Digest.

can appeal to this court, pending the reference. Chitienden agt. The Missionary Soc. of the Methodist Ep. Church, 327.

COUNTY COURT. The County Court, on appeal from a judgment of a Justices' Court, have no authority to review the evidence given in the Justices' Court, and to reverse, affirm or modify the judgment on questions of fact arising from such evidence. (This agrees with Adsit agt. Wilson, 7 How. Pr. R. 68.)

Nor can the County Court, under section 366 of the Code, reverse in part, and affirm in part, a judgment of a Justices' Court, rendered for entire damages. If there is no evidence to support the judgment it must be reversed, if there is evidence upon both sides-a mere conflict of evidence, the judgment must be affirmed. Kasson agt. Mills, 377.

DEMURRER.

EMURRER. The plaintiff is not authorized to reply or demur to an answer which does not contain new matter by way of defence. A demurrer will not lie to a mere denial in an answer. (This is adverse to Hopkins agt. Everett, 6 How. Pr. R. 159, and Sallinger agt. Lusk, 7 id. 430.)

The complaint alleged "that Clifton then and there endorsed the said
promissory note, and the same was afterwards, and before the same
became due and payable, delivered to the plaintiff," held, that such an
allegation was insufficient as showing the action to be in
"the name
of the real party in interest." It is not equivalent to one "that Clifton
endorsed the note to the plaintiff."

A demurrer to an answer, denying such an allegation on information
and belief, may be stricken out as unauthorized and irregular. Loomis
agt. Dorshimer & Clifton, 9.

Six grounds of demurrer are specified in the Code. It is enough to authorize a demurrer that any one of these objections appear upon the face of the complaint. The demurrer must specify distinctly upon which of the several grounds of objection which justify this pleading, the party relies.

If the ground of objection, stated in the demurrer, is, in substance, any one of those specified in the 144th section of the Code, it is good as a pleading.

Except in reference to the alleged want of jurisdiction (whether of the person or the subject matter,) or a defect of parties, (plaintiff or defendant,) all grounds of demurrer may be properly stated in the very words of the statute. (This agrees with Durkee agt. the Saratoga and Wash. R. R. Co., 4 How. Pr. R. 171; Swift agt. De Witt, 3 id. 250; Hyde agt. Conrad, 5 id. 361, and is adverse to Purdy agt. Carpenter, 6 id. 361.)

VOL. VIII.

70

DEMURRER.

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A demurrer is only appropriate when the ground of objection appears on the face of the pleading. Getty agt. Hudson R. R. Road Co., 177. A demurrer to an answer which does not contain new matter constituting a counter claim, is a nullity; and may be treated as such by the defendant. (See the next preceding case of Simpson agt. Loft.) Roosa agt. the Saugerties and Woodstock Turnpike Road Co., 237. The Code, as amended in 1852, has not substituted an order for a judg ment in all cases where a demurrer is sustained or overruled.

The decision is still a judgment, where a demurrer to the whole pleading
is sustained. It is an order where the demurrer is partial.

Upon an appeal from such an order only ten dollars costs can be given
Drummond agt. Husson, 246.

Where the defendant claims, upon demurrer to the answer, that the com-
plaint is defective, he must be held, under § 148, to have waived all
objections to the complaint, not answered or demurred to, except the
question of jurisdiction and the sufficiency of the cause of action.
People agt. Banker, 258.

It seems that where a demurrer to the entire complaint is sustained, and judgment directed in favor of the defendant, without leave to the plaintiff to amend, the decision can not be appealed from as an order; the only mode of review is, by an appeal from the judgment when perfected. But if otherwise, the defendant is not bound to enter an order on the decision, give notice of it, and wait thirty days, to allow the plaintiff to appeal, but may pefect his judgment immediately.

Notice of an appeal from the decision, as an order, within thirty days after entry, but after judgment, will not render the judgment irregular. Dolph agt. White, 275.

A demurrer which states that, "the complaint does not state facts sufficient to constitute a cause of action," is sufficient. Hoogland agt. Hudson, 343.

SEE PARTIES, Brownson and Wife agt. Gifford, 389.

SEE APPEALS, Bruce agt. Pinckney, 397, and Lewis agt. Acker, 414.

DISCOVERY. The provisions of the Revised Statutes in relation to a dis

covery of books, papers, &c., have not been superseded by § 358 (Sec. 341 and 342) of the Code. The two systems may stand together, as not being inconsistent with each other, either as to the mode of making a discovery, or the powers of the court, if a discovery be refused. If in answer to an order for discovery and inspection, or for sworn copies of books, papers, &c., the oppposite party denies fully and explicitly that there are any such entries, books or papers under his control, that is an end of the application. He can not be subjected to a fishing examination.

The court has no right under the rules adopted to execute the power conferred by the Revised Statutes, or under the Code, to direct a dis

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covery to be made by appointing a referee to ascertain and report, whether an order directing a discovery previously made and executed, has been fully complied with; and that the referee have power to examine and personally inspect all the books, papers and documents, &c., and to examine witnesses in relation thereto, &c.

On the return being made to the first order, the petitioner, if he deems it
insufficient, should apply for an order that the opposite party show
cause at a certain time why the particular deficiencies or omissions
alleged should not be supplied.

The mode of making applications for discovery, &c., under the Revised
Statutes and the Code, stated. Hoyt agt. The American Exchange
Bank, 89.

Under what circumstances, and to what extent, and in what manner the
court will require the discovery, production, and inspection, &c., of
books, papers and documents.

The principles and practice of courts of equity on the subject still prevail. except where expressly abrogated by statute.

Costs of motion (when made to the court) may be given, if a request to inspect, &c., is unreasonably refused. The expense of copies should be paid by the party requiring them. Brevoort agt. Warner, 321.

