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any note or notes, or any bill of exchange, bonds, checks, overdrafts or securities of any kind, given by him, according to the conditions of any such writings obligatory executed by him to the mortgagees as a collateral security," held, that the mortgage called for written evidences of debt, signed or indorsed by the mortgagor, and could be satisfied with no other; it was security only for a debt in writing. (Walker agt. Paine, 32 Barb., 213.)

See JUDGMENTS. (Stevens agt. Bank of Central New York, 32 Barb., 290.) 12. An action to recover a debt which is secured by a mortgage of

lands in another state, or even to foreclose the mortgage, and an action to compel a party to surrender a mortgage to be cancelled and discharged of record, are different actions entirely. The supreme court have the power, in a proper case, to decree a mortgage upon real estate void for usury, and to compel the party holding it to surrender it up to be cancelled, although the

lands lie in another state. (Williams agt. Ayrault, 32 Barb., 364.) 13. A purchaser at a sale under a foreclosure of a mortgage made

by a party disseised, while in possession, can assert the same rights as the disseisee, and can recover upon his possession, without proving that he, himself, had ever been in possession. (Clute agt. Voris, 32 Barb., 511.)

See RAILROADS. (Stevens agt. Buffalo & N. Y. City R. R. Co., 32 Barb., 590; and Beardsley agt. Ontario Bank, Id., 619.)


1. A mortgagor, who has sold and conveyed the premises subject

to the mortgage, is not in a position to oppose the appointment of a receiver, for the protection of the property to other credi

tors. (Wall Street Fire Insurance Co. agt. Loud, Ante, 95.) 2. What acts of neglect of mortgaged premises, connected with the

probable insolvency of the mortgagor, sufficient to authorize the appointment of a receiver. (Id.)

See CHATTEL MORTGAGE. (Chapman agt. Jenkins, 32 Barb., 164.)

See MORTGAGE FORECLOSURE. (Syracuse City Bank agt. Tallman, 32 Barb., 201, and Walker agt. Paine, id., 213.)

See WITNESSES. (Babbott agt. Thomas, 32 Barb., 277.)




1. It seems, that where motion papers are badly defaced with interlineations and erasures, the court will deny the motion for that

(Henry agt. Bow, Ante, 215.) 2. An application under $ 204 of the Code, to vacate an order of

arrest on motion, must be made in the same manner as other motions are made, to wit: a motion to the court, and upon suffi

cient notice. (Rogers agt. McElhone, Ante, 441.) 3. A county judye having no power under the Code, to hear a

motion as such, in an action pending in the supreme court, has no power to hear a motion on notice to vacate an order of arrest, granted by him in an action in this court, (See to the same

effect Lancaster agt. Boorman, Ante, 421.) (Id.) 4. 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.) 5. A notice of motion to strike out parts of a pleading as irrele

vant, &c., must be served within twenty days after the service of the pleading. (New York Ice Co. agt. North Western Ins. Co., 12 Abb., 74.)


See Common CARRIER. 1. No action will lie against another to recover damages for a per

sonal injury, where it is shown that the carelessness and imprudence of the plaintiff contributed to the injury,

Held, in this case, that whatever might have been the miscon. duct of the defendant in other respects, the plaintiff was guilty of gross imprudence and misconduct himself, which either caused or contributed to the injury; and could not recover any damages for such injury. (Spooner agt. Brooklyn City R. R. Co., 32 Barb., 419.)


1. Where, on exceptions, the court cannot clearly see that injustice

has not been done by the application of an improper rule of dam.


ages, they must order a new trial. (Rogers agt. Beard, Ante, 98.) 2. 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 review

it. (ld.) 3. 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 be

fore him. (Id.) 4. A motion for a new trial on a case, or on the ground of surprise,

or of newly discovered evidence, cannot be made as a matter of right after judgment has been perfected in the action. The separation of the jury, after they have retired to deliberate, without the consent of the court, does not per se entitle a party to a

new trial. (Anthony agt. Smith, 4 Bosw., 503.) 5. The only appeal on which a party can be heard on the question,

whether the verdict is contrary to evidence, is one taken from an

order refusing a new trial. (Id.) 6. Where a motion for a new trial is made on the ground of newly

discovered evidence, it will be denied where it appears that such evidence is merely cumulative; and such motion will be decided on the assumption that, on the first trial, the facts and conclusions of law thereon were found correctly. (Burnett agt. Phalon, 4 Bosw., 622; and see Butterworth agt. Warth, id., 624.)



