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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 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
for the breach of the above-mentioned
agreement. Held, That in the absence of
any evidence showing that the failure of
the new firm was the result of the misap-
propriation of the capital contributed by
the plaintiffs the action could not be
maintained.-Childs et al. v. Seabury,



1. A covenant to contribute to the construc-

tion of a party wall when he shall use the
same, entered into by an owner of land,
for himself, his heirs and assigns, does
not run with the land, and is not enforce-
able against a subsequent grantee of the
land, though his deed be by its terms sub-
ject to the covenant. - Weeks v. McMil-

lan, 153.
2. Such grantee, using the wall upon his

premises, is not liable in trespass, though
he took with knowledge of the agreement
and of the fact that the payment had not
been made -Id.


ble the court to see that they constitute a
defense the pleading is not demurrable
because their legal effect is not stated, or
even because the proper form of relief is
not demanded. --Hemmingway v. Poucher,

5. When it does not appear by the complaint

in an action that defendant was not, at
the time of the commencement of the ac-
tion, a resident of the State, and had no
property and had not been served with a
summons in the State, such facts may be
relied upon as a defense by way of an-
swer; and an answer setting up such a
defense, subscribed by an attorney as “at-
torney for the defendant," is not a general
appearance in the action.-IIamburger et

al. v. Baker, 213.
6. Under the rules of pleading established

by the Code of Civil Procedure, the de-
fense of want of jurisdiction is not waived
by setting up other defenses in the an-

7. A complaint which alleges that one A.

died abroad, leaving B. and others her sole
heirs and next of kin; that B. gave to de-
fendant a power of attorney to collect
her share of the estate; that thereupon
defendant was appointed administrator
of A 's estate, collected it and converted
the same to his own use; that B. has since
died, and that plaintiff was appointed ad-
ministrator of her estate, states facts
sufficient to constitute a cause of action
for the wrongful appropriation of the

fund.—Marshall v. Bresler, 216.
8. The remedy for defective verification of

a complaint is not by motion to compel a
verification, but by treating it as a nullity.

-Ralph v. Husson, 210.
9. In an action against the sheriff of N. Y,



Co. the complaint alleged : • • That on or
about the 22d day of April, 1882, defend-
ant, as sheriff of the City and County of
New York, took from plaintiffs a large
quantity of goods and chattels, consisting
of one hundred and thirteen cases of hats,
owned by and the property of plaintiffs,
of the value of $1,391.22, and wrongfully
detains the same, to the damage of the
plaintiffs $2,000.” Held, That facts suffi-
cient to constitute a cause of action were

stated.—Moses et al. v. Bowe, 251.
10. Where an answer sets up as a defense

an attachment and the attachment was
subsequently vacated, Held, That a mo-
tion to strike out the averments as to the
attachment as sham was improper. -

Douglas v. Stockwell, 256.
11. The creditor who procured the vacated

attachment subsequently obtained a new
attachment. Upon a motion for leave to
serve a supplemental answer, and to set
up, among other things, this last attach-


1. A civil action does not lie against one

who, while a witness in a civil trial in
which the plaintiff was a party, testified
falsely. The witness must be left to the
criminal law.-Jones v. McCaddin, 53.


1. Actions for false imprisonment and for

malicious prosecution, being for personal
injuries, may be contained in the same

complaint. -Marks v. Townsend et al., 10.
2. Each denial of separate allegations of the

complaint is a separate defense, and as
such may be stricken out in a proper case.

-Shearman et al. v. Boehm et al., 66.
3. Where it uncontradictedly appears that

defendant must have personal knowledge
of the allegations denied by him “on in-
formation," such denial may be stricken

out as sham.--Id.
4. A party is not required to state in his an-

swer the theory of law upon which his
defense is based, but only to state the
facts, and if they are so stated as to ena-

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.



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

1. A new trial, on the ground of newly dis-

covered evidence, must be denied after the
judgment has been affirmed on appeal. -
Fisher v. Coruin, 7.

