit in June 1852, by the court, without a jury. The facts are sufficiently stated in the opinion of the court.

Gemmili sued Lansing before a justice of the peace in Poughkeepsie, where plaintiff resides, and recovered judgment March 1st, 1852. The defendant prepared an affidavit and served it upon the justice with notice of appeal within twenty days, and also served notice upon the attorney who appeared for plaintiff before the justice; but did not serve any written notice on the plaintiff himself until April 19.

Present, Taggart, P. J., Marvin, Hoyt and Mullett, Justices. Appeal from a judgment of the Erie County Court, affirming a judgment of a Justice’s Court, on appeal, taken in 1851. This action was commenced December 5th, 1850, and was tried by the justice without a jury, January 2, 1851.

The plaintiff, as executor, brings suit to obtain certain assets which, as he alleges, are in the hands of the defendant L. Maison. The latter puts in his answer claiming to hold the property by virtue of a conveyance and assignment executed to him by the testatrix in her life time. The complaint is not verified; the answer is verified.

The trustees of the village of Williamshurgh, Kings county, were by an act of the legislature of May 21, 1836, authorized to erect therein cells and prison rooms for the confinement and detention of prisoners from the town of Bushwick and from said village: and also from time to time to appoint a cells keeper, whose compensation was to be paid by the county.

Parker, Wright and Harris, Justices. Motion to dismiss appeal. Judgment was perfected in this action upon the report of a referee, on the 7th of October 1851, and written notice thereof was duly served on E. R. Peck, Esq. the defendant’s attorney, by mail, on the same day. On the 10th of October, notice of the substitution of W. C. Benton, as attorney for the defendant, was served on the plaintiff’s attorney.

This action was brought by the assignees of S. W. Brown to compel the bank to pay over a surplus it had received on a mortgage, the property of Brown, pledged by him as collateral security, for notes of Brown & Rossiter, and to require the delivery of the notes to Brown’s assignees. The plaintiffs are general assignees of Stephen W. Brown, who died soon after the assignment and before the action was brought.

Parker, Wright and Harris, Justices. Security for costs of appeal. Upon the trial of the action at the circuit the plaintiff was non-suited. Judgment for the costs of the action was perfected on the 14th of May 1852. On the 18th of the same month the plaintiff served a notice of appeal, in due form, pursuant to the 327th section of the Code. No undertaking, or other security for costs upon the appeal, was executed.

Parker, Wright, and Harris, Justices. Appeal from an order granting an extra allowance of costs. The action was brought upon a promissory note. Before the time for answering expired, an order enlarging the time to answer twenty days, was served. Before the time expired, an answer was served; to which the plaintiff replied, and he also served a notice of trial. Before the trial the defendant served an amended answer, the effect of which was to throw the cause over the circuit.

Motion to vacate order. The action was commenced in December 1849. The object of the suit was to restrain the defendant from diverting a water course. Upon the commencement of the suit, a temporary injunction was granted according to the prayer of the complaint. The cause was tried at the January circuit in Rensselaer, before Mr. Justice Harris, whose decision was filed on the 2d of August 1851.

The cause was tried at the Schoharie circuit, and, after the trial, the plaintiffs recovered a verdict. Upon the taxation of costs the plaintiffs claimed and were allowed for the travel of a witness from Somerville, in the state of Wisconsin, 1744 miles.

The defendant moved on the 3d inst. to vacate an injunction granted by Justice Watson, on 21st June last, restraining the Metropolitan Bank from buying or receiving on deposit, bank paper, at an amount less than purports to he due on its face, and from redeeming bank paper at less than par, except where it is the redemption agent of the bank issuing such paper.

Barculo, Brown and Strong, Justices. An application was made under the statute in relation to the “ relief and support of indigent persons,” by the defendants in error, as overseers of the poor, the Court of Sessions of the county of Dutchess, for an order requiring the plaintiff in error to relieve and support his father, Park Haviland, a poor person, and so old as to be unable to maintain himself by labor.

The action is founded upon a bond which the complaint alleges to have been assigned to the plaintiff by “ The New York Life Insurance Trust Company,” by virtue of an order of the Supreme Court made on the second day of November 1850. The defendant now applies, by petition, for a discovery and production of the assignment and order fo enable him to prepare for trial.

Albany Special Term. Motion that action be continued in the name of the personal representatives of the defendant. The action was for slander. The plaintiffs in April 1851, obtained a verdict and perfected judgment thereon. From this judgment the defendant appealed to the general term, after perfecting his appeal, and before the cause had been argued upon the appeal the defendant died.

