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Digest.

answer

25. Accordingly, where the plain 30. Where the facts alleged in the

tiff, by the sheriff's deed, acquired answer are sufficient to entitle the all the rights in the property which defendant to a recoupment of his the defendant had conveyed to damages, even if they are obscureB., and when the plaintiff, to save ly or vaguely set forth, the answer her estate from the effect of the is not, for that reason, demurraincumbrance, was compelled to ble. (Id.) pay it off, the defendant having refused so to do, held, that she 31. Upon the trial of the plaintiff in could maintain an action upon the error for murder, the court hav. covenant which had passed to her

ing ordered additional jurors to with the land by assignment, to be summoned, the clerk brought recover the damages she had sus

into court the box containing the tained by the breach of it. (Id.)

names of the trial jurors for the 26. An allegation in an

county, and the box containing

those for the town, but not the “that the contract set forth in

one containing the names of those said complaint is inoperative and

who had already served. The void for want of a sufficient and

jurors having been duly sumadequate consideration therefor,”

moned, the prisoner's counsel inis an allegation of a conclusion of

terposed a challenge to the array, law. It is necessary to aver the

on the ground that all the boxes facts which would show that there was no sufficient and adequate

were not brought into court as re

quired by section 1059 of the Code consideration. (Hammond agt.

of Civil Procedure. The court Earle and another, ante, 426.)

having sustained the challenge the 27. Each answer must, of itself, be

prisoner's counsel withdrew it: a complete answer to the whole

Held, that by withdrawing the complaint, as perfectly so as if it

challenge the prisoner waived any stood alone. Unless, in terms, it

informality in the drawing of the adopts or refers to the matter con

jury, and was concluded from obtained in some other answer, it

jecting thereto on appeal.

Semble, that as it did not appear must be tested as a pleading alone by the matter itself contains. If

that the names in the county ju. it is not complete, in and of itself,

rors' box were exhausted, the failit is insufficient in law and cannot

ure of the clerk to bring into

court the third box did not affect be sustained by reference to the other defenses contained in the

the validity of the drawing. answer. (Id.)

(Pierson agt. People, 18 Hun, 239.) 28. A defense that the plaintiff is 32. A confession of judgment in not the real party in interest, is

which the defendant states that not available unless supported by

the indebtedness “is for a debt facts pleaded like any other de justly due from me to said plainfense. (Id.)

tiff for moneys to that amount

loaned and advanced to me by 29. The defense of recoupment is said plaintiff,” is sufficient as be

available, if facts support it, tween the parties and is only void. whether pleaded for that purpose able, if at all, in a direct action or otherwise. If the allegations or motion to vacate it by a junior in respect to that defense are not judgment creditor or bona fide sufficiently definite and certain to purchaser. (Terrett agt. Brooklyn enable the plaintiff to understand Improvement Co., 18 tun, 6.) them, or to raise a clear and precise issue, the remedy by the plain- 33. This action was brought by the tiff is by motion to make more plaintiff against the defendant, definite and certain. (Id.)

individually, and as executrix of

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no

J. A. Mead, deceased, upon an in had been paid his salary while debtedness of the deceased, con laid up, to which the judge resisting of two notes and a judg plied that there was no evidence ment, amounting in all to $1,500. upon that subject, and that if it The complaint alleged the ap was paid it was a mere gratuity. pointment of the defendant as Subsequently the jury being un. executrix July 2, 1877, and that able to agree came into court, and she was sole legatee; that the only it was claimed that plaintiff's assets of the estate were about counsel was then informed of $500 worth of personal property, what had taken place, and made and land in Wisconsin, worth no objection. The jury then reabout $1,500; that shortly before tired and brought in a verdict for his death the testator had assign plaintiff for fifty dollars. ed, without consideration, a pol On a motion by the plaintiff's icy of insurance upon his life to counsel to set aside the verdict, the defendant who had collected on the ground of such communiit; that defendant had filed no in cation having been made, held, ventory of his estate and was that if the plaintiff knew of it, about to leave the state and take and made no objection to the the assets of the estate with her: jury's retiring for the second time,

Held, that the action could not he thereby waived the irregu. be sustained as a creditor's bill, larity. Mahoney agt. Decker, 18 as the plaintiff had not exhausted Hun, 365.) its remedy at law. (Genesee River Nat. Bank agt. Mead, 18 Hun, 38. That, as in no event could he 303.)

have been prejudiced by the com

munication, it furnished 34. That, upon the facts stated in ground for granting a new trial.

the complaint, the defendant could (Id.) not be arrested under subdivision 4 of section 550 of the Code of 39. In 1853, the defendant Smith Civil Procedure (the substitute for a writ of ne exeat). (Id.)

being indebted to a firm composed of Jacob Smith and Reusen Ed

wards, for lumber purchased of 35. That the complaint did not state it, and for interest Thereon, gave

facts sufficient to constitute a them his note under seal, payable cause of action, and that the to their order, and also a mortplaintiff might move at any time gage on land to secure the payafter service of the complaint to ment of the amount due. Subsevacate an order of arrest granted quently the firm was dissolved in the action upon affidavits con and the note and mortgage were taining the same allegations as transferred to Smith, unindorsed. the complaint. (Id.)

