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regularities in the judgment or of the constitutional provision in the proceedings upon which it (art. 16, sec. 3) prohibiting the passwas founded, which do not affect age of a private or local bill conthe jurisdiction of the court over taining more than one subject, and the subject matter or the parties. requiring that to be expressed in (Jordan agt. Van Epps, ante, 338.) the title. (Richards agt. Richards,

76 N. Y., 186.) 2. Referees making sales in partition

are to be allowed the same com missions prescribed by law for

PARTNERSHIP. executors and administrators (Laws of 1869, vol. 2, p. 1378, sec. 1. A wife may contract with her 4), viz. : For receiving and pay. husband in her business, and may ing out all sums of money not enter into a valid partnership exceeding $1,000, at the rate of five dollars per cent ; for receiv

agreement with him under the

laws of this state. Such being ing and paying out any sums ex the fact the husband may lawfully ceeding $1,000, and not amount

use as the firm name “ J. Zimmering to $10,000 at the rate of two dollars and fifty-cents per cent ;

mann & Co.;" and the term “ Co."

legally representing the wife does for all sums above $10,000 at the

not offend the provisions of the rate of one dollar per cent (3 R.

act of 1833 (chap. 281), providing 8. [6th ed.), 101, sec. 71). (Strauss

that where the designation "& Co. agt. Hellman, ante, 377.)

is used it shall represent an actual 3. The commission is provided as

partner. (Zimmermann agt. Er.

hard and Dodge, ante, 11.) a compensation for both receiving and paying out the money, 2. The firm of H. & Co., executed and for that alone. (Id.)

a general assignment, under the 4. Where a referee, who was ap

state laws, to M. for the benefit of pointed to make a sale in parti

their creditors. Pending the adtion, sold the property subject to

ministration of the estate, K., certain mortgages, the purchase

of the late firm, brought this acmoney actually paid being $7,650,

tion against his former partners while the mortgages, subject to

for an accounting and for judg. ap

ment for alleged overdrafts: pear in the aggregate to have been Held, that, by virtue of the $16,500 :

assignment, the title to all the Held, that he could only charge

firm assets was vested in the commissions on the amount actu

assignee, who alone could sue for ally paid ; he could not charge

their recovery, and that his procommissions for the amount of

ceedings, as well as his powers the mortgages subject to which and duties, are regulated by statthe property was sold. (Id.)

ute. And the facts above set forth

appearing upon the face of the 5. The provision of the act of 1869

complaint; also, held, that the (sec. 4, chap. 569, Lars of 1869), en

complaint exhibited a complete titled “An act in relation to the

defense, and that a demurrer, befees of sheriff of the city and

cause it does not state facts suffi. county of New York, and to the

cient, &c., was well taken, and fees of referees on sales in parti

should have been sustained at tion cases," which fixes the fees of special term. (Kuehnemundt agt. referees, on partition sales, is not

Haar and Hengstler, ante, 464.) local, but public, and is not affected by the fact that certain local See New YORK (CITY OF). provisions of the act are violative Kelly agt. Devlin, ante, 487.





gage given by a husband and wife

upon land of the wife, to secure ? See DRIVEN WELLS.

debt of her husband, the wife Christman agt. Rumsey, ante, alleged in her answer "that the 114.

notes and mortgage mentioned in

the complaint were obtained from PLEADINGS.

this defendant by the agent of the

plaintiff (and others in collusion 1. When a pleading is demurred to,

with him) by duress of this dethe pleading to which it professes

fendant: to be an answer may be attacked,

Held, that the defendant could and if insufficient to constitute an not prove upon the trial that she

was coerced to execute the mort. answer judgment may be directed accordingly. (Girvin agt. Hick gage by the duress and constraint man and another, ante, 244.)

of her husband of which the

plaintiff had knowledge. 2. In an action for breach of cove

(Lord agt. Lindsay, 18 Hun, 484.) nant of seizin, the complaint must point out the defect complained 7. The complaint herein alleged of, and tender an issue of fact to that plaintiff's intestate was, for be sustained and to be met by upwards of fifteen years next preproof. (Woolley agt. Newcombe, ceding his death, of unsound ante, 480.)

mind, and for that cause legally

incapable of making the disposi3. The Codes make no exception in tions of his property thereinafter

pleading in actions of this kind set forth; that shortly before his and other actions. Whatever may death he transferred to the dehave been the practice before the fendant several sums of money, Codes in such a case, it is now the amounting to $4,000, upon the same as other actions. (Id.) agreement that the defendant

should pay interest thereon, every 4. Where, upon the conveyance of six or three months, to the intes

land to an executor, as such, he tate during his life, and thereafter gives back a purchase-money

interest on the whole or a part mortgage, as executor, he and his of the said moneys, to either his grantees are estopped from deny. executor or administrator, for the ing his appointment and author benefit of his wife, or directly to ity, and it is unnecessary to allege his wife and to his sister, during in an action to foreclose the mort their respective lives; that ingage the time and manner of his terest was paid to the intestate appointment. (Skelton agt. Scott, during his life; that the sister died 18 Hun, 375.)

