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Digest.

in an action upon an instrument for the payment of money only it should be sufficient to set forth a copy of the instrument and allege the amount due thereon, was not applicable where the liability of the party, by the terms of the instrument, was conditional, and depended upon outside facts; in such case those facts must be averred. (Id.)

28. Plaintiff's complaint set forth a copy of an order upon defendant, requesting him to pay to plaintiff a sum specified, "out of moneys to be realized from the sale" of certain houses described; it alleged an acceptance of the order by defendant, a payment of a portion of the sum, and that the balance was due:

Held, that the complaint did not state a cause of action; that a sale of the houses and receipt of money from such sale were conditions precedent to defendant's liability, and should have been averred; and that a denial of a motion to dismiss the complaint on trial was error. (Id.)

29. Also, held, that a denial in the answer of the receipt of any such moneys did not supplement the complaint in this respect. (Id.)

30. Plaintiff's complaint alleged, in substance, that upon a final accounting by him as administrator of the estate of W., he presented to the surrogate certain instruments under seal, executed by certain of the next of kin (defendants herein), releasing him from liability for, and assigning to him their distributive shares of said estate; that the solicitor for said next of kin stated before the surrogate his intention to dispute the effect, force and validity of said instruments, and asked the surrogate to disregard them; that said surrogate announced his intention to disregard them, and was about to enter a decree in favor of the parties, whom he had

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paid and settled with, for a large amount, which would be to plaintiff's great and irreparable injury. It also alleged that Y., a daughter of the intestate, died prior to the accounting, leaving a will, which was left with said surrogate for probate, and probate applied for; but that no proceedings had been taken for that purpose, and the interest of the testator in the estate was unrepresented in the proceedings for settlement. Plaintiff asked that defendants be restrained from entering any decree requiring him to pay any sum to those who executed said instruments, and from entering any decree until the interest of Y. was represented before the surrogate. Upon demurrer to the complaint, held, that it did not state facts sufficient to constitute a cause of action. (Wright agt. Fleming, 76 N. Y., 517.)

31. To make a complaint good under the provision of the Code of Procedure (old Code, sec. 162; new Code, sec. 534), providing that in an action upon an instrument for the payment of money, it shall be sufficient to set forth a copy of the instrument and to allege that a specified sum is due thereon, the instrument so set forth must, upon its face, be a complete, valid and binding obligation. Where it is, upon its face, incomplete and invalid, and facts not stated in it, need to appear to show its validity, such other facts must be alleged. (Broome agt. Taylor, 76 N. Y., 564.)

32. Where a complaint upon a bond shows it to be the obligation of a married woman, it is essential to allege that it was given for some purpose, which would make it binding upon her; it is, prima facie, a nullity, and without such averments the complaint does not state a cause of action. (Id.)

33. The complaint herein alleged

that defendants executed their

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bond under seal, a copy of which was set forth, and alleged that there was due plaintiff a specified sum thereon, for which judgment was demanded. The bond was joint and several; in it the obligors are described as husband and wife, as they are also in the title of the cause. Defendants demurred separately:

Held, that as to the husband, the complaint was good and the demurrer was frivolous; but that as to the wife a cause of action was not stated, and her demurrer was well taken. (Id.)

POLICE COMMISSIONER.

1. The mayor's power as to removal of a police commissioner is judicial and his judgment upon the question of removal is subject to review by this court on a certiorari; the accused official has a

That the relator did not have such a hearing before the mayor, as the twenty-fifth section of the charter entitled him to and, therefore, judgment should be rendered that the proceedings for the removal of the relator be in all respects reversed and set aside, and that the relator be reinstated in the office of police commissioner (See, also, the Matter of Sidney P. Nichols, 57 How., 395; The People ex rel. Nichols agt. Cooper, id., 463; The People ex Cooper, agt. Special Term at Chambers, id., 647; and The People ex rel. The Mayor agt. Nichols, ante. 200). (Id.)

See NEW YORK (CITY OF).

right to know what the specific 1. charges against him are; such charges if not admitted must be proven, and the defendant should be permitted to cross-examine witnesses and to call witnesses in his own behalf, and in these and other respects to be represented by counsel. (he People ex rel. Nichols agt. Cooper, ante, 358.)