Thereafter he, without authority,

but not with a fraudulent intent, 36. That such motion might be made struck from the note the name of

more than twenty days after the Edwards. order of arrest was served. (Id.) In an action to foreclose the

mortgage, held, that although the 37. This was an action brought by note was destroyed by this altera

the plaintiff to recover the dam tion, yet the debt which it was ages sustained by him, by reason given to secure was still unpaid, of his falling through an open and could be collected by forehatchway on the defendant's closing the mortgage. (Gillette premises, After the jury had re. agt. Smith, 18 Hun, 10.) tired, and in the absence of counsel, the jury sent to the judge a 40. Before the commencement of communication asking if plaintiff this action, an action had been

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commenced upon the note, which on. This appeal was taken was still pending:

from an order appointing a refHeld, that this was not a bar to eree to take proof as to the facts: the action of foreclosure. (Id.) Held, that the facts alleged

showed that the relation existing 41. A mortgage given to secure the between the parties was not that

payment of a simple contract debt of attorney and client, but that may be foreclosed at any time of debtor and creditor, and that within twenty years. (Id.)

the controversy between them

should be settled in an action, and 42. Section 111 of the Code of Civil not on a summary application to

Procedure, provides that when, the court. (Matter of Haskin, 18 in the county of Kings, the sheriff Hun, 42.) has actually confined in jail a prisoner arrested by virtue of an 45. The defendant placed piers in execution, issued upon a judg

the bed of a stream running ment recovered in a court of rec through his land, and thereby obord, he shall notify the attorney

structed its natural flow and causfor the plaintiff, and the latter ed the water to set back upon the shall, within the time therein pre lands adjoining the stream further scribed, pay to the sheriff the sum up. This action was brought by of twenty-five dollars for his sup several of the owners of separate port during the first twenty days, parcels of the lands,

upon which and that “if a payment required

the waters were so set back, to by this section be not made, the abate the nuisance and restrain prisoner must be discharged:”

the further continuance thereof: Held, that this provision in Held, that the several plaintiffs cluded the case of an execution properly joined in bringing one issued in favor of a defendant as action, and that it could be mainwell as that of one issued in favor tained. (Gillespie agt. Forest, 18 of a plaintiff. (People ex rel. Hun, 110.) Riedman agt. McCue, 18 Hun, 54.)

46. The plaintiffs, who were sure43. That upon the failure of the ties upon a note upon which the

attorney to make the required defendants were liable as principayment, the sheriff must at once pal debtors, being compelled to discharge the prisoner, and that take it up, paid the holder by givno order of the court was neces ing him their joint note for part, sary to authorize him so to do. and paying the balance in money, (ld.)

raised upon the discount of a note

made by one surety to the order 44. The petitioner alleged that he of the other, and discounted for

was retained as counsel by the their joint benefit: appellant, who acted as attorney Held, that the note having been for the commissioners appointed paid by the sureties jointly, they to open a street; that it was agreed could maintain a joint action to that the petitioner's fees and recover the amount thereof from charges should be $500; that they the principal debtors. (Enos agt. were taxed and certified at that Leach, 18 Hun, 139.) amount; that the appellant undertook to, and did, collect that 47. A misjoinder of parties plaintiff amount, but neglected and refused is not a ground for the dismissal to pay it over, and the petitioner of the complaint, as to all the applied for an order that the at parties plaintiff, if either has a torney pay the money over to him. good cause of action. (Id.) The attorney filed an answer denying all the allegations of the 48. The objection of misjoinder of

Digest.

parties plaintiff should be raised to remove it may be instituted

by answer or demurrer. (Id.) thereunder. (Id.) 49. A written complaint made be- 54. During the trial of a prisoner

fore a magistrate alleged that cer on an indictment for libel, the tain goods had been stolen, and court has power, at his request to that the complainant ' has prob withdraw a juror, and allow the able cause to suspect, and does case to go over the term. (McFall suspect that Frederick Blodgett” agt. People, 18 Hun, 382.) stole them:

Held, that it was insufficient to 55. Under chapter 769 of 1857, justify the magistrate in issuing a courts of sessions have power to warrant for the arrest of the ac grant new trials in cases tried becused. (Blodgett agt. Race, 18 fore them. (Id.) Hun, 132.)

