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Digest.

in an action upon an instrument paid and settled with, for a large for the payment of money only it amount, which would be to plainshould be sufficient to set forth a tiff's great and irreparable injury. copy of the instrument and allege It also alleged that Y., a daughter the amount due thereon, was not of the intestate, died prior to the applicable where the liability of accounting, leaving a will, which the party, by the terms of the in was left with said surrogate for strument, was conditional, and probate, and probate applied for; depended upon outside facts; in but that no proceedings had been such case those facts must be aver taken for that purpose, and the red. (Id.)

interest of the testator in the es

tate was unrepresented in the pro28. Plaintiff's complaint set forth a ceedings for settlement. Plaintiff

copy of an order upon defendant, asked that defendants be restrainrequesting him to pay to plaintiff ed from entering any decree rea sum specified, “out of moneys

quiring him to pay any sum to to be realized from the sale” of those who executed said instrucertain houses described ; it al ments, and from entering any deleged an acceptance of the order cree until the interest of Y. was by defendant, a payment of a por represented before the surrogate. tion of the sum, and that the bal Upon demurrer to the complaint, ance was due:

held, that it did not state facts Held, that the complaint did not sufficient to constitute a cause of state a cause of action; that a sale action. (Wright agt. Fleming, 76 of the houses and receipt of N. Y., 517.) money from such sale were conditions precedent to defendant's lia- 31. To make a complaint good under bility, and should have been aver

the provision of the Code of Prored; and that a denial of a motion

cedure (old Code, sec. 162; new to dismiss the complaint on trial

Code, sec. 534), providing that in was error. (Id.)

an action upon an instrument for

the payment of money, it shall be 29. Also, held, that a denial in the sufficient to set forth a copy of the

answer of the receipt of any such instrument and to allege that a moneys did not supplement the specified sum is due thereon, the complaint in this respect. (Id.) instrument so set forth must, upon

its face, be a complete, valid and 30. Plaintiff's complaint alleged, in binding obligation. Where it is,

substance, that upon a final ac upon its face, incomplete and incounting by him as administrator valid, and facts not stated in it, of the estate of W., he presented need to appear to show its vato the surrogate certain instru lidity, such other facts must be ments under seal, executed by alleged. (Broome agt. Taylor, 76 certain of the next of kin (de N. Y., 564.) fendants herein), releasing him from liability for, and assigning to 32. Where a complaint upon a bond him their distributive shares of shows it to be the obligation of a said estate; that the solicitor for married woman, it is essential to said next of kin stated before the allege that it was given for some surrogate his intention to dispute purpose, which would make it the effect, force and validity of binding upon her; it is, prima said instruments, and asked the facie, a nullity, and without such surrogate to disregard them; that averments the complaint does not said surrogate announced his in state a cause of action. (Id.) tention to disregard them, and was about to enter a decree in 33. The complaint herein alleged favor of the parties, whom he had that defendants executed their

VOL. LVIII 79

Digest.

bond under seal, a copy of which That the relator did not have was set forth, and alleged that such a hearing before the mayor, there was due plaintiff a specified as the twenty-fifth section of the sum thereon, for which judgment charter entitled him to and, there. was demanded. The bond was fore, judgment should be renjoint and several ; in it the obli dered that the proceedings for gors are described as husband and the removal of the relator be in wife, as they are also in the title all respects reversed and set aside, of the cause. Defendants demur and that the relator be reinstated red separately:

in the office of police commissionHeld, that as to the husband, er (See, also, the Matter of Sidney the complaint was good and the P. Nichols, 57 How., 395 ; The demurrer was frivolous; but that People ex rel. _Nichols agt. Cooper, as to the wife a cause of action id., 463 ; The People ex rel. was not stated, and her demurrer Cooper, agt. Special Term at Chamwas well taken. (Id.)

bers, id., 647 ; and The People ex rel. The Mayor agt. Nichols, ante.

200). (Id.) POLICE COMMISSIONER.

See NEW YORK (CTTY OF). 1. The mayor's power as to removal

The People ex rel. The Mayor agt. of a police commissioner is ju

Nichols, ante, 200. dicial and his judgment upon the question of removal is subject to review by this court on a certiora

POUNDAGE. ri ; the accused official has a right to know what the specific charges against him are ; such | 1. One Huntington, after the recov. charges if not admitted must be

ery of a judgment against him proven, and the defendant should by the defendant, and shortly bebe permitted to cross-examine wit

fore the issuing of an execution nesses and to call witnesses in his

thcreon to the sheriff, executed own behalf, and in these and

and delivered to an assignee an other respects to be represented

assignment for the benefit

of cred. by counsel. (the People ex rel.

itors, but at the time the execution Nichols agt. Cooper, ante, 358.)

