NEW YORK CIRCUIT-AT CHAMBERS.
Where the act complained of is not per se a nuisance, the power of the court to restrain it, by injunction, will not be exercised until the question, whether nuisance or not, has been settled, either on indictment, in an action, or on issues ordered by the court.
IN a business which had been carried on in a factory by hand-power, a change was made, and machinery was introduced for carrying it on by horse-power. It was complained, by the owner of an adjoining building, that the noise made by the new power was a disturbance to the neighborhood, and an injunction was obtained, restraining the use of the new power.
On a motion to dissolve the injunction, the following decision was made.
Edmonds, J.: The only thing restrained in this case is the use of a horse-power. That power is not, of itself, necessarily a nuisance. It may be so used as to disturb no one, and in this case it is doubtful whether, in this particular case, it is a nuisance to any one. Under such circumstances, it is the well established practice of this court not to grant an injunction until the question, whether nuisance or not, shall have been determined by a jury, either on indictment, or in an action, or on issues ordered by the court. That has not been done in this case, and the injunction must be dissolved, with costs.
THE POINTS RULED IN THEM.
1. Must be free from erasures and
interlineations. Didier v. Warner,
twenty days from the time of such
service, signed judgment. On
motion to set aside the judgment,
held, that the defendant had twenty
days from the service of the
amended complaint to answer or
demur thereto. Dickerson V.
Beardsley,
21
Frivolous answer, practice as to.
Noble v. Trowbridge,
24
Where an answer denies a ma-
terial allegation of the complaint,
and as a separate defense sets up
new matter in avoidance of the
cause of action, and the plaintiff
omits to reply thereto, the defend-
ant is not entitled to judgment for
want of a reply; but where the de-
nial is merely a part of the new
matter, and for the purposes
thereof, there the defendant may
move for judgment for want of a
reply. Comstock v. Hallock, 69
1. On motion to dismiss an appeal on
special motion-Held, that on
appeals from "orders," no security
is required to be given. Beech v.
Southworth,
43
2. That where security is required,
the undertaking must be acknowl-
edged in the same manner as bonds
were required to be acknowledged
by the one hundred and twentieth
rule of the Supreme Court, which
rule is still in force; notice must
also be given of the names, addi-
tions, and residences of the sureties,
and the undertaking must be ap-
proved by a judge,but the omitting
to do any of these acts is such an
irregularity as the court may per-
init to be rectified.
Id.
3. On an appeal from an order made
at a Special Term, a certificate of
a judge must be obtained, pursu-
ant to section 299 of the Code, and
a copy of the certificate served, or
the appeal will be irregular; but
the court will not, for such irregu-
larity, quash the appeal. The
court will impose costs on all par-
ties who commit irregularities,
even when the irregularities do not
affect the substantial rights of the
parties, if the irregularity occur by
the party disregarding section 389
of the Code, and the rules of the
court retained in force thereby.
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served the sheriff with the affidavit,
notice, and undertaking mentioned
in the Code. The defendant ex-
cepted to the sureties named in the
undertaking, and they omitted to
justify. The sheriff returned that
the property in question had been
concealed or removed, so that the
same could not be taken by him.
On this the plaintiff obtained an
order of arrest, and the defendant
was arrested. On motion to vacate
the order of arrest, held, that the
defendant was not entitled to his
discharge from custody, or to have
the action discontinued, either be-
cause the plaintiff's sureties
omitted to justify, or on showing
that such sureties were insufficient
or insolvent; that on such a motion
the sheriff's return is prima facie
evidence that the property has been
concealed or removed to prevent
its being taken; but the defendant
may rebut the presumption thus
raised, and on its appearing that
the defendant neither concealed,
removed, or disposed of the prop-
erty, to prevent its being taken,
the court will vacate the order of
arrest. Manley v. Patterson, 163
Semble, that where goods have
been taken from the defendant,
and delivered to the plaintiff, the
court has no power to order the
return of the goods because the
plaintiff's sureties are insufficient
or insolvent.
Id.
3. In an affidavit for the arrest of a
defendant, for fraudulently obtain-
ing goods, etc., the facts which
may be within the knowledge of
the plaintiff, such as the existence
of the debt, and the manner in
which it was contracted, etc., must
be stated positively. And where
any of the facts necessarily rest
upon information derived from
others, such as the facts of the
false representations and fraud on
the part of the defendant, they may
be so stated; but the sources and
nature of the information should be
particularly set out, and good rea-
sons given why a positive state-
ment cannot be procured. Whit-
lock v. Roth,
187
4. The allegation of "information | 2. The only defense the defendant
and belief" merely, in reference
to such facts, is not enough.
5. A party arrested on a warrant
issued on a criminal charge has a
right to have a preliminary exam-
ination before the magistrate issu-
ing the warrant, of which he can-
not be deprived by the finding of
an indictment before the examina-
tion is completed. People v.
Drury,
351
can set up under such an answer
is the non-execution of the lease
and assignment.
3. The defendant cannot under such
an answer set up the defense that
before the commencement of the
action he had parted with all his
interest in the lease and assign-
Id.
ment.
1. Where it is clearly made out that
the firing was willful, the intention
or motive of the accused is of no
moment, and his state of intoxica-
tion is not only no extenuation of
the offense, but is not even to be
considered in inquiring into his ca-
pacity at the time to have a motive
or intention. People v. Jones, 86
2. The offense of attempting to com-
mit arson depends on the purpose
for which the fire was kindled.
129
People v. Long,
3. Though the kindling of the fire
might possibly, or even probably,
burn the building, that would not
be arson, unless there was a pur-
pose thereby to set fire to or burn
it.
4. If the kindling the fire would, as
an inevitable result, have burned
the building, an intention to do so
may be presumed.
Where two persons, one being
a resident and the other not a
resident of this State, are jointly
indebted on contract, the creditor
may issue an attachment against
the property of the non-resident
debtor. Baird v. Walker, ⚫ 268
6. What is the non-residence which
Miller
authorizes an attachment.
7. A party who formerly resided in
another State, and having aban-
doned that and come to this State,
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