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tion.—De Bost v. The Albert Palmer Co., 369.
the commissioners had power to make.
Morris v. The Mayor, &c., of N. Y., 517. See ASSIGNMENT FOR CREDITORS, 3; OFFICE;
POLICE; TAXES, 10, 11.
See ATTACHMENT, 9; CORPORATIONS, 23;
MARINE INSURANCE, 2; MORTGAGE, 5; PLEADING, 15; RECEIVERS, 6, 7.
See MORTGAGE, 28, 29.
1. The word “term” as used in S 25 of
Chap. 335, Laws of 1873, is intended to designate consecutive periods of six years following each other in regular order. The term of office of one appointed during such period expires with the expiraration of that period.–The People ex rel.
Muson v. McClave, 449. 2. It was the intention of the legislature that
1. After the purchaser on a sale in partition
paid the purchase money and received the deed he presented a bill for the taxes of 1883 to the referee and asked its payment, which was refused because the land was assessed to ". The estate of Jacob D. Odell." The assessment was made under the charter of Yonkers, which provided, “ For the valid assessment of any land it shall be sufficient to give the name of the owner when known, the lot number if any on any designated map. the size thereof as near as can be ascertained and the assessed value. An error in the name of the owner shall not invalidate the assessment." Hell, That the tax was a lien on the premises and should have been paid and discharged by the referee under S 1676 of the Code of Civil Procedure. That it was not the duty of the referee to pay the same out of the purchase money before compelling the purchaser to take
title.-Odell v, Odell, 90. 2. Where, in an action for partition, a mort
gagee of the premises by answer sets up his mortgage and its foreclosure, and submits his rights to the court and takes part in the trial, he cannot on appeal successfully contend that the court had nothing to do with the validity of his mortgage.
-Barnard et al. v. Onderdonk, 155. 3. A judgment of foreclosure is deemed
paid after the lapse of twenty years.-Id.
the sole power of appointment conferred upon the Mayor of New York by Chap. 43 of the Laws of 1884, should be exercised only by a mayor subsequently elected. - The People ex rel. Wood v. Lacombe,
150. 3. The interpretation of statutes is to be
controlled by the intention of the legislature, which is to be ascertained from the cause or necessity of the enactment as well as other circumstances A case which is within such intention is within the statute, although by a technical interpretation not within its letter.-Id.
1. In an action under Chap 161, Laws of
1872, against the Board of Supervisors and the town auditors to set aside certain audits, the persons in whose favor the audits were made are necessary parties. -Osterhoudt et al, v. The Board of Supervisors of Ulster Co., 329.
2. Although under SS 452. 499 of the Code
an omission to object to a defect of parties by demurrer or answer is a waiver of objection to the granting of relief on that ground, yet where the relief granted against a defendent would prejudice the rights of others whose rights cannot be saved by the judgment, and without whose presence the controversy cannot be completely determined, the court must direct them to be made parties before
proceeding to judgment - İa. :. Section 756 of the Code of Civil Proced
ure confers upon the court a very broad discretion to bring in a party who may have an interest in the suit; and, under such section, it is within the discretion of the court upon motion of either party to substitute as plaintiff the sole transferee pedente lite of the plaintiff's cause of ac
PARTNERSHIP. 1. In an action for partnership accounting
where such co-partnership is denied, oral evidence is admissible to show that the articles of copartnership were not intended to operate as a contract between the par. ties, but were made for the purpose of defrauding plaintiff's creditors. - Marsh v.
Pierce, 51. 2. C. & H became special partners with S.
& P. in a firm which had previously been composed of the latter alone, upon the agreement that S. & P. would assume and pay all the existing indebtedness of the old firm. S. & P. failed to perform this agreement, but used the capital contrib. uted by C. & H. to the new firm to discharge the indebtedness of the old firm. The new firm subsequently failed in business and compromised with its creditors, and thereafter C. & H. brought an action to recover the amount of capital contributed by them, less the amounts which
they had drawn from the firm, as damages
TRACT, 8, 16, 17; CONVERSION, 9; DEPOSI-
tion of a party wall when he shall use the
premises, is not liable in trespass, though
ble the court to see that they constitute a
in an action that defendant was not, at
al. v. Baker, 213.
by the Code of Civil Procedure, the de-
died abroad, leaving B. and others her sole
fund.—Marshall v. Bresler, 216.
a complaint is not by motion to compel a
-Ralph v. Husson, 210.
See EXECUTION, 6.
