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New York Life Insurance and Trust Co. agt. Rand and others. dispensed with; and that where the decree contained directions that the purchaser be let into possession, as is the case in an ordinary judginent of foreclosure, no further order was necessary.

In the case of Valentine is. Teller, supru, Chancellor SANFORD expressed the opinion, that where the decree contained a direction that the party have possession, no further application to the court was necessary, before the party was entitled to a writ of assistance. The order required by the English practice, with the writs of execution and injunction, were all commands directed to the party; the writ of assistance is directed to the sheriff, commanding him to give possession; and the court directed in the last mentioned case, that the writ of assistance was to be the only necessary process of the court, for giving possession of land which had been the subject of adjudication.

This direction of Chancellor Sanford has, I believe, been followed since, and has become to be regarded as the settled practice on the subject. But I am not aware of any reported case, in which the question was distinctly raised and decided, whether, since nothing is required to be done before applying for the writ of assistance, but to show the sheriff's or master's deed, and to serve the order confirming the sale, the motion for such writ must be on notice, or may be made ex parte. By the English practice referred to, and by our practice, until it was was changed under Chancellors Kent and SANFORD, no notice of motion for the order, or either of the writs of execution, injunction or assistance, appears to have been necessary, and since that time the books are all silent on the subject. There are a number of reported cases in our Court of Chancery since the case of Valentine agt. Teller, which show that notice was in fact given, and others where notice may be inferred from the fact that the motions were opposed. But this proves very little on the question. I am certain that the practice has prevailed more or less extensively, of omitting notice, and of the court granting the orders er parte. I remember a case which I had in practice, where a motion was made to vacate an order which I had obtained ex parte, for a writ of assistance, upon the sole ground that notice of the motion for the order had not been given. In that case the motion was denied upon consideration, the court holding notice not necessary.

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New York Life Insurance and Trust Co. agt. Rand and others.

I do not perceive any more propriety or necessity of requiring notice under our present mode of proceeding than under the English practice. With us, the order for possession is a part of the decree or judgment of foreclosure and incorporated in it, of which the defendant is presumed to be cognizant. All which he can in reason require, further, is to be informed in the proper manner, that the person claiming possession under the judgment, is the one entitled to the possession as against him. The sheriff's deed and the order confirming the sale and conveyance is the best evidence of this; and when he is presented with that evidence, and possession is demanded, he has no excuse for not obeying the judgment of the court. If he refuses, it seems to me quite unnecessary to put the party to the delay and expense of giving notice of a motion for the writ of assistance.

In respect to the second ground of the motion, it follows, if I have come to a correct conclusion on the question of the necessity of the notice, that there was no want of jurisdiction in the justice who made the order. The proceeding was against Frost alone, and one where neither of the plaintiffs in the action commenced against Frost and Rand, had any legal interest or a right to be heard.

In regard to the third ground, I have entertained considerable doubt, whether any one but the purchaser at the official sale by the sheriff, had the right to the writ of assistance; but upon reflection, I see no real objection to the grantee of the purchaser at the sheriff's sale, having the same remedy that such purchaser himself would be entitled to. In Van Hook vs. Throgmorton (8 Paige, 35), the court say “there is no settled practice of this court, entitling a subsequent purchaser at a master's sale, as a matter of right, to the assistance of the court to obtain the possession of the premises, which his grantor had purchased under the decree; and such assistance should not be given him, where there is, as in this case, a very strong probability that injustice would be done to the person in possession by such proceeding.” I think it inay fairly be implied from this, that in a plain case, where no injustice would be done to the person in possession, the court had the power, and would exercise it in favor of a second purchaser. In the present case, Frost bad shown no

Mann and Savage agt. Brooks.

reason why Rand should not have the possesion given to him. At least, he clearly has no right to retain it as against Rand. He was served with the order of confirmation of the sale to Potter, and was shown the deeds from the sheriff to Potter and from Potter to Rand, both duly acknowledged and recorded. If he could show any injustice that might arise to himself, or any irregularity on the part of Rand, the order for the writ of assistance would probably be vacated, the same as would be done if the order had been granted on the application of the first purchaser. Rand by the deed from Potter, acquired all the rights of Potter in relation to the premises conveyed, and among them, I think, was the right to apply for a writ of assistance (see Brown vs. Betts, 13 Wend. 129). As to the remaining ground, I think the equities of H. R. Selden and Graves, as receiver, &c. were not inquirable into on the motion for a writ of assistance, nor are they on this motion. They could not be determined without virtually deciding the action brought by them, which it seems to me would be preposterous. The only effect of vacating the order and setting aside the writ of assistance, would be to restore the possession to Frost. Neither Selden or Graves have, as yet, shown any right, as against Rand, to the possession; and it is difficult to perceive how they are to be legally benefited by having the possession restored to Frost.