W. F. Allen, Hubbabd and Pratt, Justices. This was an appeal from an order at special term affirming the adjustment of the costs by the clerk of Cortland county. The action was upon a promissory note, and was defended by the defendants separately, and noticed for trial by all the parties at the circuit in Cortland, commencing on Monday the 26th day of July and was placed on the calendar of causes for trial.

On the 11th of August last, Libbeus Booth and others were in pursuance of the 15th section of the act entitled “ an act to authorize the formation of rail road corporations and to regulate the same, passed 2d April 1850,” and upon the petition of the company, appointed commissioners by this court, to ascertain and appraise the compensation to be made to the owners or persons interested in the real estate described in the petition and proposed to be taken in the county of…

<p>On a common law^certiorari, this court, although it should abstain from interfering with the decisions of inferior tribunals, in cases within their jurisdiction, on questions of fact, is bound to interpose to correct mistakes of law bearing upon the merits.</p> <p>(This seems to be adverse upon this point to Haviland agt. White, ante p. 154, and lakes a different view of the decision in Anderson vs. Prindle, 23 Wend. 616.)</p> <p>The proceedings under the statute “ Of forcible entries and detainers,” (2 R. S. 507) are summary, and do not appropriately embrace the investigation of titles to real property, or the right to its present enjoyment.</p> <p>”roof of a sufficient estate or right of possession is to be made to the judge before any process can be issued, but on the trial of the traverse before the second jury the complainant is only required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in actual possession, or was in the constructive possession, at the time of the act complained of.</p> <p>Nor.is the defendant authorized to show or avail himself of any estate or right of possession in a stranger.</p> <p>The court may in its discretion permit the defendant to move to set aside the inquisition, on the ground of the rejection of proper evidence before the jury which found it, after having traversed it before the county judge; and delay will not necessarily preclude him from obtaining relief.</p>

This is an application on the part of Benjamin Welch Jr. for an order against James M. Cook, to compel the said Cook to deliver over to him, the said Welch, the books and papers in the custody of the said Cook, belonging and appertaining to the office of treasurer of the state of New York.

The complaint alleges that the plaintiffhas recovered a judgment against the defendant Betts, upon which an execution has been issued and returned unsatisfied; that Betts, having been extensively engaged in business, had acquired a large amount of property, and that sundry persons had become indebted to him, and that on the 12th of January 1852, and before the recovery of the plaintiff’s judgment, he assigned all his property and effects to the defendant Smith, for the…

The defendants demurred to the plaintiffs’ reply, and judgment was given in their favor, with leave to the plaintiffs to amend on payment of costs.

In this case an order was made by the Supreme Court in the first judicial district, in November 1851, “ granting a new trial” on a case. An appeal to this court from that order was made in January 1852, and the printed cases on the appeal were served upon the resoondenl’s attorney in March. The cause was placed upon the calendar of March term, and also upon that of the present term for argument.

Motion by appellants for leave to dismiss their appeal without costs of the appeal to either party, but with the costs of this motion to be paid by respondent. The appeal in this case was taken upon a bill of exceptions, from an order of the Supreme Court granting a new trial. It was perfected on the 4th day of May 1852.

The order for final judgment in the Supreme Court in this case was entered in May 1849; but the judgment was not perfected (docketed) until the 4th of December 1849. An appeal was taken and notice served by the appellant on the 3d December 1851. The respondent moved to dismiss the appeal, on the ground that more than two years had elapsed from the time of the entry of the order for final judgment in the Supreme Court, before the appeal was brought.

The complaint states that by an act of the legislature of the state of New York, passed the 23d day of April 1835, a public square was laid out in what is called the seventh ward of the city of Brooklyn; that subsequently, by an act of the said legislature, passed April 25, 1845, the location of the said Washington park was changed to what is now called the eleventh ward in said city; and in and by said acts, the property taken for the said park was declared to be a public…

Van Sickler presented a claim against the estate represented by the defendants which claims they disputed; and it was referred pursuant to the statute to three referees. A hearing was had which lasted two days, both parties examining witnesses. After the administrators had closed their testimony, Van Sickler withdrew his claim and “ submitted to a nonsuit.” The administrators now apply for allowance, or per centage, under § 307 and 308 of the Code.

Cayuga County. At Chambers, on Habeas Corpus. In August 1851, an action in the Supreme Court was commenced against the petitioner Taylor, in which he was arrested and held to bail in the sum of $10,000. An undertaking signed and acknowledged by ten persons, as sureties, was given; upon the receipt of which the sheriff permitted the petitionér to go at large.

