Romaine agt. McMillen and others. SUPREME COURT. ROMAINE agt. MCMILLEN AND OTHERS. On sales of lands in the city of New York, in partition, the notice must be for six weeks, the statutory time. Rule 54 has no application to such sales. That rule applies only in cases where there is no time fixed by statute, as on a sale upon a bill filed to foreclose a mortgage, or sales of infants or lunatics Iands, &c. New York Special Term, January 1850. This was a suit in partition, wherein a decree of sale was made, directing the premises to be sold by a referee on giving three weeks notice. On such a notice, the premises were sold and the purchaser paid his ten per cent, but afterwards refused to take a deed and complete his purchase, on the ground that the notice of sale was defective. Motion is now made to set aside the sale on that ground, for a resale and that the decree be amended by requiring the sale to be made by the sheriff on giving six weeks notice. W. B. SMITH, for Plaintiff DAVIDSON & BROMLEY, for the purchaser. EDMONDS, Justice.—The statute requires that sales in partition shall be had after notice, for the same time and in the same manner as is required by law on sales of real estate by sheriffs on execution (2 R. S. 326, § 56; Id. 330, §81). That is a notice. of six weeks (2 R. S. 386, § 34). The attorney for the plaintiff in this case seems, however, to have supposed that the present rule, number 54 (which is a transcript from the 139th rule of the Court of Chancery, and the late 96th rule of this court in equity), applies to the case. That rule permits lands in the city of New York to be sold on a notice of three weeks. It is general in its language, but was never intended to have nor could it have the effect of altering the time of notice prescribed by statute. It was intended only for those cases where the statute had omitted to prescribe the duration of the notice. Thus in sales on a bill filed to foreclose a mortgage, no time for the notice of sale is pre Giles agt. Halbert. scribed in the statute. So on sales of infants' lands by special guardians, or sales of a lunatic's lands by his committee. But on sales by the sheriff on execution, or on sales by him or by any referee in partition, the notice must be for six weeks, because the statute so requires it. This sale is therefore void and must be set aside, and the decree may be amended as required. This it is competent for the special term to do, because this is a provision merely consequent on directions already given. 5 How. 319-AFFIRMED, 12 N. Y. 32. SUPREME COURT. GILES agt. HALBERT. Where a real plaintiff prosecuted a suit against the defendant for a penalty, under the statute, by virtue of a parol agreement to divide the amount, if successful, with the nominal plaintiff on record, and the defendant succeeded, Held, that the real plaintiff was liable for defendant's costs. Chenango Special Term, Dec. 1850. This is a motion on behalf of the defendant, for an order compelling one Justus Parce to pay the costs of defending the above action, on the ground that he commenced and prosecuted the action to its termination, and was beneficially interested in the recovery in the same, within the provisions of 2 R. S., 619, § 47. The action was instituted to recover the penalty given by 2 R. S., 369, §37, against the defendant as sheriff for selling the plaintiff's real estate, without having advertised the same. On the trial the plaintiff was nonsuited, and a new trial denied on application to the court. The affidavits on behalf of the application show that Parce retained the attorney at his own expense to prosecute the suit, subpoenaed the ' witnesses, and attended the trial; and that Giles, the nominal plaintiff, had nothing to do with the prosecution of the cause. The agreement between him and Parce was, that Parce was to prosecute the action to judgment, at his own expense, and in case judgment was recovered, he was to pay seven hundred dollars of Giles agt. Halbert. it to Giles and retain the balance for himself. The agreement was by parol. B. F. REXFORD, for the Motion. CLARK & WAIT, for Parce. SHANKLAND, Justice.-Parce brought the action in the name of Giles, and with his assent, to recover the penalty of one thousand dollars against the defendant. But it is claimed, that as the agreement between Giles and Parce was not in writing it is within the statute of frauds, and that therefore Parce was not beneficially interested in the recovery; and that the contract is also void for champerty (10 Paige, 352; 2 Denio, 607; 5 Paige, 301). It is probably true, that as between Giles and Parce, the contract is void for both reasons; but is it competent to Parce to insist upon that objection on this motion? The statute on which this motion is made, was adopted for the benefit of defendants, in order to protect them against unfounded claims prosecuted for the benefit of real plaintiffs, but in the name of irresponsible ones; and should have a liberal construction, so