Digest. regularities in the judgment or in the proceedings upon which it was founded, which do not affect the jurisdiction of the court over the subject-matter or the parties. (Jordan agt. Van Epps, ante, 338.) 2. Referees making sales in partition are to be allowed the same com missions prescribed by law for executors and administrators (Laws of 1869, vol. 2, p. 1378, sec. 4), viz. For receiving and paying out all sums of money not exceeding $1,000, at the rate of five dollars per cent; for receiving and paying out any sums exceeding $1,000, and not amounting to $10,000 at the rate of two dollars and fifty-cents per cent; for all sums above $10,000 at the rate of one dollar per cent (3 R. 8. [6th ed.], 101, sec. 71). (Strauss agt. Hellman, ante, 377.) 3. The commission is provided as a compensation for both receiving and paying out the money, and for that alone. (Id.) 4. Where a referee, who was appointed to make a sale in partition, sold the property subject to certain mortgages, the purchasemoney actually paid being $7,650, while the mortgages, subject to which the property was sold, appear in the aggregate to have been $16,500 : Held, that he could only charge commissions on the amount actually paid; he could not charge commissions for the amount of the mortgages subject to which the property was sold. (Id.) 5. The provision of the act of 1869 (sec. 4, chap. 569, Laws of 1869), entitled "An act in relation to the fees of sheriff of the city and county of New York, and to the fees of referees on sales in partition cases," which fixes the fees of referees, on partition sales, is not local, but public, and is not affected by the fact that certain local provisions of the act are violative of the constitutional provision (art. 16, sec. 3) prohibiting the passage of a private or local bill containing more than one subject, and requiring that to be expressed in the title. (Richards agt. Richards, 76 N. Y., 186.) PARTNERSHIP. 1. A wife may contract with her husband in her business, and may enter into a valid partnership agreement with him under the laws of this state. Such being the fact the husband may lawfully use as the firm name J. Zimmermann & Co. ;" and the term "Co." legally representing the wife does not offend the provisions of the act of 1833 (chap. 281), providing that where the designation "& Co.' is used it shall represent an actual partner. (Zimmermann agt. Erhard and Dodge, ante, 11.) 2. The firm of H. & Co., executed a general assignment, under the state laws, to M. for the benefit of their creditors. Pending the administration of the estate, K., one of the late firm, brought this action against his former partners for an accounting and for judgoverdrafts: for alleged ment Held, that, by virtue of the assignment, the title to all the firm assets was vested in the assignee, who alone could sue for their recovery, and that his proceedings, as well as his powers and duties, are regulated by statute. And the facts above set forth appearing upon the face of the complaint; also, held, that the complaint exhibited a complete defense, and that a demurrer, because it does not state facts sufficient, &c., was well taken, and should have been sustained at special term. (Kuehnemundt agt. Haar and Hengstler, ante, 464.) See NEW YORK (CITY OF). Kelly agt. Devlin, ante, 487. PATENTS. Digest. See DRIVEN WELLS. 114. PLEADINGS. 1. When a pleading is demurred to, the pleading to which it professes to be an answer may be attacked, and if insufficient to constitute an answer judgment may be directed accordingly. (Girvin agt. Hickman and another, ante, 244.) 2. In an action for breach of covenant of seizin, the complaint must point out the defect complained of, and tender an issue of fact to be sustained and to be met by proof. (Woolley agt. Newcombe, ante, 480.) 3. The Codes make no exception in pleading in actions of this kind and other actions. Whatever may have been the practice before the Codes in such a case, it is now the same as other actions. (Id.) 4. Where, upon the conveyance of land to an executor, as such, he gives back a purchase-money mortgage, as executor, he and his grantees are estopped from denying his appointment and authority, and it is unnecessary to allege in an action to foreclose the mortgage the time and manner of his appointment. (Skelton agt. Scott, 18 Hun, 375.) 5. Where the complaint, in an action to charge a trustee for a failure to file and publish the statement required by the said statute, sets out a copy of the report as filed and published, and alleges that it does not comply with the statute, the particular defects therein need not be set forth in the complaint. (Glen's Falls Paper Co. agt. White, 18 Hun, 215.) 6. In an action to foreclose a mort gage given by a husband and wife upon land of the wife, to secure & debt of her husband, the wife alleged in her answer "that the notes and mortgage mentioned in the complaint were obtained from this defendant by the agent of the plaintiff (and others in collusion with him) by duress of this defendant:" Held, that the defendant could not prove upon the trial that she was coerced to execute the mortgage by the duress and constraint of her husband of which the plaintiff had no knowledge. (Lord agt. Lindsay, 18 Hun, 484.) 7. The complaint herein alleged that plaintiff's intestate was, for upwards of fifteen years next preceding his death, of unsound mind, and for that cause legally incapable of making the dispositions of his property thereinafter set forth; that shortly before his death he transferred to the defendant several sums of money, amounting to $4,000, upon the agreement that the defendant should pay interest thereon, every six or three months, to the intestate during his life, and thereafter interest on the whole or a part of the said moneys, to either his executor or administrator, for the benefit of his wife, or directly to his wife and to his sister, during their respective lives; that interest was paid to the intestate during his life; that the sister died shortly after the intestate, without having received any interest, and that none had been paid to the plaintiff, the administrator; that the plaintiff had, with the written consent of the widow, before the commencement of this action, tendered to the defendant a release of all liability under said agreement, together with the said written consent of the widow, and demanded a return of the money which had been refused. The plaintiff sought to recover the $4,000, with interest from the time of demand. Digest. 