The motion should be denied, with seven dollars costs


MANN AND SAVAGE agt. Brooks.

In reference to the confession of judgments under $ 383 of the Code.

This case, which was reported in the last (7th) volume of this work at page 449, involved an important question in regard to judgments by confession, upon which there had been some conflicting opinions. The decision in that case was unanimously affirmed at the last May general term of the 3d district, held in Albany by Justices Watson, PARKER and Wright.

Springsted agt. Robinson.



When it can be seen from the pleading to be answered that an admission of the

truth of its allegations might subject the party answering it to a prosecution for felony, or might expose him to detection and thus lead to such prosecution, his general affidavit, that such might be the effect of the admissions should

be received in lieu of a verification of the answer. In such affidavit the particular facts and circumstances which lead him to such

conclusion need not be stated. This rule applied in an action of assault and battery.

Monroe Special Term January 1853. The complaint is for an assault and battery, and states that on the second day of October 1852, at Rochester in the county of Monroe, the defendant unlawfully and with force, assaulted the plaintiff, and seized hold of him and thrust him on the ground and injured the person of the plaintiff, and claims $500 damages. The complaint is verified by the plaintiff in due form, and was served October 12, 1852. On the 30th of the same month, the defendant's attorney served an answer, which, after the title of the action, was in words and figures following, viz: “ Charles A. Robinson, the defendant in the above entitled action, for his answer therein, states that by answering on oath the allegations contained in the plaintiff's complaint, he may subject himself to a criminal prosecution for the same subject matter set forth in said complaint, and that he is therefore excused by law, as he is informed and believes, from answering said complaint and the allegations therein, otherwise than as he has abore answered the same." This answer was verified in the usual form of verifying pleadings. On the 16th November following, an order was made by Judge SELDEN, at chambers, and upon notice, that the plaintiff have judgment on the ground of the frivolousness of the answer, unless the defendant, within twenty days, should amend by serving an amended answer pursuant to statute in such case made and provided, &c.; and in case defendant failed to amend, it was further ordered that a writ of inquiry of damages issue to the sheriff of Monroe, &c. VOL. VIII.


Springsted agt. Robinson.

On the 17th of the same month of November, an amended answer was served, the same being a general and also a specific denial of all the facts stated in the complaint, without being verified, but accompanied by an affidavit of the defendant, stating that an admission of the truth of the allegations in the complaint might subject him to a prosecution for felony, and that he therefore omitted to verify his answer.

On the same day that this answer was served, the plaintiff's attorneys returned it, declining to receive it, on the ground that it was not verified. Subsequently the plaintiff's attorneys gave notice of the execution of a writ of inquiry, in pursuance of the said order, granted by Judge SELDEN.

A motion is now made to set aside the notice of inquest, and that the amended answer stand as good and sufficient.

J. L. ANGLE, for Defendant.

J. H. MARTINDALE, for Plaintiff. WELLES, Justice. The first answer, I presume was prepared in view of the cases of Hill vs. Muller (2 San. Sup. C. R. 684), and White vs. Cummings (3 id. 716). As the law stood when those cases were decided, the answer would, in my judgment, have been sufficient, and as a pleading would have had the effect of controverting the facts stated in the complaint. Since then, the provision of the Code, on the subject of verifying pleadings ($ 157) has been amended. By $ 133 of the Code of 1848, every pleading, except the demurrer was required to be verified, but the verification might be omitted where the party would be privileged from testifying as a witness to the same matter. In the Code of 1849, the provisions on the subject are contained in $ 157, and did not require a defendant to verify his answer, nor the plaintiff his reply, unless the pleading answered was verified. If such pleading was verified, the answer to it was required to be verified. But in the amendments of 1851, § 157 has the following clause: “ The verification may be omitted, when an admission of the truth of the allegations might subject the party to prosecution for felony." The amendments of 1852 made no change in this section.

The first answer was not in accordance with this provision,

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