PARENT AND CHILD. 1. Where a voluntary conveyance of real estate is made by a

daughter immediately on her arriving at lawful age, for the benefit of her father, the court will scrutinize the transaction with jealousy and suspicion; and the person relying upon such a conveyance must show affirmatively that it was made voluntarily; that its nature and effect were understood; that no misrepresentation or mistake induced it, and that no improper influ


ences of the father over the daughter were exerted to produce it. Althongh the evidence in this case fell short of showing either gross intentional misrepresentation and fraud, or threats and coercion on the part of the father over the daughter, yet the deed could not be sustained, as it was not the result of the deliberate, unaided and uncontrolled action of the daughter's own mind, but was procured by the agency of means and motives, and the sug

gestions of others. (Bergen agt. Udall, 32 Barb., 9.) 2. A stepfather is not clothed with the rights of a parent growing

out of that relation alone; but where a person adopted into his family, and brought up as such, an illegitimate daughter of his wife, held that he stood in loco parentis towards her, and could sustain an action for her seduction. (Bracy agt. Kibbe, 32 Barb.,

273.) 3. Where a child was duly surrendered by its father, its natural

guardian, by an instrument in writing signed by him, to the “ Brooklyn Industrial School Association and Home for Destitute Children," in accordance with its charter, and at a time when the father was near death, held, that such surrender was valid, and could not be affected by an order of the surrogate subsequently made appointing a friend of the child a general guardian. (People agt. Kearny, 32 Barb., 430; S. C., 19 How., 493.)


1. In an action brought by the people of the state, with certain

individuals named, claiming to be owners in fee of the property affected, for the purpose of declaring unconstitutional and invalid, an act of the legislature granting to certain individuals the right to lay down rails for a railroad in the city of New York, and for an injunction restraining the grantee named in the act, and the corporation of the city, from proceeding under the act, held, on demurrer, that the common council of the city was not a neces

sary party. (People'agt. The Mayor, dc., of New York, Ante, 144.) 2. Equity will reform an assignment in trust for creditors, making

preferences, where the draftsman has made a plain mistake in reducing to form the instructions or the expressed intent of the

assignor, but not his silent intent. (Smith agt. Howard, Ante, 151.) 3. But such an instrument will not be reformed upon the answer


of the defendants, when all the persons interested in the assign

ment are not parties in the action. (Id.) 4. Section 274 of the Code, that the judgment may grant to the

defendant any affirmative relief, does not apply to cases where the proper parties are not before the court, and can only be

brought in by cross-action. (Id.) 5. Evidence of mistake in reducing the assignment to writing is

not admissible to explain away the fraudulent intent expressed

upon the face of the instrument. (Id.) 6. An objection to the validity of a marriage settlement, on the

ground that the parties to it were infants, can only be taken by the parties themselves. It is not void, but voidable only, at the option of the infants on arriving at age. (Jones agt. Butler,

Ante, 189.) 7. Much less can a trustee, acting under the trust created by such

a settlement raise such an objection. (Id.) 8. It is well settled that an equitable defence may now be inter

posed to a legal action, and is equally available with a legal

defence. (Auburn City Bank agt. Leonard, Ante, 193.) 9. But in such case where the plaintiff does not bring before the

court the requisite parties to enable it to adjudicate finally upon all the questions in controversy, the defendant has no other course but to commence a new action in the nature of a cross-suit,

and bring in the requisite parties. (Id.) 10. And where the defendant brings a cross-action against the

plaintiff in the former suit, and others, for full affirmative relief in equity, which he has set up as an equitable defence in answer to the plaintiff's legal action, the plaintiff in the legal action cannot set up in answer to the equity suit, in bar, a former suit pending for the same cause; because the parties are not the

(Id.) 11. Under the old system of pleading, a plea in bar of the pendency

of a former suit for the same cause of action, always contained

an averment that the parties were the same in both actions. (Id.) 12. A person who applies for the discontinuance of a highway is

not a party within the meaning of the statute. The people are the real party in interest, and the applicant acts on their behalf.

(People agt. Wheeler, 21 N. Y. R., 82.) 13. Where an action to recover damages for fraud and deceit


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