DEBTOR AND CREDITOR. Digest. 1. Where a judgment creditor seeks by motion to set aside a prior judgment on the ground of fraud, it is within the discretion of the supreme court, whether to determine the matter on motion, or to require the creditor to bring an action; and from its determination no appeal lies to this court. (Beards agt. Wheeler, 76 N. Y., 213.) 2. It seems, that an action is the more appropriate method. (Id.) 3. It seems, also, that where a debtor, 4. The taking, by a creditor, of the debtor's note for an existing indebtedness does not merge or extinguish the indebtedness; the note is simply evidence of the debt, and its operation is only to extend the time of payment. (Jagger Iron Co. agt. Walker, 76 N. Y., 521.) 5. When default is made in payment, the creditor may sue upon the original demand and bring the note into court to be delivered up on trial. (Id.) 6. And so, successive renewal notes are simply extensions from date to date of the time of payment. (Id.) 7. This rule is not changed by the facts that the first of a series of notes so given was indorsed and procured to be discounted by the creditor, and the succeeding ones were each discounted to raise money to take up the preceding one. No note in the series is a payment of the preceding one, unless there has been a discharge of the creditor as indorser, or unless by the transaction he has obtained a claim against another party. (Id.) DEFENSE. 1. An entirely new defense cannot be interposed at the trial by way of amendment, and a refusal by the trial justice to permit the tenant to amend upon the trial, by pleading the foreign statute, was not error. (Graves agt. Cameron, ante, 75.) An allegation in an answer “that the contract set forth in said complaint is inoperative and void for want of a sufficient and adequate consideration therefor," is an allegation of a conclusion of law. It is necessary to aver the facts which would show that there was no sufficient and adequate consideration. (Hammond agt. Earle and another, ante, 426.) 3. Each answer must, of itself, be a complete answer to the whole complaint, as perfectly so as if it stood alone. Unless, in terms, it adopts or refers to the matter contained in some other answer, it must be tested as a pleading alone by the matter itself contains. If it is not complete, in and of itself, it is insufficient in law and cannot be sustained by reference to the other defenses contained in the answer. (Id.) 4. A defense that the plaintiff is not the real party in interest, is not available unless supported by facts Digest. pleaded like any other defense. (Id.) 5. The defense of recoupment is available, if facts support it, whether pleaded for that purpose or otherwise. If the allegations in respect to that defense are not sufficiently definite and certain to enable the plaintiff to understand them, or to raise a clear and precise issue, the remedy by the plaintiff is by motion to make more definite and certain. (Id.) 6. Where the facts alleged in the answer are sufficient to entitle the defendant to a recoupment of his damages, even if they are obscurely or vaguely set forth, the answer is not, for that reason, demurrable. (Id.) demurrer, and to that extent only is their pleading to be construcd as an admission of the allegations of the complaint. (Gunning agt. Appleton, ante, 472.) 2. A decision of the court, sustaining or overruling a demurrer, is an order, not an interlocutory judgment; and, as in the provision of the Code of Civil Procedure (new Code, sec. 1349), specifying appealable orders, this is not enumerated, an appeal to the general term from such a decision does not lie. It can only be reviewed on appeal from a final judgment entered thereon. (Cam. Val. Nat. Bk. agt. Lynch, 76 N. Y., 514.) DEFINITIONS. 1. 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. (Bamberg agt. Stern, 76 N. Y., 555.) 2. The word "labor" in mechanics' lien law of 1862 (chap. 478, Laws of 1862), includes the work of an architect employed to superintend erection of building; it includes skilled as well as unskilled labor. (See Stryker agt. Cassidy, 76 N. Y., 50.) 3. "Street" includes sidewalks and gutters, and "paving" includes flagging of sidewalks. (See In re Burmeister, 76 N. Y., 174.) DEMURRER. 1. In an action for libel the defendants have a right to test the actionable quality of the words by DISCONTINUANCE. 1. It is in the discretion of the court whether to grant or refuse an application for leave to discontinue an action on payment of costs. (Carleton agt. Darcy, 75 N. Y., 375.) 2. There is no valid discontinuance without an order of the court; and while, as a general rule, plaintiff may, on payment of costs, enter an order of discontinuance, give notice thereof, and the cause is thereby discontinued, yet the court has the right to control the order; and where circumstances exist making a discontinuance without terms inequitable, the court may refuse it altogether or except on terms, and may open an order entered ex parte. (Id.) 3. Plaintiff recovered judgment in an action of ejectment, and was put in possession of the premises; defendant paid the costs and took a new trial under the statute, thereupon plaintiff, still retaining possession, moved for leave to discontinue on payment of costs: Held, that in denying the motion the court below did not exceed its discretion. (Id.) DIVORCE. Digest. 