<p>An answer in slander which justifies the words alleged in the complaint, “she is a thief, and has stole my gold pen and pencil,” may properly allege a variety of thefts of different articles by the plaintiff, other than those specified in the complaint. Why? Because they may be proved to show that the plaintiff is a thief, which is a distinct allegation in the complaint of actionable words.</p>

Motion by respondent to dismiss the appeal in this action. The facts of the case sufficiently appear in the opinion of the court.

This was an action by Livingston, the plaintiff, against Miller, for the amount of rent accrued upon two leases. The cause was tried at the Columbia circuit, on the 14th June 1849, before Mr. Justice Paige, and a jury. A verdict was found in favor of the plaintiff of $36*89. On the 15th July 1849, the bill of exceptions was settled by the justice who tried the cause.

This was a motion to strike out of the complaint certain matter as redundant. The main question is whether the complaint should contain a statement that the allegations are made on the information and belief of the plaintiff? The motion is to strike out such allegations, and others, as redundant.

<p>An answer to a complaint for breach of marriage promise, can not set out, in mitigation of damages, that between the alleged promise and breach, the plaintiff’s conduct was improper, indecent and criminal, tyc. Such facts can not now, any more than before the Code, be pleaded.</p> <p>If admissible in evidence at all, they may be proved without being pleaded.</p>

Priority of liens. The defendants Vandenburgh and Stoutenburgh were partners in trade, doing business at Coxsackie. Shortly before the 11th of November 1851, Vandenburgh absconded. On the day last mentioned, Stoutenburgh confessed a judgment in favor of Walton S. Stoutenburgh, pursuant to the 382d section of the Code, for $630'05. Judgment was entered in form against both partners. On the same day an execution was issued and levied upon the partnership property.

The action is upon a note for $2500, made by one Tomlinson, and endorsed by the defendant. Tomlinson died before the note became due. The answer sets up various grounds of defence, and the cause having been referred, several hearings have been had before the referee.

Demurrer to complaint. The complaint alleges that the defendant has become possessed of one hand knitting machine, the property of the plaintiff, by wrongfully taking the same from the plaintiff, and that he wrongfully ^ detains the same, and has converted it to his own use; and demands that the defendant may be adjudged to pay him damages for the wrongful taking, detention and conversion; and that the property may forthwith be delivered to the plaintiff.

Motion to discharge an attachment. The parties are both foreign corporations. The plaintiffs lent to the defendants the sum of ten thousand dollars, and to secure the payment of the same, a bill of exchange was given, drawn upon a person residing in the city of New York.

Queens County Oyer and Terminer. Before S. B. Strong, Justice of the Supreme Court, Fosdick, County Judge, and Mitchell and Hendrickson Associate Justices. November 1852. The prisoner was arraigned and tried for the murder of Roeloff Voorhies. The district attorney peremptorily challenged one of the jurors, before the panel had been exhausted. The counsel for the prisoner objected to the challenge, on the ground that the public prosecutor had no right to make it.

Motion to set aside inquest by default, on the ground that cause had been previously referred. The cause was not referable except by consent in writing. The attorneys for the respective parties stipulated in writing to refer it to John W. Maynard, and the stipulation was delivered to the defendants’ attorney to present to the court at the circuit,'and obtain the order.

This was a motion by the defendants to change the place of trial from the county of Albany to the county of Clinton.

This was an action of trover, brought in 1847, to recover the value of a quantity of wheat. The plea was the general issue. The cause was referred by consent to H. Humphrey Esq., sole referee, before whom it was tried, and who in March 1848, reported in favor of the defendant.

This was an application on the part of Joel Gere, for a mandamus to compel the board of supervisors of Cayuga county to a'udit and allow a judgment for $14-96 damages and 47 cents costs in his favor, against Gilbert Westfall, overseer of the poor of the town of Niles in said county, and to add the amount of said judgment, with the interest, to the amount of tax to be laid upon the county according to statute.

The parties by consent duly entered, referred this action to two referees; the referees found in an early stage of the proceeding that they probably would not agree, and proposed to the parties the addition of a third referee. To this the attorneys assented, and Mr. Hoffman was mutually agreed on; being suggested by Mr. Poisson, whom the defendant’s attorney had at first proposed, and then proposed by the defendant’s attorney himself.

The action was against a judgment debtor, and against other persons who were said to be, in fact, his partners, but pretending to he his employers, and the plaintiff claims an account of the debtor’s share in the supposed partnership. The partnership was denied by the defendants. The plaintiff asked for a reference on the ground that the examination of a long account would be necessary.