Co. the complaint alleged : • • That on or
stated.—Moses et al. v. Bowe, 251.
an attachment and the attachment was
Douglas v. Stockwell, 256.
attachment subsequently obtained a new
1. A civil action does not lie against one
who, while a witness in a civil trial in
1. Actions for false imprisonment and for
malicious prosecution, being for personal
complaint. -Marks v. Townsend et al., 10.
complaint is a separate defense, and as
-Shearman et al. v. Boehm et al., 66.
defendant must have personal knowledge
out as sham.--Id.
swer the theory of law upon which his
ment, and also an attachment in favor of another creditor, Held, That the motion
was properly granted.-Id. 12. An order or stipulation extending the
time to answer the complaint implies an admission that it is sufficient in form to require an answer, and is a waiver of the right to move to inake more definite and certain or to require the plaintiff to separately state and number the several causes of action alleged, unless the right is expressly reserved.—Brooks v. Hanchett,
267. 13. A plaintiff will not be allowed to amend his complaint by setting up facts of which he had knowledge at the time of the commencement of the action.-Muller v.
Muller, 287. 11. The court will not, as a general thing,
undertake to determine upon an application for leave to amend a pleading whether the proposed amendment can be finally substantiated by proof or not; but when it is made to appear without contradiction that the ainendment cannot be sustained by evidence it should not be
permitted to be made.-Id. 15. The complaint alleged that one M. was,
in his lifetime, the owner of 49,940 shares of the stock of a certain corporation; that by his will he directed his property to be divided as provided by the laws of the State of N. Y. in cases of intestacy; that plaintiffs were his next of kin, and as such entitled to a share of his estate; that after his death defendants were each found to be possessed of a certificate of the said stock representing in the aggre. gate thirty-two thousand shares, which they claimed to have received from the testator before his decease; that plaintiffs had no knowledge or information sufficient to form a belief as to whether defendants became possessed of said certificates before or after his decease, but that if they acquired them prior thereto it must have been by undue influence, and demanded judgment in effect that the shares so held by defendants should be divided among the next of kin, as provided by the will. Held, That the complaint presented no cause of action and that there was a misjoinder of plaintiffs and defendants, and that separate actions should have been brought.- De Caumont v. Morgan et al,, 357.
ment against defendant on his covenant to pay. Held, That the complaint set up only a cause of action on the judgment.
-Krower et al. v. Reynolds, 466. 17. In an action upon covenant it is neces
sary to allege a breach.-Id. 18. In an action against an agent for insurance premiums not returned to the company the answer alleged as a counterclaim a malicious arrest under an order of the court, slander, with special damage, and the purloining of defendant's account-books, which caused him injury. Held, That these defenses were not ad. missible under Code. $ 501, Subd. 1.-The
Union Ins. Co. v. Vandercook, 506. 19. In an action by the vendee to recover
money paid by him on a contract for the purchase and sale of real estate, the vendor may plead proper facts and pray for a specific performance of the contract, and this will constitute a counterclaim under $ 501, Code, which counterclaim may, after dismissal of the complaint, be sent to the equity term for trial.-Moser
v. Cochrane, 545.
MENT, 14; CIVIL DAMAGE ACT, 3, 4; Ex-
See STOCKS, 1-3, 5.
1. The fact that the Commissioner before
whom the evidence was taken was no longer a member of the Board when action was taken thereupon and the accused officer dismissed does not render such dismissal illegal. It is sufficient that the evidence was legally taken and was examined by all the members of the Board.
- The People ex rel. McCarthy v. Police Comrs , 101. 2. It is sufficient to conclude the appellate
courts that the Commissioners had some evidence upon which they could base
their decision.-Id. 3. Where the testimony on charges against
a police officer have been taken before only one commissioner it is sufficient to answer the requirement of Rule 131 of the Police Dept. that the evidence is laid before and examined by the several commissioners constituting the board at a regular meeting, even though only a quorum be present. — The People ex rel. Suift v. Police Comrs., 503.
16. A complaint set up the making of a
mortgage on lands in another State; an assignment thereof to plaintiff's testator; a sale of the mortgaged premises to defendant and the assumption by him of the mortgage; the foreclosure of the mortgage in a court of general jurisdiction of the State where the premises were situated, and the due recovery of a judg
covered evidence, must be denied after the
2. Where no objections are taken at the
trial to directions sending the exceptions
stance.-Wyckoff v. De Graff, 13.
the pleading at the trial, dismisses one
4. The court, upon the trial of an action be-
fore a jury, has no right to refuse to ac-
is fully cured by a plain statement there-
to submit to the jury any other question
ning v. Case, 108.
action the plaintiff was a minor, but she
The N. Y. College of Dentistry, 129.
clause stating that in addition to the re-
Elevated RR. Co., 116.
