Volume 9 — Abbott's New York Practice Reports

<p>Mode of Trial.—Cause of Action-.—Constitutional Law.</p> <p>An action to recover penalties for the erection of buildings in violation of the fire-laws, and for the removal of such buildings according to the provisions of such laws, hut not seeking any injunction, is an action in which the defendant is entitled to a trial by jury.</p> <p>It seems, that in any action under such statutes the court acts as a court of law exclusively, and the defendant is entitled therefore to a trial by jury.</p>

<p>Demurrer to complaint.</p> <p>This action was brought to enforce payment of a debt due from the Rahway Steam Brickworks Company, against the defendant as trustee of the company, on the ground of default on the part of the trustees in filing an annual report, as required by law.</p> <p>The allegations of the complaint were as follows:</p> <p>That at said city of New York, on or about the 25th day of April, in the year 1853, the said defendant, together with one Pierre O. Kane and the plaintiff, being desirous of forming a company for the purpose of carrying on the manufacturing and mechanical business hereinafter specified, in pursuance of the act entitled, “An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,” passed-February 17th, in the year 1848, did, in accordance with said act, make, sign, and acknowledge, in due form of law, before one Lewis Hurst, who was then and there a commissioner of deeds, in and for the city and county of New York, duly qualified and competent to take the acknowledgment of deeds, a certificate in writing, which, with the said commissioner’s certificate, was in substance as follows :</p> <p>[Here followed a certificate of incorporation, signed by the plaintiff, the defendant, and a third party. The certificate fixed the number of trustees at three, and named the three corporators who signed it as the trustees for the first year.]</p> <p>And the said plaintiff further says, that afterwards, to wit, on said 25th day of April, in the year 1853, the subscribers to said certificate filed the same, so acknowledged, in the office of the clerk of the city and county of New York, and that on the 26th day of April, in the year 1853, they filed a duplicate thereof in the office of the secretary of state of this State; and thereupon the subscribers to said certificate, and their successors, became, and ever since have been, a body politic and corporate, in fact and in law, by the name of the “ Kahway Steam Brick-works,” under and in pursuance of the act aforesaid.</p> <p>And the said plaintiff further says, that' immediately thereafter, to wit, on or about the said 25th day of April, in the year 1853,- the said subscribers to said certificate, being then and ever since citizens of this State, accepted said office of trustees, and entered upon and qontinued to discharge the duties thereof until the 4th day of April, 1854; and that afterwards, on said 4th day of April, 1854, trustees were duly elected to manage the business of said company for the year ensuing, and that Clarence Livingston, Chauncy Barnard, and said Pierre C. Kane were elected such trustees. That on or about the 13th day of October, in the year 1854, said Pierre C. Kane resigned his said office, and the defendant was duly elected a trustee of said company in the place of said Kane, and that the defendant has ever since continued to he a trustee as aforesaid, and as such has continued to conduct and manage the stock, property, concerns, and business of said company.</p> <p>And the said plaintiff further says, that the said company did not, within 20 days from the first day of January, 1855, make, and have not at any time since made a report stating the amount of its capital, and of the proportion of the same actually paid in, and the amount of the existing debts of the said company at the period last aforesaid, or at any period subsequent thereto; nor did said company cause any such report to be signed by its president and a majority of its trustees, nor to be verified by the oath of its president, nor by the oath of its secretary, nor to be filed in the office of the clerk of the city and county of New York; nor to be published in any newspaper printed and published in the city and county aforesaid; and the said defendant, and also said company, wholly neglected and refused during said period, and have ever since neglected and refused, to cause any such report to be made, signed, verified, filed, printed, and published, in conformity with the provisions of the 12th section of said act; and they, the said company and the said defendant, as such trustee, have at all times neglected and refused, and still do neglect and refuse, to comply with the provisions thereof.</p> <p>And the said plaintiff further says, that at the city of New York, on or about the 13th' day of October, 1854, the said company, by a resolution of its trustees, of whom the defendant was one, instituted an action in the Supreme Court of this State against the plaintiff, by summons and complaint; and thereupon such proceedings were had that the said Supreme Court, on the 16th day of March, in the year 1857, dismissed said complaint, with costs; and that said costs were afterwards, on the 6th day of April, in the year 1857, duly adjusted and taxed, in the sum of $1212.97, on which 6th day of April aforesaid the judgment-roll in said action was duly filed in the office of the clerk of the city and county of New York.</p> <p>And said plaintiff further says, that the said judgment, so recovered by the plaintiff against said company, still remains in full force and effect, and that the same has not, nor has any part thereof, been in anywise paid or satisfied.</p> <p>And the plaintiff says, that the defendant, by means of the premises, became, and is, liable to pay to the plaintiff the said sum of $1212.97, together with the lawful interest thereon from the said 6th day of April, 1857.</p> <p>Wherefore, &c.</p> <p>The defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action.</p>

<p>Set-off.—Power of New York Common Pleas over Docketed Judgment of Marine and District Courts.—Attorney’s Lien.</p> <p>After filing of transcripts of judgments of the Marine Court and the district courts of the city of New York, in the office of the clerk of the Court of Common Pleas, the latter court have control over such judgments, such as to enable them to order set-off between them.</p> <p>It seems, that an attorney’s lien for costs does not extend to preclude a set-off between cross-judgments.</p> <p>Whether an attorney can acquire a lien on a judgment in the New York Marine Court,—Query ?</p>

<p>Writ of error to the General Sessions of the city and county of New York.</p> <p>The facts appear in the opinion.</p>

<p>Divorce.—Affirmative Relief.</p> <p>In an action against the husband for divorce on the ground of cruel and inhuman treatment, the charge was not substantiated, but, on the contrary, the defendant alleged and proved that instead of his having been guilty, the plaintiff had been guilty of such conduct as rendered it unsafe and improper for him to cohabit with her.</p> <p>Held, that a divorce, a mensa et thoro, to which the evidence showed the defendant to be entitled, could be granted in the present action under the provision of section 274 of the Code, allowing the defendant affirmative relief.* Whether the defence of adultery can be interposed in an action for divorce, on the ground of cruel and inhuman treatment,—Query ?</p>

After decision by the general term of this court of an appeal from the judgment of a justice, the unsuccessful party applied at the ensuing term for leave to appeal to the Court of Appeals, and having been heard, the court reserved their decision till the following term, when they granted the application, and -directed that the order allowing the appeal be entered rmno pro tuno, as of the preceding term.

The action was on five several promissory notes, made by the defendants to the order of the plaintiffs. The complaint alleged that the defendants were a corporation, organized under the laws of the State of New York, and transacting business in the city of New York, and then alleged the making and delivery of the notes, in the usual form; but it did not show the character of their business or corporate powers, except so far as that is implied in the defendant’s name.

This action was brought by Charles G-. Patterson against Elisha Bloomer, to enforce the specific performance of a contract for the purchase of a stone quarry. The defendant claimed that he had been induced to execute the contract by fraud.

<p>Demurrer to complaint.</p> <p>The facts are stated in the opinion.</p>

<p>Submission of Controversy without Action.—Guardian.</p> <p>The court cannot, on submission of controversy without action under section 372 of the Code, determine a question of difference in which it appears, from the statement, that an infant is legally interested.</p> <p>It seems, that there is no authority for the appointment of a guardian for an infant party, for the purposes of a submission of a controversy without action; and that an infant has no power to consent to such submission.</p>

<p>Deposition.</p> <p>In taking a deposition it is not necessary for the judge himself to write down the examination of the witness; it is sufficient that he administers the proper oath, and then after the witness has been examined in his presence, and the examination has been written down by counsel, that he reads it over to the witness before the signing and certifying thereof.</p>

Motion to vacate an order of arrest. This action was brought by Alfred Ely against John Steigler, Henry M. Lowenstein and another; and came now before the court on several motions, among them a motion to vacate an order of arrest, on complaint and answers.

Motion to vacate an injunction. This was another motion in the same action as the motion last above reported; and was heard at the same time. The defendant, Samuel J. Crooks, Esq., of New York, an attorney of the court, was made a party for the purpose of the injunction.

<p>Motion to make more definite and certain, portions of a reply.</p>

<p>Application for a new trial.</p> <p>The facts appear in the opinion.</p>

Motion to change place of trial. This was a third motion in the same action as those last above reported, and was heard at the same time. The ground relied on for the motion was that the action, the nature of which is stated in the preceding reports, was a local action relating to real property in the city of New York.

This action was brought by John Lawless against John O’Mahoney, to recover on certain bills of exchange, which the plaintiff alleged were drawn by August Belmont & Company, of New York, on the house of Rothschild & Sons, at London, payable to the. order of George Hopper, and by Mm indorsed in blank, ' wMch plaintiff received before dishonor, and on which the plaintiff had subsequently recovered a judgment against Belmont as the drawer.

I. Special Term, December, 1858.—Motion by plaintiff to amend, judgment-roll; and motion by defendant to amend case on the appeal.

This action was brought by John K. Yan Slyke, plaintiff and appellant, against Thaddeus. Hyatt. The plaintiff claimed, as assignee of one Charles K. Covert, to recover from the defendant money lent, notes lent or advanced, money received to the use of Covert, and goods sold. The defendant in his answer denied any indebtedness to the plaintiff, and denied that he had been indebted to Covert, the assignor, and for a further defense claimed a set-off against Covert.

The defendants in this action were the partners engaged in business both in this city and in Nottingham, England, under the firm of Melliss & Ayers in Mew York, and Ayers & Melliss in Mottingham. Their transactions were very large, and the credit of the houses good.

Motion by a purchaser at a judicial sale, to be discharged. This action was brought to foreclose a mortgage on real estate in the city of New York. The complaint and lis-pendens were filed on December 29, 1858. The summons was served on that day upon all the defendants, except Robert Livingston and his wife, the said Livingston being proceeded against as the owner of the equity of redemption, and the other defendants being judgment creditors.

This action was brought by Rowena Florance against Benjamin F. Butler, to recover damages for alleged trespass committed during the time of the rebellion, under color of authority of the United States.

Motion to set aside order for service of summons by publication, and all subsequent proceedings. The action was on a promissory note. The plaintiff proceeded by publication of summons, and entered judgment, which the defendant now moved to set aside for irregularity. The facts relative to the proceedings are stated in the opinion.

This action was brought by Simeon J. Ahem against the Standard Life Insurance Company. This was an appeal from the taxation of costs by the clerk. Plaintiff obtained a verdict at the trial term. A motion was made at special term for a new trial upon a case, which was denied. Judgment was thereupon entered, and the defendants appealed to the general term from the judgment, and also from the order denying the motion for a new trial.

The action was brought to foreclose a mechanic’s lien. The cause was referred to Edward P. Cowles, Esq. He reported in favor of the defendants. They gave the usual notice of taxation of costs, in which the amount charged for referee’s fees was three hundred and twenty-five dollars, being for sixty-five meetings at $5 each.

<p>Appeal.—Stat op Proceedings on Judgment.— Discharging Receiver.</p> <p>Notwithstanding the stay of proceedings on a judgment in favor of defendant, effected by an appeal to the court of appeals with security, the court below have power to discharge a receiver, whose appointment was ordered before judgment, as a provisional remedy.</p> <p>The proceedings which are stayed by the appeal are those which may be instituted by the respondent for the purpose of enforcing the provisions of the judgment.</p> <p>The entry of the judgment in favor of the defendant ends the functions of the receiver, although he is not discharged without special order.</p>

Motion to vacate injunction. The Rubber Tip Pencil Company brought this action against Samuel D. Hovey, to enjoin him and his servants from making or dealing in rubber pencil-heads during the term of a patent therefor, claimed by plaintiffs, except dealing in such as might be purchased from plaintiffs ; and for damages.

<p>Motion for leave to reply.</p> <p>This action was brought by John S. Pardee ar d pthers against Randall H. Foote and others.</p>

The petitioners having recovered certain judgments against the North American Gutta-Percha Company, issued executions thereon on the 6th of September, 1858, which executions the sheriff levied, or assumed to levy, on property of the company. In the following month, and before any sale by the sheriff, the company was dissolved and a receiver appointed at the instance of other judgment-creditors.

