leave to discontinue without costs. The Court allowed defendant to serve a supplemental answer, on condition that plaintiff might, within ten days after, discontinue on payment of costs. A supplemental answer was served. Months after the case was noticed for trial and on the calendar. April 21, 1874, the attorneys for both parties consented to a discontinuance on payment of $100 costs. The costs were paid and an order of was good as to Henry Knaut, it was good by reason of the transfer of the title of the two notes to his brother, in November, 1875. The case does not show it to have been a payment on account, but it is, perhaps, fairly inferable. If the payment is not good from having been made in fraud of the receiver's rights, then it is still in plaintiff's power to enforce the payment of the $800 note, from the two Knauts. Judginent for defendants, with discontinuance entered. In December, costs. Opinion by Barnard, P. J. INJUNCTION. N. Y. COURT OF APPEALS. Palmer, applt., v. Foley, respt. Decided November 13, 1877. Where an action in which an injunction has been granted is discontinued, the party enjoined has no right of action upon the undertaking. 1876, defendant moved for a refer- Held, Error; that no final deter mination was made by the Court as to the rights of the parties at the commencement of the action; that the action of the parties in discontinuing the action was not equivalent to a final decision by the Court that plaintiff was not entitled to the injunction order; that as there was no breach of the condition of the under action thereon, and it would be useless to direct a conditional ascertainment of the damages sustained by defendant. This action was brought by plaintiff, the Chamberlain of the city of New York, in January, 1873, to restrain defendant, who claimed to be Deputy Chamberlain under an appointment by the Comptroller, from intruding upon the office. A tem-taking, defendant had no right of porary injunction was issued at the commencement of the action, a written undertaking having been given in the usual form. On return of the order the injunction was continued. fendant appealed to the General Term where the injunction was continued, but modified, so as to allow defendant to bring any action or proceeding, as he may be advised, to try title to office, &c. In October, 1873, defend-ity, defendant has no remedy for any ant applied for leave to serve a supplemental answer, and plaintiff, who was no longer in office, applied for De It seems, That without some security given before the granting of an injunction order, or without some order of the Court, or a judge, requir ing some act on the part of the plaintiff equivalent to the giving of secur damages he may sustain from the issuing of the injunction, unless the conduct of the plaintiff has been such as to give ground for an action for malicious or vexatious prosecution. 2 Paige, 116, 122; 33 Vt., 486, 572; 8 Dana, 289; 14 C. B., N. S., 596; 52 N. Y., 409; 53 Id., 14. Order of General Term, affirming order of Special Term granting reference, reversed and application denied. Opinion by Folger, J. All concur. SUPPLEMENTARY PROCEED INGS. PRIVILEGE N. Y. SUPREME COURT. the papers in the case, delivered on the 29th, by the direction of the judge, to defendant's attorney, he being the prevailing party. No order has been entered on this decision. On the 31st another order for the defendant to appear and answer was granted by the same officer, returnable on 2d January, 1878. It was the duty of the prevailing party to enter the order if an entry was required, Savage v. Relyea, 3 How., 276; and his negligence in that regard is not a very good ground ONEIDA for him to object to the second order. It is doubtful at least whether it FROM John C. Shults v. Samuel A. An- was necessary to enter it. Squire v. drews. Young, 1 Bosw., 690. Decided January 7, 1878. Where a motion to set aside an order in sup plementary proceedings has been granted, The Code does not require it, except for appeal. I do not think this ground of ob but no order to that effect entered, the judg-jection tenable. ment-debtor cannot object to a second order on the ground of the pendency of the prior proceeding. A witness has a reasonable time to return to his residence; if instead of doing that he proceeds about his business he loses his privilege. Nor will the fact that he was arrested in another action, with which the plaintiff is in no way connected, and gave bail, continue his privilege. Motion by defendant to set aside an order to appear and be examined in supplementary proceedings. E. E. Sheldon, for motion. P. H. McEvoy, opposed. MERWIN, J.