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Digest.

be withdrawn and a new trial had mond agt. Richmond, 76 N. Y., as to the others:

106.) Held, error; that the court had no power to vacate a judgment in 18. An order directing judgment which there was no irregularity and which had not been paid in

upon a pleading, as frivolous, is full. (Id.)

not appealable to this court; & frivolous pleading is not stricken

out, but remains upon the record 13. Where an attorney employed by and becomes part of the judg. a husband to bring a divorce suit

ment roll; and an order directing enters into collusion with the wife

judgment thereon is only reviewto manufacture evidence, which

able here upon appeal from the if not wholly untrue is deceptive,

judgment. _(Com. Bk. agt. Spenand thus to enable the husband to

cer, 76 N. Y., 155.) procure a divorce, this is an act of professional misconduct which authorizes an order disbarring the 19. Where a judgment creditor seeks attorney. (In re Gale, 75 N. Y.,

by motion to set aside a prior 526.)

judgment on the ground of fraud,

it is within the discretion of the 14. The doctrine of res adjudicata

supreme court, whether to deterdoes not apply in its strictness to

mine the matter on motion, or to orders made on special motions.

require the creditor to bring an (Easton agt. Pickersgill, 75 N. Y.,

action; and from its determina599.)

tion no appeal lies to this court.

(Beards agt. Wheeler, 76 N. Y., 15. The matter may be moved again

213.) on leave granted and on a new state of facts. (Id.)

20. The provision of the Revised

Statutes, in relation to contempts 16. An order refusing to punish an (2 R. 8., 534, sec. 1, sub. 3), which

alleged contempt in disobeying an provides for the punishment as injunction is not appealable to this for a contempt of " disobedience court. (Simmonds agt. Simmons, to any lawful order, decree or 75 N. Y., 612.)

process of a court of record,”

embraces disobedience of a per17. A regular notice of appeal had

emptory mandamus; the writ is been served herein, and an un

to be regarded as an order of the dertaking given which was not in

court, within the meaning of the compliance with the statute, and

statute. (People er rel. Garbutt 80 was a nullity, a return was

agt. R. and S. L. R. R. Co., 76 N. made and the cause put upon the

Y., 294.) calendar. The appellant moved to strike the cause from the cal. 21. A decision of the court, sustainendar; the respondent moved to ing or overruling a demurrer, is dismiss the appeal:

an order, not an interlocutory Held, that the case must be judgment; and, as in the provitreated as if only a notice of ap sion of the Code of Civil Procepeal had been served; that, as dure (new Code, sec. 1349), specify. this was regular, it could not be ing appealable orders, this is not set aside, and as there was no un enumerated, an appeal to the gendertaking there was no appeal to eral term from such a decision dismiss, no return could properly does not lie. It can only be rebe made, and the cause was not viewed on appeal from a final properly upon the calendar; ap judgment entered thereon. (Cam. pellant's motion, therefore, grant Val. Nat. Bank agt. Lynch, 76 N. ed, and respondent's denied. (Ray Y., 514.)

Digest.

22. Where, in an action against part- 27. Where in an order of general

ners upon a partnership obliga term, reversing a judgment entertion, separate judgments are en ed upon a decision of the court tered against each of the defend on trial without a jury, it is not ants, instead of a joint judgment stated that the reversal was upon against all, this is an irregularity questions of fact, the reversal to merely; and the court has no be sustained in this court must be power to set aside the judgments justified by some error of law, on motion, unless motion is made the opinion cannot be looked to within one year after their rendi to ascertain the ground of the retion (2 R. Š., 359, sec. 2). (Judd versal; if upon the facts, it must L. and S. 0. Co. agt. Hubbell, appear in the body of the order 76 N. Y., 543.)

(new Code, sec. 1338). (Van Tassel

agt. Wood, 76 N. Y., 614.) 23. Where there has been a series of

orders connected with the same matter, so that if one is erroneous NATIONAL BANKS. all are, upon appeal from one the general term is authorized to re-1. The last clause of section 5242, verse the whole, so as to leave the

United States Revised Statutes, records of the court clear and

forbidding an attachment, injunc. consistent. (Stanton agt. King, 76 tion or execution to be issued N. Y., 585.)

against a national bank before

final judgment in any proceeding 24. The provision of the new Code in a state court, applies only to

(sec. 1317), in reference to, and so such banks as have committed or far as it affects, this point, does are contemplating an act of in not differ from the old (sec. 330). solvency. (Robinson agt. National The general term, however, in Bank of New Berne, ante, 306.) such case, can only grant costs of one motion, and an appeal from 2. An attachment can, therefore, isone order. (Id.)