2. If the return of the mayor to a writ of certiorari issued out of this court, to review his proceedings in making such removal, shows that in all or any of these particulars the relator in such proceeding was denied his rights, the mayor's proceedings must be reversed, and his decision declared to be null and void. (Id.)

3. The return of the mayor to the writ of certiorari, in which is given all the proceedings had before him, on which a certificate of commissioner Nichols' removal from office was transmitted to the

governor, is given in full in the opinion, and it is held:

rel.

The People ex rel. The Mayor agt. Nichols, ante, 200.

POUNDAGE.

One Huntington, after the recovery of a judgment against him by the defendant, and shortly be fore the issuing of an execution thereon to the sheriff, executed and delivered to an assignee an assignment for the benefit of creditors, but at the time the execution was received the assignment had not been recorded, nor had the assignee given a bond or taken possession of the property. The sheriff, under the direction of the attorney for the judgment creditor, levied on certain of the property assigned by Huntington, but, in accordance with further directions from the attorney, took no further proceedings. Subsequently the property was sold by the assignee and a portion of the proceeds applied to the payment of defendant's judgment.

In an action by the sheriff to recover poundage on the value of the property so levied on, not exceeding, however, the amount collectable under the execution, held, that he was entitled thereto. (Benedict agt. Wright, 19 Hun, 27.)

PRACTICE.

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1. This action was commenced to recover of the defendant, Bristol, defaulting county treasurer, and his sureties, certain amounts of money alleged to have been misappropriated by Bristol. Such moneys belonged to several distinct funds, viz.: the county fund, the infant heir fund, the asylum fund and the military fund. Judgment was rendered by the referee for a certain amount of county funds and costs. Both plaintiff and the defendants (except Bristol) appealed. The general term affirmed the judgment. The memorandum or decision was, 'judgment affirmed, with costs." The plaintiff thereupon entered judgment, having previously, on notice, taxed the costs of the appeal at $172.83, and issued execution to collect the original judg ment and costs of the appeal:

Held (1st), that, as the plaintiff appealed from the entire judg ment and on this appeal the judg ment appealed from was affirmed; not in part but in toto, the respondents were entitled to their costs by law as a matter of right.

(2d). The defendants (except Bristol and Hathaway) also appealed in like manner as did the plaintiff; that is from the entire judgment. On this appeal, too, the decision was, that the judgment should be affirmed, and it necessarily follows that the respondent, on this appeal, was entitled to costs. The court could not deprive the respondents on each separate appeal, of costs, because, they were awarded by law as a matter of absolute right. (Board of Supervisors agt. Bristol, ante, 3.)

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Digest.

issues of fact are settled and tried by a jury, and after verdict application is made to the court before whom the trial was had for judgment on "the pleadings, proofs and answers of the jury to the questions submitted," and the trial judge 'approved and adopted" the verdict, but made emendations and additions thereto and certified other findings, using in their support the evidence before the jury, to which findings exceptions are filed, it is error in the trial judge to strike from the case the evidence before the jury and the exceptions thereto. (Chapin agt. Thompson, ante, 46.)

8. He should, in settling such a case, present, to be inserted, so much of the evidence as was requisite to show the grounds of alleged error, and so much as related to his additions and emendations to the verdict. (Id.)

9. The trial judge could not properly limit the review by striking from the case the proceedings had before him, on which the appellant predicates error. It does not lie with him, in settling the case, to hold that the grounds of alleged error were untenable, or that they could not be considered by the appellate court. (Id.)

10. Such case being in equity the judge was not absolutely bound by the verdict. He could have disregarded it and have made findings in accordance with his own views of the case. (Id.)

11. Quare, whether, under the last clause of section 1003 of Code of Civil Procedure, a party in an equity case is not bound by the verdict if he fails, before final judgment, to move to set it aside and for a new trial. (Id.)

12. The trial judge in an equity case, where the issues are tried before a jury, should hear the motion for new trial on the case made.