This was, in effect, a motion to commit the defendant for not bringing his books and papers before a referee, in compliance with a common subpoena duces tecum, issued without any order of a judge, previously obtained for the purpose.

Taxation of costs. The bill of costs on the part of the plaintiff in this action, which was commenced in 1846, contained charges for, Paid commissioner for executing commission issued in 1847,....______________________________$13-60 “ commissioner for executing commission issued in 1849,................................ 16-58 <e witnesses for attending before commissioner, — 586

The complaint was verified, but the defendant deeming the verification insufficient, put in his answer without oath. The plaintiff returned the answer without stating what his objection to it was.

Azor Hoyt owned certain lands in this city and mortgaged them to the plaintiff. Afterwards, on the 22d April 1850, he conveyed them, subject to the mortgage, to Samuel I. Smith, who, on 1st June 1850, executed another mortgage for $1,600, on the same premises, to E. N. Cobh, which was duly recorded.

<p>In case of a transfer of the interest of the plaintiff in the subject of the action, it is optional with the court, on the death of the plaintiff, whether or not to allow the assignee to be substituted and the action continued in his name; and on the application, the defendant should be heard and his interests taken into account.</p>

<p>The representatives of a deceased plaintiff, who dies pending the action, have no right to elect whether it shall stand revived or not; the defendants are entitled to have the suit continued in the name of the plaintiff’s representative.</p>

Motion on the part of the defendant Beach, for a new trial on exceptions. The cause was tried before Mr. Justice Harris, at the Monroe circuit, in April last. The facts are sufficiently stated in the opinion of the court.

This cause was commenced in May 1848, and was tried at the Washington county circuit, before Mr. Justice Willard, June 1851. The decision was filed January 1852, but before filing that, the judge directed a case to be made containing the evidence, which was duly settled, and finally incorporated into the record.

Demurrer to complaint. The complaint contains two counts. The first count in the complaint alleges that plaintiff on the 22d November 1846, delivered to defendants a quantity of hops to be taken care of, and returned to plaintiff when requested, and that “ defendants without the leave or license of plaintiff, used and appropriated said hops, or the avails thereof, to their own use, and thereby the said defendants became indebted to the said plaintiff in the sum of $462*50,…

<p>Upon the rendition of a regular judgment of ouster in the suit of the People against a public officer, and in favor of another individual for the office, the officer becomes actually ousted and excluded from office; and the party declared to be entitled, upon taking the official oath and filing his bond (when required), becomes eo instanti invested with the office, and entitled under § 437 of the Code, to demand and have the books and papers appertaining to the office.</p> <p>An application before a judge at chambers, under the 51st, 52d and 53d sections of 1 B.. S. 125, and the 438th section of the Code, to compel the delivery over to the applicant of the books and papers appertaining to a public office, is not a motion in the Supreme Court, nor a motion in any suit pending in the court. Any justice, therefore, has jurisdiction.</p> <p>Such proceedings can not be considered proceedings in the court below, where the judgment is appealed to the Court of Appeals; nor are they even proceedings upon the judgment, though the judgment is used as evidence of what it determines. They have no connection whatever with the proceedings in court, but are deemed by the statute original and independent proceedings.</p> <p>Consequently an appeal from the judgment of ouster can not in any way operate as a stay of proceedings on such an application.</p>

This was a motion - to quash an alternative mandamus. The alternative mandamus alleges that, by virtue of the matriculation and payments, tickets and other acts therein mentioned; and of the charter, by-laws, rules, regulations and conditions, also therein mentioned, the relator became and was entitled to hold the franchise, position or office of student or member of the college, and candidate for the degree of doctor of medicine, and to enjoy all the rights and privileges…

Motion to amend, fyc. The action was commenced in August 1850, to recover damages for an alleged breach of a special agreement. Issue was joined on the 10th of March 1851, by the service of a reply to the defendant’s answer. The cause was noticed for trial at the Rensselaer circuit in April 1852, and, when reached on the calendar, was referred.

Motion that the cause be continued in the name of the plaintiff’s executrix. The action w as commenced in December 1847. Issue was joined in January 1848. The plaintiff died in April 1851, and his widow became the sole executrix of his last will and testament.

Present, Justices Parker, Harris and Wright. This was an appeal from an order made at special term by Justice Wright, denying a motion to set aside the service of the summons and subsequent proceedings.

