Page images


subsequently been paid. The firm provision is clear and explicit. also offered to allow judgment to (Id.) be taken against them, under section 738 of the Code of Civil Pro 8. Nor has the provision of said cedure, for the amount claimed in Code (sec. 788), which declares a the complaint, after deducting like rule for computing the time that note, which offer was accept within which an act in an action ed by the plaintiff, and judgment or special proceeding is required was entered accordingly. Subse to be done, any application, 1st. quently the plaintiffs brought this because it refers to the preceding action upon the same note against section (sec. 787); 2d. It excepts the defendant Marks, who had in cases where the law makes other dorsed it:

provision ; 3d. It relates to the Held, that this action was barred time within which an act is reby the judgment entered in the quired to be done, not to a period former action. (Robinson agt. after the expiration of a specified Marks, 19 Hun, 325.)

time; 4th. The two sections have

no connection, and this one was 6. In an action for limited divorce,

not designed to limit the operabrought by the wife against the

tions of the other. (Id.) husband, the court, after it has denied the principal relief sought, 9. This action was brought against on the ground that the evidence

all the members of a board of edufailed to show facts to establish

cation of a union free school disany of the causes for which a sep

trict jointly as trustees, charging aration can be adjudged, has no

them as public officers, not as inpower to give judgment awarding dividuals, with neglect in not the custody of the children of the keeping the school-house in remarriage to the plaintiff and mak pair,

consequence whereof ing provision for their mainte

plaintiff was injured. It appear. nance out of the property of the

ed upon the trial that the board husband; upon failure of the plain

had an arrangement with F., one tiff to make out a case for a divorce

of the defendants, that when any the defendant is entitled to judg

small repairs were needed he was ment dismissing the complaint.

to make them, whether upon or(Davis agt. Davis, 75 N. Y., 221.)

der or notice first given, or upon

his own motion did not distinctly 6. Under the provision of the Code appear, and it did not appear that of Civil Procedure (ner Code, sec.

the question of his individual lia1228), declaring that judgments on

bility, distinct from that of the the decision of the court may be

other defendants was presented to entered “after the expiration of

the trial court. The judgment four days from the filing of the

was against all of the defendants decision, * * and the service jointly: upon the attorney of the adverse Heid, error; and that it could party of a copy thereof, but not

not be sustained against F. (Basbefore," four full calendar days

sett agt. Fish, 75 Ň. Y., 303.) must elapse after the filing of a decision and notice thereof before 10. A judgment for plaintiff will not judgment can be properly entered. be reversed on appeal because of (Maroin agt. Marvin, 15 N. Y., an omission to aver in the com240.)

plaint or to prove upon the trial a

fact essential to the plaintiff's 7. The rule of interpretation which, case, unless the defect was point

in computing time, excludes the ed out and is reached by a proper first and includes the last day has exception taken the trial. no application where, as here, the (Thayer agt. Marsh, 75 N. Y., 340.)




11. The docket of a justice of the taining that relief, plaintiff fails

peace showed the service of sum altogether. (Burroughs agt. Tosmons, the appearance of the par tevan, 75 N. Y., 567.) ties, the issue, a motion for discontinuance made by defendant 15. The fact that said act authorizes on the ground that the accounts the enforcement of a lien “by a between the parties exceeded $400, civil action in a court of record” the granting of the motion on that

governed by "the rules and pracground, and the items of costs; it tice in ordinary actions” (sec. 2) also recited that it satisfactorily does not authorize a personal appeared from the proof offered,

judgment in such a case. (Id.) that the accounts of the parties exceeded said sum; it did not, in | 16. The objection that a judgment terms, award judgment of discontinuance with costs against plain

in an action against an executor tiff :

as such is not in proper form, in Held, that the docket contained

that it should be de bonis testatoris, all the particulars necessary to

cannot be taken for the first time constitute a valid judgment of

upon appeal; if the judgment is discontinuance for want of juris

erroneous in this respect defendant diction. (Bradner agt. Howard,

should move in the court in which 75 N. Y., 417.)

it was rendered to have it amended. (De Lavallette agt. Wendt, 75

N. Y., 579.) 12. A valid judgment in personam

cannot be obtained against a nonresident of the state who is not 17. It seems, that where a debtor, personally served with process

against whom actions have been and does not appear in the action.

commenced by different creditors, (Bartlett agt. Spicer, 75 N. Y., 528.)

serves an offer of compromise under the Code (old Code, sec. 385;

ner Code, sec. 738) in the action 13. A state cannot authorize such a

last commenced, and thus enables judgment, which will bind prop the plaintiff therein, by accepting erty not within the state at the the same, to perfect his judgment time and not proceeded against in in advance of the creditor who rem, in satisfaction of the claim.

first brought suit, and to obtain a (Id.)