<p>Sham Ahswer.—Actioh by Broker.</p> <p>In an action by a broker for his commissions, a general denial may be struck out as sham, on affidavits showing that the person introduced by the plaintiff actually became purchaser, and plaintiff was instructed to prepare the contract, although the sale was effected at a less price than that named by defendant in employing plaintiff.</p>

<p>.Motion to vacate attachment.</p>

<p>Complaint in Ejectment.—Averment of Notice. —J üdg-ment. —Waives.</p> <p>A judgment in ejectment will not be set aside on "motion,, on the . ground that the complaint did not aver that fifteen days’ notice of intention to re-enter had been given, especially where the action and recovery are founded as well on the breach of other covenants, as on that of the covenant for payment of rent.</p> <p>The notice, if necessary, may be waived by defendant’s omission to object before judgment.*</p>

Motion to vacate judgment. The plaintiff in this action having a claim against the city corporation for goods sold, and materials furnished, and services rendered, presented his bills therefor to the supervisors, who referred them to a committee for audit and examination. The amount which was claimed was $3436.54. The committee audited and allowed the hills at §1577.57, deducting and rejecting the rest.

The action was tried before Hon. Charles P. Daly, F. J., and a jury; the defendant moved for a nonsuit, which was granted. His decision of the motion is reported 8 Ante, 316. The plaintiff now moved at special term for a new trial. Other facts appear in the opinion.

Petition for removal. This action was brought by James B. Hodgkins against Thomas B. Hayes and others.

This was an.action on contract for the, recovery of money only. The plaintiff having obtained a report by the referee to whom the cause was referred for trial, awarding judgment in his' favor, defendant moved to set aside the report, on the ground that the statute time within which the report must be made, had elapsed. The motion was denied, and the plaintiffs entered judgment.

<p>Appeal from an order denying a motion to vacate an order •of arrest.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment.</p> <p>The facts are stated in the opinion.</p>

Motion as to costs. This action was brought by Abraham Demorest against E. S. Torry and others, to recover the sum of six hundred and twenty-five dollars. The defendants were non-residents, but had a place of business here ; and an attachment was issued against them, and levied on their stock. The cause having been tried, the defendants recovered judgment.

Hathorne. The object of the action was to enjoin the defendant from building a bridge which plaintiff claimed would be a public nuisance and injurious to plaintiff’s real property. The property, and the site of the proposed bridge, were in the county of Saratoga. The place of trial of the action, specified in the plaintiff’s complaint, was the county of Westchester.

Motion to set aside execution. This action was brought by John B. Elwood against George S. Gardner. The summons was for relief.

This action was commenced against the defendant to procure its dissolution, and the distribution of its property among creditors and stockholders, on the ground of its alleged insolvency, pursuant to… Held: &c., and affirmed on appeal by the general term, and upon the terms and conditions specified,” &e., and requiring compliance on the part of the defendant with the terms imposed upon it.

<p>1. October, 1869. Petition for the dissolution of an insolvent insurance company, and the appointment of a receiver.</p> <p>Cardozo, J.</p> <p>The insolvency of the British Commercial Insurance Company cannot be doubted on the papers before me, and it is equally clear that its affairs should be closed up, and the fund within our jurisdiction administered so as to protect the best interests of the policy-holders, either by re-insuring or otherwise. The company has not done any business here since about 1862, its authority to collect the interest on the deposit in the insurance department having been revoked in 1861 in consequence of the “unsatisfactory condition of the affairs of the company.” The superintendent does not suggest that its affairs have improved since ; the plaintiff charges that it is insolvent, and the agent, who ought to know, and, knowing, to state the fact plainly and positively, only avers that it is not insolvent, “ as he is informed and believes.” It is plain enough that the only way to protect the policy-holders is to apply the funds, to their re-insurance.</p> <p>The statute creating the office of superintendent of the insurance department, and the amendatory act of 1860, only refer to proceedings taken by the superintendent. They do not prevent others interested in the company from moving, when the superintendent does not, and when they proceed, the practice is the same as governs in and applies to any similar action.</p> <p>The motion is granted.</p> <p>II. February, 1870. Motion to open order.</p> <p>A receiver having been appointed, he made arrangements for re-insuring the policy-holders with the Continental Life Insurance Company; and, on an application to the court, this proposal was sanctioned, and the receiver accordingly made a contract for such re-insurance.</p> <p>More than one hundred policy-holders, however, united in a petition to be allowed to re-insure in the Horthwestern, a mutual company of a western State ; and upon this petition, another justice of the court granted an order complying substantially with the petition.</p> <p>The Continental Insurance Company now moved to open this order.</p>

The action was brought against the defendants as carriers of passengers to recover damages for injuries sustained by the plaintiff while a passenger upon their vessel. The complaint was verified, and a copy of it with summons was served upon the agent, in the city of New York, of the defendants. The defendants’ answer was verified by this agent.

<p>Appeal from an order at special term denying defendant’s motion to vacate an order of arrest.</p> <p>The action was to recover from G. S. and J. H. Mott moneys charged to have been fraudulently overdrawn by them from the plaintiffs. At the commencement of the action an order of arrest against both defendants was obtained; and the defendant J. H. Mott was arrested upon it; hut it was not executed against the defendant G. S. Mott. Upon failure to answer, the plaintiff entered judgment against the latter. The judgment authorized the plaintiffs to issue execution as well against the body as the property of such defendant. After execution against his property had been issued, he obtained from the court leave to answer the complaint, and proceed in the action on payment of costs and sheriff’s fees, hut it was ordered that the judgment should stand as security. The plaintiff then obtained an order for his arrest as a provisional remedy, upon which he was arrested, and from which he moved at special term to be discharged. The motion was denied (see the case reported 8 Ante, 150); and he now appealed to the general term.</p>

This action was brought by Louise C. Southwick, plaintiff and appellant, against Greorge W. Southwick, defendant and respondent, and came before the court on appeal from a judgment entered upon the report of Joseph Meeks, Esq., referee, to whom this cause was referred on the consent of the parties.

The action was for the foreclosure of a mortgage. After taxation of costs before the clerk upon entry of judgment for the plaintiff, the defendant’s attorney appealed to the court from the determination of the clerk in respect to the disbursements allowed. The facts are stated in the opinion.

The case was tried before one of the justices of the court without a jury, and judgment rendered against the defendant for the sum of $690.81.

The Erie and Genesee Valley Railroad Company having laid out their proposed route under the general railroad act of 1850 (Laws of 1850, ch. 140), the written notice required by section 33 of the act, to be served by the company upon all actual occupants of land over which'the route of its road is designated, was served upon the petitioners in this matter, on May 18, 1870.

This action was brought on a promissory note made by the Potsdam and Watertown Bailroad Company, indorsed by the other defendants, for $5000, payable in the city of Bew York. It was given to take up another note of the same amount, made and indorsed by the same parties, payable also in the city of Bew York; which had been protested, and which the plaintiff had been obliged to take up with Bew York funds. Plaintiff is located at Adams.

This was a creditor’s action, brought by the plaintiff who was a creditor at large of the defendants, O. L. and H. B. Sheldon and William… Held: or any other demands; and that he verily believes that neither of the partners of said firm, had any idea or suspicion that any such action or actions would be commenced; that after he had entered into such arrangements, and taken up the paper of Sheldon & Harris at the bank, and received their note therefor, it became apparent to…

<p>Motion foe New Trial.—Appeal.</p> <p>Upon exceptions taken to the ruling of the judge and his charge, at the trial, the defendant, after judgment entered on a verdict against him, moved at special term, before another justice, for a new trial.</p> <p>Held, that the motion should be denied. Although the justice before whom the cause was tried may entertain such motion, another justice cannot: nor can it be made in any way after judgment is perfected. The only mode of reviewing the judgment is by appeal*</p>

Motion to digmigg an appeal. Thig action wag brought by Henry C. Silgbee and another, as executor, &c., against William W. Gillespie and others. One of the defendants, Mary E. Smith, demurred, and the demurrer was sustained, and judgment entered.

<p>Motion for judgment as on failure to answer.</p>

Motion to vacate order of reference and report of referee, and judgment entered thereon. This action was commenced by the Accessory Transit Company in 1857. The plaintiffs’ claim amounted to nearly a million of. dollars, and was founded on charges that the defendant, while acting as their agent, had defrauded them by false accounts and vouchers. The cause was referred to W. K. Thorne, Esq., as referee to hear and determine the same.

Motion to vacate an attachmem. This action was brought by Washington Yan Wyck against Bertha Bauer and others, for the foreclosure of a mortgage on real property. The plaintiff obtained the issue of an attachment against defendant’s ' property on affidavits, and defendant moved to vacate it.

<p>Arrest under the non-imprisonment act.</p> <p>This action was brought by Azema Robinson against Bella Rivers, on contract, for a bill for making dresses, amounting to one hundred and thirty-four dollars and fifty cents, as appears by the summons (no complaint having been served). íhe summons was served August 31, 1870.</p> <p>On the same day, Judge Joseph F. Balt issued a warrant against the defendant under the non-imprisonment act (a Stilwell warrant) for the arrest of defendant, and she was arrested, and, being taken before the judge, gave the necessary bonds for appearance .and examination, and the hearing was adjourned to September 3, 1870, at eleven o’clock, A. M.</p> <p>At the adjourned day the defendant appeared with her counsel, who read an affidavit of defendant, setting forth that she was married on March 3, 1868, stating further, to whom, by whom the ceremony was performed, and at what place, and that she was still married to and living with her husband, and supported by him, and that she had no separate estate, and no business of her own.</p>

<p>Appeal from a judgment entered on two reports made by a referee.</p> <p>This was an action to redeem, brought by the plaintiff, the mortgagor of chattels against P. and S. Stiles, the former of whom held the mortgage by assignment from the mortgagee, and the latter of whom had purchased, or claimed to have purchased the mortgaged property from him. The property consisted of two horses.</p> <p>After default on the part of the mortgagor, the mortgagee sold the mortgage to the defendant P. Stiles, who thereafter verbally agreed with the mortgagor, on an extension of the time of payment. On the day appointed, the defendant P. Stiles took possession of one of the horses, and demanded the other. The mortgagor tendered the amount of the debt and interest in bank notes, but he refused to take it, saying he did not take rags, but that if it was gold he would not take it; that it was too late, and that he had sold the horses to his brother (the co-defendant in this action), and he then took possession of both horses. A day or two afterwards the plaintiff tendered the amount in gold to both defendants, and to P. Stiles individually; and it being refused, deposited it in bank to the order of defendants. Some eight months afterwards the bank suspended ; and to save the deposit, the plaintiff took from the bank a note of a third party for it.</p> <p>The circumstances of the alleged sale were such that the referee held it collusive, and as against the plaintiff void.</p> <p>The action was commenced in December, 1856, a few days after the tender had been made, and the complaint asked that the plaintiff be allowed to redeem, but did not demand an accounting for or payment of any compensation, for the use of the horses after the tender.</p> <p>The whole action, and all the issues therein, were referred to a sole referee, who proceeded with the trial, and in March, 1858, made a report to the effect that the plaintiff was entitled to redeem, and that the defendants should be charged with the costs of the action, as having unreasonably refused to allow him to redeem, and put him to his action; and he directed judgment for the plaintiff, with costs.</p> <p>In April following, after the delivery of the report, the plaintiff, on notice at special term, moved for and obtained an order referring it back to the referee, “ to take proofs and account of the use of the horses mentioned in the complaint, since the defendants came in possession of them, and to report the value of such use.” The motion was founded upon an affidavit that the referee had made his report, and that it appeared on the trial that the defendants had had possession and use of the property of which redemption was sought, and that the referee had charged the plaintiff with interest on the mortgaged debt, but had not charged the defendants for the use of the property.</p> <p>The referee proceeded under this second order, took testimony, and reported the value of the use of the property. Judgment was entered up for the plaintiff upon both reports, in accordance with their conclusions. The defendants now appealed from this judgment to the general term.</p>