evidence is cured by a direction to the
v. Sage, 167.
issue and serve a new notice of trial after
-Lovatt v. Ilatson et al., 193.
that it contains all the evidence bearing
et al. v. Smith et al., 210.
refusal to find as requested is not author-
ous written requests to charge. After
5 In an equity action a new trial will not
be granted for errors in the admission or
6. Where questions other than those em-
braced in the issue were referred to a ref-
7. Where on the trial of issues of fact in an
equity action improper evidence is re-
8. In charging the jury, it is competent for
a judge to assume a fact for the purpose
9. Any objectionable statement concerning
the facts in issue by a judge in his charge
"I decline to charge further than I have already,” and an exception was taken. Held, Error.-De Bost v. The Albert Pal
discharged, and they cannot, by withdrawing from court, deprive the court of its power to recall and reinstruct the jury. A failure by the court, in such a case, to send for counsel before reinstructing the
jury is not error.-Id. 26. When a question of fact is sought to
be reviewed the case should state that it contains all the evidence or all bearing on that question of fact; otherwise, the court will assume that the evidence was sufficient to sustain the finding of fact.
Griffiths et al., v. Phelps, 390. 27. In an action on a promissory note de
fendant put in evidence letters written by plaintiff and asked a direction for judgment "in view of these letters," which was denied. Held, That if he relied on the ground that the letters showed the note to be without consideration he should have called the attention of the court to that point.-Langley v. Wads
worth, 419. 28. So far as the cross-examination of a
witness relates to facts in issue or relevant facts it may be pursued as matter of right; but when its object is to test the accuracy or credibility of the witness its method and duration are subject to the
discretion of the court.-Id. 29. A witness cannot be cross-examined as
to any fact which, if admitted, would be collateral or irrelevant, and which would
in no way affect his credit.-Id. 30. A new trial should not be granted where
upon the pleadings and the facts as found it appears that there is a good defense.
Graham v. Meyer, 424. 31. Where after the jury has retired to de
liberate counsel desire to take exceptions to the charge the court has the right to and it is proper practice for him to recall the jury and hear the exceptions in their presence.-Petrie v. The O. & L. C. RR.
Co., 436. 32. In an action on contract in the District
Court of New York City an order of arrest was obtained on extrinsic facts. Defendant appeared and admitted the claim, interposing no sworn answer to the verified complaint. Plaintiff's motion for judgment was denied and an adjourn. ment allowed defendant to enable him to vacate the order of arrest, which motion to vacate was granted and judgment in plaintiff's favor entered within eight days from the return day.
Held, on appeal by plaintiff, no error.-Adler et al.
mer Co., 228. 18. Whether a party should be compelled to
elect to proceed upon one of two causes of action stated in the complaint rests in the discretion of the court, where it has such power. -Seymour v. Lorillard, 283.
19. A cause of action for false representa
tions and a cause of action for breach of warranty, both concerning the same matters, are separate and independent though under the allegations of the complaint containing them but one recovery can be had. In this case the court refused to compel the plaintiff to elect which of the above actions he would proceed upon.
Id. 20. To cure the error of admitting illegal
evidence upon a trial, the evidence should be stricken out and the jury distinctly instructed to disregard it. - Alexander v.
Osborn, 298. 21. The cause of action stated in the com
plaint determines the rights of the parties to a jury trial, and such right cannot be defeated by the form of the answer interposed.-Zoller v. Groht et al , 325.
22. The question of the right to a jury trial
can be raised upon an appeal from the judgment rendered in the action by an exception taken to the refusal of the court to grant such trial upon a demand made for the same before any evidence was taken in the case, and the right to raise such question is not lost by defendant by proceeding with the trial of the case after such refusal and cross-examining plain
tiff's witnesses.-Id. 23. When during the trial of an action in the
Supreme Court a stipulation is entered into between the parties for the discontinuance of two actions in another court between the same parties and for the cancellation of a judgment entered in one of them, and such stipulation is entered in the minutes of the proceedings, and is also embodied in writing and signed by the counsel, and this writing is subse. quently lost, an action may be maintained in the Supreme Court to establish its existence, and such remedy is concurrent with that by motion in the other court for a discontinuance of the action pending therein. -Deen v. Milne, 359.
v. Kerner, 484. 33. In case of the submission of a contro
versy without action, under the Code, the court is confined to the facts agreed on, and can make no inferences, or in any
24. When a case is settled and filed after
entry of judgment, the Judge, Court or Referee should order it annexed to the judgment roll. —Cornish v. Graf, 383.
2.5. It is the duty of counsel to remain in or
be represented in court until the jury is