<p>The plaintiff claims dower in certain lands as the widow of General Bogardus, and that her dower may be awarded and set off to her, and for other relief. She does not allege that any of the defendants are in possession, and does not claim to recover damages against them.</p> <p>The defendants in their answer allege that she has been in the possession of all the rents and profits of the lands since her husband’s death; and that the amount thus received by her exceeds the value of the dower claimed by her; and prays that an account of the value of each may be taken, and the one set off against the other, and that she be adjudged to pay to the defendants, the heirs of General B. any excess of rents received by her beyond the value of her dower. To this answer there is a demurrer.</p>

In Partition. The complaint is filed by one of the daughters of General Bogardus, against his other childern and heirs at law, and against his widow, .and is for the purpose of obtaining a partition or sale of the lands of which he died seized.

The defendant loaned the plaintiff $100, to enable her in part to purchase the furniture of a boarding house, taking a chattel mortgage on the whole, valued at about $300, as security.

<p>On a sale of lands, the terms were that promissory notes should he given by the purchaser; the vendor was not to give a deed until the notes were paid, and if any of the notes were unpaid at maturity, the vendor should, on due notice (as specified) resell the lots at the risk of the purchaser. Held, that the arrangement was in the nature of a mortgage for purchase money, and the purchaser was responsible for the deficiency after allowing what the lands produced on the resale.</p> <p>Leave to amend for the purpose of setting up such resale as a bar, refused.</p>

On the fifth of October last, the plaintiffs sold to the defendant Woodward one hundred shares of the stock of the Cumberland Coal and Iron Company, for $6,750; and, on the same day, made a regular transfer to him on the books of the company. Woodward gave, m payment of the stock, his check for the amount on a hank in New York, which, on presentation, was refused payment. It now appears that he had no funds in the bank at the time, and has had none since.

This was a demurrer to an answer. The complaint set out, as three causes of action, guaranties of the payment of three notes.

This was a motion calling on the register of deeds in and for the city and county of New York, to show cause why a mandamus should not issue commanding him to make a search.

Costs. The action was brought to recover a balance of $274‘04, claimed to be due from the defendant, upon his promissory note. The defendant, on the third of March 1851, and before answering, pursuant to the 385th section of the Code, served an offer to allow judgment to be taken against him for $230, besides costs.

Motion to set aside judgment for irregularity. The action was commenced on the 14th day of February 1852, by the service of a summons on the defendant personally. On the 26th February, the plaintiff having obtained an order to arrest the defendant and hold him to bail (it being a bailable action), placed the order of arrest and a copy of the complaint in the hands of the sheriff, to be served upon the defendant.

<p>Motion to dismiss complaint. A summons and complaint was served on the defendant Reynolds in December 1850. No summons was served on the defendant Tucker, but on the 12th day of December 1850, he voluntarily appeared by his attorneys, and served a notice of appearance and demanded a copy of the complaint. The object of the suit was to reach the surplus moneys arising from the sale of mortgaged premises under a statute foreclosure. The plaintiff, having ascertained that the sale had not been completed, several months before notice of this motion was given, discontinued the suit as against Reynolds and paid his costs. A motion was made on behalf of the defendant Tucker, to dismiss the complaint for unreasonable delay in serving the complaint, wilh costs.</p>

This is a motion to vacate an injunction order. The facts are substantially as follows, viz: One Bradley was on the 27th day of April 1850, seized of a tract of land in the town of Tonawanda in the county of Erie.

<p>Though a policy of insurancé must state correctly what is insured (the subject m it ter), it is not necessary that the particular interest in the property, or the reason why, the party insures should also be expressed.</p> <p>Where the plaintiff insured “ $1500 on his brick building in Washington street, Brooklyn, and $1500 on his engine and boilers therein contained;” and it appeared that before the insurance, one Gilbert owned the property in his own right, and assigned it to the plaintiff in trust to sell and pay the creditors of Gilbert, and the plaintiffwas one of such creditors, Held, on demurrer, that the beneficial interest of the plaintiff covered the whole insurance, and entitled him to recover.</p>

Motion to set aside a judgment. On the 4th day of February, the plaintiff, by his attorney, served upon the defendant a notice requiring him “ to appear in the Supreme Court, before the clerk of Ulster county, at his office in Kingston, on the 24th day of February 1852, at 10 o’clock A. M., either in person or by attorney, and submit to an accounting and settlement of the amount due to the said George Dressel, of Rondout, for work, labor and services performed, and materials…

The action was brought against the sheriff of New York for an act done by him in virtue of his office. The venue was laid in Dutchess county. The defendant now moves to change the place of trial to the city of New York. The plaintiff resists the motion on the ground of convenience of witnesses.