<p>Married Woman’s Liability.—Separate Estate.— Action to Charge the Estate.—Frame oe Action.—Pleading.—Form oe Judgment.</p> <p>Where a married woman becomes indorser for her husband, a simple declaration, in the indorsement, of the intent to charge her separate estate, is sufficient to create such a charge.*</p> <p>It is not necessary that an instrument, to create a charge upon the separate estate of a married woman, should be in such a form as to ' constitute a specific lien.</p> <p>The capacity of a married woman to charge her separate estate by incurring debts is not limited to cases in which the contract is for her 1 personal benefit. When she assumes to act in reference to her separate estate, the question is not whether her acts are really for her own benefit, but the right to act and to bind her own estate, carries with it the right to act unwisely and to her own injury if she so will.</p> <p>An action to enforce, against the separate estate of a married woman, a debt, which by a contract she has declared her intent to charge thereon, may be in the ordinary form of an action on contract, if the complaint allege her having a separate estate, and her intent to charge it by the contract.</p> <p>The -judgment in such an action may b.e in the ordinary form of a judgment for the recovery of money.</p> <p>A judgment for the recovery of money, simply, should not be reversed on appeal, and a new trial ordered, merely because the facts alleged and proved were such "as to render it proper that the judgment should be special, charging the recovery upon specific property; but the judgment may be modified in this respect, although specific relief was not demanded in the complaint.* (Per Eabl, J.)</p>

<p>Application by plaintiff for leave to amend the complaint.</p> <p>The facts are stated in the opinion.</p>

<p>Motion foe Leave to Answee.—Opening Default.—Appeal.</p> <p>The defendant by reason of an irregularity in the service of an order giving him more time to answer, suffered his time to elapse without answering. He then moved before judgment was entered against him for leave to answer.</p> <p>Held, 1. That his application showing substantial matter of defence should' be granted.</p> <p>2. That an order denying the motion was appealable without a certificate of the judge, under rule of 2‘2d March, 1851.</p> <p>Where defendant shows that he has substantial matter of defence, his rights should not be summarily disposed of by denying a motion to be relieved from an irregularity.</p>

<p>Jurisdiction.—Another Action Pending.—Commencement of Action.</p> <p>If two actions between the same parties and upon the same subject-matter are brought in two different courts, the court which first acquires jurisdiction of the case should dispose of the whole.</p> <p>The court which was not the first to acquire jurisdiction, should, on motion, restrain ■further proceedings in the action before it, until The allowance of a provisional remedy,—e. g., the granting of an injunction without notice—is an exercise of jurisdiction within this rule.</p> <p>It seems, that it is only in exceptional cases that a receiver should be appointed without notice, and before service of summons.</p> <p>A receiver appointed in an action commenced when a former action between the same parties, and on the same subject-matter, was pending in another court, expended moneys in the matter of the receivership.</p> <p>Held, on granting a motion to stay proceedings, and to vacate the order for his appointment,- that it should be done on condition that his expenses and compensation be paid by the moving party.</p>

<p>Pleading.—Complaint.—Averment of Plaintiff’s Incobporation .—Demurbeb.</p> <p>The complaint of a foreign corporation must plead the fact of its incorporation, except in the case where the defendants are estopped from denying the incorporation; as, by having contracted with the corporation by their corporate name.</p> <p>The plaintiffs sued as the President, Directors, and Company of the Connecticut Bank, claiming to recover as indorsees of notes made by the plaintiffs, but did not aver that they were a corporation.</p> <p>Held, on demurrer, that the complaint was insufficient.*</p> <p>The demurrer specified as the ground of demurrer, that the complaint did not state facts sufficient to constitute a cause of action; among other things, in that it did not show the plaintiffs’ capacity to sue.</p> <p>Held, that although the latter objection was not properly a specification of a particular, falling under the general objection that the complaint did not state facts sufficient, but should have been assigned as a distinct ground of demurrer, the error should be disregarded.</p> <p>A complaint on a promissory note in an action by indorsees against maker, which sets forth the indorsement by which the plaintiffs became holders of the note, need not also allege that they are holders and owners of it.</p> <p>A complaint in such case which sufficiently alleges the making of the note, delivery, indorsement, and non-payment, need not also allege that the defendants are indebted on it to the plaintiff.</p>

Motion to compel plaintiff’s attorney to receive an answer. This was an action brought against the members of a copartnership, consisting of Hermanns Claasen, Enno J. Claasen, and another. Enno J. Claasen was a minor. All of the partners were named as defendants in the action, but the summons was not served on the minor defendant, Enno J. Claasen.

The facts respecting the interrogatories proposed appear in the opinion. The application for their settlement was made at special term, and the following opinion rendered.

The allegations of the affidavit on which the assignee of the judgment obtained the order for the examination of the defendant supplementary to execution, were as follows : “ That judgment was recovered in this action in favor of the above-named plaintiff, and against the above-named defendant in this court on the 30th day of August, a. d., 1843, for the sum of one hundred and eighty-four dollars and eighty cents, damages and costs, and the judgment-roll filed in the office…

The action was brought on an undertaking executed by the defendants as sureties for one Trask, on an appeal taken by Trask to the New York Common Pleas, from a judgment recovered against him by the plaintiff in this action, in a former action in a district court. The undertaking produced on the trial was executed on the 4th of August, 1858.

<p>Appeal from New York Marine Court to Common Pleas.</p> <p>An appeal will not lie to the Common Pleas from a judgment of the general term, New York Marine Court, merely reversing a judgment rendered by one of its justices, without ordering a new trial, or giving final judgment, or in any way determining the rights of the parties to the action.*</p> <p>If an appeal is taken in such case, it should be dismissed, and the return sent back, that a proper judgment may be rendered.</p>

This action was brought by the Joseph Dixon Crucible Company against the Yew York City Steel Works. The complaint alleged the plaintiffs’ incorporation ; and, for a first cause of action, a promissory note made by defendants to the order of the plaintiffs ; and, for a second cause of action, goods sold and delivered. The answer was as follows : u The defendants, answering the complaint herein, allege: “First.

<p>The facts appear in the opinion.</p>

<p>Action to forclose a mechanics’ lien.</p> <p>The facts sufficiently appear in the opinion.</p>

This was an appeal on behalf of the defendants from a judgment entered against them in favor of the plaintiffs for $340.39 damages and costs upon a verdict. The cause was tried before Mr. Justice Woodruff and a jury. A motion to dismiss the complaint was made before the evidence was gone into, and denied, and an exception taken. Various exceptions to the ruling of the judge as to evidence were taken during the trial, which are hereafter noticed.

Petition to vacate assessment. Denton Pearsall presented a petition to vacate an assessment for the building of a sewer in Eighty-sixth-street, in the city of New York, for alleged legal irregularities, which appear in the opinion.

<p>Costs.—Executors and Administrators.</p> <p>In an action against executors and administrators, to recover for services rendered to them as such, the plaintiffs, on recovering judgment, are entitled to costs against the defendants, and may enter judgment for the same without special application to the court for the allowance of the costs.*</p> <p>The provision of section 41 of the Revised Statutes (2 Rev. Btat., 90, § 41), that costs shall not be recovered against executors or administrators, unless the demand shall have been presented for payment, reference, &c.,—applies only to demands which existed against the decedent in his lifetime, and not to any claim created since his decease, by or under supervision of the executors.</p>

The action was on a bill of exchange, against the acceptor. The allegations of the complaint were as follows : “ That heretofore, and on or about the 28th day of April, 1859, at Indianapolis, in the State of Indiana, certain persons, under their firm-name of William M. Morrison & Co., drew their certain bill of exchange in writing, bearing date on that day, and directed the same to the defendants, at Ko. 123 West 3!th-street, in the city of Kew York, whereby two months after…

<p>Motion for a supersedeas.</p> <p>The facts are stated in the opinion.</p>

This action was brought by James C. Anderson against Thomas H. West and Andrew Titus, to recover a balance claimed to be due the plaintiff, who averred that in the summer of 1868 he shipped a large quantity of peaches from Ohio to the defendants to be sold on commission—plaintiff alleging that a contract was made by defendants' or their agent that the same should bring the plaintiff an average of seven dollars per crate or box, that instead they only averaged four dollars…

Motion to confirm an inquisition. This was a proceeding for the appointment of a committee of the estate of Elizabeth Tebout, who had been found, by a commission appointed de lunático inquirendo, to be an habitual drunkard.

' This action was brought by John W. Thompson and Rhoda Thompson, plaintiffs and respondents, who sued in their own behalf, and in behalf of all other holders of the preferred stock of the defendants, the Erie Railway Company.

<p>Motion to supersede an execution.</p> <p>The facts are stated in the opinion.</p>

The confession of judgment was in the following form: [Title of the Cause.] “ I do hereby confess judgment in this action in favor of the plaintiff for the sum of two thousand and eighty dollars and twenty-four cents, and authorize judgment to be entered therefor against me. “This confession of judgment is for a debt justly due to the plaintiff, arising upon the following facts: On or about the 18th day of December, 1858, the plaintiff lent or advanced to the defendant in…

The action was brought on a promissory note, which was made by the defendant payable to the order of a third party, by whose indorsement it was transferred to the plaintiff. The complaint alleged that the plaintiffs were a corporation formed under the laws of the State of blew York, but made no reference to the statute under which they were incorporated ; and the defendant demurred.

<p>Execution.—Amendment of Return.—Attorney’s Lien.</p> <p>Though it is irregular to issue execution against the person before return of execution against property, yet when the latter has been filed, and it was by the sheriff’s neglect that the return had not been indorsed, the defect is amendable, and the second execution may be upheld by allowing the return to be indorsed nunc pro tunc.</p> <p>The plaintiff and his attorney agreed on a sum to be paid for the services of the latter in lieu of the statutory costs; and the parties subsequently compromised the suit, the defendant agreeing to pay the attorney’s costs. Judgment was entered without including costs.</p> <p>Held, that the defendant was bound to pay what the attorney was entitled to under his agreement with the plaintiff.</p> <p>The attorney’s lien is not limited to the amount of the statutory costs.</p> <p>The case of Haight a. Holcomb (7 Ante, 210; S. C., 16 How. Pr. R., 173), in so far as it holds otherwise, is to be deemed overruled by the case of Rooney a. Second Avenue Railroad Company (18 N. Y., 368).</p>

Demurrer to complaint. The facts upon which the action was brought are fully stated in the complaint, the allegations of which were as follows : I. That on or about the 4th day of March, a. d. 1834, the above-named defendant, Abraham Fleet, being the owner in fee simple absolute of all and singular the lands hereinafter described, made and executed a certain indenture of trust, dated the year and day aforesaid, between himself, of the one part, and James H. Hackett, Sarah…

<p>Discovert and Inspection.—Appeal.</p> <p>After plaintiff has served his complaint, he cannot properly make application for a discovery of books and papers, until after the answer has been served.</p> <p>Discovery and inspection cannot be granted, except for the purpose of preparation of pleadings or for trial, and after plaintiff has pleaded, he cannot need discovery before the cause is at issue.</p> <p>An order granting a discovery and inspection, in a case in which it should not be -granted, affects a substantial right, and is appealable to the court at general term.</p>

<p>Motion to open default, and for other relief.</p> <p>This action is the same as that in which the decision of the general term on appeal from the order of discovery is last above reported. It was brought by holders of preferred stock of the defendants, to recover a dividend thereon, alleged to be due on January 1, 1870.</p> <p>Before issue was joined, but after the complaint had ’ been served, an order for the discovery and inspection of documents was made by Judge Pottee, from which the appeal above mentioned was taken, and proceedings were thereon stayed by the general term while the appeal was under advisement.</p> <p>Issue was joined in the cause on September 14,1870, by the service of an answer.</p> <p>The present motion had several objects, and involved a number of questions. The defendants moved—</p> <p>1. To open a default, and set aside an order appointing a referee to try this canse, and denying a supposed motion to change the place of trial, a motion which was never made or noticed to be made before the court which granted the order.</p> <p>2. To modify an order for discovery, heretofore made, so far as to permit the defendants to make motions in the cause.</p> <p>3. To change the place of trial.</p> <p>The facts material to the decision of the motion appear in the opinion.</p>

<p>Motion to discharge an order of arrest.</p> <p>The facts are stated in the opinion.</p>

Motion to open default. This action was brought by Joseph H. Ramsay against the Erie Railway Company and others, and at the October special term it was called on for trial. The plaintiffs’ counsel asked for a postponement of the cause, but defendants’ counsel insisted upon going on. The justice holding the court denied the motion to postpone, and directed that the cause proceed.