sue against a national bank, ex

cept under the above circum25. A final judgment for one of sev

stances, from a state court, as eral defendants, upon demurrer

provided by the Code of Civil to the complaint, is, so far as the

Procedure. (Id.) causes assigned for demurrer are sustained by the judgment, as complete an adjudication in his

NEGLIGENCE. favor as would be a judgment of nonsuit on trial; and plaintiff can 1. Where there is an elevator in not nullify its effect by obtaining

the hallway of premises used by an ex parte order discontinuing different tenants in common, the action as to such defendant.

which is inclosed, and has doors (Id.)

opening into the hallway on the

first floor, upon which doors there 26. An order denying a motion to are bolts for the purpose of fasten

set aside a verdict and for a new ing them, and a servant of a third trial, because of the alleged mis person, lawfully on the premises, conduct of a jury, is not review delivering goods to one of the able here. The provisions of the tenants of the upper floors, mis. new Code as to the jurisdiction of takes the elevator for the stairs this court in such a case are not and walks into it, and falls through materially different from the old, tbe aperture to the ground floor, (Gale agt. N. Y. C. and H. R. R. receiving injuries which result in R. Co., 76 N. Y., 594,)

his death:

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Held, in an action brought by a judge, other than the one who his administratrix, that, as the tried the cause, what transpired at elevator was properly construct the trial and what questions dised and properly protected, the tinctly arose. (Id.) tenants on one floor are not liable for the negligent manner of use of 6. An omission to move for a new the hatchway by the tenants on

trial on the minutes during the one of the other floors, and there

trial term, under section 999 of being no affirmative proof show

the Code of Civil Procedure, caning specific acts of negligence on

not be cured by a subsequent dithe part of any particular tenant,

rection of the judge before whom neither of the several tenants is

the trial was had, after the end of liable, either severally or jointly

the term, that such motion be with the others, for injuries result

made at the special term upon the ing from such accidents. (Don

minutes of the judge who presided nelly agt. Jenkins et al., ante, 252.)

at the trial. (id.)

7. Where, on a motion for a new NEW TRIAL.

trial in an action of ejectment,

the papers show that the motion 1. Where an order of the general is made on behalf of a party

term does not state that the re whose interest in the premises is versal was on any question of fact, at least doubtful, on a case where it cannot be sustained unless it be consent has been given to the made to appear that some error of judgment, such motion being law was committed by the trial made by an attorney who is not judge. (Marshall and Miller agt. shown to have had any authority, Davies and others, ante, 231.)

and where it is very uncertain

upon the papers what are the 2. Where a case comes before the actual facts, and whether a case

general term, on appeal from the is made out for a new trial within judgment and exceptions only, it the statute (2 R. 8., 309, as has no discretionary power to or amended by chapter 485, Laus of der a new trial in the absence of 1862), the motion should be denied. legal error. (Id.)

(Sacia agt. O'Connor, ante, 420.) 3. A motion for a new trial, made 8. If the taking of judgment by

upon the minutes of the judge pre consent was a default, the desiding at the trial, can only be made fendant should make his motion before him at the same term in under section 38, and satisfy the which the trial was had. (Thayer court by affidavit that the ends of Manufacturing Jewelry Company justice would be promoted, and agt. Šteinau, ante, 315.)

the rights of the parties “more

satisfactorily ascertained and es4. For the purposes of such motion, tablished.” (Id.)

it is not necessary to make a case. The proceedings being fresh the 9. A motion for a new trial, on the judge's minutes are presumed to minutes of the justice before disclose the error, if any exists. whom the action was tried, can (Id.)

only be made where a verdict has

been rendered; it cannot be made 5. When a motion for a new trial is where the plaintiff had been non

made at special term, it should be suited. (Van Doran agt. Horton, founded upon a case made and 19 Hun, 7.) settled according to the rules and practice of the court. In no other 10. Where the allegations of the comway can it be well determined by plaint in an action are put at issue

Digest.

by the answer, and upon the trial 2. Under section 232 of the Code of are found in favor of plaintiff, Civil Procedure, the justices of a but judgment is rendered thereon judicial department may appoint in favor of defendant, it is error the times and places for holding for the general term upon reversal special terms. If, under this powof the judgment to direct judg er, some terms are designated as ment for plaintiff ; a new trial special terms for equity cases and should be ordered. Defendant enumerated motions,and others as having obtained judgment is not special terms for non-enumerated called upon to except to the find motions and chambers business," ings, or to insert the evidence in such designation, in so far as it the case to show that they were limits the class of proceedings to controverted. (Ehrichs agt. De be had at any special term, is sub10, 75 N. Y, 370.)

ject to the control of the justice assigned to hold it. By designat

ing a special term as one for nonNEW YORK (CITY OF).