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 Academy 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; new 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 assignees 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.) Digest. 12. In an action for partition, by a receiver appointed in supplementary proceedings, the complaint alleged in substance that by an order duly made May 22, 1876, by the county judge of U. county in such proceedings, plaintiff was appointed receiver, &c., that such order was recorded in said county, that the real estate was situate therein, and that the judgment debtor acquired title on or about April 23, 1876. There was no allegation that the judgment roll was filed or that the judgment debtor resided in that county, or that the order or a certified copy thereof was filed and recorded in the office of the clerk of the county where the judgment roll was filed or where the judgment debtor did reside: Held, that a demurrer to the complaint was properly sustained, as the conditions prescribed by the Code (old Code, sec. 292), which must exist before title to real estate vests in the receiver, did not appear. (Dubois agt. Cassidy, 75 N. Y., 298.) 13. Also, that plaintiff by virtue of his appointment only became vested with such property as the judgment debtor had at the time of the commencement of the proceedings, and there was no allegation that he owned the real estate at that time; but a proper inference from the facts alleged was that he acquired title after that time. (Id.) 14. A judgment for plaintiff will not be reversed on appeal because of an omission to aver in the complaint or to prove upon the trial a fact essential to the plaintiff's case, unless the defect was pointed out and is reached by a proper exception taken on the trial. (Id.) 15. In an action by the assignee of a mortgage against a grantee of the mortgaged premises, upon a covenant in his deed to pay the mortgage, the complaint alleged the defendant's grantor, that it was given to secure a part of the purchase price of the mortgaged premises, and that at the time it was executed P. was the owner in fee. These facts were admitted in the answer: Held, that in the absence of a demurrer, or of a motion on the part of defendant to make the complaint more definite and certain, or of any specification of any defect on the trial the complaint might be construed, for the purpose of upholding the judgment, as inferentially averring that the mortgage was given for a debt owing by P., and for which he was personally liable. (Id.) 16. In an action to foreclose a mortgage, defendant C. in his answer set up as "a second and further defense," in substance, that he was the equitable owner and in possession of the mortgaged premises when the mortgage was executed; that B., the mortgagor, had contracted to sell the premises to C., and the mortgage was given to secure a usurious loan negotiated by C. to enable him to make a payment to B.; that B. deeded to W. at C.'s request, subject to the mortgage, and that the latter held possession under a contract with W.; the answer asked that the mortgage and accompanying bond be adjudged to be usurious and void, and that they be delivered up and canceled: Held, that such portion of the answer could only be considered as a defense, not a counter-claim, and no reply was necessary; that if intended as a counter-claim it should have been so characterized. (Eq. L. A88. Soc. agt. Cuyler, 75 N. Y., 511.) 17. As to whether C. was a "borrower" within the meaning of the statute relating to usury, and so, entitled to interpose it as a defense, quære. (Id.) execution of the mortgage by P., | 18. In an action by a national bank Digest. and forbearance of the sum of money secured by said note," a sum of money much greater than seven per cent for the time the note had to run, "to wit, the sum of $160 or thereabouts," and asked that the interest paid and that which the note carried with it should be adjudged to be forfeited: Held, that the said count sufficiently set forth a corrupt and usurious agreement, and was good as a plea of usury. (Nat. Bk. of Auburn agt. Lewis, 75 N. Y., 516.) 19. Also, held, that the facts stated established a case within the meaning and intent of the provisions of the national banking act in reference to usury (secs. 5197, 5198) authorizing the forfeiture of the interest, and that the same was available as a defense by way of set-off or rebatement; and that the recovery should be limited to the money actually loaned, without interest. (Id.) 20. Where action was brought against the members of a board of education of a union free school district jointly, as trustees, for negligence: Held, that complaint could not be amended by striking out name of defendants and inserting that of corporation, nor could it be amended by striking out all the defendants' names, save one, and his designation as trustee; also, that a motion for amendment should be made at special term. (See Bassett agt. Fish, 75 N. Y., 304.) 21. Where a complaint is for fraud, the action cannot be maintained, on the ground of mutual mistake. (McMichael agt. Kilmer, 76 N. Y., 36.) 22. An order directing judgment upon a pleading, as frivolous, is not appealable to this court; a frivolous pleading is not stricken out, but remains upon the record and becomes part of the judgment roll; and an order directing judgment thereon is only reviewable here upon appeal from the judgment. (Com. Bk. agt. Spencer, 76 N. Y., 155.) 23. Plaintiffs's complaint alleged that defendants "in concert did, by connivance, conspiracy and combination, cheat and defraud the plaintiffs out of certain goods of " à value specified: Held, that the complaint did not state facts sufficient to constitute cause of action. (Cohn agt. Goldman, 76 N. Y., 284.) a 24. Where the complaint in an ac tion does not state facts sufficient to constitute a cause of action, the objection is available on trial upon motion to dismiss the complaint. (Tooker agt. Arnoux, 76 Ñ. Y., 897.) 25. Where a motion to dismiss is made upon that ground, the granting it is not a matter of discretion, but of legal right. (Id.) 26. Where the objection was raised and was not waived, and no amendment of the complaint was made or asked for on the trial, the correctness of the ruling denying motion to dismiss must be tested on appeal on the complaint, as it stood, not as it might have been changed by amendment; and if the ruling was erroneous, it is fatal to a recovery. (Id.) 27. The provision of the Code of Procedure (old Code, sec. 162; new Code, sec. 534) which provided that |