Page images


ABATEMENT, (see Party,) Vrooman agt. Jones, 369.

ACTIONS, against makers and endorsers of a promissory note, when united

in the same action under Ø 120 of the Code; what facts must be stated

in the complaint. Spellman agt. Weider, 5.
In actions for tort, commenced before the Code, a defendant on whom

process was not served, and who has not appeared, can not be a wit-
pess for a codefendant whom he is liable to indemnify in case of re-

covery. Dodge agt. Averill, 8.
he is nominally a party and interested. id.
Action for recovery of possession of personal property, (see Claim and

Delivery, &c.)
Several causes of action in slander can not be united, unless they are

separately stated (see Slander and Pleading,) 171.
ree Pleading, 188.
An action to recover personal property can not be maintained where the

defendant has not, in fact or in law, the possession or control of the

property claimed. Roberts agt. Randel, 327.
see further Claim and Delivery.

ADMISSION, see Service of Papers, 342.
AFFIDAVIT OF MERITS, an affidavit of "a defence in the action," with-

out swearing to merits, or advice of counsel, is insufficient under

Rule 39. McMurray agt. Thomas, 14.
An affidavit of merits for the purpose of being let in to defend in a com-

mon law action, is not required to be special, where there is no sus-
picious circumstance in the case. Diz agt. Palmer, 234; and Van

Horne agt. Montgomery, 238.
AMENDMENT, the plaintiff has no right to amend his complaint by striking

out the name of one or more parties, without leave of Court. Russell

agt. Spear, 142.
see Answer, 206.
Amendment of summons will not support a judgment which is irregular

on account of defect in original summons. James agt. Kirkpatrick,


Although $ 172 of the Code allows an amendment of a pleading once, of

course, and without costs, yet as to costs it can apply only where the

first pleading has been regular. Williams agt. Wilkinson, 357. if the opposite party has prepared and served motion papers to set aside

the first pleading for irregularity, which is cured by amendment, the

party amending must pay costs. id.
An answer can not be amended in matters of substance, where it sets up
title, and is the same put in before a justice of the peace to remove a

Wendell agt. Mitchell, 424.
see Party, Davis agt. Schermerhorn, 440.


ANSWER, an answer is bad where it controverts no allegation of the com

plaint, and sets up no new matter in bar, but merely denies a con

clusion of law. McMurray agt. Thomas, 14. an answer is bad, which merely alleges that the note sought to be re

covered was obtained by fraud, and omits to set out any facts showing

the existence of such fraud, id. Where an answer merely denies the facts set up in the complaint, and

contains no new matter constituting a defence, plaintiff is not bound

to reply thereto. Brown agt. Spear, 146. see Judgment, Tracy agt. Humphrey, 155. Facts which, under the former practice, would have formed ground of

relief against a legal demand, upon a bill filed for that purpose, may now be interposed by way of answer in the action on the legal de

mand. Burget ngt. Bissell, 192. Where an answer and demurrer were served on one paper, and reply

served to the answer and the demurrer noticed for argumeut, and after-
wards the answer was again served as an amended answer without the
demurrer, held plaintiff was not bound to reply again. Howard agt.

Michigan Rail Road Co., 206.
To authorize an order upon a motion to strike out an answer as frivolous,

it must appear that the answer is a “sham pleading” (Code $ 152),
which does not necessarily follow from its being merely frivolous.

Darrow agt. Miller 247. no affidavit need be served on the opposing party with notice of motion

for judgment under Ø 247 id. Where answer admitted execution of note, but as to each and every other

allegation, denied sufficient knowledge, gc., (the complaint alleging facts upon which defendant became liable), held, that answer was suf

ficient. Genesee Insurance Co. agt. Moynihen, 321. see Service of papers, Graham agt. McCoun, 353. An answer in the nature of a plea puis darrien, will not be allowed

after two trials, where defendant had knowledge of the facts before

answering. Houghton agt. Skinner, 420. ser Amendment, 424,


A defendant must answer the complaint within the twenty days pre

scribed by statute. He has no right to answer after the expiration of the twenty days, and before judgment is actually taken. Mandeville

agt. Winne, 461. Nɔ part of an answer ought to be struck out which can in any event

become material. Averill agt. Taylor, 476. defendant may by way of answer, pray for specific relief on his part, in

relation to the subject matter of the suit. id. see Williams agt. Hayes, 470.