was received the assignment had not been recorded, nor had the as

signee given a bond or taken pos2. If the return of the mayor to a session of the roperty. The writ of certiorari issued out of this

sheriff, under the direction of the court, to review his proceedings

attorney for the judgment cred. in making such removal, shows

itor, levied on certain of the propthat in all or any of these particu

erty assigned by Huntington, but, lars the relator in such proceed in accordance with further direcing was denied his rights, the

tions from the attorney, took no mayor's proceedings must be re

further proceedings. Subsequentversed, and his decision declared

ly the property was sold by the to be null and void. (Id.)

assignee and a portion of the pro

ceeds applied to the payment of 3. The return of the mayor to the defendant's judgment.

writ of certiorarı, in which is given In an action by the sheriff to all the proceedings had before recover poundage on the value of him, on which a certificate of the property so levied on, not ex commissioner Nichols' removal ceeding, however, the amount colfrom office was transmitted to the lectable under the execution, held, governor, is given in full in the that he was entitled thereto. opinion, and it is held :

(Benedict agt. Wright, 19 Hun, 27.)

Digest.

PRACTICE.

gested by it, fully, as regards any,

and all rights to which the parties 1. This action was commenced to were entitled under it. (Id.)

recover of the defendant, Bristol, defaulting county treasurer, and 3. There could be, regularly, but his sureties, certain amounts of

one judgment, both appeals havmoney alleged to have been mis

ing been heard together, and the appropriated by . Bristol. Such

judgment being one of simple moneys belonged to several distinct funds, viz. : the county fund,

affirmance whereby both were

determined, that judgment should the infant heir fund, the asylum

declare the affirmance, and should, fund and the military fund. Judg

in due form, award costs to the ment was rendered by the referee

parties entitled to them by law, for a certain amount of county

and against those who were by funds and costs. Both plaintiff law bound to pay them. To this and the defendants (except Bris end there might be separate tol) appealed. The general term clauses in the entry of judgment. affirmed the judgment.

The

(I.) memorandum or decision was, “judgment affirmed, with costs.

4. Where, as in this case, a set-off The plaintiff thereupon entered of costs would seem proper, a judyment, having previously, on clause to that end, following exnotice, taxed the costs of the ap

planatory recitals, might be enpeal at $172.83, and issued execu tered, if not without application tion to collect the original judg. to the court certainly on applicament and costs of the appeal: tion at special term. It was

lleld (1st), that, as the plaintiff within the just scope and power appealed from the entire judg

of the special term to correct and ment and on this appeal the judg

perfect the record as regarded the ment appealed from was affirmed;

proper entry of judgment upon not in part but in toto, the respond the facts disclosed. (Id.) ents were entitled to their costs by law as a matter of right.

5. The special term should have re(2d). The defendants (except

cognized the rights of the respondBristol and Hathaway) also ap ents on each appeal to costs; and pealed in like manner as did the

should have directed a set-off of plaintiff; that is from the entire

the respondents' costs on the apjudgment. On this appeal, too, peal taken by the plaintiff in the decision was, that the judg reduction of the amount of the ment should be affirmed, and it

recovery against the former, and necessarily follows that the re

limited the recovery and execuspondent, on this appeal, was

tion against them to the balance entitled to costs. The court could

only. (Id.) not deprive the respondents on each separate appeal, of costs, because, 6. An entry of judgment is irregu. they were awarded by law as a lar, which awards costs of appeal matter of absolute right. (Board

against a party who has not apof Supervisors agt. Bristol, ante,

pealed. He is not chargeable with 3.)

costs with his associate defend

ants, who, without him, took 2. The memorandum or order of the appeal.

The costs of the the general term was “ judgment appeals are allowable against the affirmed, with costs:

appellants only, as to whom Held, that this memorandum the judgment was affirmed. (Id.) should have been followed on the record, by a judgment declaring 7. Where, on action brought to forethe decision or adjudication sug close a mortgage of real estate,

Digest.

issues of fact are settled and tried If he shall decide that such motion by a jury, and after verdict appli cannot be made after judgment, cation is made to the court before his decision can be reviewed on whom the trial was had for judg appeal. (Per BOARDMAN, J.) (12) ment on “the pleadings, proofs and answers of the jury to the 13. Order allowing amendments questions submitted,” and the trial striking out evidence taken on judge “approved and adopted" the trial before the jury reversed, the verdict, but made emenda and case and exceptions sent back tions and additions thereto and to the trial judge for resettlement. certified other findings, using in (Id.) their support the evidence before the jury, to which findings excep- 14. Where a plaintiff had, pending tions are filed, it is error in the the action, transferred his interest trial judge to strike from the case and died, and after his death his the evidence before the jury and assignee, on notice to the defendthe exceptions thereto. (Chapin ant alone, moves to be substituted agt. Thompson, ante, 46.)

