15. Section 307, subdivision 5What costs are allowable on an appeal from an order overruling a demurrer. (See Wright agt. Flemming, 18 Hun, 360.)

16. Section 309-Only one extra allowance recoverable. (See Flynn agt. Equitable Life Assurance Society, 18 Hun, 212.)

17. Section 321-An assignment of a cause of action, made simply as collateral to an indebtedness of the assignor to the assignee, is not such a transfer as makes the assignee liable for costs under the provision of this section of the Code declaring that when, after the commencement of an action, the cause of action by assignment or otherwise becomes the property of a person not a party to the action, such person shall be liable for costs; it is not a transfer of the absolute property within the meaning of said provision. (Peck agt. Yorks et al., 75 N. Y., 421.)

1874; sec. 43, chap. 479, Laws of 1875).

The word "judgment," as used in the provision of the Code of Procedure (sec. 34), conferring appellate jurisdiction upon the court of common pleas, was used in its usual sense, and does not include determinations not resulting in judgments.

Accordingly, held, that an order of the general term of the marine court, granting a perpetual stay of proceedings, was not appealable to the common pleas. (Bamberg et al., agt. Stern, 76 N. Y., 555.)

21. Section 385-It seems, also, that where a debtor, against whom actions have been commenced by different creditors, serves an offer of compromise under the Code (old Code, sec. 385; new Code, sec. 738) in the action last commenced, and thus enables the plaintiff therein, by accepting the same, to perfect his judgment in advance of the creditor who first brought suit, and to obtain a preference in the payment of his debt, this is not such a fraud as will authorize the setting aside of the judgment so obtained; the giving of a preference to one creditor over another is not unlawful.__(Beards et al. agt. Wheeler, 76 N. Y., 213.)

22. Section 399- When the testimony of party as to a personal transaction with a deceased person is not incompetent under. (See Severn agt. National State Bank of Troy, 18 Hun, 228.)

COMMISSIONERS.

1. Where a railroad corporation desires to cross or intersect the railroad and grounds of another company, and they cannot agree upon a compensation or mode of crossing, upon a petition showing such facts, which are undenied, the petitioners are entitled to an

order for the appointment of commissioners to determine the points and manner of crossing (Laws of 1850, chap. 140, sec. 28, subd. 6). (Boston, Hoosic Tunnel and W. R. R. Co. agt. Troy and Boston R. R. Co., ante, 167.)

2. If the objection to such application be that the need of a crossing may be avoided by another location, proceedings should be taken under section 22 of the railroad act to change the route. (Id.)

3. The language of the statute is, that the commissioners shall decide "the point and manner" of the crossing, thus necessarily committing some discretion to them as to the spot of the crossing and the mode of its accomplishment. (Id.)

COMPLAINT.

1. Where a complaint, in an action to foreclose a mortgage executed by the defendant, as executor, alleges that he executed it as such executor:

Held, that the complaint was sufficient, and that it was unnecessary to allege the defendant's appointment as executor; he is presumed to be such as he has described himself. (Kingsland agt. Stokes, ante, 1.)

Be

2. Plaintiff served her complaint, and just before time for answering expired the defendant served a notice of motion to strike out certain irrelevant allegations of the complaint and to compel plaintiff to separately state and number the counts of the complaint. fore time to answer had expired, plaintiff served an amended complaint, complying with the requirements of defendant's motion, which defendant refused to receive unless costs of motion were paid, which plaintiff declined to pay:

Held, that, under section 542 of the Code of Procedure, plaintiff

of action contained sufficient allegations to show breaches of the contracts therein disclosed is sufficient. (Id.)

11. The words "fraudulently represented," or "with intent to deceive," or other words charging a wrongful intent are necessary to allege a tort. (Id.)

12. Where the complaint merely avers "her agent B. then represented to plaintiff;" and, "defendant entered into an agreement with plaintiff" it does not allege a tort. (Id.)

13. The tort may be waived and the defendant may be sued upon con

tract:

Held, that the tort in this case appears to have been waived.

Held, further, that there was no defect of parties defendant, as B. is averred to have been the defendant's agent. (Id.)

14. As applied to one in a profes sional character, the language that is claimed to be actionable, per se, must "touch him" in that profession. (Gunning agt. Appleton, ante, 471.)

15. Where the complaint alleged that plaintiff, for nearly forty years past, has been, and still is, a practicing dental surgeon, and was of good name, fame and credit in such profession; that the defendants maliciously published, concerning plaintiff, in their said journal, a certain article, containing many detractive misstatements and especially the false and defamatory matter following, to wit: "The late William H. Seward, when traveling around the world, and when at Tokohama, Japan, required the services of a dentist. Upon examination, it was found that the inferior maxilla was comparatively useless for masticating purposes, there being a false joint at the seat of the original fracture, no union having

taken place. This case will be remembered, from the world wide notoriety of the circumstances attending the injury, as well as the reports, which have been universally believed, that the patient was benefited by the treatment he received for the cure of his fracture:"

Held, That the language is not defamatory on its face. It assumes to give an account of a circumstance in which many others besides plaintiff may be presumed to have had an interest. He is not therein referred to personally, or as one of a class. It is not alleged that no subsequent cure was effected, or that he was under treatment prior to the examination mentioned.