preference in the payment of his

debt, this is not such a fraud as 14. In an action brought by a ma

will authorize the setting aside terial-man, under the mechanic's of the judgment so obtained; the lien law of 1862, for the counties giving of a preference to one credof Kings and Queens (chap. 478

itor over another is not unlawful. Laws of 1862), to foreclose an al

(Beards agt. Wheeler, 76 N. Y., 213.) leged lien for the value of materials furnished to a contractor, in 18. Where, in an action against part. which action the contractor is ners upon a partnership obligajoined as defendant, and a person gation, separate judgments are al judgment is demanded against entered against each of the dehim, such judgment cannot be fendants, instead of a joint judgrendered where the plaintiff fails ment against all, this is an irreguto establish his lien. The action larity merely; and the court has is in the nature of a proceeding in no power to set aside the judg. rem, and, as incident thereto, a ments on motion, unless motion is personal judgment is authorized made within one year after their * in addition to the judgment rendition (2 R. Š., 359, sec. 2). provided for against the owner of

76 N. , 543.

the premises; having
failed in rob!! Tudd L, and 8. 0.

Co. agt. Hubbeli,


19. A final judgment for one of sev provided by the Code of Civil

eral defendants, upon demurrer Procedure. (Id.) to the complaint, is, so far as the causes assigned for demurrer are See SURROGATE. sustained by the judgment, as Matter of the Estate of Cohen, complete an adjudication in his ante, 496. favor as would be a judgment of nonsuit on trial; and plaintiff can- See RECEIVER. not nullify its effect by obtaining Killmer agt. Hobart and another, an ex parte order discontinuing ante, 452. the action as to such defendant. (Stanton agt. King, 76 N. Y., 585.) 3. The supreme court of this state

has jurisdiction of an action, 20. In an action to charge a trust

brought therein by an assignee in estate, in the hands of trustees,

bankruptcy, to recover a debt with a claim for services rendered

paid to the defendant by the bankby plaintiff to the trustees, a cestui

rupt within four months of the que trust was made a party de

filing of the petition in bankfendant and final judgment was

ruptcy. (Tyler agt. McCollum, 19 perfected in her favor upon de

Hun, 622.) murrer to the complaint. Plaintiff thereupon obtained an ex parte

4. In proceedings under the proviorder, striking out said defendant

sion of the act of 1860 (sec. 4, chap. as a party:

348, Laws of 1860), in relation to Held, that the effect of the judg

assignments for the benefit of ment upon the demurrer, was

creditors, which gives to the counthat said defendant's share or in ty judge power, upon the petition terest in the trust estate, in the

of any creditor, to compel an ashands of the trustee, could not be

signee to account, held, that a pebound for, or affected by plain

tition duly verified, averring the tiff's claim, but to enable her to

petitioner to be a creditor, was avail herself of the benefits of the

sufficient to give the county judge adjudication, she must remain a jurisdiction, and that, although party; that the order striking her

the truth of this allegation was from the case in effect nullified

denied by the assignee in his anthe judgment, and so was error.

swering affidavit, this did not (Id.)

oust the judge of jurisdiction, or

compel the petitioner to establish, JURISDICTION.

by a suit or proceeding, aliunde, the validity of his claim. (In re

Farnam, 75 N. Y., 187.) 1. The last clause of section 5242,

United States Revised Statutes, 5. Also, held, that it was not necesforbidding an attachment, injunc

sary for the petitioner to profess tion or execution to be issued

in his petition that he moved against a national bank before

in behalf of the other creditors. final judgment in any proceeding (Id.) in a state court, applies only to such banks as have committed or 6. The petition averred that the asare contemplating an act of in

signment was made and filed, and solvency. (Robinson agt. National

inferentially, that it was deliverBank of New Berne, ante, 306.)

ed; also that the assignee entered

upon the execution of the trusts, 2. An attachment can, therefore, took possession of the trust estate,

issue against a national bank, ex and sold and disposed of a large cept under the above circum amount thereof. The affidavit of stances, from a state court, as the assignee admitted the execu


fion of the assignment, and alleged specified is to be exercised in the substantially that he did not ac same manner as in cases before cept the trust, but took the prop justices of the peace. (Peo. ex rel. erty by appointment of the cred Dargin agt. Cox, 76 N. Y., 47.) itors:

Held, that this averment did not 12. In an action, therefore, for a oust the judge of jurisdiction, but violation of an ordinance of said simply raised an issue for his de village, held, that defendant was termination. (Id.)

entitled to demand and have a

jury, as on trial before a justice 7. The supreme court, whether of the peace. (Id.)

sitting in general or special term, is one court, the general term has 13. Where, upon presentation to a the records of the court before it clerk in the office of a surrogate of the same as the special term; and, a petition asking for the appointafter entry of judgment upon its ment of an administrator of the decision, has power to correct, estate of M., who was, in fact, amend or modify the judgment so then living, the clerk filled up a as to give true expression to its blank for letters of administration decision. (Salmon agt. Gedney, 75 signed and left with him by the N. Y., 479.)

