Index. NOTICE, notice of trial served on the 11th for the 21st, is good, Dayton agt. McIntyre, 117. So much of a rule entered by default upon motion, as grants costs, to abide the event of the suit, will be set aside for irregularity, if no notice of application for costs is given in notice of motion, Northrop agt. Van Deusen, 134. see Costs, Dux agt. Palmer, 233, see Motion, Darrow agt. Miller, 247. In partition-on sales of lands in the city of New York, the notice must be for six weeks, Romaine agt. McMillen, 318. PARTY, see Actions, Dodge agt. Averill, 8. see Demurrer, Wallace agt. Eaton, 99. The 121st section of the Code, so far as it is made applicable to existing One of several plaintiffs having assigned to his coplaintiff after suit commenced and cause referred and some testimony taken, plaintiffs were allowed to amend, Davis agt. Schermerhorn, 440. PENDENCY of another suit, see Pleading, 51. PERSONAL PROPERTY, see Claim, &c. PLACE OF TRIAL, the trial of a cause for the convenience of witnesses, should be had in the county where witnesses reside, though they may be required to travel a greater distance than to the court house of an adjoining county, People agt. Wright, 23. supposed circumstances which render it doubtful whether a fair trial can be had in the county to which it is moved to change the place of trial, Motion to change the place of trial can not be made before the issues in Index. PLEADING AND PLEADINGS, a party can not demur and answer to the same pleading, Spellman agt. Weider, 5. , where this is done, the remedy is to move to strike out one of them or to compel the defendant to elect by which he will abide, id. the plaintiff can not in such case, move for judgment on account of the frivolousness of the demurrer, id. what facts should be stated in a complaint against the makers and endorsers of a promissory note, when they are all united in the same action under 120 of the Code, id. An answer is bad, where it controverts no allegation of the complaint, and sets up no new matter in bar, but merely denies a conclusion of law, McMurray agt. Thomas, 14. an answer is bad, which merely alleges that the note sought to be recovered was obtained by fraud, and omits to set out any facts showing the existence of such fraud, id. Motion to strike out redundant matter must be made before giving notice of trial, Esmond agt. Van Benschoten, 44. A plea of the pendency of a suit in another estate for the same cause of Impertinent and scandalous matter struck out with costs, Carpenter agt. it seems any one affected thereby may move to strike out such scandalous impertinence includes irrelevancy, redundancy, and prolixity, id. It is not necessary to charge an endorser, to aver a presentment and de- see Demurrer, 112. see Answer, 146. see Judgment, 155. Several causes of action in slander can not be united in the same com- Index. present continuance of the disease, and without alleging special da- A complaint demanding a judgment of forfeiture of a term of years, and at once. see Answer, Burget agt. Bissell, 192. see Answer, Howard agt. Michigan R. R. Co., 206. All those preexisting rules of pleading at common law or in equity, if the case and relief sought to be of an equitable nature, the rules of Sham pleadings and frivolous pleadings, Darrow agt. Miller, 247. see Answer, 321. The Code not only abolishes the distinction between law and equity in he criterion, as to relevancy or redundancy. is whether the allegation The cases on this subject collected, id. It is the right of the adverse party to have the matter improperly inserted, PRACTICE, the statute does not expressly require the filing of the affidavits A party can not demur and answer to the same pleading, Spellman where this is done, the proper remedy is to move to strike out one of Index. the plaintiff can not in such case move for judgment on account of the The decision of a motion on a demurrer as frivolous, is a judgment. An in such case defendant is entitled to notice of assessment of damages. New trial in ejectment, see New Trial, 50. Impertinent matter struck out, 53, 439, 470. The objection that a summons was not properly served, is not available Upon the presentation of petition. for the appointment of commissioners as to proceedings of sucn commissioners generally, see id. To authorize legal service upon a foreign corporation through its man- where service of a summons is made upon a proper officer of a foreign see Answer, 206. PROCEEDINGS SUPPLEMENTARY TO EXECUTION, where the judge when a receiver should be appointed, &c.. id. the duty of a referee on taking the examination, &c., id. Where a third person, not a party, is in possession of property of the Index. the goods, under his execution, or to institute an action, in the nature of a creditor's bill, Dorr agt. Noxon, 29. a receiver can only be appointed in such a case, on notice to the judgment debtor, id. A motion to vacate the order may be made to the court, without first applying to the judge before whom the proceedings are pending, Lindsay agt. Sherman, 308. an appeal from an exparte order, made by a judge at chambers, will not lie at the general term, under 350 of the Code, id. Upon the return of an execution within the sixty days, proceedings supplementary may be commenced, Livingston agt. Cleaveland, 396. Where proceedings supplementary to execution are instituted under the Code, the order for the debtor's examination under the 292d section gives the judgment creditor the same lien upon the debtor's equitable assets which he acquired under the former practice by the commencement of a suit by creditor's bill. And the orders authorized by the 297th and 298th sections themselves, and without an assignment by the debtor, divest his title in the personal property and vest it in the receiver, Porter agt. Williams and Clark, 441. W., on the 5th of January, assigned to C. all his property for the benefit of creditors, with power to sell either for cash or credit. This assignment is void (2 Comst. 365). On the 28th of March an order was made in proceedings supplementary to execution against W., and on the 4th of April P. was appointed a receiver of W.'s property. On the 30th of March W. executed a further instrument to C. declaring that it was intended that C. should sell for cash only, id. Held that P., the plaintiff had acquired a lien on the 28th of March, which rendered ineffectual the instrument of the 30th of March, even if otherwise of any effect, id. Held, also, that W. could not at any time after the execution of the assignment to C. revoke the authority therein contained to sell upon credit, and that the instrument subsequently executed was of no avail to render the assignment valid, id. In proceedings supplementary to execution under § 292 of the Code, a county judge has no authority or jurisdiction to issue an order for the defendant to answer, &c., until after an execution has been issued against his property. And this fact, and all others upon which jurisdiction rests, must be shown affirmatively; they are not to be deduced by inference or presumption, People ex rel. Williams agt. Hulburt, County Judge, 416. where the creditor claims the application of a demand or debt due to the debtor from a third person, and such demand or debt is denied, the judge can not proceed and try such disputed question of fact; he is only authorized to issue an order forbidding the transfer or other dis |