<p>Demurrer to complaint.</p> <p>The facts are stated in the opinion.</p>

This action was brought by Samuel N. Pish against Amos L. Crane, executor, and Mary Brooks, executrix of Cooper Brooks, deceased. It appeared that the executor and executrix had advertised for claims under the statute, and that Pish, having a claim for thirty-six hundred dollars for services against the estate represented by defendants, presented it during the pendency of the publication of notice for presentment of claims, and his claim was immediately and totally rejected.

<p>Motion for an injunction.</p> <p>The facts are fully stated in the opinion.</p>

Mandamus. This was a proceeding instituted by the relator on behalf of himself and others, claiming to be entitled to be recognized, ■employed, and paid as members of the Metropolitan Police force. Held: and still holds the same; and has received, and is still receiving, the pay and emoluments thereof. Winth.

<p>Appeal from an order.</p> <p>This action was brought by Eliza Howe, plaintiff and appellant, against Margaret Lloyd, executrix of Alexander 0. Lloyd, defendant and respondent. It now came before the court on an appeal from an order made at special term by Mr. Justice Hogkeboom, setting aside a judgment in favor of plaintiff for five hundred and twenty-four dollars and ninety-seven cents damages, and one hundred and fifty dollars and sixty-nine cents costs.</p> <p>The order sets aside the judgment absolutely, damages as well as costs, although plaintiff’s counsel insisted specially, the judgment was, in any event, regular as to the damages, and, as to those, should not be set aside.</p> <p>The action was commenced against defendant, as executrix, in May, 1868. The defendant afterwards offered to allow judgment to be taken for three hundred dollars and costs.</p> <p>The cause was referred to H. S. McCall, who, on October 21, 1869, reported in favor of plaintiff for five hundred and twenty-four dollars and ninety-seven cents, the amount claimed. On October 23, 1869, one hundred and fifty dollars and sixty-nine cents costs were taxed for plaintiff, and re-taxed, on notice to defendant’s attorney, at that amount, October 30, 1869.</p> <p>On October 29,1869, the defendant duly appealed</p> <p>to the general term from the entire judgment, by filing the proper notice of appeal and undertaking in the clerk’s office, and serving copies thereof on plaintiff’s attorney.</p> <p>The defendant was, before the commencement of ' this action, presented with a copy of the claim, and payment demanded.</p> <p>After the appeal from the judgment was perfected on December 11, 1869, defendant’s attorney served a notice of motion for the December special term, 1869, to set aside the entire judgment, damages and costs, because plaintiff was not entitled to costs, as no motion had therefor been made. The motion was granted, and plaintiff duly appealed to the general term from the order.</p>

Order to show cause why defendant should not have leave to amend his answer. This action was brought by Mary E. Hughes • against Mary M. Heath, her mother, to reach certain real property in the city, previously conveyed by Mr. Heath to the defendant, and which, as the plaintiff alleged, was conveyed on the understanding that the de fendant was immediately to re-convey to the plaintiff.

Trial by the court. This action was brought by Anna L. Sayres against Maria Rathbone. The plaintiff sought to recover the possession of real property, the title to which she claimed under a purchase by virtue of a mortgage, and the foreclosure thereof. The complaint was in the usual form of a complaint for the recovery of the possession of lands.

Patrick McDonald, after trial in the court of sessions of New York, was sentenced to five years in the State prison, for frauds practiced upon immigrants. Application was now made to the court on his behalf, for a stay of proceedings pending a writ of error, by which his conviction was to be reviewed.

This action was brought by Richard D. Barclay, sequestrator, &c., of the Quicksilver Mining Company of Pennsylvania, against the Quicksilver Mining Company of Hew York. Mr. Black, of Pennsylvania, having recovered a large judgment against the stockholders in the Pennsylvania company, and attached the stock of the debtors in that company, and the company having failed to surrender the stock, Barclay was appointed in Pennsylvania, a sequestrator of the property of the company.

The action was brought to foreclose a mortgage on real property. The* decree was for the sum of $11,012. There was a subsequent mortgage held by parties who were made defendants, upon which a sum a little exceeding $3300 was due. At the sale the premises were struck off for $12,500, to one Rosenfeld. The defendant, Empie, who was the owner of the equity of redemption, and the other defendants, the subsequent mortgagees, now moved to set aside the sale.

Motion to vacate satisfaction-piece. This action was brought by Gustave Bernstein against Lansing Demmler. The plaintiff’s attorney moved to vacate a satisfaction-piece he had given, upon an affidavit stating the following facts : That after the affirmance thereof, defendant’s attorney offered to settle the judgment, but deponent told Mm no settlement other than full payment could be made.

<p>• Habeas corpus.</p> <p>The facts are stated in the-opinion.</p>

This action was brought by Nathan Heilman against Charles L. Licher and others; and the defendant, Licher, after having answered in the action, procured a discharge in bankruptcy. He now applied to the court for leave to plead such discharge by a supplemental answer.

Motion to dismiss an appeal. This action was brought by Mary Hubbard and others, plaintiffs and respondents, against John Copcutt and others, appellants. On the trial at the circuit, a verdict was taken, subject to the opinion of the court at general term, on a case to be made. Judgment was ordered at general term; and afterwards, on evidence, and on motion at' special term, the court at special term modified the-judgment in material parts.