2. Where no objections are taken at the

trial to directions sending the exceptions
to General Term in the first instance, it is
too late to object in the Court of Appeals
that the case was not a proper one to be
heard at General Term in the first in-

stance.-Wyckoff v. De Graff, 13.
3. When the court, on a motion made upon

the pleading at the trial, dismisses one
cause of action stated in the complaint,
and directs a verdict for another which is
admitted, and plaintiff's counsel takes no
exception to this disposition of the case,
but acquiesces therein, the judgment
cannot be reversed upon appeal, although
considered erroneous by the appellate
court.-Henry et al. v. Dunning, 24

4. The court, upon the trial of an action be-

fore a jury, has no right to refuse to ac-
cept a request to charge made after the
conclusion of its charge to the jury upon
the ground that counsel had already, be-
fore the commencement of the charge,
presented such requests, and a refusal to
accept such request is a fatal error.–
Pletjele v. The Seconl Are. RR. Co., 50.

is fully cured by a plain statement there-
after that the jury are left as the sole
judges of all the facts or equivalent

10. An exception to the refusal of the court

to submit to the jury any other question
than the amount of plaintiff's recovery is
not equivalent to a request to submit to
them a particular question for their con-
sideration. In order to take advantage
of an error of the court in failing to sub-
mit a particular question to the jury
there should be a distinct request that
such question be submitted to them as
one of fact for thern to consider. -Man-

ning v. Case, 108.
11. At the time of the commencement of the

action the plaintiff was a minor, but she
became of age prior to the trial thereof.
No guardian was ever appointed. Held,
That such omission did not affect the
jurisdiction of the court; that such omis-
sion at the time of the commencement of
the action was an irregularity merely,
which was waived by defendant's plead-
ing to the merits, and that when plaintiff
obtained her majority the necessity for a
guardian had ceased to exist. --Simis v.

The N. Y. College of Dentistry, 129.
12. When a notice of motion contains a

clause stating that in addition to the re-
lief specified, “such other and further
relief as to the court shall seem just“ will
be applied for, relief may be awarded to
such an extent as is warranted by the
facts plainly appearing in the papers on
both sides - In re petition of the N. Y.

Elevated RR. Co., 116.
13. An erroneous admission of incompetent

evidence is cured by a direction to the
jury to strike it entirely out of their con-
sideration.- The Geneva, 1. & S. RR. Co.,

v. Sage, 167.
14. It is not necessary to file a new note of

issue and serve a new notice of trial after
the service of a supplemental complaint.

-Lovatt v. Ilatson et al., 193.
15. Where the case on appeal does not show

that it contains all the evidence bearing
on the finding sought to be reviewed the
court will assume that the evidence was
sufficient to sustain the finding:- Porter

et al. v. Smith et al., 210.
16. An exception to a finding of fact or to a

refusal to find as requested is not author-

ized -Id.
17. Counsel handed up to the court numer-

ous written requests to charge. After
the charge counsel said: “I desire to call
your honor's attention to certain proposi-
tions embodied in the written requests to
charge which I have submitted to
At this point the court interfered, saying:

5 In an equity action a new trial will not

be granted for errors in the admission or
exclusion of evidence if the case has been
rightly decided upon sufficient and com-
petent evidence. --Marsh v. Pierce, 51.

6. Where questions other than those em-

braced in the issue were referred to a ref-
eree and were passed on in his report, and
judgment has been entered thereon, Held,
that a motion for new trial was properly
made at General Term in first instance. -
Moore et al. v. Oviatt, 68.

7. Where on the trial of issues of fact in an

equity action improper evidence is re-
ceived under objection, and on the trial
at Special Term before another judge a
case containing such evidence is offered
and received without objection, Held,
That the right to object to the evidence
on appeal was waived.-arnold v. Par-
melee et al., 70.

8. In charging the jury, it is competent for

a judge to assume a fact for the purpose
of illustrating a point or to state what is
conceded, claimed or denied by counsel
during the progress of a trial. The Peo-
ple v. Rugg, 84.

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

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