Motion to set aside attachment and other proceedings. The action was commenced by the personal service of a summons and complaint, on the 25th day of July 1851. On the 4th of August following, upon an affidavit of one of the plaintiffs, stating that the defendant was not a resident of this state, an attachment was obtained against the defendant’s property.

Judges Barculo, Brown and Strong. This was an appeal from an order of the City Court of Brooklyn. The cause being at issue, had been referred by that court to a referee to hear and determine.

Motion to vacate attachment. On the 25th of September 1852, the plaintiffs made application to the honorable Charles C. Parmelee, county judge of Rensselaer, for an attachment against the property of the defendant, on the ground that he had departed from this state, with intent to defraud his creditors.

The plaintiff obtained a report of referees in his favor, on which he was allowed a per centage of $31*09. Subsequently the defendant applied for a new trial on the ground of newly discovered evidence, and obtained an order for a new trial on “ paying to the plaintiff the costs of the reference heretofore had.” The costs were adjusted by the clerk, who allowed, as part of the costs to be paid by the defendant, the per centage aforesaid.

<p>Ejectment for land sold, on a mortgage (given by defendant to plaintiff) by advertising. It appeared by the affidavits, that the notice, dated December 8th, 1851, of a sale on the 7th March (which was Sunday) 1852, was published twelve weeks, and a notice of a postponement of the sale to the 15th of March, and dated on the 23d February 1852, ivas also published three weeks. On the 3d day of February, the notice was served personally on the defendant, and also on the 1st day of March the same notice and also notice of postponement, were served personally upon the defendant. The plaintiff bid off the premises.</p> <p>It was objected that the sale was invalid.</p>

The plaintiffs purchased the premises in question at sheriff’s sale upon executions issued upon several judgments, which were liens subsequent to the incumbrance of the defendant’s mortgage, and took a sheriff’s deed. The plaintiffs were the judgment creditors. The defendant proceeded to foreclose his mortgage in equity, and made the plaintiffs parties.

On the 10th day of April 1852, attachments were duly obtained by the plaintiffs in the first two actions against the defendant and delivered to the sheriff of Greene. Two other attachments against the same defendant had previously been issued, and were then in the hands of the sheriff. On the 12th day of April, another similar attachment was issued in favor of another creditor.

The defendants had been copartners in trade, at Saratoga Springs. On the 27th of October 1852, the copartnership was dissolved. This suit was commenced on the 6th of November, to recover a copartnership debt.

<p>In deciding motions to change the place of trial, courts now look beyond the affidavits of the parties and the advice of their counsel, to the pleadings, and the issues to he tried; and from the who.e case, as presented by the affidavits and the pleadings, determine in which county the trial will accommodate the greatest number of witnesses, whose attendance it will be necessary for the parties to secure, in the reasonable exercise of care and prudence in preparing for trial.</p> <p>It does not follow as a matter of course, that the place of trial will be changed to the county where the greatest number of witnesses are shown to reside. If it appears that in such county the cause, in the ordinary course of things, will not be likely to be reached and tried until after several circuits shall have been held, and that the greatest convenience will not be secured by such change, the motion will still be denied.</p> <p>In determining such motions the convenience of witnesses is the main consideration, though the dispatch or the oppressive delay of suits are considerations not to be wholly overlooked.</p>

R. S. Hale objected, that there had been no appointment of J. T. as next friend, nor service of any papers upon the defendant’s attorney for that purpose, which he insisted was irregular.

The complaint sets forth that in 1843 the plaintiff was married to the defendant in Queens county; that at the time of her marriage she was in comfortable circumstances, and possessed of a personal estate of the value of $6000, and of real property worth $1500; that soon after the marriage the defendant obtained the possession and control of said property and spent the same; that in 1845 they removed to Brooklyn and kept boarders; that in 1846 they removed to the city of New…

<p>Where one copartner, with the consent of the other, made an assignment of a portion of the partnership property for the payment of partnership debts; and an original bill was filed for a partnership account, but before the appearance of the assignee as one of the defendants, he died; and a trustee having been appointed by the court in his place. Held, that such trustee was a necessary party, and that the proper way to make him such was by supplemental bill. Otherwise, if he had been the only party defendant.</p> <p>A supplemental bill in such case, although it sets out at length the allegations contained in the original, is not for that cause demurrable.</p>

