Marquisee agt. Brigham and Crandall.. BALCOM, Justice. This is an action on a promissory note, against Brigham as maker and Crandall as endorser. Judgment has been entered against the former, but the latter has answered. The plaintiff, upon a previous notice of five days, now applies to me, under § 247 of the Code, for judgment against Crandall, on the ground that his answer is frivolous. The answer is frivolous, and judgment is ordered accordingly, with ten dollars costs of the motion. Ten dollars is all the costs the plaintiff is entitled to on this application for judgment. It is not a trial of an issue of law. (Roberts agt. Clark, 10 How. Prac. Reps. 451; Rochester City Bank agt. Rapelje, 12 id., 26.) The defendant Crandall now asks for leave to amend his answer, or to put in a new one to the complaint. The plaintiff's attorneys object thereto, on the ground that I have no power to grant such leave on the plaintiff's application for judgment at chambers; and they insist that Crandall should be put to his motion at a special term on affidavits for such leave, so the plaintiff can oppose the motion on affidavits. If I have authority on this application at chambers to allow Crandall to amend his answer, or to put in a new one, which is very questionable, I am of the opinion I ought not to exercise it. Before Crandall should have leave to put in a new answer or an amended one, he should prepare it, and offer it to the plaintiff's attorneys; and if they shall decline to receive it, he must then make his motion at a special term for leave to amend his answer; or for leave to answer under § 174 of the Code. And he should embody, in his moving papers, the proposed answer, or amended answer, so the court may see what it is, and know that it contains a good or meritorious defence to the action. The order for judgment, however, may be without prejudice to the right of Crandall to move, at a special term, for leave to amend his answer, or to interpose a new one. Order accordingly. (See Tompkins agt. Acer, 10 Pr. Reps. 309.) Burgess agt. Stitt. SUPREME COURT. BURGESS agt. STITT. An affidavit for an attachment, which omits the title of the cause-does not state who "deponent" is, whether plaintiff or defendant-and in no part of which is either plaintiff or defendant individually, named, nor is it anywhere stated who is plaintiff or who defendant, is entirely insufficient. And it cannot be properly connected with a summons in the action so as to uphold it, especially where it appears the affidavit was made and sworn to a day previous to the issuing of the summons. New-York General Term, March, 1855. APPEAL from an order at special term denying a motion to vacate an attachment. L. C. PIGNOLET, for plaintiff. S. W. CONE, for defendant. By the court-MITCHELL, Justice. An attachment was taken out in this case April 1, 1854, and the affidavit of the plaintiff, together with the summons, and probably an undertaking, were submitted to the judge. The affidavit had no title, and did not refer to the summons or any other paper having the title; but being submitted with the summons very readily misled the judge. The affidavit does not state who the deponent, Burgess, is, or what he has to do with the suit; but states that "this action is brought for the recovery of the sum of $1,200 for goods sold and delivered by plaintiff to defendant," "part of which is secured by a promissory note of the defendant,” and "that the defendant is not a resident of this state-and that the defendant has property in this state." In no part of the affidavit is either Burgess or Stitt named, except that Burgess is the deponent; and in no part of it is it stated who was plaintiff or who defendant. It might, therefore, be used in an action to VOL. XII. 26 Warner and others agt. Nelligar. be brought by any plaintiff against any defendant-even by Stitt against Burgess. Such an indefinite affidavit cannot be the basis of any legal proceeding. To add to its defects, it was sworn to on the 31st of March, and no summons even was made out until the next day, the 1st of April; nor was any other paper than the affidavit prepared until the 1st of April. There is no possibility, therefore, of considering any of them as having been connected with the affidavit when it was made, so as by connection to sustain it. The order, denying the motion to vacate the attachment, should be reversed, with $10 costs of appeal and $10 costs of motion below-the defendant stipulating not to sue for the irregularity. MORRIS, J., concurred. SUPREME COURT. MICHAEL WARNER and others agt. Asa B. NElligar. By § 455 of the Code, the general provisions of the Revised Statutes, (2 R. S. 304, §§ 7, 8, 9 and 10,) relating to actions concerning real estate, are made applicable to actions brought under the Code, according to the subject matter of the action, and without regard to its form. It was intended to retain the convenient mode of pleading in these actions, as prescribed by the Revised Statutes. It is enough, therefore, for the plaintiff, in an action to recover the possession of lands, to state, what estate he claims in the land, and that he was in possession on some day after his title accrued, and that the defendant, having afterwards entered into the possession, unlawfully withholds such possession from the plaintiff. Albany Special Term, April, 1855. MOTION to strike out, &c. The action was brought to recover the possession of land. The plaintiffs stated that, on or about the 18th day of February, 1852, they were the owners, and lawfully possessed of the Warner and others agt. Nelligar. lands and premises described, and claimed to hold the same in fee, "under and by virtue of a deed thereof, executed by Gilbert Cropsey, late sheriff of Rensselaer, to the plaintiffs, on the said 18th of February, 1852, on a sale previously made by said sheriff of said premises, by virtue of several executions against said Nelligar." The latter clause, embraced in quotations, the defendant moved to strike out as irrelevant, &c. G. VAN SANTVOORD, for plaintiffs. HARRIS, Justice. In Lawrence agt. Wright, (2 Duer, 673,) Mr. Justice DUER seemed to think it was to be regretted that, in all actions relating to real estate, a compendious form of pleading, like that authorized by the 166th section of the Code, had not been prescribed. The learned judge had evidently failed to observe that the legislature had done precisely what he was inclined to approve. By the 455th section of the Code, adopted for the first time in the revision of 1849, it is declared, that "the general provisions of the Revised Statutes, relating to actions concerning real property, shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its form." The language of this section is obviously sufficiently broad, and was, no doubt, intended to retain the convenient mode of pleading, in the actions to which it relates, prescribed by the Revised Statutes. (See 2 R. S. 304, §§ 7, 8, 9 and 10.) It is enough now, as it was before the adoption of the Code, for the plaintiff, in an action to recover the possession of land, to state what estate he claims in the land, and that he was in possession on some day after his title accrued, and that the defendant, having afterwards entered into the possession, unlawfully withholds such possession from the plaintiff. It was, therefore, quite unnecessary for the plaintiffs to superadd to these requisite allegations, a statement of the conveyance under which they claimed to hold the premises. The statement, however, is made in a single sentence of five lines, Pearce and others agt. Beach and others. and cannot, by any possibility, prejudice the defendant, or embarrass him in pleading. While, therefore, I am inclined to grant the motion, on the ground that, technically, the matter is redundant, I do not think the plaintiffs should be charged with costs, especially as the decision in Lawrence agt. Wright, above cited, had left the question in some doubt as to the proper mode of pleading in such an action. SUPREME COURT. PEARCE and others agt. BEACH and others. It is not sufficient ground for setting aside an assignment for the benefit of creditors, that the assignees are men of limited means, and had been clerks for the assignors in their business prior to the assignment, where it appears that the assignees are men of unimpeached integrity, of mature years, and well acquainted with the character of the property assigned. And especially where it appears that a large majority of those interested in the assets express no wish for a change in the trusteeship. New-York Special Term, June, 1854. HENRY H. MORANGE, for defendants. ROOSEVELT, Justice. The assignment in this case, it is conceded, was not void on its face. Its invalidity is argued from circumstances; the principal of which are the insolvency and position of the selected assignees. Both were clerks of the failing house, and both were men of very limited means—one being embarrassed by an antecedent failure of his own. The answer, however, and I think it sufficient, to these objections, which, prima facie, might indicate fraud, is, that although |