shortly after the intestate, without

having received any interest, and 6. Where the complaint, in an that none had been paid to the

action to charge a trustee for a plaintiff, the administrator; that failure to file and publish the the plaintiff had, with the written statement required by the said consent of the widow, before the statute, sets out a copy of the re commencement of this action, port as filed and published, and tendered to the defendant & realleges that it does not comply lease of all liability under said with the statute, the particular agreement, together with the said defects therein need not be set written consent of the widow, forth in the complaint. (Glen's and demanded a return of the Falls Paper Co. agt. White, 18 money which had been refused. Hun, 215.)

The plaintiff sought to recover

the $4,000, with interest from the 6. In an action to foreclose a mort time of demand.


Upon a demurrer to the complaint, held, that the allegation as to the incapacity of the intestate to enter into the contract was one of fact and not of law, and was sufficient. (Riggs agt. American

Tract Society, 19 Hun, 483.) 8. The bringing of an action in a

name, purporting to be that of a corporation, is a sufficient averment of the plaintiff's corporate existence. (Canandarqua Acad

emy agt. McKechnie, 19 Hun, 62.) 9. The Code does not require the

complaint, in an action for the claim and delivery of personal property, to be in any specific form ; the only requirement in reference thereto is the general one, that it shall contain a plain and concise statement of the cause of action (old Code, sec. 142; nero Code, sec. 481). (West. R. R. Co.

agt. Bayne, 75 N. Y., 1.) 10. Where a complaint contains the

requisite allegations for such an action, by a principal against his agent to compel a surrender of the obligations of the former entrusted to the latter, and for damages arising from the detention, or, in case a surrender cannot be made, for the value of the instrument as valid obligations, that it avers some facts which the Code (section 207) requires shall be shown by affidavit, where a delivery is claimed, or that the alternative relief is asked, does not make the action

one in replevin. (Id.) 11. Plaintiff's complaint alleged, in

substance, that defendant issued a written instrument, as follows : “This certifies that the bearer, Charles Foster, is entitled to ten shares of the capital stock of the Bushwick Railroad Company, upon surrender of this certificate at the company's office, $1,000,” which was duly delivered to Foster; that the same came into the possession of plaintiff by purchase for value, and he is now the law

ful owner and holder thereof; that defendant on presentation of the certificate refused to deliver said stock; and judgment was asked compelling a delivery, and that defendant pay interest on the value of the same, to wit, $1,000, or in case of failure to deliver, judgment for $1,000, with interest. On demurrer to the complaint, held, that it did not state a cause of action; that the complaint contained no sufficient averments to establish a cause of action for $1,000, or the interest thereon, as there is no averment that the shares of stock are of any value, or that any duty or obligation rests upon defendant to pay interest ; and that no cause of action was stated to compel the delivery of shares of stock: 1st. Construing the complaint rigidly it asks for the delivery of shares, which it was not in the power of defendant to do. 2d. Construing the instrument as an evidence of the right of Foster to ten shares of stock, the allegation of ownership as an averment of a valid assignment to plaintiff, and the prayer of the complaint as calling for the issue and delivery to plaintiff of a certificate, no facts were alleged showing an unjust refusal; if the corporation had no rules requiring evidence of the assignment and authority to make transfers of shares upon its books, the act of the former owner by which plaintiff became the lawful owner and holder was all that was required to entitle him to the shares, and he could not compel an extraor. dinary act on the part of defendant; if the defendant has duly prescribed rules for transfer before it will recognize the rights of as. signees and give them evidence thereof, plaintiff has not averred them, nor has he alleged the presentation to defendant of any evidence of an assignment to him, or of authority to make a transfer, so that defendant was not put in default. (Burrall agt. Bush. R. R. Co., 75 N. Y., 211.)

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12. In an action for partition, by a defendant's grantor, that it was

receiver appointed in supplement given to secure a part of the purary proceedings, the complaint chase price of the mortgaged alleged in substance that by an premises, and that at the time it order duly made May 22, 1876, by was executed P. was the owner in the county judge of U. county in fee. These facts were admitted such proceedings, plaintiff was

in the answer: appointed receiver, &c., that such Held, that in the absence of a order was recorded in said county, demurrer, or of a motion on the that the real estate was situate part of defendant to make the therein, and that the judgment complaint more definite and cerdebtor acquired title on or about tain, or of any specification of any April 23, 1876. There was no al defect on the trial the complaint legation that the judgment roll might be construed, for the purwas filed or that the judgment pose of upholding the judgment, debtor resided in that county, or as inferentially averring that the that the order or a certified copy mortgage was given for a debt thereof was filed and recorded in owing by P., and for which he the office of the clerk of the county was personally liable. (Id.) where the judgment roll was filed or where the judgment debtor did 16. In an action to foreclose a mortreside:

gage, defendant C. in his answer Held, that a demurrer to the

set up as “a second and further complaint was properly sustained,

defense,” in substance, that he was as the conditions prescribed by

the equitable owner and in posthe Code (old Code, sec. 292), which

session of the mortgaged premises must exist before title to real es

when the mortgage was executed; tate vests in the receiver, did not

that B., the mortgagor, had conappear. (Dubois agt. Cassidy, 75 tracted to sell the premises to C., N. Y., 298.)