56. A motion to change the place of 50. When an action pending in the trial, on the ground that neither

county court is called for trial, plaintiff nor defendant reside in and it is, by the consent of the the county where the venue is parties, sent to a referee to hear laid, cannot be made until after a and determine, the fact that the demand therefor (as prescribed by county judge is disqualified from section 986 of the Code of Civil sitting by reason of relationship Procedure) has been made by an to one of the parties, does not attorney who has appeared in the render such order void, or the action in one of the ways projudgment entered upon the report vided for by section 421 of the said of the referee invalid. (Bell agt. Code. (Van Dyck agt. McQuade, Vernooy, 18 Hun, 125.)

18 Hun, 376.) 51. When during the pendency of 57. Where, after a sale in foreclosan action in the marine court of

ure, but before its confirmation, the city of New York, the de the mortgagor, who remains in fendant dies, that court cannot

possession, attempts to remove direct the action to be revived from the premises machinery, and continued against his execu

claimed by the purchaser to contors, as section 316 of the Code of stitute a part of the realty, an Civil Procedure expressly pro

injunction restraining him from vides that it shall not have juris

so doing may properly be issued diction of an action against an

under section 604 of the Code of executor or administrator, in his

Civil Procedure. (Mut. Life Ins. representative capacity. (People

Co. agt. Nat. Bank of Newburgh, ex rel. Egan agt. Marine Court, 18

18 Hun, 371.) Hun, 333.)

58. Since the passage of section 2 52. Where proceedings to remove of chapter 151 of 1870, an action

an encroachment of fences upon to dissolve a corporation for a a highway are instituted under failure to pay its notes or other the provision of the Revised Stat evidences of debt, or for suspendutes, as amended by chapter 125 ing its ordinary and lawful busiof 1870, the notice must specify ness for one year, can only be the breadth the highway was brought by the attorney-general. originally intended to have had. (Wilmerdoerffer agt. Lake Mahopac

(Cook agt. Covill, 18 Hun, 288.) Imp. Co., 18 Hun, 387.) 53. Quære, whether, where the en- 59. On an application, made under

croachment is caused by a barn chapter 338 of 1858, to vacate an and not by a fence, proceedings assessment, it is not necessary to VOL. LVIII

80

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re

notify one to whom the property amed, as their interest may aphas been sold for a failure to pay pear, a joint action lies thereon the assessment, although the time by the assured and those to whom to redeem from the sale has ex the loss is made payable. (Lasher pired, and a lease of the property agt. Northwestern Ins. Co., 18 has been delivered to the pur

ilun, 98.) chaser. (Matter of Jones, 18 Hun, 327.)

66. The issues in an equity action

were framed and submitted to a 60. Under section 309 of the Code jury; a verdict was rendered

the unsuccessful party can thereon; the whole case was aftercover only one extra allowance, wards heard before the same although the case may have been judge before whom the jury trial tried several times. (Flynn agt. was had; he made his decision on Equitable Life Assurance Society, which judgment was entered; a 18 Hun, 212.)

case was served on appeal con

taining the testimony and the 01. It is the duty of the referee to plaintiff's exceptions to evidence

find and set forth in his report taken on the jury trial, for which the facts upon which his conclu the judge on the settlement of the sions of law are based; but he is case substituted the specific quesnot required to set forth or ex tions of facts submitted to the plain the means or processes by jury and their answers thereto. which he arrived at such findings The appellant then moved for a of fact. (Dolan agt. Merritt, 18 new trial of the issues of fact: Hun, 27.)

Held, that the patty appealing

had a right to include in the case 62. A writ of certiorari will not the evidence given on the jury

issue to a village, to review al trial as well as any subsequently leged irregularities in the pro given before the judge alone. ceedings by which it is claimed (Chapin agt. Thompson, 18 Hun, to have been incorporated. (Peo 446.) ple ex rel. Smith agt. Village of Nelliston, 18 Hun, 175.)

67. In proceedings supplementary

to execution the judge cannot di63. The court may, in a proper

rect property of the judgment case, make an order requiring the

debtor (a horse), to be delivered attorney for the plaintiff to fur

to the creditor on his giving the nish the defendant with the plain

debtor a receipt for his claim. tiff's residence and address. (Cor

The property should be sold un. bett agt. Gibson, 18 Hun, 49.)

der an execution or by a receiver.

(Dickinson agt. Onderdonk, 18 64. Where the complaint, in an ac

Hun, 479.) tion to charge a trustee for a fail ure to file and publish the state. 68. To render an appeal to the ment required by chapter 40 of county court from a judgment of 1848, sets out a copy of the report a justices' court effectual, the as filed and published, and alleges respondent's costs included there. that it does not comply with the in must be paid, and the justice's statute, the particular defects fees must be paid or relinquished therein need not be set forth in by him within twenty days from the complaint. (Glen's Falls Pa the rendition of the judgment, per Co. agt. White, 18 Hun, 215.) and if they are not so paid the

appeal will be dismissed. (Thomas 65. Where a policy of insurance is agt. Thomas, 18 Hun, 481.)

issued to the owner, and the loss is made payable to others, therein | 69, An appeal lies to the general

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