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Digest.

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.)

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.)

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

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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

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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 judg ment 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. (ld.)

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 giv. ing 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

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parties plaintiff should be raised by answer or demurrer. (Id.) 49. A written complaint made before a magistrate alleged that certain goods had been stolen, and that the complainant "has probable cause to suspect, and does suspect that Frederick Blodgett " stole them:

Held, that it was insufficient to justify the magistrate in issuing a warrant for the arrest of the accused. (Blodgett agt. Race, 18 Hun, 132.)

50. When an action pending in the county court is called for trial, and it is, by the consent of the parties, sent to a referee to hear and determine, the fact that the county judge is disqualified from sitting by reason of relationship to one of the parties, does not render such order void, or the judgment entered upon the report of the referee invalid. (Bell agt. Vernooy, 18 Hun, 125.)

51. When during the pendency of

an action in the marine court of the city of New York, the defendant dies, that court cannot direct the action to be revived and continued against his executors, as section 316 of the Code of Civil Procedure expressly provides that it shall not have juris diction of an action against an executor or administrator, in his representative capacity. (People ex rel. Egan agt. Marine Court, 18 Hun, 333.)

52. Where proceedings to remove an encroachment of fences upon a highway are instituted under the provision of the Revised Statutes, as amended by chapter 125 of 1870, the notice must specify the breadth the highway was originally intended to have had. (Cook agt. Covill, 18 Hun, 288.)

53. Quære, whether, where the encroachment is caused by a barn and not by a fence, proceedings VOL. LVIII 80

to remove it may be instituted thereunder. (Id.)

54. During the trial of a prisoner on an indictment for libel, the court has power, at his request to withdraw a juror, and allow the case to go over the term. (McFall agt. People, 18 Hun, 382.)

55. Under chapter 769 of 1857, courts of sessions have power to grant new trials in cases tried before them. (Id.)

56. A motion to change the place of trial, on the ground that neither plaintiff nor defendant reside in the county where the venue is laid, cannot be made until after a demand therefor (as prescribed by section 986 of the Code of Civil Procedure) has been made by an attorney who has appeared in the action in one of the ways provided for by section 421 of the said Code. (Van Dyck agt. McQuade, 18 Hun, 376.)

57. Where, after a sale in foreclosure, but before its confirmation, the mortgagor, who remains in possession, attempts to remove from the premises machinery, claimed by the purchaser to constitute a part of the realty, an injunction restraining him from so doing may properly be issued under section 604 of the Code of Civil Procedure. (Mut. Life Ins. Co. agt. Nat. Bank of Newburgh, 18 Hun, 371.)

58. Since the passage of section 2 of chapter 151 of 1870, an action to dissolve a corporation for a failure to pay its notes or other evidences of debt, or for suspending its ordinary and lawful business for one year, can only be brought by the attorney-general. (Wilmerdoerffer agt. Lake Mahopac Imp. Co., 18 Hun, 387.)

59. On an application, made under chapter 338 of 1858, to vacate an assessment, it is not necessary to

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notify one to whom the property has been sold for a failure to pay the assessment, although the time to redeem from the sale has expired, and a lease of the property has been delivered to the purchaser. (Matter of Jones, 18 Hun, 327.)

60. Under section 309 of the Code the unsuccessful party can recover only one extra allowance, although the case may have been tried several times. (Flynn agt. Equitable Life Assurance Society, 18 Hun, 212.)

61. It is the duty of the referee to find and set forth in his report the facts upon which his conclusions of law are based; but he is not required to set forth or explain the means or processes by which he arrived at such findings of fact. (Dolan agt. Merritt, 18 Hun, 27.)

62. A writ of certiorari will not issue to a village, to review alleged irregularities in the proceedings by which it is claimed to have been incorporated. (People ex rel. Smith agt. Village of Nelliston, 18 Hun, 175.)

63. The court may, in a proper case, make an order requiring the attorney for the plaintiff to furnish the defendant with the plaintiff's residence and address. (Corbett agt. Gibson, 18 Hun, 49.)

64. Where the complaint, in an action to charge a trustee for a fail ure to file and publish the state ment required by chapter 40 of 1848, 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.)

65. Where a policy of insurance is issued to the owner, and the loss is made payable to others, therein

named, as their interest may appear, a joint action lies thereon by the assured and those to whom the loss is made payable. (Lasher agt. Northwestern Ins. Co., 18 Hun, 98.)

66. The issues in an equity action were framed and submitted to a jury; a verdict was rendered thereon; the whole case was afterwards heard before the same judge before whom the jury trial was had; he made his decision on which judgment was entered; a case was served on appeal containing the testimony and the plaintiff's exceptions to evidence taken on the jury trial, for which the judge on the settlement of the case substituted the specific questions of facts submitted to the jury and their answers thereto. The appellant then moved for a new trial of the issues of fact:

Held, that the party appealing had a right to include in the case the evidence given on the jury trial as well as any subsequently given before the judge alone. (Chapin agt. Thompson, 18 Hun, 446.)

67. In proceedings supplementary to execution the judge cannot direct property of the judgment debtor (a horse), to be delivered to the creditor on his giving the debtor a receipt for his claim. The property should be sold under an execution or by a receiver. (Dickinson agt. Onderdonk, 18 Hun, 479.)

68. To render an appeal to the county court from a judgment of a justices' court effectual, the respondent's costs included therein must be paid, and the justice's fees must be paid or relinquished by him within twenty days from the rendition of the judgment, and if they are not so paid the appeal will be dismissed. (Thomas agt. Thomas, 18 Hun, 481.)

69. An appeal lies to the general

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