surrogate, and attached thereto

the surrogate's seal, the latter 8. The distinction between the ju never having acted upon and hav

risdiction of this court and of the ing had no knowledge of the petigeneral term of the supreme court tion, held, that the judicial powers in this particular pointed out. (Id.) of the surrogate could not be dele

gated; that the letters were abso9. The supreme court of this state

lutely void, and were no protechas not jurisdiction of an action

tion to one who, upon presentation upon a stipulation entered into in thereof, in good faith and relying a proceeding in admiralty, insti

upon them, paid to the person tuted to obtain possession of a

named as administrator a sum vessel for the purpose of prosecu

due M. (Roderigas agt. E. R. Sogs. ting a particular voyage. (Bartlett

Bk., 76 N. Y., 316.) agt. Spicer, 75 N. Y., 528.)

14. The petition alleged the death 10. The stipulation is but an incident

of M. upon the best of the knowl. to the proceeding of which, as it

edge, information and belief of is a possessory action in rem, the

the petitioner; there was no other United States district court has

proof of death. Aeld, that this exclusive jurisdiction ; and the

was not due proof of the death stipulation can only be enforced

such as would give the surrogate by and in accordance with the

jurisdiction. (Id.) practice of that court. (Id.)

15. The court of common pleas of 11. Under the provision of the char

the city and county of New York ter of the village of Port Jervis has no jurisdiction to entertain an (sec. 40, chap. 370, Lau8 of 1873),

appeal from an order of the magiving to the police justice of said

rine court, except it be an order village the jurisdiction, powers

granting a new trial (old Code, and authority of the justices of

8ec8. 34, 352, 354; sec. 9, chap. 545, the peace of the town in which the Laros of 1874; sec. 43, chap. 479, village is situated, with “jurisdic

Laws of 1875). (Bamberg agt. tion to hear and determine all

Stern, 76 N. Y., 555.) cases arising under the charter, by-laws or ordinances," the juris- | 16. This court has no power to amend diction in the class of cases last a record of the supreme court;


any amendment must be sought Held, that the refusal of the jusin that court. (Kenyon agt. N. tice to deposit the twelve names Y. C. and H. R. R. R. Co., 76 N. Y., in the hat again and draw out six, 607.)

one after another (as required by

the statute), to compose the jury, JUROR.

when requested by plaintiff's

counsel so to do, was a fatal error 1. When a person is competent to and one for which the judgment

sit as a juror in a criminal case will be reversed. (Id.) under chapter 475 of 1872, although he has read an account of 6. Upon the trial of the plaintiff in the crime in the newspapers and error for murder, the court hay. has formed an opinion as to the ing ordered additional jurors to prisoner's guilt therefrom, con be summoned, the clerk brought sidered. (Pender agt. People, 18 into court the box containing the Hun, 560.)

names of the trial jurors for the

county, and the box containing JURY.

the names of those for the town,

but not the one containing the 1. The proceedings by which a jury

names of those who had already is to be obtained in a justice's

served. The jurors having been court are purely statutory and

duly summoned, the prisoner's should be strictly complied with,

counsel interposed a challenge to otherwise the judgment rendered

the array, on the ground that all cannot be sustained. (Becker agt.

the boxes were not brought into Sitterly, ante, 38.)

court as required by section 1059

of the Code of Civil Procedure. 2. The justice is limited by the The court having sustained the statute to a certain course of pro

challenge the prisoner's counsel ceedings; and unless those pro

withdrew it: ceedings are adhered to, or waived Held, that by withdrawing the by the party who has a right to

challenge the prisoner waived any insist on them, the judgment is ir

informality in the drawing of the regular and void. (Id.)

jury, and was concluded from ob

jecting thereto on appeal. 3. A venire for a jury issued by a

Semble, that as it did not appear justice of the peace to the de

that the names in the county jurfendant at his request out of

ors' box were exhausted, the failcourt, and in the absence of the

ure of the clerk to bring into plaintiff and without giving him

court the third box did not affect notice, is irregular, and for such

the validity of the drawing. irregularity the judgment will be

(Pierson agt. People, 18 Hun, 239.) reversed. (Id.)

8. A juror, upon the trial of a chal4. Where it appeared that after the lenge to the favor, testified that

twelve names of the jurors sum he had read of the case in the pamoned and present had been fold pers and formed a decided opined and put into a hat the justice ion, which it would require evidrew out all twelve names at the dence to remove, and that he defendant's request; then

he would enter the jury box with it called the twelve names and the still existing, and that it would rejurors all answered, whereupon quire evidence to dislodge it; that plaintiff's counsel requested the he generally believed what he justice to put all the names back read in the papers, if it sounded again and draw out six to make reasonable, until contradicted; the jury, which request the justice that if accepted as a juror he did refused:

not think he would permit what

« PreviousContinue »