Digest. tunc as of the day of the trial and hearing, the plaintiff having died two It is not analagous to the case where the plaintiff dies before verdict. SEE DEMURRER, Drummond agt. Husson, 246, 275. SEE PRACTICE, Hewitt agt. Howell, 346. Where one of several plaintiff's dies, pending an action, the cause of which survives, and the defendant enters judgment against all, no order to proceed in favor of the surviving plaintiffs having been made, the judgment is irregular, and must be set aside. The judgment can not be amended, and allowed to stand as against the surviving plaintiffs, because it is a joint judgment. Holmes & Palmer agt. Honie, 353. A merchant who received goods on consignment upon condition that he would advance to the consignor a certain amount in cash, and then consign the goods with the bills of lading and invoices, to responsible parties in Europe, for sale and returns, guaranteeing the faithful disposition of the property and returns of accounts of sales, together with whatever balance there might be over and above the advances made, the consignor holding himself responsible to the consignee for any deficiency, Held, that on a deficiency of the amount of goods returned on sales by the parties in Europe, for which the consignee was liable on his guarrantee, and the consignor on his promise to the cousignce, the consignee did not act in a fiduciary capacity where he had received the amount of the deficiency from the consignor and had not paid over the same to the parties in Europe, for which they sought to hold him to bail. Angus agt. Dunscomb, 14. SEE ATTORNEY, Yates agt. Blodgett, 278. An agent employed to collect moneys for his principal, is liable to arrest where he appropriates such money to his own use. In such a case the agent assumes a special trust and acts in a "fiduciary capacity," and comes within section 179, sub. 2 of the Code. Stoll agt. King, 399. LUNACY. The Court have no jurisdiction to appoint a committee of a lunatic or order a sale of his property, upon petition of his friends and relatives, before a commission of lunacy has been issued and returned. In the matter of Hugh Payn, an alleged lunatic, 220. LIEN. Respecting mechanics' lien in New York city. Where several claims are filed against the owner and suit brought against him by one of the claimants, and the amount is unascertained, the Digest. owner (defendant) can not be permitted to allege that he is indebted to the contractor in a less sum than the plaintiff's claim against the contractor, and be allowed under § 122 of the Code to pay the balance into court, and have the claimants substituted in his place. It is not a case for an interpleader. The amount is unliquidated, and the notices of the claims are not for the same debt. Chamberlain agt. O'Connor, 45. In an action by the contractor against the owner under the Mechanics' Lien Law of 1851, (city of New York,) to enforce a lien filed with the county clerk, the owner may set off a demand against the contractor arising out of other matters than those connected with the contract. Owens agt. Ackerson, 199. The lien law passed July 11, 1851, applies to cases where the contract was made before its passage, if the labor was performed or the materials furnished afterwards, and is not in that respect unconstitutional. The claimant must show that a payment has become due upon the contract of the owner before he is entitled to recover. A judgment of non-suit, or dismissal of the proceedings on the trial is a bar to a second proceeding to enforce the same lien. Sullivan agt. Brewster and Gale, 207. MARRIED RIED WOMEN. A married woman can not appear and defend in Where a married woman retains the possession, or right of possession, The payment in part, by the wife, and from the rent and produce of her property, for chattels purchased by the husband, will not vest in her a title to them. Where a husband is permitted by his wife to occupy her land, and receive and dispose of the products, the law will not, in the absence of proof of an express agreement that she should share in the products, or that he should account to her, imply such a contract, but will rather regard her as having made a gift of the use of the land to the husband while such occupation continued. Van Sickle agt. Van Sickle 265. MARRIED WOMEN. Digest. SEE PARTIES, Brownson and Wife agt. Gifford, 389. Ripple agt. Gilborn, 456. Howland agt. Fort Edward Paper Mill Co., 505. MORTGAGE FORECLOSURE. Where in a foreclosure suit upon a bond and mortgage, the plaintiff alleged a breach of the conditions of the bond, and averred" that the bond is accompanied by a mortgage with the same condition as the bond," and the answer denied that the mortgage contained the conditions alleged to be broken; on demurrer to the answer, on the ground that the conditions of the bond must control that of the mortgage, Held, that the complaint not setting out the mortgage, the defendant was entitled to judgment on the demurrer. The defendants had tendered a material issue. Dimon agt. Bridges, 16. After a judgment of foreclosure, directing that the purchaser be let into possession, and a sale of the