<p>Motion for a commission to take testimony, and appeal from an order denying the same.</p> <p>This action was by wife against husband, for a divorce. The divorce having been granted, the defendant, on his own petition, with certain affidavits annexed, and upon the pleadings and proceedings theretofore had in the case, now moved for a commission to take testimony in California, to be used on a reference pending before Alvin C. Bradley, Esq., to determine the amount of,alimony. The motion was denied by Woodruff, J., at special term; and, on appeal, the general term affirmed the denial.</p> <p>The course of the controversy was very fully developed in the papers laid before the court. The facts immediately pertinent to the motion will be here stated. (See also 3 Ante, 144; 10 Barb., 46.)</p> <p>The defendant recriminated, charging adultery with six persons named in his answer. The cause was tried before the late Chief-justice Oakley. It occupied about six weeks, terminating January 26, 1852, when the jury found a verdict that the plaintiff had not committed any of the offences charged; that the defendant was guilty of adultery, and that he ought to pay $3000 per annum, as alimony. The defendant did not, by any motion or appeal, impeach the verdict as being contrary to the evidence, or object to the charge of the judge. He took exceptions to the admission of certain evidence for the plaintiff, and to the rejection of certain evidence offered by himself. He also excepted to the method in which the alimony was settled, claiming that the jury had not cognizance of it, and that it should have been fixed by the judge, after a preliminary reference to ascertain the facts. Judgment was accordingly entered at the special term, January 31, 1852, against the defendant, for a divorce, and for the alimón}7 found by the jury. The defendant appealed to the general term, and stayed execution for the alimony by giving security.</p> <p>The appeal was heard at general term, and on July 24, 1856, the judgment for divorce was affirmed. But the court held that the alimony should be settled by a reference, which was ordered accordingly. (See the decision reported, 3 Ante, 144.)</p> <p>I. June, 1859. Motion for a commission. The defendant moved at special- term for a commission to take testimony to be used upon the reference. The petition on which the application was made, stated the proceedings, and stated that since July 24, 1856, when the order of reference was entered, no step had been taken by the plaintiff to execute it until May 26, 1859, on which day notice was given of a hearing before the referee on the 9th of June following; that the plaintiff, shortly after the special term judgment, went to California, where she passed some two years, or the larger portion thereof, in the profession of an actress and theatrical manager, at San Francisco, and occasionally at Sacramento city, Hevada, and other cities ; thence she visited Australia and Great Britain in the same capacity, and some time last autumn returned to this city, where she remained for some weeks, and then commenced a professional tour through the United States, and was last heard of by the petitioner at Dubuque, in the State of Iowa. That during the two years or so that she resided in San Francisco, she gradually fell from the favorable position first accorded to her, and acquired the reputation of being a woman of bad morals and dissolute and extravagant life, addicted to the excessive use of ardent spirits, and also unchaste, not with reference to one person alone, but to several. The petition then continued as follows:</p> <p>In the course of a year or so after her arrival in San Francisco, these rumors reached your petitioner, at first obscurely, and afterwards more definitely; and coupling these reports with a total cessation of all proceedings, on her part, in this cause, and her frequent declarations, reported to him, that she scorned to take, and would not accept, alimony from him, your petitioner was led to form and did form the belief that she had ■probably abandoned further prosecution of the suit; hence, he did not feel called upon to incur the expense, and subject himself to the mortification, of searching out accurately the exact foundation of each report that reached him, or taking testimony in regard thereto; but as he became gradually more convinced that she had fallen lower and lower in vice and depravity, and persuaded that she had abandoned the further prosecution of this suit, he rather studied to avoid hearing of her profligacies, than to inform himself of the particulars, until quite recently, when on hearing, indirectly, after plaintiff’s return to this city, that it was her intention to proceed in this reference, your petitioner caused diligent inquiry to be made to ascertain what had been the character and conduct of the said plaintiff since the entry of said judgment of divorce, in January, 1852. That your petitioner, in prosecuting these inquiries, has received such information as leaves no doubt on his mind, that said plaintiff, since the entry of said judgment, has led a life of extravagance, intemperance, immorality, and vice. That he has derived information of acts of intemperance, immorality, fornication, and adultery, on the part of said plaintiff, during the period referred to, from statements made by witnesses thereof, in some instances, and from careful inquiry as to facts which were within the knowledge of other witnesses, and could and would be testified to, if the testimony was required or compelled.</p> <p>'That for the purpose of establishing these facts, it will be necessary to examine a large number of witnesses in the State of California. That the facts which your petitioner expects and believes he shall be able to prove, and to which he has heretofore referred, necessarily involve to some extent the conduct and morality of the witnesses who will be required to testify thereto, and your petitioner has reason to believe, and does believe, that every effort will be made by the witnesses to avoid giving testimony by evading the interrogatories that might be framed or propounded to them, or by giving such answers as, while strictly true, would yet suggest an interrogatory that would extract the truth, and by other subterfuges and devices. That information has been wilfully withheld from him, and from those who sought it in his behalf, while prosecuting these inquiries, by persons who were known to possess, and who admitted, a knowledge of facts material and relevant to the defence of this case. That if written interrogatories should be framed to propound to the witnesses, it is impossible to foresee to what extent the answers to these interrogatories might suggest further questions, indispensable to a full examination of the witness, but it is obvious that this would be true to a great extent.</p> <p>That among the witnesses hereinafter-named are several who, your petitioner is informed and believes, have had criminal intercourse with the said plaintiff, and who must therefore be treated and examined as adversary witnesses; that several of the others are knowing to facts, as your petitioner is informed and believes, tending to convict the plaintiff of immorality, fornication, and adultery, to which they will be reluctant to testify; that it has been impossible for your petitioner to obtain that precise knowledge of the circumstances, of dates, places, parties present, and other details, which would be indispensably requisite in framing interrogatories to elicit these facts; and yet he is informed, and has no doubt, on an oral examination they could be easily proved; that several of the witnesses hereinafter named are acquainted with the same facts, and the testimony of any one of them, if voluntary and truthful, might dispense with the necessity of examining several of the others, as to the same facts; that your petitioner is informed and believes, that there are many other witnesses who are conversant with many of the facts which the defendant proposes to prove on the said reference, and several of whom it may become indispensable to examine, in case the witnesses hereinafter named evade or refuse to answer such written interrogatories as your petitioner might be able to frame; that many of the witnesses hereinafter named follow the profession of the stage, which leads to a frequent change of residence; that the population of California, like that of all new countries, is of a peculiarly transitory character, and it may well happen that several of the witnesses hereinafter named, and whom your petitioner has the best reason to believe now reside in, or whose attendance can be procured at San Francisco, may not be found there when a commission shall be executed, if the issuing of the same shall be delayed for so long a time as would necessarily be required to prepare and frame written interrogatories for their examination ; your petitioner further shows, that, by the laws of the State of California, as he is informed and believes, provision is made for compelling the attendance of witnesses before any person or persons commissioned by any court of competent jurisdiction of any other State, to take evidence to be used in any suit pending in such court.</p> <p>[The petition then named seventy-four witnesses, alleged to be material and necessary for him on the reference, all of whom were residents of San Francisco, except seven, who resided-in other parts of California; and then concluded as follows:]</p> <p>Your petitioner further shows that he has hereinbefore set forth the names of the witnesses whom he desires to examine, as fully and accurately as he can, after diligent inquiry, ascertain the same, but that from the number of circumstances involved in the said reference, and of the individual acts to be testified, the remoteness of the scene of their transaction from New York, the infrequency of mail communication with California, the secrecy which necessarily attended many of the occurrences which this defendant expects and believes he shall be able to prove, and the natural reluctance of the witnesses to communicate information growing out of the character of the transactions themselves, and from other circumstances heretofore referred to, it is not possible, as j’our petitioner believes, to ascertain and enumerate all the witnesses, or to frame interrogatories for their examination, and that any attempt to examine them in the ordinary way on interrogatories would be almost necessarily attended with the result of sending commission after commission to San Francisco to re-examine witnesses already examined, and to examine others, the materiality of whose evidence would be disclosed by the testimony of those already examined, thereby increasing immensely the delay and expense of this reference, and serving to complicate the evidence .and embarrass the court in examining and passing on it.</p> <p>[Here followed the usual oath to merits.]</p> <p>Wherefore your petitioner prays that a commission may be issued out of and under the seal of this court, directed to -, Esquire, of the city of San Francisco, counsellorat-law, and such other competent and unexceptionable person or persons, tó be nominated for the purpose, authorizing them to take the testimony of the witnesses hereinafter named, whether correctly named or not, and such other witnesses as may be brought before them in this cause, and that the said defendant may be at liberty to examine, and the plaintiff to cross-examine, and the defendant to re-examine such witnesses orally, and the testimony so taken may be returned to this court, and used on the said reference, or at any stage of this action, and that the proceedings in this action may be stayed, and that your petitioner may have such further and other relief in the premises as may be just and proper; and your petitioner will ever pray, &c.</p> <p>[ Signature. ]</p> <p>[ Verification. ]</p> <p>Affidavits of several persons were submitted, stating that they had heard reports in California unfavorable to the plaintiff’s morals and chastity. But neither the petition nor the affidavits specified any act of misconduct whatever on the part of the plaintiff; and, on the contrary, the defendant expressly disclaimed any personal knowledge.</p> <p>The plaintiff’s affidavit, taken on the day of the motion, stated that she first had notice of this motion yesterday. That from April 29, 1849, when he broke up housekeeping, until the trial, in 1851, the defendant allowed her $1500 per annum, but that thenceforth he had made her no allowance, except $100, by order of court, for certain law expenses. That, since November 1851, she had been obliged to labor for her subsistence, and had not been able to acquire sufficient means to support herself and one sister, a single woman, who resides with her, accompanies her always, and is dependent upon her. That professional services in California are very costly; that neither herself nor any person under her control possesses any means to defray" the expenses of this controversy; that the defendant’s estate amounts to many hundreds of thousands of dollars; and that she believes it to be defendant’s object, by this motion, to overwhelm her with expenses which she has no means of defraying. As to her alleged change of position .in California, she stated that when about leaving California, in March and April, 1856, she was invited by the lieutenant-governor, a justice of the Supreme Court, and more than sixty members of the«Legislature then in session, to'perform at a complimentary benefit at Sacramento' city, the capital of that State, and also performed at a like benefit in San Francisco, on the invitation of a very large number of respectable residents of the latter city.</p> <p>That ever since defendant’s application to the Legislature of Pennsylvania for a divorce [1850], he has been unwearied in his efforts to impress the public with the belief that she was unchaste; that he procured depositions to that effect, and presented them to the Pennsylvania Legislature ; and that he produced the same witnesses on the trial of the case, but that, as she infers from the results, they were wholly discredited by that Legislature, and by the jury.</p> <p>That the efforts of .defendant to stigmatize her and impeach her character have been very frequent, and in a most public form, for a period now extended to nearly ten years. And that if, among the multitudes who have heard and read his scandalous imputations, there are not some, even of the virtuous and charitable, who confide in their truth, she is most fortunate, though she is not aware that any such person exists.</p> <p>That, on the trial of the cause, her counsel called the said Edwin Forrest himself to the stand; that he was sworn, and answered a number of questions, but when asked whether he had committed adultery, he declined to answer. And the said Edwin Forrest did not then attempt to verify, by his oath, any one of the numerous charges which, in previous papers, he had made against her under oath, as upon his own knowledge, although he had no opposition to encounter except a cross-examination, or the possible contradiction of disinterested witnesses.</p> <p>That she cannot deny having spent and given away money to an extent which prudence forbade; and, so far, she is perhaps liable, in a degree, to the charge of extravagance, but she denies that, either in California or elsewhere, she has led a fife of intemperance or vice, as, according to his usual habit of assailing her, the defendant has untruly alleged in his petition. And she further says that she never has, either in California or in any other place, committed adultery or fornication, or committed any violation of chastity. She further stated that she had never intended to relinquish her claim for alimony, or expressed such an intention ; that she always desired to accelerate the proceedings, but, being absent from the country, and not having paid her attorney or counsel, she had not felt at liberty to be importunate on that subject.</p> <p>An affidavit was produced from the plaintiff’s attorney, stating that, shortly after the decision of the general term, the defendant had sold nearly all his property in this State ; that the defendant’s counsel had obtained from him one consent to stay proceedings on the reference, and had recently applied for another stay until next autumn, which was refused. That from this, and many other circumstances, he believed the defendant never had, at any time, the slightest idea that any intention existed, on the part of the plaintiff or her counsel, to relinquish the prosecution of the reference, however he may have hoped that the engagements of her counsel in other occupations might occasion delay therein.</p> <p>A witness who, on the plaintiff’s return from England, in December, 1858, in company with her sister and a gentleman, had accompanied the party from the steamer to the La Farge Hotel (N. Y.), and introduced the gentleman to the clerk of the hotel, testified that soon thereafter he met the defendant in Broadway; that the defendant “ expressed surprise that I, being his friend, had met the party at the boat; he censured me in strong terms for doing so ; there was a sharp discussion between us on that point; he said he understood that I made myself responsible for. the board; he used very strong terms against the plaintiff, stating, in substance, that her reputation was bad, as being an unchaste woman—using, for this purpose, strong and emphatic language.”</p> <p>The plaintiff also produced an affidavit, made in FTew York, June 9, 1859, by one of the seventy-four persons named in the petition as residing in California. He testified that he never was in California while the plaintiff was there, and consequently had no personal knowledge of her demeanor there; that he was well acquainted with defendant, but never knew the plaintiff until October, 1857, when he met her in London, England. And from all that he has seen, or known, or believed concerning her, he believes her to be a good, worthy, virtuous woman.</p> <p>Woodruff, J. The petitioner asks that the plaintiff’s proceedings be stayed. That a commission be issued to California to examine upwards of seventy witnesses, who are named, and such others as the defendant may discover to be material and may desire to examine. That the examination may be conducted orally before the commissioners, the defendant or his counsel attending before the commissioners, and examining the witnesses, with leave to the plaintiff or her counsel to attend and cross-examine.</p> <p>The fact's sought to be proved by the defendant are the extravagance, intemperance, and unchaste conduct of the plaintiff while in California, between the spring of 1852, and the spring of 1856, which it is alleged became so notorious, that she fell so low in the esteem of the community there, that respectable persons would not associate with her.</p> <p>This action was tried in January, 1852, and a judgment was entered on the 81st of that month, dissolving the marriage between the plaintiff and the defendant, and decreeing that both be freed from the obligations thereof.</p> <p>On an appeal to the general term, that judgment or decree was, on the day of July, 1856, affirmed.</p> <p>The reference then ordered was to take proofs, and ascertain what would be a suitable allowance to the plaintiff for her support, having regard to the circumstances of the parties, respectively.</p> <p>Neither of the parties have moved the matter to a hearing before the referee, until the month of Hay, now past, on the 25th of which the reference was, on behalf of the plaintiff, noticed for hearing on the 9th of June instant. Whereupon the present application is made by the defendant.</p> <p>1. The misconduct imputed to the plaintiff occurred, if at all, more than three years ago, and after the parties were divorced by the judgment of this court.</p> <p>If such misconduct could affect the plaintiff’s title to alimony, or modify its amount, it was just as material when the reference was ordered as it is to-day; and it is not claimed by the defendant to have been recently discovered.</p> <p>Either party might have brought on the reference, and had the suit brought to a termination.</p> <p>There was no sufficient reason why the defendant, if he desired to prove the facts now alleged, should wait until the reference was actually noticed, before making his motion, especially when it was perfectly well known to him, that if the commission was sent to California, months must elapse before it could be executed and returned.