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position of the claim, until a sufficient opportunity is given to the

receiver to commence an action ($ 299), id. a receiver may be appointed in such case, without any reference to the

return of the execution, id. the judge has no authority to order an assignment from the debtor to

the receiver. Nor is an assignment necessary, as the title and authority for such purposes to rights and property of this description vests in the receiver immediately upon his appointment (see Porter agt. Wil. liams and Clark, ante page 441). In relation to real estate, an assignment is riecessary to transfer the title to the receiver. And it seems that the Supreme Court has power, without any statutory pro

vision, to order such an assignment, id. a demand of the kind mentioned in this case, can not be levied upon

and sold under an execution against the debtor, id. a judge has no power to adjourn these proceedings from time to time,

without the consent of the party against whom the proceeding is had, id.


be commenced under the Revised Statutes, and not by the Code, Crane agt. Sawyer, 372.

PROMISSORY NOTE, a negotiable promissory note endorsed by the payee

(as owner) and by him deposited in a bank for collection, and by that bank transferred in the usual course of exchange to another bank, for the same purpose, does not create any title in the latter bank against the payee, Van Namee agt. The Bank of Troy, 161.

PUBLICATION, service by

The facts to entitle a creditor to an order for publication, should be

stated positively and not on information and belief, Evertson agt. Thomas, 45.


see Proceedings supplementary, &c.

REFEREE AND REFERENCE, in supplementary proceedings—duty of,

16, 29. A referee appointed to report the facts is not at liberty to report the

evidence at large, Dorr agt. Noxon, 29. What reports require confirmation by the court on motion, Grifing agt.

Slate, 205.

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A divorce case may be referred by consent of parties, 306.
A referee who acts by virtue of stipulation of parties, unsanctioned by

rule of court, acts without authority, Litchfield agt. Bennett, 341.
Review of Referees Report, 157, 158.
On appeal from a judgment upon a report of referee, the date of issue in

the general term calendar must be the day of filing the report, Gould

agt. Chapin, 358. An order of Supreme Court denying a motion for stay of proceedings on

the judgment and for liberty to move to set aside a report of referees

without appeal, is not an appealable order, Enos agt. Thomas, 359. After judgment the only mode of reviewing the decision of referees is

by appeal from the judgment, 361.

RELIGIOUS SOCIETIES. rights. liabilities and powers of. Voorhees agt.

Presbyterian Church of Amsterdam, 58.
Their rights as to burial grounds, Schoonmaker agt. Dutch Church of

Kingston, 265.

REPLY, see Answer, 146.

see Pleading, 206.


CHOOL LAW, the free school law generally, 417.


SERVICE OF PAPERS, where service made by mail by depositing in a post

office other than where attorney resides, the attorney who served takes

the risk of their being received in time, Pecbles agt. Rogers, 208. The time of service, when regularly made by mail, is the time of mail

ing, not of receiving, Van Horne agt. Montgomery, 238. Where an attorney signs his name and place of residence to papers, the

service of papers by mail must be directed to the post office at that

place, Rowell agt. McCormick, 337. Service of a summons is defective where sheriff's certificate does not

mention any cause in which it was served, Litchfield agt. Bur well,

341. an admission of service of a summons is not good without some evidence

of its genuineness, id.

see Verification, 353. Where a summons is served stating that the complaint will be filed in

the clerk's office of a certain county, motion for judgment in favor of defendant for not serving complaint, must be made in that district or an adjoining county, Johnston agt. Bryan, 355.

SET OFF, see Judgment, Noron agt. Gregory, 339.


SLANDER, see Pleading, Pike agt. Van Wormer, 171.

SUMMONS,a summons issued without mentioning the court from which it

emanates, is defective, Dir agt. Palmer, 233.
See to same effect, James agt. Kirkpatrick, 241.
A notice of appearance by defendant waives the irregularity, 233.
[So too if complaint is served with summons, 4 How, 154.]
see Service of Papers, 341, 355.

SURROGATE, a surrogate will be compelled to make a return to appeal

within a reasonable time, although his fees have not been paid, Gard

ner agt Brown , 351. An appeal from a judgment of Supreme Court, reversing a surrogate's

decree, if premature is brought before the roll if filed. McMahon agt. Harrison, 360.

day of the court included, for service of notice of trial, Dayton agt.

McIntyre, 117.
notice served on the 11th for the 21st, held good, id.
Twenty days is reasonable time to serve a complaint after demand.

Colvin agt. Bragden, 124,
To answer, reply, &c.—
A county judge has power independent of the Code, to grant an order

extending the time to answer. Peebles agt. Rogers, 208.
see also Motions, id.
The time of service of copy complaint, when made by mail, is the time

when it is mailcd, rot when received. 238. see Answer, Mandeville agt. Winne, 461.

TORT, in actions for a tort commenced before the Code, a defendant on whom

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

covery, Dodge agt. Averill, s.
he is nominally a party and interested ($ 398–9), id.

TRIAL, place of—see Place of Trial.

The argument of an issue of law, either at general or special term, is a

trial, 11.

TROVER, a bailee of a chattel is answerable. in trover, on showing a delivery

to a person not authorized to receive it, Esmay agt. Fanning, 228.

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NDERTAKING, an undertaking in the form of a penal bond is good, where it contains the conditions required by the Code, Conklin agt Dutcher, 386.


ENDOR AND VENDEE, Kneiss agt. Seligman, 425.

VERIFICATION, where the verification of a complaint is made by the at

torney instead of the party, the reasons must be stated why it is not made by the party. Otherwise it may be treated as a complaint not verified, Fitch agt. Bigelow. 237.

and in such case the means of knowledge should be set forth, Van Horne agt. Montgomery. 238.

An answer which is required to be verified is not duly served without a copy of the affidavit of verification, with the name of the magistrate, Graham agt. McCoun, 353.


ITNESS, 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 witness for a codefendant, whom he is liable to indemnify in case of
recovery, Dodge agt. Averill, 8.
he is nominally a party and interested (§ 398–9), id.

Each of two defendants charged with a joint offence, can not be a wit-
ness for the other, Munson agt. Hagerman, 223.

See further on this point, and qualifying above, Hallenbeck agt. Van
Valkenburgh, 281; Selkirk agt. Waters, 296.

Contra, Mechanics' and Farmers' Bank agt. Rider and Wilbur, 401.
An affidavit for allowance of travel fees of a witness should state the

distance traveled by him as such, Schermerhorn agt. Van Voast, 458. a party in interest can not be a witness, consequently can not be allowed fees as such, id,

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