Page images
PDF
EPUB

Digest.

30.

Where the facts alleged in the answer are sufficient to entitle the defendant to a recoupment of his damages, even if they are obscurely or vaguely set forth, the answer is not, for that reason, demurrable. (Id.)

25. Accordingly, where the plaintiff, by the sheriff's deed, acquired all the rights in the property which the defendant had conveyed to B., and when the plaintiff, to save her estate from the effect of the incumbrance, was compelled to pay it off, the defendant having refused so to do, held, that she could maintain an action upon the covenant which had passed to her with the land by assignment, to recover the damages she had sus tained by the breach of it. (Id.)

26. An allegation in an

answer

"that the contract set forth in said complaint is inoperative and void for want of a sufficient and adequate consideration therefor,” is an allegation of a conclusion of law. It is necessary to aver the facts which would show that there was no sufficient and adequate consideration. (Hammond agt. Earle and another, ante, 426.)

27. Each answer must, of itself, be a complete answer to the whole complaint, as perfectly so as if it stood alone. Unless, in terms, it adopts or refers to the matter contained in some other answer, it must be tested as a pleading alone by the matter itself contains. If it is not complete, in and of itself, it is insufficient in law and cannot be sustained by reference to the other defenses contained in the answer. (Id.)

28. A defense that the plaintiff is

not the real party in interest, is not available unless supported by facts pleaded like any other defense. (Id.)

29. The defense of recoupment is available, if facts support it, whether pleaded for that purpose or otherwise. If the allegations in respect to that defense are not sufficiently definite and certain to enable the plaintiff to understand them, or to raise a clear and precise issue, the remedy by the plaintiff is by motion to make more definite and certain. (Id.)

31.

Upon the trial of the plaintiff in error for murder, the court having ordered additional jurors to be summoned, the clerk brought into court the box containing the names of the trial jurors for the county, and the box containing those for the town, but not the one containing the names of those who had already served. The jurors having been duly summoned, the prisoner's counsel interposed a challenge to the array, on the ground that all the boxes were not brought into court as required by section 1059 of the Code of Civil Procedure. The court having sustained the challenge the prisoner's counsel withdrew it:

Held, that by withdrawing the challenge the prisoner waived any informality in the drawing of the jury, and was concluded from objecting thereto on appeal.

Semble, that as it did not appear that the names in the county jurors' box were exhausted, the failure of the clerk to bring into court the third box did not affect the validity of the drawing. (Pierson agt. People, 18 Hun, 239.)

32. A confession of judgment in which the defendant states that the indebtedness "is for a debt justly due from me to said plaintiff for moneys to that amount loaned and advanced to me by said plaintiff," is sufficient as between the parties and is only voidable, if at all, in a direct action or motion to vacate it by a junior judgment creditor or bona fide purchaser. (Terrett agt. Brooklyn Improvement Co., 18 Hun, 6.)

33. This action was brought by the plaintiff against the defendant, individually, and as executrix of

Digest.

J. A. Mead, deceased, upon an indebtedness of the deceased, consisting of two notes and a judg ment, amounting in all to $1,500. The complaint alleged the appointment of the defendant as executrix July 2, 1877, and that she was sole legatee; that the only assets of the estate were about $500 worth of personal property, and land in Wisconsin, worth about $1,500; that shortly before his death the testator had assigned, without consideration, a policy of insurance upon his life to the defendant who had collected it; that defendant had filed no inventory of his estate and was about to leave the state and take the assets of the estate with her:

Held, that the action could not be sustained as a creditor's bill, as the plaintiff had not exhausted its remedy at law. (Genesee River Nat. Bank agt. Mead, 18 Hun, 303.)

34. That, upon the facts stated in the complaint, the defendant could not be arrested under subdivision 4 of section 550 of the Code of Civil Procedure (the substitute for a writ of ne exeat). (Id.)

35. That the complaint did not state facts sufficient to constitute a cause of action, and that the plaintiff might move at any time after service of the complaint to vacate an order of arrest granted in the action upon affidavits containing the same allegations as the complaint. (Id.)