EJECTMENT

JECTMENT. Under the 36th and 37th sections of the Revised Statutes, which allows new trials in actions of ejectment, one may be granted on payment of costs, &c., without showing any cause whatever, and one where the court is satisfied that justice will be promoted, &c., but no more than two new trials can be granted under this statute.

It was not the intention of the statute that each party should have two new trials, although one party should succeed at one trial and the other at the next. Bellinger agt. Martindale, 113.

The same rule for allowing a landlord to defend in an action of ejectment against a tenant, must prevail under the Code, as formerly under the Revised Statutes. That is: The landlord is permitted to appear and defend in conjunction with the tenant, in case the tenant appears. But in case the tenant refuses or neglects to appear, the landlord is allowed to appear and defend alone.

The plaintiff may perfect judgment against the (casual ejector) tenant, which, in case the landlord defends alone, will be stayed, until the determination of the action against the landlord.

But to entitle a landlord to defend in his own name or otherwise, he

must be shown to be the landlord of the tenant, or have a privity of

estate or interest with him in the premises in question. Godfrey agt. Townsend, 398.

Digest.

INJUNCTION

TION. A defendant who has appeared but not answered, is not entitled to notice of an application for an injunction. It is not an ordinary proceeding" in the action. (§ 414.)

The service of an injunction upon the attorney instead of the party who
has appeared is irregular, for the same reason, that it is not an “ordi-
nary proceeding" in the action. (§ 417.) And because no proceedings
for a violation of the injunction can be founded on such service.
Administrators are bound to account upon the application of any one
interested in the estate. And if the administrators claim that the
applicant has no interest in the estate, that is a sufficient defence before
the surrogate, but is not cause for relief by injunction. Becker agt.
Hager, 68.

An injunction will not be granted against a Rail Road Company, restrain-
ing a necessary cut and excavation they are making across and through
a public highway, in anticipation that the wooden bridge they intend
to substitute will not restore the highway to its former usefulness.
When their work is completed, affirmative proceedings should be insti-
tuted if the highway is not thus restored. Baucus and others, Com-
missioners of Highways agt. The Albany Northern R. R. Co., 70.
A copy of the papers upon which an injunction is granted, must in all
cases be served with the injunction, or the service of the injunction
will be set aside as irregular. Penfield agt. White, 87.
By the true construction of the Code an injunction can not be granted to
stay or suspend proceedings under the statute, (2 R. S. 516,) for the
recovery, by summary proceedings, of the possession of houses or
lands. Hyatt agt. Burr, 168.

A temporary injunction cannot be granted to restrain the doing of acts
in relation to property, in respect to which acts or property, no final
judgment is prayed.

Therefore, held, that where the plaintiff demanded judgment of possession of a portion of the premises, (house and door-yard,) he could not have a temporary injunction, restraining trespasses by the defendant, upon the remainder of the farm, which plaintiff claimed to be in his possession, and as to which no relief or judgment was prayed, except such temporary injunction. Hulce agt. Thompson, 475.

IRREGULARITY. Where a summons and complaint are served on a defendant he can not take advantage of an irregularity in the summons, that it does not name the court in which the action is brought, where the complaint contains such information. Yates agt. Blodgett, 278. A mere irregularity in entering judgment can not be taken advantage of after one year. (See R. S. and Code, § 174.)

Where the plaintiff's attorney received an answer by mail, which he returned because the postage was not paid, and entered judgment as upon default, Held, that all other proceedings being regular, the judg

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ment was not void for want of jurisdiction, but merely irregular. Van Benthuysen agt. Lyle, 312.

Where the defendant has appeared generally in the action, an irregularity

in the summons, (asking judgment under the 1st, instead of relief under the 2d sub of section 129 of the Code,) is waived. (See the several authorities to this point cited in the opinion.)

An application for leave to amend a summons should be upon notice (§ 414,) where there has been a general appearance. Hewitt agt. Howell, 346.

SEE JUDGMENT, Holmes agt. Palmer, 383.

IRRELEVANT AND REDUNDANT MATTER.

Allegations of fraud in

making a contract, inserted in a complaint upon the contract, with a view of obtaining final process against the person of the defendant, are redundant and irrelevant, and may be stricken out on motion.

The decision in Cheney agt. Garbutt, (5 How. Pr. R. 467,) approved, it
having been recognized and approved by the Court of Appeals.

A complaint may be amended by striking out such allegations, leaving
the simple action upon the contract, without the ingredient of fraud.
Such amendment is not a substitution of a new cause of action.
Where an action was commenced by summons without serving the com-
plaint, and the defendant suffered judgment to be taken by default,
without demanding or receiving a copy of the complaint, and the
judgment was afterwards set aside, with leave to defendant to answer
within twenty days after service of a copy of the complaint, Held,
that plaintiff might serve an amended complaint without first serving
the original. Field and Stone agt. Morse, 47.

Motion to strike out must be made before answering or demurring to the
pleading containing the matter. Roosa agt. Woodstock Turnpike

Co. 237.

SEE COMPLAINT, Clark agt. Harwood, 470.

JUDGMENT.

An offer in writing under § 385 of the Code, that the plaintiff may take judgment, &c., amounts to a written stipulation on the part of the defendant; and precludes him from taking any steps in the cause until the ten days expires, or the written notice of plaintiff's acceptance is served.

And this notice of an election on the part of the plaintiff can not be made by parol, so as to deprive him of the benefit of the ten days. Walkers agt. Johnson, 240.

Where a trial was had before a Judge, without a jury, on a cross bill, and at the same time a hearing upon a report of referees on the original bill, and some four months afterwards the judge made his decision, and ordered judgment for the plaintiff on the report of the referees, in the original action, and that the complaint in the cross action be dismissed with costs, Held, that judgment might be entered nunc pro