-The first ground is the pendency of a prior proceeding on an order made by the same judge. On the 27th December, 1877, the first order was made, and on the 28th a hearing was had of both parties, on a motion by defendant to vacate the order for irregularity. This motion was granted, and a written decision of the judge, with The second ground for setting aside the order is that the defendant was privileged from service by reason of being a witness. The defendant is a resident of Kansas, and came to Herkimer County just prior to December 1st, to be a witness in several cases on the calendar of the December Circuit, commencing December 3d, and closing December 15th. The cases were not tried. Defendant claims his privilege has continued since the Circuit for two reasons. 1st. That the next Circuit commences February 25th, and it will be more convenient and less expensive for him to stay over till then, than to return to Kansas. 2d. That on the 5th December, he was arrested in another action and gave bail, and that he cannot leave till that order is set aside, as his bail may stop him. That order does not appear to have been set aside, and I cannot assume in this proceeding that it was a legal order. If so, I do not 'see how it affects the present question, as the plaintiff here is in no way connected with it, or responsible for it; besides, the bail have not remanded the defendant, and for aught that appears, he has been at perfect liberty to return since the 15th December. Nor does it appear that it would be more expensive for him to go than to stay. A witness has a reasonable time to return to his residence. Clark v. Grant, 2 Wend., 257; if, instead of doing that he proceeds about his business, he loses his privilege. Smith v. Bardy, 4 Doll., 329; that I think is the present case. N. Y., 126. Motion denied, with $10 costs. REFEREE'S DEEDS. NEW After sale the referee tendered the ordinary deed which was refused on the ground that it did not comply with § 1244 of the New Code. The referee then offered to insert in the granting clause of said deed the name of the mortgagor or his assignee, or of all the defendants in the action, but the purchaser still refused to accept the deed. The referee then applied to the Court for instructions and a construction of that section. The Special Term held that the ordinary deed was the proper one. Robert Benner, for applt. J. J. Thomasson, referee in person. Held, Error. The provisions of § 1244 of the New Code are entirely consistent with those of the statute 66(3 R. S., 5th ed., 273, § 88), and the requirements of both may be wholly as well as conveniently observed. N. Y. SUPREME COURT. GENERAL But even if the statutes could not both be enforced, the provision made by the Code would be the one that at the present time would be obligatory. The enactment made by the Code Henry Randel, trustee, &c., applt., of Civil Procedure is plain and per v. Theodor Von Ellert et al. Decided January 11, 1878. officer making a conveyance cannot be re- emptory, and is clearly designed to include all foreclosure cases and all conveyances of property sold either by virtue of an execution or judgment. Its object is clearly apparent. It was to preserve the symmetry of the re The provisions of § 1244 are not in conflict corded title and dispense with the with 3 R. S. (5th ed.), 273, § 88. Reversing S. C., 5 W. Dig., 253. necessity of looking through the judgment record to ascertain the interest that has been sold under it. Appeal by plaintiff, as purchaser in this and two other causes, from orders denying applications for orders directing referee to state, in the deeds executed by him pursuant to foreclosure sales, whose right, title and inter-cessary in these cases; but because it est was sold. A compliance with the provisions of the section may require greater attention than has previously been ne does, the Court cannot dispense with the observance of what the Legislature original holder to the plaintiff in this has so plainly required. The enactment is that the deed must distinctly state the fact, and while it continues in force the officer making such a conveyance cannot be released from its observance. Orders reversed and an order directed to be entered requiring the referee to comply with the direction contained in the opinion. Opinion by Daniels, J.; Davis, P. J., concurs. Brady, J., dissents, on the ground that the application of § 1244 depends upon the decree, and the decree not being before the Court the order must be assumed to be right. NOTE SIGNED BY AGENT. N. Y. SUPREME COURT. ORLEANS The City Bank of Rochester v. Byron M. Drake. Decided January, 1878. Where a person signs a note, adding to his signature Agt. and the note is transferred to a purchaser for value before due, no evidence tending to show that the person to whom the note was originally given accepted the same as the obligation of the principal and in payment of the principal's debt is com petent. The addition of the word Agent does not vary it either way and is mere surplusage. An allegation in