36. That such motion might be made more than twenty days after the order of arrest was served. (Id.)

37. This was an action brought by the plaintiff to recover the damages sustained by him, by reason of his falling through an open hatchway on the defendant's premises, After the jury had retired, and in the absence of counsel, the jury sent to the judge a communication asking if plaintiff

had been paid his salary while laid up, to which the judge replied that there was no evidence upon that subject, and that if it was paid it was a mere gratuity. Subsequently the jury being unable to agree came into court, and it was claimed that plaintiff's counsel was then informed of what had taken place, and made no objection. The jury then retired and brought in a verdict for plaintiff for fifty dollars.

On a motion by the plaintiff's counsel to set aside the verdict, on the ground of such communication having been made, held, that if the plaintiff knew of it, and made no objection to the jury's retiring for the second time, he thereby waived the irregularity. (Mahoney agt. Decker, 18 Hun, 365.)

38.

That, as in no event could he have been prejudiced by the communication, it furnished no ground for granting a new trial. (Id.)

39. In 1853, the defendant Smith being indebted to a firm composed of Jacob Smith and Reuben Edwards, for lumber purchased of it, and for interest thereon, gave them his note under seal, payable to their order, and also a mortgage on land to secure the payment of the amount due. Subsequently the firm was dissolved and the note and mortgage were transferred to Smith, unindorsed. Thereafter he, without authority, but not with a fraudulent intent, struck from the note the name of Edwards.

In an action to foreclose the mortgage, held, that although the note was destroyed by this alteration, yet the debt which it was given to secure was still unpaid, and could be collected by foreclosing the mortgage. (Gillette agt. Smith, 18 Hun, 10.)

40. Before the commencement of this action, an action had been

Digest.

commenced upon the note, which was still pending:

Held, that this was not a bar to the action of foreclosure. (Id.)

41. A mortgage given to secure the payment of a simple contract debt may be foreclosed at any time within twenty years. (Id.)

42. Section 111 of the Code of Civil Procedure, provides that when, in the county of Kings, the sheriff has actually confined in jail a prisoner arrested by virtue of an execution, issued upon a judgment recovered in a court of record, he shall notify the attorney for the plaintiff, and the latter shall, within the time therein prescribed, pay to the sheriff the sum of twenty-five dollars for his support during the first twenty days, and that "if a payment required by this section be not made, the prisoner must be discharged:"

Held, that this provision inIcluded the case of an execution issued in favor of a defendant as well as that of one issued in favor

of a plaintiff. (People ex rel. Riedman agt. McCue, 18 Hun, 54)

43. That upon the failure of the attorney to make the required payment, the sheriff must at once discharge the prisoner, and that no order of the court was necessary to authorize him so to do. (Id.)

44.

The petitioner alleged that he was retained as counsel by the appellant, who acted as attorney for the commissioners appointed to open a street; that it was agreed that the petitioner's fees and charges should be $500; that they were taxed and certified at that amount; that the appellant undertook to, and did, collect that amount, but neglected and refused to pay it over, and the petitioner applied for an order that the attorney pay the money over to him. The attorney filed an answer denying all the allegations of the

petition. This appeal was taken from an order appointing a referee to take proof as to the facts:

Held, that the facts alleged showed that the relation existing between the parties was not that of attorney and client, but that of debtor and creditor, and that the controversy between them should be settled in an action, and not on a summary application to the court. (Matter of Haskin, 18 Hun, 42.)

45. The defendant placed piers in the bed of a stream running through his land, and thereby obstructed its natural flow and caused the water to set back upon the lands adjoining the stream further up. This action was brought by several of the owners of separate parcels of the lands, upon which the waters were so set back, to abate the nuisance and restrain the further continuance thereof:

Held, that the several plaintiffs properly joined in bringing one action, and that it could be maintained. (Gillespie agt. Forest, 18 Hun, 110.)

46. The plaintiffs, who were sureties upon a note upon which the defendants were liable as principal debtors, being compelled to take it up, paid the holder by giving him their joint note for part, and paying the balance in money, raised upon the discount of a note made by one surety to the order of the other, and discounted for their joint benefit:

Held, that the note having been paid by the sureties jointly, they could maintain a joint action to recover the amount thereof from the principal debtors. (Enos agt. Leach, 18 Hun, 139.)

47. A misjoinder of parties plaintiff is not a ground for the dismissal of the complaint, as to all the parties plaintiff, if either has a good cause of action. (Id.)

48. The objection of misjoinder of

[blocks in formation]
[blocks in formation]
« PreviousContinue »