If he shall decide that such motion cannot be made after judgment, his decision can be reviewed on appeal. (Per BOARDMAN, J.) (IZ)

13. Order allowing amendments striking out evidence taken on the trial before the jury reversed, and case and exceptions sent back to the trial judge for resettlement. (Id.)

14. Where a plaintiff had, pending the action, transferred his interest and died, and after his death his assignee, on notice to the defendant alone, moves to be substituted as plaintiff, the motion should be denied for want of notice to the personal representatives of the deceased plaintiff. (McLaughlin agt. The Mayor, ante, 105.)

15. The charter of the city of New York conferred upon the mayor the power to remove the relator "for cause, after opportunity to be heard:"

Held, the power is not an arbitrary one, and can be exercised only upon just and reasonable grounds, and after notice; that the proceeding for removal must be instituted upon specific charges, sufficient in their nature to warrant removal; that such charges, unless admitted, must be proven; that on such proceedings the party has a right to cross-examine the witnesses against him, and to call witnesses in his own behalf, and to be represented by counsel; that these conditions must be complied with before the power of removal is exercised.

Held, further, that such proceedings are judicial and subject to review by certiorari, issuing from the supreme court. The powers of the supreme court to be exercised by the judges in general term, circuit, oyer and terminer or special term are conferred by the Constitution, and cannot be limited either by the legislature or by any power conferred by it upon the court itself. One special term,

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or one judge at special term, can have no more authority or power than another. (The People ex rel. The Mayor agt. Nichols, ante, 200.)

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16. Under section 232 of the Code of Civil Procedure, the justices of a judicial department may appoint the times and places for holding special terms. If, under this power, some terms are designated special terms for equity cases and enumerated motions, and others as 66 special terms for nonenumerated motions and chambers business," such designation, in so far as it limits the class of proceedings to be had at any special term, is subject to the control of the justice assigned to hold it. By designating a special term as one for non-enumerated motions and chambers business, the power of the judge presiding thereat cannot be limited. Such term would still be a special term, and the justice holding it would have all the powers of any judge holding any special term. (Id.)

17. The power of the general term to grant a writ of prohibition addressed to the special term, is to be exercised in the same manner and to the same effect as when it is issued to inferior courts and magistrates, and the inquiry relates only to the jurisdiction. Error or mistake in practice affords no foundation for the writ, unless it involves doing something contrary to the general law. (Id.)

18. There is no absolute right to a notice of eight days on enumerated motions. A shorter notice may be prescribed by a judge or court, under section 780 of the Code, and Rule 37 of the supreme court. The exercise of this power is subject to review. (Id.)

19. Bringing on for hearing a certiorari upon the return thereto, is like a motion for judgment on the pleadings, on the ground that the answer raises no issue of fact, and

it would present a question of law only. Such motion is of the class called non-enumerated, as defined by supreme court rule 38. (Id.) 20. Rule 44 of the supreme court, which provides that a case on certiorari may be brought to a hearing "upon the usual notice of argument at special term," is controlled by section 780 of the Code, which authorizes the judges to prescribe a notice of less than eight days. (Id.)

21. The rule that a covenant in a deed against incumbrances which is broken when the deed is delivered, does not pass like covenants that run with the land to a subsequent purchaser, as it is a chose in action which is not assignable, is no longer the law in this state. (Boyd agt. Belmont, ante, 513.)

22. Under the Code all choses in action are assignable, except those that, from their nature or because they are forbidden by law, cannot be assigned, such as the right to a revolutionary pension, the unearned salary of a public officer, the beneficial interest of a cestui que trust in certain cases, &c., and the action must be brought in the name of the assignee, he being the real party in interest. (Id.)

23. The distinction between a covenant and a covenant broken is, therefore, no longer material in this state, the covenant, though broken, being assignable and sua ble in the name of the assignee. (Id.)

24. The covenant against incumbrances (now that the objection that choses in action are not assignable no longer exists) necessarily passes to the person to whom the land is conveyed, together with the land, because, if there be an incumbrance, it affects the value of the land, and, to the extent of the incumbrance, impairs the title. (Id.)

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