</p> <p>The circumstances called for instant diligence on his part to procure the commission so soon after the reference was ordered as the practice of the court would allow. And had he done so, the delay of the plaintiff in bringing on the reference would have aided him in accomplishing the execution and return of the commission.</p> <p>But such delay does not, I think, excuse the defendant’s neglect to apply for a commission. There never has been a moment since the order of reference was entered, at which .the defendant knew how long a time would pass before the reference would be proceeded in; and there has, therefore, never been a moment at which it was not his duty instantly to apply, if he desired a commission, which he knew it would take months to execute and return.</p> <p>True, the plaintiff did not, in fact, move the reference until now, but she was no more bound to move it sooner, than the defendant was. She might perhaps lose by the delay, and he perhaps might gain ; but that did not relieve him from the duty to be prepared for the trial whenever she thought proper to bring it on.</p> <p>The suggestion, that he believed she never would proceed further in the suit, is full}7 answered by the plaintiff, who never gave him any reason to believe she should relinquish her claim to alimony. On the contrary, the matters which were before the court on the trial, show very clearly that she has always insisted upon her title to a suitable provision, from the time the parties first separated; and if the defendant, upon any mere conjecture of his own, or upon any rumor for which she is not responsible, has deemed it safe to postpone his preparation for the reference, he has no right to complain if his unwarranted suspicion touching the plaintiff’s purpose disappoints him.</p> <p>And on the other hand, the cause of the delay on the plaintiff’s part is not only explained, but it is accounted for in a manner which forbids that the defendant should make it the occasion of any complaint, or the basis or ground of asking a favor. Since November, 1851, the plaintiff has been left by the defendant utterly destitute of the means of support. She has had no funds with which to pay her counsel, and has been compelled to rely upon her own personal exertions for a maintenance. It has not been in her power, therefore, to press on the reference; and now, that she has at last found it in her power to bring the cause to a hearing, this new delay is sought to be interposed; and even the sum which the defendant appears to have paid her voluntarily down to ¡November, 1851, he has since withheld. In this respect she has not been dealt with so well as it has often been held his duty as a husband, if she had herself been found the guilty party; for if she were an adulteress, the court have said she shall not be turned off to a life of penury and shame. (Darley a. Darley, Wright's Ohio R,., 514.)</p> <p>I cannot regard her delay, therefore, as furnishing any sufficient reason for the neglect of the defendant to seek any testimony which his counsel deemed material, long before this present application, and after more than three years have elapsed: an application which necessarily involves very great further delay and expense, ought not- to be granted, if no other reason forbade it.</p> <p>2. If the objection already considered were not insuperable, the present motion ought not to be granted. It seeks to procure a sort of roving commission, with which the defendant may go to California (some two thousand miles), and there examine whomsoever he may find, and upon such questions as his counsel may there propose, and although the witness may know no fact material to the reference, yet if perchance they should on their examination be able to inform the counsel of some other witnesses who do know some such fact, then that the latter may be pursued and examined. That is, the defendant may have leave to examine whom he will—and if he cannot prove his charges by those first called, he may learn from them who can or will testify to such charges, and then examine the latter—in other words, he would use the commission, first, to find witnesses, and then to examine them.</p> <p>If the court have the power to issue such a commission, it must be a very peculiar and strong appeal to its discretion, founded in urgent necessity, to prevent great injustice, that should induce it.</p> <p>It is not claimed that our statute authorizing the issuing of commissions by courts of law, confers any power on this court to send such a commission. (2 Rev. Stats., 293 and 294.) Under our similar previous statute (1 Rev. L., 519, § 11), in a very special case, where the plaintiff resided in a foreign country, and the transactions in question occurred in the foreign country, and were within the knowledge of the plaintiff’s clerks, whose name's he "would not disclose, this court went so far as to allow a commission in which the witnesses should be designated by description as the plaintiff’s clerks generally, unless the plaintiff would disclose those names, so that they might be inserted in the commission (Shaffer a. Wilcox, 1 Hale R., 502); but the witnesses, however, described, were examined on interrogatories.</p> <p>What particular circumstances induced this court in The Accessory Transit Company a. Garrison, in December, 1857, to make the special order which was made, I am not informed; but even there, the names of the witnesses were to be furnished.</p> <p>Without pausing to discuss the abstract question of inherent or original power of the Court of Chancery to procure testimony in any mode it sees fit, the practice of the court for two hundred years, in England and this country, is a guide which ought not to be lightly disregarded; and it may at least be said, that nothing but a case of urgent necessity, and in which each of the parties will have an equal advantage, should induce us to depart from it.</p> <p>The practice of the Court of Chancery in England, on the examination of foreign witnesses, appears to have been entirely uniform, and to have been by written interrogatories, and the witnesses appear to have been named without exception, so far as I have been able to discover, either in the order for examination, or in the commission, or where the party has been served with a list of the witnesses, with names and residences, that is all that appears to have, in some cases, been done. (See Bowden a. Hodge, 2 Swans. R., 258. Beames’ Orders, 30, § 68, describes the practice from the year 1600 to 1815, and see note, § 100, that the witnesses were said by Chief Baron Gilbert .to be anciently examined “ super int. inclusis,” and not super int. ministrandis. See For. Rom., 126; Practical Register, Ed. of 1714, 220. 2 Dan. Ch. Pr., 1040, states the same practice, and refers to Beames' Orders, 272, 311. See Oldham a. Carleton, 4 Bro. C. C., 88, 89. Cajamaul a. Verelst, 7 Bro. Parl. Ca., case 17,192, is in point in more than one of its features.)</p> <p>Under our statute (2 Rev. Stats., 180-1, §§ 78-83), provision was made for the examination of witnesses in Chancery, and power was given to direct an oral examination. But the section permitting an oral examination (§ 83) applies also to examinations before a vice-chancellor, or before an examiner. The examination of witnesses was made subject to such regulations as the Chancellor might prescribe in respect to commissions (§ 79), and generally the rules of court were to govern the subject. See sections 81, 87, and 88; and section 88 provides expressly that he may make such rules as he shall think proper concerning the use of written interrogatories for the examination of witnesses residing out of this State.</p> <p>And the rule on this subject adopted by the Chancellor, in obedience to the statute, was explicit. It in terms provides that, “ Witnesses examined out of the State, if the parties do not consent to an oral examination, shall be examined on written direct and cross interrogatories, to be allowed,” &c., and “ annexed to the commission.” See Eule 72 of Buies of 1820, and of each revision down to the new Constitution, and also Buie 62 of the Supreme Court in Equity under the Judiciary Act of 1847.</p> <p>The rules of the Court of Chancery of 1806 and 1808, Bo. 24 to 26, and see 68 of 1808, continued in force substantially down to the Bevised Statutes, show that the already existing practice in England in relation to foreign commissions was here applied to commissions issued to examine witnesses, though residing in this State, and that written interrogatories were necessary.</p> <p>In England, it seems not to have been necessary for the counsel respectively to exhibit their interrogatories to the other, but the cross-examining counsel was left to his knowledge of the case to guide him in framing his cross-interrogatories (Butler a. Buckley, 2 Swans. R., 373)—a practice which must be deemed very unsatisfactory, and rendering further examination after the publication of the depositions very often necessary. Buie 68, of 1808, shows that the practice of serving and settling interrogatories was early adopted in our Court of Chancery.</p> <p>3. I am not satisfied that the facts sought to be proved by means of the commission, are proper to be given in evidence on the reference.</p> <p>It was adjudged, on the 30th day of January, 1852, that the marriage between the plaintiff and defendant be, and the same was, dissolved.</p> <p>For all the purposes of the present motion and of the reference ordered, the defendant must be deemed the guilty party. It is his wrong that has deprived the plaintiff of the protection of a husband, and the support and comfort which, if she was innocent, he was hound to furnish to her in a home corresponding with the station in life she had occupied before the occurrences which led to the results now before our minds.</p> <p>He was bound to support her in that station if no divorce was procured. His adultery, and the divorce which followed, did not relieve him from the duty, while it discharged her from her obligation to him.</p> <p>In a sense, which under the civil law would be recognized with more force even than under our own, the accumulated property was in part her own.</p> <p>Under these views of her rights in the property of her late husband, and her title to support, it seems to me that the only circumstances which are the subject of inquiry upon the reference heretofore ordered, are exclusively of a pecuniary nature— such as directly affect the amount of pecuniary provision which would have been proper, had the reference proceeded on the day it was ordered; and that that amount is precisely what sum would have been proper had the amount been fixed on the day the judgment of divorce was pronounced, only affected by proof of such change in the pecuniary condition of either of the parties as may properly augment or diminish the amount.</p> <p>Whatever duty the plaintiff, after her divorce, owed to the community in which she lived to lead a pure and virtuous life, she owed no duty to the defendant other or greater than she owed to any other member of that community.</p> <p>By her marriage and subsequent divorce, she acquired a right to her suitable allowance, and if it had been fixed in amount and actually awarded, January, 1852 (as it would have been had no error been committed in the conduct of the proceeding), her subsequent misconduct, if she was guilty, would not, I think, have forfeited it, and for the obvious reason that she would not have violated any right of her late husband, however much she outraged the moral sense of the community. Her late husband would not, I think, have any standing in court on an application to reduce her alimony upon any such ground. The answer to his application would he, if he proved the misconduct he charged: It now only appears that both are guilty of misconduct. And so long as it remains true that she has not herself wrongfully contributed to the guilt of the defendant, and especially if it be open to the conjecture that her destitute or unprotected situation has contributed to her fall, so long such mutual wrong ought not to aifect the division of the money of' the husband and the appropriation of a suitable share to her maintenance.</p> <p>If, in a just sense, the innocent wife may be said to have a right, at the moment the decree of divorce is pronounced, to have alimony according to the then pecuniary condition of the husband, his wealth and personal income, with reference, also, to the number of those dependent upon him for support, and the society in which, before the divorce, the parties have been accustomed to move, and that right be so far fixed that security therefor may be required; then the cases which hold that, where a wife, who is entitled to jointure or the benefit of a settlement, but finds it necessary to invoke the aid of a court of equity to obtain the benefit of the trust or the execution of the agreements, she will not be defeated in that court by proof of her adultery, or that she is then living in adultery, have an analogous and forcible bearing upon the present question. If the Court of Chancery could exercise its discretion in view of such moral considerations as the condition of such a complainant would suggest, it would seem not unreasonable to refuse to enforce a settlement in favor of a woman, who, though still in law a wife, was living in flagrant and profligate disregard of the obligations which formed the inducement to the settlement. The Court might at least say, “We will not exercise our power in your behalf. You may seek and enforce any strictly legal rights in the court of law, but a court of equity will not interfere in behalf of an adulteress.”</p> <p>Hot so. The Court of Chancery will interfere at the instance of the wife, and enforce the specific execution of marriage articles, although the wife is living separate from the husband in a state of adultery; and so, also, to compel performance of articles binding the husband to her maintenance on an agreement to separate, although she be then living in adultery. See, on this subject, Sidney a. Sidney, 3 Peere Williams, 269; Blount a. Winter, Ib., 276; Seagrave a. Seagrave, 13 Ves. R., 439. (See a similar ruling at law, Raynor a. Batley, 8 Bing. R., 256; Lee a. Thurlow, 2 Barn. & Cress. R., 547, which, however, add no strength to the proposition, since a court of law has no discretion whether or not to award a recovery on a right established by a legal covenant.)</p> <p>In a case earlier than Sidney a. Sidney, viz., Mildmay a. Mild-may (1 Verm. B., 53), after a divorce a mensa et thoro, the wife applied to the Court of Chancery to obtain the rents which had been settled upon her, and on its appearing that she was a lewd woman who had eloped from her husband, and the husband yet offering to take her again, the court gave her only partial relief, but did not refuse altogether to interfere on that ground, and the leading case of Sidney a. Sidney afterwards determined that her adultery furnished no reason for withholding the relief which the adulterous wife sought.</p> <p>It is undoubtedly true, that upon proof that a woman, lately complaining that she had been wronged by the infidelity of her husband, and asking, with the urgency of indignant virtue, to be redressed, is now herself' leading a life of profligacy and shame, the outraged moral sense of every upright and honorable mind would, in its first impulse, incline to declare her entitled to no aid from the court, in compelling a support which she shows herself ready to abuse. But this would plainly be extreme, for more than one reason. Possibly her unprotected and destitute condition may be itself the cause of her decline from virtue; and if not so, still she is not to be left to degradation as her only resource. Even if she had been an adulteress, and her husband were on that ground divorced, she should not be left to a life of shame, for want of a comfortable support. Whether, under our statute, in the case last stated, she could claim alimony, I need not say; but in England, the husband seeking and obtaining a divorce from his guilty wife, has been required to provide for her comfortable maintenance. (See McQueen's Pr. House of Lords, 537-9; Observations of Best, J., in Lee a. Thurlow, 4 Dow & R. R., 17. So also ruled in Darley a. Darley, in Wright's Ohio R., 514, and see Robison a. Goswold, 6 Mod. R., 171.)</p> <p>This indeed does not show that lewdness after divorce may not be taken into account, but it suggests that no rule can readily be stated which, by the influence it could be allowed to have, should be measured.</p> <p>I have not been able to find any cases in which, on an inquiry into the amount to be allowed for alimony, the conduct of the wife, after the marriage is annulled, has been taken into view. The circumstances which are the subject of inquiry, have been of a direct pecuniary nature. The applications for an increase or diminution of alimony, which are permitted after alimony has once been settled, are of that description. (See Foulkes a. Foulkes, cited Payntor on Mar. and Divorce, 256, n. (q.); Kirkwell a. Kirkwell, Ib., n. (p.); De Blacquiere a. De Blacquiere, 3 Haggard, 322; Wilson a. Wilson, Ib., 329, note; Paff a. Paff, 1 Hop., 584; Holmes a. Holmes, 4 Barb., 295; Miller a. Miller, 6 Johns. Ch. R., 91.)</p> <p>It is stated in the Digests (2 U. S. Dig., 514), that in Sloan a. Cox (4 Hayw.R., 75), it was held in Tennessee, a husband, who had been divorced from bed and board and decreed to pay alimony to his wife, cannot avoid the payment thereof on account of the subsequent lewdness and adultery of the wife. I have not been able to find Heyward’s Reports in any library to which I have access. There is probably an error in the citation of the volume, since I am told there are but three volumes (probably the third is the volxxme intended); whether, therefore, this case pi’oceeds upon any peculiarity of the law of Tennessee, I am not able to say, nor can the case, upon the mere reference to it in the Digest, be taken1 as of value as axxthority. On examination of the case itself, it might appear to have no influence on the present question. Bxxt it is obvious that if in such a case the lewdness and adultery of the wife should not deprive her of alimony, it ought still less to affect it when the divorce was absolute.</p> <p>The case of Packford a. Packford (1 Paige R., 274), undoubtedly recognizes the idea, that where the conduct of the wife before the divorce was such as in some degree contributed to the husband’s fall from virtue, that conduct may be taken into viexv, and the Chancellor .there also mentions her sxxbsequent indiscretions before the decree, as considered by him in fixing the amount. But no case is mentioned to me going any ftirthei’, and I am not satisfied that the remarks there made by the Chancellor find any warrant. In Burr a. Burr, also (10 Paige R., 20), the indignities and cruelties suffered by the wife before the divorce, were deemed entitled to consideration in fixing the alimony.</p> <p>In both of these cases, the conduct in question was prior to the divorce; in the latter case the relation of husband and wife still continued. Both cases seem to regard the allowance of alimony as in a manner punitive, and to be enlarged or diminished as the husband’s offence was more or less aggravated, and in some degree liable to be affected by the manner in which the wife had performed the duties of the conjugal relation, while that continued. But neither of the cases warrant, I think, any such after that relation has ceased, and the duties resulting therefrom no-longer subsist.</p> <p>To prevent any misapprehension from what has been said in respect to the conduct of the plaintiff subsequent to the divorce,, it is proper to state that the affidavits used by the defendant on this motion, speak of the reputation which the plaintiff had acquired in California.</p> <p>No one states any instance of unchaste conduct to the personal knowledge of the party making such affidavit.</p> <p>The plaintiff, on the other hand, denies, in the most full and unqualified terms, that she has been guilty of any unchaste conduct, or that her reputation in California is such as the defendant alleges; but, on the other hand, charges that whatever of unfavorable repute she may have, is due mainly to the persistent efforts of the defendant to destroy her character.</p> <p>My conclusion is, that the motion must be denied.</p> <p>II. July, 1859.—Appeal from the order entered hereupon,* to the General Term.</p>