<p>Costs upon affirmance of judgment upon Demurrer. Defendant Morrison demurred to plaintiff’s complaint. Justice Roosevelt at special term, on the 6th of October 1852, decided against the demurrer. The order states “ the plaintiff having moved for judgment on said demurrer as frivolous,” “ ordered, that the plaintiffs have judgment on the demurrer with costs, with leave,” &c. From this decision there was an appeal to the general term.</p> <p>The general term, on the 30th of December 1852, affirmed the judgment of the special term and in their order state, “ it appearing to the court that the demurrer of thé applicant teas frivolous, and that the complaint of the respondent is sufficient, it is ordered that the said judgment on demurrer be affirmed with ten dollars costs of this appeal.”</p> <p>Upon this statement the counsel for the plaintiff claims, that the argument of the demurrer was the trial of an issue of law, and that the decision of the special term is a judgment in the case, and the costs given by the order mean taxable costs upon trial, amounting to some $23.</p> <p>The counsel for defendant claims that the argument before the special term was only a motion for judgment on the demurrer as frivolous, and that the decision entitles the plaintiff to only ten dollars costs. In furtherance of this view he referred to the plaintiff’s notice of argument which is as follows: “ We shall apply to Justice Roosevelt at the New York chambers for judgment on the demurrer of the defendant Morrison as frivolous ¡ which motion will be founded upon the complaint and said demurrer. We shall also ask for costs of the m,otion ; or for such other or further relief as to the court may seem meet.”</p>

A question of redemption under a corporation sale on a mortgage foreclosure. The following statement of facts were agreed upon by the respective counsel: Mortgaged premises sold on the 28th June 1843, by the corporation of the city of New' York, at an assessment sale, for non payment thereof. Were struck off to defendant for $166'09, upon a lease for one thousand years. On the 11th June 1845, Breevort, plaintiff, deposited with the street commissioner $214‘59 to redeem.

Motion on the part of the plaintiff, upon a bill of exceptions, to set aside a nonsuit and for a new trial. This was an action for false imprisonment, tried at the Livingston circuit before Justice Taylor, at the September term, 1851.

For a statement of the facts of this case, see ante page 134, where the same case is reported with the opinion of Justice Gridley, delivered at special term, and by the court, W. F. Allen, Justice, at general term, affirming it.

Motion to dismiss appeal. In the month of May 1849, the plaintiffs commenced an action against the defendant before Robert A. Ogden, a justice of the peace of the county of Saratoga.

Each of these motions is to relieve the appellant from a dismissal of his appeal by default; the first in not procuring the return to be filed in twenty days after the appeal was perfected, and the other for a similar default in not serving printed copies of the case within forty days after the appeal was perfected.

This was a motion by the respondent to dismiss the appeal in this action upon the ground that the court had no jurisdiction.

This was an action on the case commenced in the Superior Court of the city of New York in 1847, by Fitch and others, plaintiffs, and owners of the steam boat Santa ¡Claus, against Livingston & Flanagan, owners or proprietors of the steam propeller Ocean, for running afoul of the Santa Claus on the Hudson river, and damaging her. The cause was tried before Chief Justice Oakley, on the 12th of June 1849, and several days following. A large number of witnesses were examined.

<p>The 172d section of the Code (1851) provides that a pleading may be amended. “ at any time before the period for answering it shall expire, or within twenty days after the answer to such pleading shall be served.” Therefore a pleading which does not admit of an answer can not be amended under this section.</p> <p>An answer which merely denies the allegations of the complaint can not be amended under this section. Why? Because there is no new matter in it requiring a reply or answer.</p> <p>The right to amend, where it exists, is not to “prejudice the proceedings already had.''</p> <p>Where the plaintiff took an inquest on the second day of the circuit, and entered judgment thereon, the answer of the defendant not requiring a reply, and not having been verified and no affidavit of merits filed, and the defendant amended his answer within time, but after the entry of judgment. Held, that the judgment was regular, allowing that the defendant had a right to amend.</p>

<p>An assignment for the benefit of creditors, which authorizes the assignees to sell and dispose of the assigned property upon suck terms and conditions as in their judgment shall appear best and most for the interest of all the patties concerned. Held good.</p> <p>The provision alluded to merely authorizes the assignees to do what the law* imposes upon them as a duty.</p> <p>And a provision which directs that the surplus after paying the preferred debts, shall be paid pi o rata to all the other creditors, does not render the assignment invalid, because the legal effect of such a provision is, that the assignees are to pay the whole amount of the unpaid debts, if assets sufficient.</p>

<p>Where ah order'for service of summons and complaint, by publication, has been made on its appearing to the latisfastion of the justice that the necessary facts were stated, the court, at special term, should not set aside such an order for alleged irregularity, although they might think the evidence very slight upon which it was granted.</p> <p>It is not the best way to administer the law.</p>

before Justices Parker, Wright and Harris. The' plaintiffs state in their complaint, that about the 30th of April 1849, they lent to the defendants $300, to enable them to purchase certain real estate described in the complaint, upon an agreement that the defendants should secure the repayment of the loan by a lien upon the premises to be purchased; that the purchase was made, and the title to the lands had become vested in the defendant Elizabeth.