premises, the purchaser on proof that he has exhibited the sheriff's deed and the order confirming the sale, to the party in possession, and demanded the possession of the premises, is entitled ex parte to an order for a writ of assistance. No notice of the application therefor is necessary. A grantee of the purchaser is entitled to the same remedy, on the further proof that the deed from the purchaser to him has also been exhibited to the party in possession. An equitable claim by judgment creditors against the tenant in possession and affecting the premises, can not be heard upon a motion for a writ of assistance or motion to vacate such writ. N. Y. Life Insurance & Trust Co. agt. Rand and others, 35. The plaintiff in a mortgage foreclosure suit can not have, under § 274 of Where mortgaged premises are sold upon a decree of foreclosure and Digest. had subsequently purchased all the mortgagee's interest, could not redeem the lots as owner of the equity of redemption, or compel an account of the proceeds of the sales. After the sale the mortgagee's equity of redemption in the mortgage was gone, consequently his interest in the lots was extinguished. The purchase by the defendant was as valid as if it had been made by a stranger. He did not act as a trustee of the mortgagee. Hoyt agt. Martense, 196. MOTION. Where a motion is made and denied without any leave given to renew it, the motion can not be again heard without first obtaining leave of the Court. And this relief can not be granted under the general prayer, as a legitimate object of the principal motion. The necessary facts must be shown, and the special relief asked for. Bellinger agt. Martindale, 113. A motion to strike out irrelevant or redundant matter, or to correct a pleading, must be noticed "before demurring or answering the pleading, and within twenty days from the service thereof." (Rule 40.) Roosa agt. Woodstock Turnpike Co., 237. An answer served after notice of motion to strike out irrelevant matter in the complaint, waives the motion. 439. PARTNERS ARTNERSHIP. The statute does not prevent a limited partner, if he is ARTNERSHIP. willing to assume the liabilities that follow, from acting as a general partner, unless by the articles of co-partnership he is excluded from a control as a general partner. And this restriction may cease at the expiration of the partnership. The statute authorizes an accounting between general and special partners, the same as other partners. And this liability to account must be as necessary and proper after as before the dissolution. Therefore, a receiver may be appointed in the same manner in cases of special partnership, as in others. Hogg agt. Ellis, 473. Where two partners failed, and an assignment was made by one of them, approved by the other, to pay certain debts of the concern, and among other property assigned, was a balance of $5,409, due by the partner who made the assignment, to the firm : On a claim by the other partner to an account for his share of the $5,409, on the ground that he had paid certain notes and judgments due by the firm, Held, it appearing that there were creditors protected by the assignment, who were not paid, that these creditors had a prior right to be paid out of that debt. Consequently, they should be called in and represented, by a proper amendment of the complaint, before any decree could be made for the plaintiff. Johnson agt. Snyder and Schenck, Assignee, 498. VOL. VIII. 71 PARTNERSHIP. Digest. Where two partners agreed, in writing, to dissolve, and that one of the firm should leave, and the other assume the business and settlement of the debts, due to or by the firm, and be responsible to the other for the amount that would be coming to him, Held, that this was not a mere assignment in trust, to convert the property into money, and pay the outgoing partner his share; the remaining partner was to have the right to use the partnership property as his own, and was personally responsible to the other partner, for his share. And in the absence of fraud in the management of the concern, the outgoing partner could not institute proceedings to wind up the business and appoint a receiver. Weber agt. Defor & Lambelet, 502. PAROL AGREEMENTS, not allowed as a general rule, in settling litigated suits. Mulligan agt. Brophy, 135. A parol agreement for renting real estate, made for one year, to commence at a future period, is not void under the provisions of the Revised Statutes, respecting fraudulent conveyances, &c. Where possession is taken under a parol lease, void by the statute, it enures as a tenancy from year to year, and can not be terminated by either party, except at the end of the year. A parol agreement for one year, to commence in future, is not void under the provisions of the Revised Statutes, declaring certain contracts void which are not performed within a year from the making thereof. Taggard agt. Roosevelt, 141. PARTIES. Verdict set aside because of misjoindeṛ of a plaintiff, in an action for a tort. It seems one of the plaintiffs may be struck out on motion, on giving a It seems, that in respect to parties, the Code has not changed the system |