The action was for a divorce a vinculo, and the judgment was entered upon the report of a referee (to whom the cause had been referred to hear and determine the issues therein), in favor of the respondent, Mrs. Price, the plaintiff in the action. The plaintiff prayed judgment of divorce on the ground of adultery, and also asked the custody of the child of the parties.

This action was brought by Isabella Henderson, plaintiff and respondent in the present appeal, against Eugene Jackson, defendant and appellant. Another action, brought at the same time by Mary Moneypenny against the same defendant, came before the court at the same time, upon a similar appeal.

Motion to compel plaintiff to amend Ms complaint, or to strike out parts. TMs action was brought by Horace B. Sheldon against Edwin R. Lake.

Russell Stoddard sued Will W. Clarke (sheriff of Ontario county), in the supreme court, to recover a number of chattels, taken by defendant under an execution against a third person.

Motion to set aside all proceedings subsequent to the service of summons, including judgment of foreclosure and sale, on the ground that no guardian ad litem was appointed for certain infant defendants. The action was brought by John Gr. against Caroline A. McMurray and others.

Motion to compel purchaser to complete his purchase., This was an action for partition. The objection made by the purchaser is stated in the opinion.

Exception directed to be heard in the first instance at general term. This was an action for chattels. The property in question was merchandise taken from the plaintiff’s possession by the defendant, as sheriff, on the 26th day of June, 1857, by virtue of a warrant of attachment issued against one Mason A. Perkins, in a suit brought by Joseph Rosenthal and another, against Perkins, in the Supreme Court.

Writ of error to the supreme court to bring up the judgment of that court, reversing a judgment of the Albany county sessions, convicting the defendants, upon an indictment for burglary, and ordering a new trial. The defendants, Edwin Van Gaasbeck and John Burt, were jointly indicted at the Albany sessions, March 18, 1869, for the crime of burglary, in entering the house of one Jeremiah J. Austin, Jr. The indictment charged the offense to have been committed March 13, 1869.

<p>Appeal from a judgment.</p> <p>The sheriff of the county of Kings, was sued in this action, for taking, on attachment against the plaintiff’s vendor, goods which were in the plaintiff’s possession, and claimed by her as her property. His defence was, that the bill of sale or transfer made by the defendant in the attachment to the plaintiff in this action was fraudulent and void as against creditors.</p> <p>S. P. Nash, for the defendant. The language of the statute is: “ Every conveyance, &c., made with intent to hinder, delay, or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts, or demands, &c., as against the persons so hindered, delayed, or defrauded, shall he void.”</p> <p>The original statute (13 Eliz., c. 5), ran thus: “ Every feoffment, gift, grant, &c., had or made to delay, hinder, or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs, shall be from henceforth deemed and taken (only as against that person or persons, his or their heirs, executors, &c., whose actions, suits, debts, &c., by such guileful, covinous, or fraudulent devices and practices are in any wise disturbed, hindered, delayed, or defrauded), to be clearly and utterly void, frustrate, and of non-effect.”</p> <p>The substance of the two statutes is the same ; and were one relieved from the numerous dicta which have crept into the books on this subject, it would seem a simple proposition that any person who has a lawful suit against a defendant, which lawful suit may be rendered frustrate and nugatory by a fraudulent transfer of property by the defendant, is a person who is hindered, delayed, or defrauded of his lawful suit. Until the lawful suit furnishes some process or other remedy by which the property may be taken, or unless the creditor has some lien upon it, of course it cannot be said that the creditor is hindered or defrauded. Where the object of a suit, for instance, is simply to recover judgment at law on a debt, a fraudulent transfer of property is no obstacle to the recovery of the judgment. It is an obstacle to the collection of the fieri facias, and therefore when the plaintiff at law has issued a fieri facias he is hindered or obstructed by the fraudulent sale. So where an attachment at the commencement of a suit is lawful process by which plaintiff may seize and hold the defendant’s property as a security for the judgment he is suing to recover, a covinous transfer made by the debtor which prevents a levy, clearly hinders and delays the plaintiff’s lawful suit, and he is therefore in a position to impeach the covinous transfer by which his suit is so frustrated.</p> <p>In examining the decisions under this statute, it is necessary to discriminate carefully the case a creditor must make when he sues in chancery, from the case he must make when he sues at law.</p> <p>The jurisdiction administered in chancery did not embrace all cases arising under this statute, and many of the requirements laid down in the cases were such as were necessary to give the plaintiff a right to sue in chancery.</p> <p>At law, it has been held that a judgment-creditor may levy his execution upon the property alleged to be fraudulently conveyed, and in that way impeach the validity of the transfer. This is the ordinary case.</p> <p>It has further been held that the assignee in insolvency (who is by law a trustee for creditors), may bring ejectment to recover land fraudulently aliened, the ground being that, as the statute makes the conveyance void, the fraudulent alienee has no title as against creditors or other persons whose rights would be frustrated by the conveyance. (Doe ex d. Grimsby a. Ball, 11 M. & W., 531.)</p> <p>So a creditor of a deceased person who had, before his death, made a fraudulent sale of his goods, could sue the fraudulent transferee upon his debt, as executor de son tort. (Edwards a,. Harben, 2 Term R., 587 ; Osborne a. Moss, 7 Johns., 161.)</p> <p>And now, since the statute has abolished the right to proceed against a wrongdoer as executor de son tort, and made the executor and administrator of a deceased person trustees for his creditors, it is held they may directly impeach fraudulent sales made by him in his lifetime, and even bring trover for personal property so fraudulently transferred. (Babcock a. Booth, 2 Hill, 181 ; McKnight a. Morgan, 2 Barb, R., 171.)</p> <p>That it was not necessary for a creditor who, at common law, sued the fraudulent transferee as executor de son tort, to have a judgment as evidence of his debt, appears from the cases. (Bethel a. Stanhope, Cro. Eliz., 810 ; Edwards a. Harben, 2 Term R., 585 ; Osborne a. Moss, 7 Johns., 161.)</p> <p>Another example of the manner in which the statute operated at common law, is furnished by the following case: One indebted by bond, before dying, made a fraudulent conveyance of his lands to his children, the purpose being to relieve such lands from the quasi lien of his specialty debts, to which they would be subject if the children took as heirs: “ In this case the conveyance shall be void as to those whose remedy is upon the land by descent.” (Shepp. Touchst., 66 ; Rob. on Fraud. Conv., 598 and 599.)</p> <p>In Gooch’s case (5 R., 60), the question seems to have been raised, in a simple action at law brought by the bondholder against the heir, on the ancestor’s bond—the plea was riens par descent, and the reply was that the defendant had assets. Under this issue the good faith of alienations in fraud of the bond-creditor’s right was tried. (See Roberts on Fraud. Conv., 602.)</p> <p>Several other instances of the manner in which the statute operated at common law appear in Roberts, 590-610 ; from a careful examination of which I am satisfied that a creditor who has a right, by lien, process, or otherwise, to hold or seize his debtor’s property, is in a position to hold or seize it, if it is in the possession of a fraudulent transferee, and contest the validity of such transfer.</p> <p>The case of Frisbey a. Thayer (25 Wend., 396), and Hastings a. Belknap (1 Den., 190), turn in reality on the right of the landlord as landlord, not as creditor.</p> <p>Oases, in which creditors, having no process but an attachment, have attempted to attack transfer's of property, are numerous, and no doubt seems to have been raised as to their right to do so. (See Damon a. Bryant, 2 Pick., 111 ; Cross a. Phelps, 16 Barb., 502 ; Clute a. Fitch, 25 Ib., 428 ; Noble a. Holmes, 5 Hill, 194 ; Van Etten a. Hurst, 6 Ib., 311 ; Miller a. Brinkerhoff, 4 Den., 118 ; Halsey a. Christie, 21 Wend., 9.) In 25 Barb., the court said : “ If HcUeil had been a creditor of Timby (the fraudulent vendor), the plaintiff (the officer), who represented him in this action, would have been in a position to attack the sale as fraudulent” (p. 431); and yet in this case the officer had an attachment only. Similar dicta are found in several of the cases above cited. In the case of Falconer a. Freeman (4 Sandf. Ch. R., 565), Vice chancellor Sandford distinctly held, that a levy under the attachment given by the Absconding Debtor Act, gave the creditor, though only a creditor at large, the right to the aid of the Court of Chancery in enforcing his lien on property fraudulently transferred; and this case has been followed by Judge Hoffman in the Superior Court, in a case not reported, where the plaintiff held the attachment given by the Code.</p> <p>When a creditor resorts to the Court of Chancery for relief against a fraudulent disposition of his debtor’s property, the position he must occupy in order to give him a standing in court, varies with the nature of the relief he seeks. In some cases he may be heard as a creditor at large, without judgment or process, as when he comes into court asking for the administration, or marshalling of assets or trust funds, according to equity, claiming no priority by his suit over other creditors. In such a suit, he may attack fraudulent dispositions of property by his debtor, and have the property brought in as part of the assets or trust-funds, though he be merely a simple contract creditor. (Conro a. Port Henry Iron Company, 12 Barb., 27, 58, 59 ; Shields a. Anderson, 3 Leigh, 729 ; Loomis a. Tifft, 16 Barb., 541 ; Robinson a. Stewart, Ct. Appeals, Seld. Notes, April, 1854.) If he attack a fraudulent disposition of his debtor’s real estate, for the purpose of subjecting it to the lien of his own debt only, he must have a judgment which would be a lien at law, but for the fraudulent conveyance. (Brinkerhoff a. Brown, 4 Jo hns. Ch., 671.) If he seek similar relief against fraudulent transfers of personal property which might be levied on under execution, he must have not only a judgment, but an execution in the sheriff’s hands. If he seeks relief against the debtor’s choses in action, he must have an execution returned unsatisfied, the ground of the equitable jurisdiction in the latter case being that the remedy at law has been exhausted. (Hadden a. Spader, 20 Johns., 554 ; Corey a. Cornelius, 1 Barb. Ch. R., 571 ; Crippen a. Hudson, 3 Kern., 161 ; Reuben a. Joel, Ib., 488.)</p> <p>On the whole, the argument seems conclusive that as an attachment properly issued gives the creditor a right to take the defendant’s property, it gives him a position in court to show that such property, though claimed by third persons, is in reality the property of the debtor, guoad his creditors, and the fact that one ground for granting an attachment under the Code is, that the debtor has fraudulently transferred his property, confirms this conclusion. It is said that the Code only authorized the sheriff under an attachment to take the defendant's property. But an execution authorizes nothing more. Whether the sheriff justifies under attachment or execution, he must show that the property seized was, as to the plaintiff in the writ, the property of the defendant.</p> <p>It has been said that as a creditor justifying under attachment merely, without a judgment, must prove his debt, and as the claimant of the property may dispute it, an issue is raised which ought not to be tried except in the attachment suit, and so an argument db meonvenienti is raised against the propriety of allowing a creditor by a simple contract to attack a fraudulent sale. The argument has this weight and no more. I suppose if a sheriff justified under judgment and execution, it might to the same extent be open to the claimant of the property to show that, the judgment had been paid; and so an issue on the question of indebtedness be raised in a collateral suit.</p> <p>The truth is, that the production of the judgment, where an officer justifies under an execution, is required simply to show valid process, not to establish the debt. One with valid process to collect a debt is presumed to be a creditor. (Bessey a. Windham, 6 Q. B. (Adol. & El., N. S.), 166.) The judgment is equally conclusive whether it be a judgment by confession or after contest. No court would allow an inquiry into the question whether it was a just judgment when rendered, or whether the defendant in it had a good offset to it. A payment of it, which would render the execution a nullity, might possibly be shown, but nothing short of that. The courts have occasionally gone so far as to allow the production in banc of the judgment-record, to cure an exception that it had not been produced on the trial, thus showing that they consider it as not to be controverted. (High a. Wilson, 2 Johns., 46 ; Mastyn a. Podger, 5 Burr, 2631); and yet, if the alleged fraudulent transferee were not a fraudulent transferee, the judgment, as res inter alios acta, would be no evidence at all against him; being & fraudulent transferee, he occupies, in the eye of the law, precisely the place of the debtor, and cannot be heard to gainsay what the debtor cannot be heard to gainsay. If this idea were clearly kept in mind, the courts would have escaped some errors they have fallen into, and might yet come to the sound conclusion that, as the debtor in the attachment cannot, in a collateral proceeding, be heard to dispute the debt on which it issued, so ought not one who is in entire privity with him. (See Candee a. Lord, 2 'Gomst., 269.)</p> <p>--, for the plaintiff.</p>