Held, also, that the allegations in the complaint, following the statement of the publication claimed to be libelous, can only be regarded as innuendoes to explain, not to extend the meaning of such publication.

Held, further, that no malice is presumable from the publication in question, and no right of action has accrued to plaintiff therefrom. (Id.)

16. To impute to a professional man ignorance, or want of skill, in a particular transaction, is not actionable. To be actionable, words of that character must be spoken or written of him generally. (Id.)

17. In an action for libel, the de

fendants have a right to test the actionable quality of the words by demurrer, and to that extent only is their pleading to be construed as an admission of the allegations of the complaint. (Id.)

See JOINDER.

Mc Donald agt. Kountze, ante, 152.

18. A written complaint made before a magistrate alleged that certain goods had been stolen, and that the complainant "has probable cause to suspect, and does sus

1. Where upon appeal to the general term from a judgment entered upon the report of a referee, appointed under the provisions of the Revised Statutes to determine as to the validity of a claim against the estate of a deceased person, disputed by his administrator, the judgment is set aside and the order of reference vacated, the court at special term has power to refer 1.

the case to a new referee to hear and determine, even though the action be one in which a compulsory reference cannot ordinarily be ordered. (Masten agt. Budington, 18 Hun, 105.)

CONFESSION.

1. Where in a confession of judgment the defendant states that the indebtedness "is for a debt justly due from me to said plaintiff for moneys to that amount loaned and advanced to me by said plaintiff," it is sufficient as between the parties and is only voidable, if at all, in a direct action or motion to vacate it by a junior judg. ment creditor or bona fide purchaser. (Terrett agt. Brooklyn Improvement Co., 18 Hun, 6.)

CONFLICT OF LAWS.

1. A contract is to be governed by the laws of the place where it is made, if it is not, by its terms, to be performed elsewhere; but if, by its terms, it is to be performed in a state other than that in which

Where three actions of foreclosure had been commenced, the defendants being the same in each, the mortgage in the first action covering fifty acres of land which, after the execution of this mortgage and the two mortgages affected by the second action, had been sold to L. D., one of the defendants; the two mortgages in the second action covered 150 acres, embracing the lands affected by the mortgage in the first action; the mortgage in the third action covered 100 acres, being part of the land affected by the mortgages in the first and second action, and excluding the portion sold to the defendant L. D.; on motion to consolidate the three actions:

Held, that the motion could not be granted for the following rea

sons:

First. The authorities are against it (6 Abbott's New Cases, 69).

Second. The proceedings are, in rem. against different pieces of property, and there is no reason why one parcel should bear burdens in the way of costs which belong to another.

Third. Rights of individual defendants differ, and one defendant should not bear that which

belongs to another. (Kipp agt. Delamater et al., ante, 183.)

CONSTRUCTION.

See WILL.

Brown agt. Cleveland, ante, 293.

CONTEMPT.

for the payment of costs or any other sum of money." (Clark agt. Bininger, 75 N. Y., 344.)

4. It is therefore proper practice in such case for the court to grant an order for the receiver to show cause why he should not be punished for the alleged misconduct (2 R. S., 535, sec. 5). (Id.)

2. Where an attorney has two clients, one of whom is enjoined, and the other who is in an independent position, having or claiming different rights or interests, is not enjoined, such attorney cannot ordinarily be charged with violation of the injunction in advising or acting professionally for the client not enjoined; his being enjoined as attorney for one client does not limit or restrain his professional action for others. (Id.)

*

*

*

3. The willful refusal of a receiver to obey an order of the court, requiring a payment by him out of funds in his hands as receiver, is a disobedience by a person "" appointed to perform, ministerial services' of a lawful order of the court, and a misdemeanor in his office, and willful neglect of duty therein within the meaning of section one of that portion of the Revised Statutes relating to "proceedings as for contempt" (2 R. S., 534, sec. 1, sub. 1); it does not come within the fourth section (2 R. S., 535, sec. 4) authorizing the issuing of a precept without notice to commit a person disobeying an order "made

6.

7.

The receiver must have an opportunity to be heard, and there must be an adjudication that he was guilty of the misconduct, before he can be punished. (Id.)

Where, in proceedings upon an

order to show cause the receiver is adjudged guilty of the alleged misconduct, this court cannot upon appeal therefrom review the order directing the payment; the supreme court has power to direct its receiver as to the disposition of funds in his hands, and its order to that effect, if not appealed from, must be obeyed whether correct or not; the propriety of the exercise of the power cannot be considered on such an appeal. (Id.)

Where it appears that a receiver has funds in his hands sufficient to satisfy a lien thereon and willfully refuses on demand to obey an order of the court directing him to pay such lien, it is a justifiable inference that such conduct impedes, impairs and defeats the rights and remedies of the lienor to the extent of the lien; and upon an adjudication to that effect a fine may be imposed upon the receiver to the amount of the lien (2 R. S., 538, secs. 20, 21); and the power of the court is not limited to a fine of $250, with "costs and expenses" (sec. 22). (Id.)

8. It is not necessary that the order imposing the fine should in form adjudge that actual loss or injury has been sustained to the amount of the fine; it is sufficient if it appears that such loss has been suffered. (Id.)