an answer that defendant has no knowledge or information of the existence of the Corporation and therefore denies the same, is insufficient, under the statute, to bring that question in issue. action before it became due. The answer to the complaint averred that the defendant had not any knowledge or information sufficient to form a belief as to whether the plaintiff is a corporation organized under the Laws of the State of New York, and therefore denies the same. The cause was tried by the Court without a jury. On the trial the plaintiff offered and read the note in evidence. Defendant moved for a nonsuit on the ground that plaintiff had neglected to show the organization and existence of the corporate character of the plaintiff. Defendant offered to show at the trial that when the note in question was given, the defendant was acting as the agent of one A. R. Wood, and that the original party to whom the note was given received the same as the obligation of said Wood, and not as the note or obligation of Drake. George Bullard, for plaintiff. Reynolds & Crandall, for defend ants. Held, That where the word Agent is affixed, it is a mere description of the person and that he is liable. That parol evidence is inadmissible to explain the circumstances under which such a note was given where it has been transferred to a third party for value before due. Held also, That a specific denial as set forth in the answer is insuffi existence of the corporation. Opinion by Haight, J. This action was brought on a prom-cient to bring in issue the question of issory note by the City Bank of Rochester against Byron M. Drake as maker. The note was signed B. M. Drake, Agt., the name of the principal not appearing in the note. The note was sold and transferred by the DEPOSITIONS. CORPORA TION. not answer upon oath, but only under its common seal, the plaintiff was N. Y. SUPREME COURT. KINGS permitted to make individual members of the Corporation parties defen SPECIAL TERM. The People v. The Mutual Gas dant, although they had no pecuniary Light Co. of Brooklyn. Decided January, 1878. interest in the controversy, for the sole purpose of compelling a discov In an action brought against a corporation,ery upon oath. This practice was a the deposition of a director of the corporation may be taken before trial under §§ 870, 873 of the Code of Civil Procedure. An order having been made at Special Perm that Alexander Studwell, a director of the defendant corporation, be examined, and his deposition taken pursuant to §§ 870 and 873 of the Code, Mr. Studwell now moves to vacate the order on the ground that it was not authorized by the sections referred to. The ground of the objection is that Mr. Studwell is not a party to the action, and his examination would not be an exercise of the right given to have the deposition of a party taken. Winchester Britton, for plff. H. M. Connelly, for deft. relaxation of a well-established general rule that a mere witness cannot be made defendant, and it was permitted because otherwise there would be a failure of justice. Ang. & Am. on Corp. (10th ed), §§ 674-5-6; 1 Danl. Ch. Pr. (4th Am. ed.), 144 et seq. and cases cited; Vermilyea v. Fulton B’k., 1 Paige, 37; Masters v. Bessie Galena Lead Mining Co., 2 Sand. Ch., 301; McIntyre v. Union College, 6 Paige, 229; Many v. Beekman Iron Co., 9 Id., 188. Bills of discovery have been abolished, but the substance of that remedy has been preserved by § 870 of the Code. To make the latter efficacious in the case of a corporation defendant, it needs cnly the adoption of a means Held, That the right given by of compelling the officers of a cor§ 870 of the Code to take the deposi-poration to submit to an examination tion of a party to an action is an absolute one. 2 Wait Pr., 710. No exception of a corporation has been made. In respect to this right to examine, therefore, a corporation stands on the same footing with a natural person. Being a party, the adverse party has a right to take its deposition. The only difficulty in giving effect to such right arises from the incapacity of a corporation to make answers under oath. The same difficulty existed in the administration of the former practice of Courts of Equity in cases of discovery against corporations. As a corporation could analogous to that resorted to by Courts of Equity to which reference has been made, namely the making of them parties to the proceeding for a discovery. That is done by inserting in the order for an examination the name of an officer or trustee of the corporation and requiring him to attend and be examined. Considering the facilities afforded by general laws for the formation of corporations, their capacity for evil, and the numerous instances of maladministration of the affairs thereof, the right given by § 870 of the Code must be regarded as a valuable safeguard |