In this case William McLoon appealed to the court at general term, from an order made by Mr. Justice Ihgeahah in December, 1869, denying a petition presented by the appellant that he be let in, after the time limited by the statute and the notice to creditors, to prove his claim against the Harmony Eire & Marine Insurance Company, a corporation, of the property of which receivers had been appointed.

<p>Motion for an order directing the receiver in the action to pay over certain proceeds to the sheriff.</p>

<p>Motion to vacate judgment entered by confession, and execution issued thereon.</p> <p>The facts are stated in the opinion.</p>

This action was brought by Laura Waldron against Caroline Ritchings, otherwise called Caroline Bernard. The facts are sufficiently stated in the opinion of the court.

Trial by the court at special term, and appeals from the judgment rendered. On the 29th day of Eovember, 1850, Cook, one of the defendants in the present action, had confessed judgment to Ely, the plaintiff. On the 31st day of December, 1851, Cook obtained a discharge under the two-thirds act.

Asa Hall sued John Emmons, Jr., James L. Paine, and Hanford Smith on an undertaking of bail given by them in a previous action against Paine, to procure his discharge from arrest in that action. The summons was served July 17, 1869, and the complaint August 2. Immediately thereafter, but more than twenty days after the service of summons, Emmons and Smith surrendered Paine, and then moved for a discontinuance of the action, and release of their liability as sureties.

This action was brought by Rufus W. Leavitt and others against Charles H. Dabney and others. A preliminary injunction order had been obtained from a justice of the court, restraining the defendants from parting with certain moneys which had been put in their hands to pay the interest about to fall due upon certain Peruvian and Chilian bonds.

<p>Appeal from an order denying the defendant’s motion to vacate an order requiring him to submit to an examination supplementary to judgment.</p> <p>The ground of the motion was, that the execution which had been issued by the plaintiff was accompanied with a request to the deputy who received it, to return it immediately unsatisfied, and that the return made, was so made in pursuance of this request. The motion was denied at special term; and the defendant appealed.</p>

R. A. and F. J. Parmenter sued John and James C. Roth, in the supreme court, to recover for services and disbursements. A similar action was brought at the same time against John Roth alone. The attorney for John Roth applied ex-parte to the county judge of Rensselaer county, and obtained orders extending the time to answer, ten days.

Supplementary proceedings. The plaintiff moved for an attachment against the defendant for an alleged contempt, in not appearing before a referee in proceedings under an order for his examination. The facts are stated in the opinion.

Jeannie Du Lux died in the city of New York, November, 1854, intestate, and leaving a very large amount of personal property. None of her kin resided in New York, and accordingly the surrogate granted letters of collection on her estate, to the public administrator.

Appeal by plaintiffs from a judgment entered upon the report of a referee, in favor of the defendants. The action was brought by Bowen and Bowen upon a promissory note, made by the defendant, Bradley, dated Buffalo, February 39, 1869, for two thousand two hundred and forty-five dollars, payable to the order of the defendant, Briggs, nine months after date, at a bank in the city of Buffalo, N. Y., and indorsed by defendant, Briggs.

Motion to strike out answer as irregular. This was a creditor’s action, brought by the plaintiff against John Bitter, the judgment-debtor, Sarah his wife, and one Palm.

Trial by the court. This was an action to recover the amount of two promissory notes, of which the following are copies: I. —“ $950.99. Boston, March, 28,1856. “ Eleven months after date, we promise to pay to the order of ourselves, nine hundred and fifty dollars 99-100ths, value received. (Signed) Webster, Button & Call. “ (Due, March 1st.)” Indorsed as follows: “Webster, Button & Call.” Also indorsed: “Waiving demand and notice. Whitwell, Marsh & Talbot.” II. —•“ $345.73.

. The commissioners of excise of Delaware county, in May, 1859, employed the relator, Stephen C. Johnson, to receive complaints and prosecute violations of the excise law of 1857. It was agreed that he was to endeavor to obtain his compensation ont of recoveries in such prosecutions, but should there be a deficiency, the commissioners were to use their influence in having his charges allowed by the supervisors of the county.

<p>Appeal from a judgment rendered in the District Court of the Fourth Judicial District of the city of New York.</p> <p>The action was brought against Crozier, and L. H. Vultee, a constable who had levied an execution in favor of Crozier. and against one Rigas, upon goods which the plaintiff claimed to own. The complaint alleged that the defendants wrongfully took, and converted to their own use, the goods mentioned. On the trial, the defendant objected that the summons did not show that the action was for a tort, whereupon the plaintiff waived the tort, and the complaint was amended by adding the words, “ waiving the tort, and claim judgment in assumpsit.” To the amendment the defendants did not then object. Other facts are stated in the opinion.</p> <p>The justice gave judgment for the plaintiff, and the defendants appealed.</p>

Motion that plaintiff be required to amend his complaint to • bring in third parties. The facts are stated in the opinion.

The relator, Stephen C. Johnson, being, in 1861, an attorney of the board of commissioners of excise of Delaware county, reported to the commissioners a statement of his account with them, showing a balance due him of one hundred and thirteen dollars and forty-three cents. The commissioners reported the same, at his request, to the defendants, who referred the report to their committee, by whom the report was approved as correct.

<p>Issuing Execution.—Judgment allowed to stand as Secubity.</p> <p>One of several, sued as joint-debtors, who was not served with summons, was permitted, after judgment entered against all upon default of the only one served, to come in and defend, upon condition, among other things, that the judgment stand as security.</p> <p>Held, the plaintiff could not enforce the judgment, pending the litigation, by issuing execution.</p>

<p>Demurrer to complaint.</p> <p>The facts appear in the opinion.</p>

<p>Motion to set aside stay of proceedings.</p> <p>The facts appear in the opinion.</p>

This action was brought by Greorge W. Smith against Emily Smith and others, to enforce an alleged equitable lien, asserted upon the following facts : On April 25, 1865, one Daniel Hibbard, by warranty deed bearing date that day, conveyed a certain lot of land situate in the city of Buffalo, to William H. Smith, in fee, for the price of six hundred and seventy-five dollars.

Motion to vacate an order granting a commission to take the testimony of the plaintiff. The facts are stated in the opinion.

The action was on a promissory note, against an indorser. The note matured on the 1st of July, 1859, and was on that day duly presented for payment.

Application, under chapter 489 of the Laws of 1859, made by Robert T. Haws, comptroller of the city of New York, to open a judgment recovered against the city. The facts of the case are fully stated in a report of a preliminary proceeding, Ante, 243. In pursuance of the decision there stated, the comptroller procured the affidavit of M. G-.

<p>Exceptions to be Heard at General Term.—Reviewing Nonsuit.—Parol Evidence oe Liability on Lease.—Pleading.— Equitable Assignment.</p> <p>Plaintiff’s exception to a nonsuit ordered at the trial before the court and a jury, may be ordered to be heard at general term, in the first instance, although he has taken exceptions to rulings as to evidence. That ground of objection to a hearing in the first instance at general term only holds good against a verdict taken subject to the opinion of the general term.</p> <p>The only two cases in which proceedings at a jury trial can be reviewed at a general term in the first instance, and before judgment,— stated; and the practice explained.</p> <p>In an action for rent due upon a written lease executed by two of four defendants named in the complaint, parol proof offered by plaintiff of the existence of an understanding between him and all the defendants, to the effect that the lease should be executed by the first-named two defendants for the benefit of a copartnership to be formed between all the defendants, which partnership was subsequently formed, is not admissible for the purpose of fastening an original liability under the lease upon all the defendants.</p> <p>A defendant will not be held liable for rent as equitable assignee of a lease, upon the ground of the privity of estate existing between him and the lessor, unless charged as such in the pleadings.</p>

Walter L. Cutting, committee, brought this action against Patty Lincoln and others. . In 1845, the plaintiff was appointed by the late court of chancery, committee of the estate of Elijah Whiting, in the State of New York, said Whiting having been adjudged to be a lunatic, and being a resident of Norfolk county, Massachusetts.

Action for partition. John H. Miller brought this action against Ann E. Miller and others (Ann being his wife), for a partition of land.

<p>Arrest.—Cause of Action.—Demand of Relief.</p> <p>In an action the complaint in which states facts that merely constitute a cause of action for fraud or deceit, an order of arrest may he made, although the demand for judgment asks for equitable relief, which could not, on the facts alleged, he granted.</p> <p>Demanding additional relief, inconsistent with the cause of action stated, does not change the character of the action, within the rule as to granting orders of arrest.</p>

This action was an equitable suit for the foreclosure of a mortgage; and it was carried to the court of appeals, on appeal from an interlocutory order allowing a third person to be substituted ‘ as a party, and the defendants to be discharged, on payment of the money into court. The appeal was heard as a motion, in the court - of appeals, in March, and determined at the September term, 1869, and the order appealed from was affirmed.

<p>New Trial.—Motion alter Judgment.</p> <p>A motion for a new trial, on the ground of newly discovered evidence, may be granted, notwithstanding the entry of judgment. A motion for a new trial on such a ground is a non-enumerated motion.</p>