as plaintiff, the motion should be

denied for want of notice to the 8. He should, in settling such a case, personal representatives of the de

present, to be inserted, so much ceased plaintiff. (McLaughlin agt. of the evidence as was requisite to The Mayor, ante, 105.) show the grounds of alleged error, and so much as related to his ad- 15. The charter of the city of New ditions and emendations to the York conferred upon the mayor verdict. (Id.)

the power to remove the relator

"for cause, after opportunity to be 9. The trial judge could not prop

heard:" erly limit the review by striking Held, the power is not an arbifrom the case the proceedings had trary one, and can be exercised before him, on which the appel only upon just and reasonable lant predicates error. It does not grounds, and after notice ; that lie with him, in settling the case, the proceeding for removal must to hold that the grounds of alleged be instituted upon specific charges, error were untenable, or that they sufficient in their nature to warcould not be considered by the rant removal; that such charges, appellate court. (Id.)

unless admitted, must be proven;

that on such proceedings the party 10. Such case being in equity the has a right to cross-examine the

judge was not absolutely bound witnesses against him, and to call by the verdict. He could have witnesses in his own behalf, and disregarded it and have made find to be represented by counsel; that ings in accordance with his own these conditions must be complied views of the case. (Id.)

with before the power of removal

is exercised. 11. Qruære, whether, under the last Held, further, that such proceed

clause of section 1003 of Code of ings are judicial and subject to Civil Procedure, a party in an review by certiorari, issuing from equity case is not bound by the the supreme court. The powers verdict if he fails, before final of the supreme court to be exerjudgment, to move to set it aside cised by the judges in general and for a new trial. (Id.)

term, circuit, oyer and terminer

or special term are conferred by 12. The trial judge in an equity case, the Constitution, and cannot be

where the issues are tried before limited either by the legislature or a jury, should hear the motion by any power conferred by it upon for new trial on the case made. the court itself. One special term,

Digest.

or one judge at special term, can it would present a question of law have no more `authority or power only. Such motion is of the class than another. (The People ex rel. called non-enumerated, as defined

The Mayor agt. Nichols, ante, 200.) by supreme court rule 38. (Id.) 16. Under section 232 of the Code 20. Rule 44 of the supreme court,

of Civil Procedure, the justices of which provides that a case on cera judicial department may appoint tiorari may be brought to a hearthe times and places for holding ing “upon the usual notice of special terms. If, under this argument at special term,” is conpower, some terms are designated trolled by section 780 of the Code, as" special terms for equity cases which authorizes the judges to and enumerated motions, and prescribe a notice of less than others as special terms for non eight days. (Id.) enumerated motions and chambers business," such designation, in so 21. The rule that a covenant in a far as it limits the class of pro deed against incumbrances which ceedings to be had at any special is broken when the deed is deliv. term, is subject to the control of ered, does not pass like covenants the justice assigned to hold it. that run with the land to a subBy designating a special term as sequent purchaser, as it is a chose one for non-enumerated motions in action which is not assignable, and chambers business, the power is no longer the law in this state. of the judge presiding thereat (Boyd agt. Belmont, ante, 513.) cannot be limited. Such term would still be a special term, and 22. Under the Code all choses in acthe justice holding it would have

tion are assignable, except those all the powers of any judge hold

that, from their nature or because ing any special term. (Id.)

they are forbidden by law, cannot

be assigned, such as the right to 17. The power of the general term

a revolutionary pension, the unto grant a writ of prohibition addressed to the special term, is to

earned salary of a public officer,

the beneficial interest of a cestui be exercised in the same manner

que trust in certain cases, &c., and and to the same effect as when it

the action must be brought in the is issued to inferior courts and

name of the assignee, he being the magistrates, and the inquiry re

real party in interest. (Id.) lates only to the jurisdiction. Error or mistake in practice affords 23. The distinction between a coveno foundation for the writ, unless

nant and a covenant broken is, it involves doing something con therefore, no longer material in trary to the general law. (Id.) this state, the covenant, though

broken, being assignable and sua 18. There is no absolute right to a ble in the name of the assignee.

notice of eight days on enumer (Id.) ated motions. A shorter notice may be prescribed by a judge or 24. The covenant against incumcourt, under section 780 of the brances (now that the objection Code, and Rule 37 of the supreme

that choses in action are not ascourt. The exercise of this power signable no longer exists) necessais subject to review. (Id.)

rily passes to the person to whom

the land is conveyed, together with 19. Bringing on for hearing a cer the land, because, if there be an

tiorari upon the return thereto, is incumbrance, it affects the value like a motion for judgment on the of the land, and, to the extent of pleadings, on the ground that the the incumbrance, impairs the title. answer raises no issue of fact, and (Id.)

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