as to effectuate the intent of the legislature. It has been held that a person interested by way of mortgage, or lien, and who prosecutes the suit, is subject to the costs (1 Hill 629). So is he liable although an assignee of only part of the demand (1 Denio, 656). It seems to me, that the illegality of the contract between the real and nominal plaintiff, should not be received to defeat the defendant's right to costs. If the contract made between those parties, if legal, and carried out, according to its terms, would make the real plaintiff beneficially interested in the demand sued upon, and he actually causes the suit to be commenced, he should be held liable for the costs. I therefore hold that the agreement of Parce to have a part of the penalty sued for, and his causing the action to be commenced and prosecuted, by virtue of such agreement makes him liable for the defendant's costs; and those costs having been personally demanded of him, without being paid, an attachment must issue against him. 5 How. 321-FOLLOWED, 6 How. 321, 324. The Genesee Mutual Insurance Company agt. Moynihen. SUPREME COURT. THE GENESEE MUTUAL INSURANCE COMPANY agt. MOYNIHEN. Where the answer admitted the execution of the note (premium note) and the delivery of the policy of insurance, but as to each and every other allegation alleged in the complaint, the defendant had not sufficient knowledge to form a belief (the complaint alleging the facts upon which the defendant had become liable upon the premium note). Held, that the answer was sufficient, under § 149, 1st subdivision, to put the plaintiff to his proof. Monroe Circuit and Special Term, Nov. 1850. Motion for judgment upon the complaint upon the ground of the insufficiency of the answer. The action is upon a premium note given by the defendant to the planitiff. The note is in the words and figures following: "$70. For value received in policy No. 7295, dated Nov. 27th 1848, issued by the Genesee Mutual Insurance Company,' I promise to pay the said Company or their treasurer for the time being, the sum of seventy dollars, in such portions and at such time or times as the directors of said company, may, agreeably to their act of incorporation require. Andrew Moynihen." The complaint sets forth the note, the issuing of the policy of insurance, together with other facts by reason of which the plaintiff claims the defendant is liable to pay the note. The answer is in the following words: "The said defendant, Andrew Moynihen, for answer to the complaint of the plaintiff, says that he admits the execution of the said note and the delivery of the said policy of insurance; and the defendant further says that as to each and every other allegation in the said complaint set out and not herein expressly admitted, this defendant has not any knowledge thereof sufficient to form a belief." HATCH & HATCH, for Plaintiff. J. C. COCHRAN, for Defendant. WELLES, Justice. The law as to what an answer shall contain is found in § 149 of the Code. The first subdivision of that section is as follows: "The answer of the defendant shall contain, Daniels agt. Hinkston. 1. In respect to each allegation of the complaint controverted by the defendant, a general or specific denial thereof, or denial thereof according to his information and belief, or of any knowledge thereof sufficient to form a belief.” The answer in this case is clearly within this section. The facts admitted are the execution of the note and the delivery of the policy. With regard to the residue of the complaint the defendant denies any knowledge thereof sufficient to form a belief. If the facts admitted by the answer were sufficient to entitle the plaintiff to recover, this motion would be in order, and judgment would now be rendered in favor of the plaintiff. But such is not the case. There are material allegations in the complaint which are not admitted, and which remain to be established The defendant by this denial has put the plaintiff to the proof of them. (See Monell's Prac. ed. of 1849, p. 146.) The motion must be denied, with $7 costs. SUPREME COURT. DANIELS and DANIELS, Administrators, and DANIELS, Administratrix, agt. HINKSTON. A justice of the peace had no power to take judgment by confession, for a sum greater than one hundred dollars, under the Code of 1848. This was an action brought in January 1849, to recover $247-09, the amount of two promissory notes executed by the defendant Hinkston. The defendant alleged in his answer that on the 29th day of November 1848, he appeared before a justice of the peace of the county of Genesee, with the plaintiff Daniels, and duly confessed judgment on said note in pursuance of sections 113 and 114 of the 8th article of title first chapter second part third of the Revised Statutes. The plaintiff replied that the justice had no power to take such judgment by confession. Cause tried at the March circuit, 1850, in Genesee county A. P. HASCALL, for Plaintiffs. S. B. JEWETT, for Defendant. |