The complaint sets forth several sets of slanderous words, which it alleges defendant uttered and published of and concerning the plaintiff.

Present, Welles, Selden and Johnson, Justices. This was a common law certioiari to review the oroceedings and determination, on the traverse of an inquisition found, in case of forcible entry and detainer before the county judge of Steuben county. The complaint set out all the facts and was verified by affidavit, but there was no other affidavit than that verifying the complaint. The traverse was tried before the judge by six jurors drawn from the twelve summoned.

On the 24th of November 1852, a judgment by confession, without action, was-entered in favor of Schoolcraft against Thompson upon a statement in writing and affidavit as follows: “ Supreme Court, County of Livingston:. John L. Schoolcraft against Theodore Thompson. Statement and confession of judgment without action.

On the 27th of July 1852, a judgment on confession was entered in this cause in the county of Albany, for $ 1827*32 and five dollars costs. The confession stated that the indebtedness arose on a promissory note, payable to thp plaintiffs and dated the 15th of July 1852, and the confession was verified by the defendant’s affidavit.

The administrator of the defendant moves to set aside a judgment entered by confession djis court in November 1849. The defendant died in January 1850, and in March 1851 letters of administration upon (he estate of the deceased was granted to the person now moving.

This is an application to change the place, of trial from the county of Montgomery to the county of Herkimer. The plaintiff resides in the* former county and the. defendant in the latter. A preliminary objection is taken, on the ground that the notice of the motion is in the alternative, being to change the venue or place of trial.”

Motion in this and seven otlt-er causes,, to change the place of trial in five fiom the counly of St. Lawrence, and in the remaining three from the county of Franklin, to the city and county of JYew Yor/c. This is an application on the part of the defendants, who aré residents of the city and county of New Yotk, to change the place of tiial from the county of Si. Lawrence to that cily and counly.

This was an application on the petition of the Reformed Presbyterian Church for leave to sell real estate. The facts appear sufficiently by the opinion of the court.

The action was commenced bv the service of a summons the 22d December last: and on the 11th day of January the defendant’s attorney served notice of appearance and demanded a copy of the complaint. February first, the defendant’s attorney caused a copy of affidavit and notice of this motion to be served upon the plaintiff’s attorney by leaving them in a conspicuous place in his office, in his absence.

On return of order to show cause why injunction should not issue. Complaint is sworn to on the 24th of January; summons dated on the same day; affidavit on which order to show cause, is dated same day, 24 th January.

Motion to strike out the defendant’s answer as false. The action is upon a note and an account for goods sold and delivered. The defendant, by his answer, denies each and every allegation in the complaint, and then, for a further answer, alleges that the plaintiffs, at the time of the sale of the goods promised the defendant that the goods, &c. were of a good quality, and not injured; whereas they were of a poor quality and injured and of no value to the defendant.

A motion to change the place of trial having been granted, the defendant’s counsel asked for costs of the motion, the amount to be fixed and inserted in the order, with a provision that the defendant be allowed to insert them in his general bill, provided the final result should entitle him to recover judgment for costs against the plaintiff; in other words, that the costs of the motion be ordered to abide the event of the action.

This action was commenced in March 1846, and is in the nature of a credit- or’s bill. A large amount of testimony was taken, and various orders made enlarging the time, till on the 10th May 1847, an order was made on the application of the plaintiffs, to close the proofs, and notice served on defendants’ attorney.

This cause was tried at the Westchester circuit in September 1852, by Mr. Justice Parker, and a verdict rendered for the defendant. The next day after the verdict was rendered, the justice made an extra allowance of $50.

Demurrer. The plaintiff alleges that, on the 29th of October 1847, the defendants, for certain reasonable' reward to them paid, undertook, as common carriers of persons and property, to carry and convey Amanda A. Hodgman from Worcester to Albany, and that she then became a passenger on the defendants’ cars, whereby it became the duty of the defendants safely and securely to cany her from Worcester to Albany, and to use all care and prudence in so doing.

The plaintiffs, Bailey and Sherman, sue the defendants on a contract executed by them in March 1851. The defendant, Silas Easterly, before answering the complaint, moves upon affidavits, showing that Sarah Easterly is his wife; that her name be stricken from the summons and complaint. The remaining facts appear in the opinion of the court.