and the mortgage was given to

secure a usurious loan negotiated 13. Also, that plaintiff by virtue of by C. to enable him to make a pay. his appointment only became vest

ment to B.; that B. deeded to w. ed with such property as the judg

at C.'s request, subject to the ment debtor had at the time of the commencement of the proceed

mortgage, and that the latter held

possession under a contract with ings, and there was no allegation

W.; the answer asked that the that he owned the real estate at

mortgage and accompanying bond that time; but a proper inference

be adjudged to be usurious and from the facts alleged was that he

void, and that they be delivered acquired title after that time. (Id.)

up and canceled:

Held, that such portion of the 14. A judgment for plaintiff will not answer could only be considered

be reversed on appeal because of as a defense, not a counter-claim, an omission to aver in the com and no reply was necessary; that plaint or to prove upon the trial a if intended as a counter-claim fact essential to the plaintiff's case, should have been so characterized. unless the defect was pointed out (Eq. L. A88. Soc. agt. Cuyler, 75 and is reached by a proper excep

N. Y., 511.) tion taken on the trial. (Id.)

17. As to whether C. was a “bor15. In an action by the assignee of a rower" within the meaning of the

mortgage against a grantee of the statute relating to usury, and so, mortgaged premises, upon a cove entitled to interpose it as a denant in his deed to pay the mort fense, quære. (Id.) gage, the complaint alleged the execution of the mortgage by P., | 18. In an action by a national bank




upon a promissory note one count 21. Where a complaint is for fraud, of the answer alleged, in sub the action cannot be maintained, stance, that the note was present on the ground of mutual mistake. ed by its makers to plaintiff for (McMichael agt. Kilmer, 76 N. Y., discount for their sole benefit, 36.) which was known to plaintiff; that it discounted the note and 22. An order directing judgment “then and there knowingly, corruptly and usuriously deducted

upon a pleading, as frivolous, is therefrom and took, received, re

not appealable to this court; a served and charged by way of dis

frivolous pleading is not stricken

out, but remains upon the record count and

for the loan

and becomes part of the judgand forbearance of the sum of

ment roll; and an order directing money secured by said note,” a

judgment thereon is only reviewsum of money much greater than

able here upon appeal from the seven per cent for the time the note had to run, “to wit, the sum

judgment. (Com. Bk. agt. Spencer,

76 N. Y., 155.) of $160 or thereabouts,” and asked that the interest paid and that 23. Plaintiffs's complaint alleged that which the note carried with it

defendants “in concert did, by should be adjudged to be forfeited:

connivance, conspiracy and comHeld, that the said count suffi

bination, cheat and defraud the ciently set forth a corrupt and

plaintiffs out of certain goods of " usurious agreement, and was good

à value specified: as a plea of usury. (Nat. Bk. of

Held, that the complaint did not Auburn agt. Lewis, 75 N. Y., 516.)

state facts sufficient to constitute

cause of action. (Cohn agt. 19. Also, held, that the facts stated Goldman, 76 N. Y., 284.)

established case within the meaning and intent of the provi- 24. Where the complaint in an acsions of the national banking act

tion does not state facts sufficient in reference to usury (secs. 5197,

to constitute a cause of action, the 5198) authorizing the forfeiture of objection is available on trial upon the interest, and that the same was

motion to dismiss the complaint. available as a defense by way of (Tooker agt. Arnoux, 76 Ñ. Y., set-off or rebatement; and that

397.) the recovery should be limited to the money actually loaned, with. 25. Where a motion to dismiss is out interest. (Id.)

made upon that ground, the granting it is not a matter of discretion,

but of legal right. (Id.) 20. Where action was brought

against the members of a board 26. Where the objection was raised of education of a union free and was not waived, and no school district jointly, as trustees, amendment of the complaint was for negligence:

made or asked for on the trial, the Held, that complaint could not correctness of the ruling denying be amended by striking out name motion to dismiss must be tested of defendants and inserting that on appeal on the complaint, as it of corporation, nor could it be stood, not as it might have been amended by striking out all the changed by amendment; and if defendants' names, save one, and the ruling was erroneous, it is his designation as trustee ; also, fatal to a recovery. (Id.) that a motion for amendment should be made at special term. 27. The provision of the Code of (See Bassett agt. Fish, 75 N, Y., Procedure (old Code, sec. 162; neu 304.)

Code, sec. 534) which provided that


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