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ed as of a judicial nature (not executive or administrative;) and, according to the definition of the Code of Procedure, an application to enforce such right is a remedy; and remedies being divided into “actions” and “special proceedings,” the application

must be considered a special proceeding.(Id. 1.) 3. An order of special term, granting defendants, who are sued as

bail, further time to render their principal, is not appealable.

(Bank of Geneva agt. Reynolds, Ante, 18.) 4. Where, on exceptions, the court cannot clearly see that injustice

has not been done by the application of an improper rule of damages, they must order a new trial. (Rogers agt. Beard,

Ante, 98.) 5. Where, on appeal, the findings of a referee of fact and law are

not made and inserted in the case, according to the rule and the Code, and especially where, in consequence, an attempt to review any decision the general term might make, would be attended with much embarrassment, the general term will refuse to re

view it. (Id.) 6. What findings of fact and of law in a given case, and how they

should be stated by a referee in his report in an action tried

before him. (Id.) 7. An appeal may be taken to the general terni from a judgment

containing exceptions upon questions of law only, where the cause has been tried at the circuit, before a court and jury, wilhout any directions of the judge that the exceptions be heard in the first instance at the general term, or without their having been first heard at special term. (Morange agt. Morris,

Ante, 257.) 8. The general term of the supreme court, in reviewing a judgment

rendered upon report of a referee, or upon a trial before a judge without a jury, acts purely as an appellate court; and a case containing the findings upon the law and fact, with the exceptions inserted therein in due form ($ 268,) must be made in the precise shape required by the court of appeals. (Rogers agt. Beard,

Ante, 282.) 9. The report of a referee, and the exceptions, are necessarily sepa

rate instruments originally, but the case is to be single, and is to be made up as though the findings and exceptions were had on the trial of the cause, the exceptions in their proper order


following the findings. The case is not properly made, by inserting the evidence, the report of the referee, and that to be

followed by the exceptions. (Id.) 10. Where the review is upon the facts alone, it is equally essen

tial that the findings of the referee upon the facts be explicit and

cover all the material facts in the case. (Id.) 11. Where two suits between the same parties in the nature of

cross actions in equity, involving an accounting between the parties, were referred to the same referee, and were heard together as one cause, and in the first action the referee reported that the parties were joint owners and tenants in common of the lands in question, and that the defendant had paid a certain amount on account of the purchase more than the plaintiff, and ordered partition of the premises, and appointed commissioners for partition; in the second action the referee reported that he had stated the account, and found due from the defendant to the

plaintiff a certain sum, 12. To each decision, the plaintiff in the first action and defendant

in the second, excepted “to each and every finding and decision of the referee upon questions of fact, and to each and every conclusion of law arrived at by said referee, and to each and every part thereof as contained in the report of said referee in this action," and judgments upon the reports having been entered,

Held, that the appeal in the first action must be dismissed, as there was no final judgment entered, and in the second, the judgment must be affirmed, as there was no exception which could be reviewed. The exceptions in both cases (being alike)

were entirely insufficient. (Lawrence agt. Fowler, Ante, 407.) 13. In equity, while the case must be the same as at law, and con

tain the findings and exceptions, the exceptions must, so far as they relate to matters of account and detail, be specific, pointing to the particular error claimed in the account; as specific as was required to a master's report under the former practice in

chancery. (Id.) 14. It seems to be a mistake in the Code to require the whole issue

in equity actions to be tried before a referee or a single judge

in the same way with legal actions. (Id.) 15. An appeal lies directly from an order of a county judge vaca


ting an order of arrest granted by him to the general term of

this court. (Lancaster agt. Boorman, Ante, 421.) 16. An order made at special term, on the application of the comp

troller of the city of New York, to open a judgment under the act of April, 1859, (Laws of 1859, p. 1123, 95,) is appealable to the general term, without a certificate of the judge under the rule of this court of March 22, 1851. (Joyce agt. Mayor, f-c.,

of New York, Ante, 439.) 17. The constitutionality of this act of 1859 was settled affirma

tively by this court in the case of Outwater agt. The Mayor,

4.c., of New York, (18 How. Pr. R., 572.) (Id.) 18. The costs on a motion being in the discretion of the judge at

special terni, his decision in this respect will not be reviewed on

appeal. (II.) 19. Although a complaint is drawn without any name to the action,

or without mentioning the word conversion, when the whole facts stated as the gravamen, is an action for fraud and conversion, it is too late to raise the question on appeal, that the plaintiff cannot recover for the conversion. If there was any difference between the complaint and the proofs, objection should have been

taken on the trial. (Ward agt. Forrest, Ante, 465.) 20. Where the return to an appeal served on the respondent is im

perfect, his remedy must be sought by a special motion to the court. Rule 7, which allows the entry of a common order dismissing the appeal, applies only to cases where there is an entire omission to serve a copy of the return within proper time. (Bow

ers agt. Tallmadge, Ante, 516, court of appeals.) 21. Upon a challenge of a juror to the favor, on the trial, where it

was agreed that the challenge should be tried by the judge in the same manner as if triors were duly appointed, held, that the rejection by the judge, as immaterial, of evidence offered in support of the challenge, could not be reviewed. (Costigan agt. Cuyler. 21 N. Y. R., 134.)