APPEAL, from decision of motion on frivolous demurrer. King agt. Staf

ford. 30.
see Judgment, King agt. Stafford, 30.
from a Justice's court taken before the Code. People ex rel Cahoon agt.

Dodge, 47.
Notice of appeal should be served on the attorney of record in the court

below, not on the party. Tripp agt. De Bow, 114.
the service of such notice being a jurisdictional question, the party can

take advantage of it at any time, if he has not appeared so as to give

jurisdiction, id. see Cuse and Bill of Exceptions. Keview in causes referred before the Code. La Wall agt. Grigg, 158. The party deeming himself aggrieved by the decision of commissioners

to appraise rail road damages, must bring the matter before the court on appeal; and upon such appeal the court can only look at the matters

contained in the report. N. Y. and Erie Rail Road agt. Corey, 177. An appeal brought on the same day that judgment roll was filed, but

previous thereto and before the hour when the costs were adjusted,

held good. Blydenburgh agt. Colheal, 200. (Court of Appeals.) Where judgment of court below had been paid before writ of error

brought but not satisfied of record, on reversal plaintiff can not have

restitution without leave of court. Sheridan agt. Mann, 201. It is too late to question the truth of statements in the papers for the first

time on the argument of the appeal. Munson agt. Hagerman, 223. The time of service of notice of appeal under $ 327, upon the clerk,

when made by mail, does not date from the time of depositing in the

post office. Crittenden agt. Adams, 310. where such notice was served on the clerk and attorney on the last day

for bringing the appeal, by depositing in the post office, and were not received by either until two days after the time for appealing had expired, held that the appeal was not taken in time; the service was

good upon the attorney (6 408) but bad upon the clerk. id. under $ 173 of the Code, the court have power to authorize an appeal,

taken after the expiration of the time limited by the Code ($ 332 and 348), to be considered good and valid. id.


In respect to causes originating in a Justice's Court, the Supreme Court

has merely an appellate jurisdiction. It has no power to review a judgment rendered by a County Court by default. Dorr agt. Birge,

323. It seems, that by $ 405, the time to appeal can in no case be enlarged,

Rowell agt. McCormick, 337. see to the same effect, Enos agt. Adams, 361. Contra see Crittenden agt. Adams, 310. from surrogate (see Surrogate), 351-360. from referee's report, (see Review of Referee's Report.) from an order granting an attachment. (see Attachment), 386. On bringing an appeal from a Justice's Court, the payment of the jus

tice's fee for the return must be made at the time of service of the uotice of appeal. Van Heusen agt. Kirkpatrick, 422.

To the Special Term. an appeal will not lie in the first instance to the general term upon a

case containing question of fact alone. Application for a new trial must first be made at the special term. Collin's agt. Albany and

Schenectady Rail Road, 435.
see Leggett agt. Mott, 4 How. Pr. R. 325; Lusk agt. Lusk, id. 418;

Graham agt. Milliman, id. 435.)
The time for bringing an appeal to the Court of Appeals begins to run

from the making the final order for judgment, and not from the dock

eting of the judgment roll. Bank of Geneva agt. Hotchkiss, 478. Although it may be necessary to have the costs adjusted and roll filed

before bringing the appeal, the appellant has it in his power to coerce

this to be done in time. id. APPEARANCE, a defendant can not be legally tried upon an indictment for

any offence in his absence, unless he has unequivocally waived his

right to be present. People agt. Wilkes, 105.

see Lunatic, 109. APPRAISAL OF DAMAGES, (see Practice and Appeal,) 177. ARBITRATION, upon a parol submission, or under a common law arbitra

tion, the arbitrators possess no power to administer a legal oath.

People agt. Townsend, 315. ARREST AND BAIL, an affidavit for the arrest of a defendant, for fraud, fc.

must state positively facts within the knowledge of plaintiff. And where facts necessarily rest upon information, the source and nature of the information should be set out, and reasons given why a positive

statement can not be procured. Whitlock agt. Roth, 143. (see Claim and Delivery), Van Neste agt. Conover, 148, 327. Where an order of arrest is granted, on showing that a sufficient caus

of action exists ($ 179 and 181) the defendant, upon affidavits


« PreviousContinue »