enumerated motions and chambers

business, the power of the judge 1. The charter of the city of New

presiding thereat cannot be limYork conferred upon the mayor

ited. Such term would still be a the power to remove the relator special term, and the justice hold"for cause, after opportunity to be

ing it would have all the powers heard.

of any judge holding any special Held, the power is not an arbi

term. (Id.) trary one, and can be exercised only upon just and reasonable 3. The power of the general term to grounds, and after notice; that the

grant a writ of probibition adproceeding for removal 'must be dressed to the special term, is to instituted upon specific charges, be exercised in the same manner sufficient in their nature to war and to the same effect as when it rant removal; that such charges, is issued to inferior courts and unless admitted, must be proven; magistrates, and the inquiry rethat on such proceedings the party lates only to the jurisdiction. Erhas a right to cross-examine the ror or mistake in practice affords witnesses against him, and to call no foundation for the writ, unless witnesses in his own behalf, and it involves doing something conto be represented by counsel; that

trary to the general law. (Id.) these conditions must be complied with before the power of removal is exercised :

4. There is no absolute right to a noHeld, further, that such pro

tice of eight days on enumerated ceedings are judicial and subject

motions. A shorter notice may to review by certiorari, issuing

be prescribed by a judge or court, from the supreme court. The

under section 780 of the Code, powers of the supreme court to be

and Rule 37 of the supreme court. exercised by the judges in general

The exercise of this power is subterm, circuit, oyer and terminer ject to review. (Id.) or special term are conferred by the Constitution, and cannot be 5. Bringing on for hearing a cerlimited either by the legislature tiorari upon the return thereto, is or by any power conferred by it like a motion for judgment on the upon the court itself. One special pleadings, on the ground that the term, or one judge at special term, answer raises no issue of fact, and can have no more authority or it would present a question of law power than another. (The People only. Such motion is of the class ex rel. The Mayor agt. Nichols, called non-enumerated, as defined ante, 200.)

by supreme court Rule 38. (Id.)

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6. Rule 44 of the supreme court, chapter 335 of the Laws of 1873,

which provides that a case on cer commonly known as the city tiorari may be brought to a hear charter, which, among other ing “upon the usual notice of things, provided that all contracts argument at special term," is con to be made or let for work to be trolled by section 780 of the Code, done, or supplies to be furnished, which authorizes the judges to sball be made by the appropriate prescribe a notice of less than heads of this department, under eight days. (Id.)

such regulation as now exist or

shall be established by ordinance 7. A person who, after the filing of of the common council ; the ordi

the map changing the grade of a nance contained a provision that street, erects a building upon a every proposal for work should lot fronting thereon, is not enti contain the names of all persons tled to compensation for any dam who are interested, and prohibits age sustained when the street is any secret agreement or undergraded to conform with the new standing that any person not grade. (The People er rel. Mur named should become interested taugh agt. Board of Assessors, in any contract : ante, 327.)

Heid, that a secret partnership

made by two persons that they 8. The board of assessors of the city were to be equally interested in

of New York have power to alter the contract for the work obtainor change the list of awards and ed by one of the two partners, is assessments in cases of manifest illegal, being against public polierror or mistake, even after the cy, and contrary to positive law. list has been advertised complete, (Id.) and may do so of its own motion. (Id.)

12. Where, by chapter 49 of the Re9. An account stated, the amount

vised Ordinances of 1845 (secs. 1, agreed upon, and a promise to 2), the city of New York had been pay, furnish good grounds for an

divided into two inspection disaction at law, but no basis for a

tricts, and consequently there bill in equity instituted for the were but two such officers, i e. purpose of establishing a partner

(inspectors of weights and meaship and for an accounting. (Kelly

sures), one for the first and the agt. Devlin, ante, 487.)

other for the second district, and while the ordinance was in force

the mayor nominated four persons 10. Although, as a general proposi

together as such officers: tion, the legislature of a state is

Held, that although regularly and alone competent to make laws, it is well settled that it is competent

properly one person only should

have been nominated for each of for the legislature to delegate to

these offices and the persons should municipal corporations the power to make laws and ordinances ;

have been respectively named for

the office to be received by them, which, when authorized, have the force, as to persons bound there

yet the irregularity in the nomina

tion was not such as to render it by, of laws passed by the legislature itself. (Id.)

absolutely void. (The People ex

rel. Banta agt. Kneissel, ante, 404.) 11. Where the authority of the com

missioners of public works to make 13. The power of nomination existed and enter into contracts for the to the extent of two officers, and defendant, “the mayor, alder the selection of four persons inmen and commonalty of the city stead of two did not invalidate the of New York," was conferred by exercise of it. (Id.)

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