See AMENDMENT. (Trustees of First Baptist Society agt. Robinson, 21 N. Y. R., 234, and Bennett agt. Judson, id., 238.) 22. On a verdict subject to the opinion of the court, and the ques.

tion is, who is entitled to judgment upon the facts established, and when the objection has not been taken at the trial, the verdict may be supported upon any theory consistent with the facts


though not suggested by the pleadings. (Oneida Bank agt. Ontario Bank, 21 N. Y. R., 490.)

See AMENDMENT. (Van Duzer agt. Hote, 21 NÀY. R., 531.) 23. Upon appeal, this court will presume nothing in favor of the

party alleging error; but if compelled, by the imperfection of the case, to resort to presumption, it will adopt such only as will

sustain the judgment. (Carman agt. Pultz, 21 N. Y. R., 547.) 24. Where an appeal is taken on a judgment in an action tried by

a jury, the appellant cannot be heard on the question whether the verdict is contrary to evidence. Upon that question he can only be heard upon an appeal taken from an order refusing a new trial. (Anthony agt. Smith, 4 Bosw., 503.)

See INJUNCTION. (Carpenter agt. Wright, 4 Bosw., 655.)

See SECURITY FOR Costs. (Ranney agt. Stringer, 4 Bosw., 663.) 25. An order made upon motion to open a default upon terms, will

not be reviewed on appeal. Where, after trial and verdict for plaintiff, and the denial of plaintiff's motion for leave to file a reply to defendant's counter claim, unless plaintiff consented to a new trial and paid the costs since the answer, held, that the terms imposed was not the subject of appeal. (Drost agt. Fos

tray, 4 Bosw., 664.) 26. If on a motion to set aside a non-suit on a case, the case does

not show whether the trial was with or without a jury, the motion will be denied. The review must be had by appeal. (Cronk

agt. Canfield, 32 Barb., 171.) 27. Where the decision of the judge at special term rests entirely

on the want of power in granting the order, not on discretion, it is open to examination on appeal. (McElwuin agt. Corning,

12 Abb., 16.) 28. Where a decision at special term was made denying a motion

to stay proceedings in an action until a former judgment for costs in favor of one of the defendants was paid, on the ground that the judgment was void, held, that as the judgment for costs was not sought to be reviewed on appeal, and was not void on its face, it was conclusive between the parties, and not open to an examination of the equities which entered into it. Therefore the order of the special term, not being founded in discretion,


was appealable. (McMahon agt. Mutual Benefit Life Ins. Co.,

12 Abb., 28.) 29. On an application to set aside a judgment of affirmance regu

larly taken by default at a general term of the New York common pleas, in cases of appeal from an inferior court, it is the practice of that court to require the appellant to show that his case has merits, either upon the law or the facts involved in it. Engagements of counsel in another court or elsewhere, is not a sufficient excuse for postponing the hearing, and consequently not an excuse for opening a regular default. (Tryon agt. Jen

nings, 12 Abb., 33.) 30. A judgment rendered by a justice of the peace, will be reviewed

versed, for an erroneous charge by the justice to the jury. (Pettit agt. Ide, 12 Abb., 44.) 31. A stay of proceedings upon appeal from an order granting an

injunction, may be allowed, as well as upon appeals from other orders. (Genin agt. Chadsey, 12 Abb., 69.)

and rever

ARREST. 1. An order of arrest sustained, where the defendant agreed to pay

cash for beef cattle on delivery; and while the plaintiff and defendant were consulting as to payment, the defendant's agent drove off the cattle, and had them slaughtered the same day. And the defendant thereupon induced the plaintiff to accept a draft, which, he said, would be honored at sight, but which was, in fact, dishonored and valueless. Held, a scheme of fraud.

(Harding agt. Shannon, Ante, 25.) 2. An order of arrest should be obtained on affidavits; no issue as

to alleged fraud can be made by the pleadings. (Mucklan agt.

Doty, Ante, 236.) 3. Where statements made in an affidavit to obtain an order of

arrest were, that the defendant made representations to the plaintiffs, upon faith of which they received and gave the money for the check (sued on) and which representations were charged to have been false, held sufficient (if true, and they were not denied)

to sustain the arrest. (Id.) 4. A denial by a debtor of facts sworn to on the part of the plain

tiff, is not sufficient to vacate an order of arrest. There must be

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