1. In an action brought by the wife against the husband for adultery where the defendant appeared and denied the adultery, and on the plaintiff's motion the defendant was ordered to pay a certain sum towards the expenses of the action, and upon demand being made the defendant neglected and refused in toto to comply with the order, upon proof of these facts the plaintiff moves for an order "striking out the defendant's answer and for an order of reference as in case of default:' 6. porting action, and in that sense conveying the reality of a threat of bodily harm. (Id.) Jeopardy to health also comes within the rule. (Id.) 7. Although words in form threatening were uttered, yet where, upon a patient and thoughtful review of the entire evidence, the court are satisfied that the language used was a mere exhibition of coarse and vulgar passion, that the defendant never for a moment contemplated physical violence, and that the plaintiff never believed herself to be in the slightest jeopardy: Held, that the motion should be denied. The only power possessed by the court to strike out a pleading, or to change and alter the same in any particular on a motion like this, is contained in 8. sections 538, 545 and 546 of the Code of Civil Procedure; and this is not a case within either of those sections. (McCrea agt. McCrea, ante, 220.) 2. So long as there is an issue framed by the pleadings, in an action for a divorce, there can be no reference. (Id.) 3. To entitle a wife to a divorce a mensa et thoro, under the first and second subdivisions of the statute (2 R. S., 147, sec. 51), there must either be actual violence or a reasonable apprehension of bodily injury. (Ruckman agt. Ruckman, ante, 278.) 4. Wounded susceptibilities will not suffice; occasional outbursts of passion will not do; nor mere abuse, however gross. (Id.) 5. Words of menace, however, are sufficient, if they be of such a character, and accompanied by such circumstances, as to justify a belief in their seriousness. That is, they must impress the person to whom they are addressed, not as idle words, not as a form of intemperate expression, but as im Held, that the action should be dismissed. (Id.) To justify a judgment for limited divorce on the ground of abandonment, such circumstances must appear as manifest a settled and determined purpose in the husband to withdraw from the wife permanently his society and protec tion, and to withhold from her the means necessary for her support. (Id.) 9. A decree for maintenance is but an incident to one for a separation, and the circumstances under which such a decree (i. e., for maintenance) may be made, must be of such a nature as would in themselves justify a direction of a separation. (Id.) 10. Under the provisions of Rule 78, a defendant in an action for di vorce cannot be permitted to testi fy in her own behalf, to contradict the plaintiff, in respect to the matters as to which that rule allows the plaintiff to testify. (Hennessey agt. Hennessey, ante, 304.) 11. Although the amendment made to section 831 of the Code of Civil Procedure, in 1879, is very broad, it seems such amendment has not removed the restriction heretofore Digest. DRIVEN WELLS. 1. Where the petition for a reissue of a patent sets forth that by reason of an insufficient or defective specification the original patent is inoperative or invalid, and that such error arose from inadvertence, accident or mistake, and without any fraudulent or deceptive intention: Held, that this is a ground of reissue set forth in section 53 of the act of July 8, 1870 (16 U. S. Stat. at Large, 205), and the decision as to the fact set forth belongs exclusively to the commissioners of patents, and his action conclusively establishes that fact. (Christman agt. Rumsey, ante, 114.) 2. Where it was urged that the original specification stated the invention to be "a new and improved pump filter," while the reissue specification states the invention to be "an improvement in pump filters;" it being also contended that the original claims the whole and nothing else, while the reissue makes two claims, neither of which claims the whole or includes the collar or head-piece "B," and that the first two sentences above cited in the reissued specification are new matter in violation of section 53 of the act of 1870: Held, that these two sentences cannot properly be called "new matter within the meaning of the statute. They do not at all relate to the description or operation of the apparatus of the patentee. Held, further, that the difficulties stated to have existed in prior pointed pump tubes may well have been known to the patentee from hearsay, although the first driven well point he may have seen was his own. As the patentee's pump tube is a pointed pump tube, and as it does overcome such difficulties in clogging in such a tube, the presumption is that it was |