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Mitchell agt. J. B. Hyde and Ann Maria Hyde.

willing to apply his property in satisfaction of the judgment, no receiver will be needed.

The objection, that the Code (§ 71) prohibits an action to be brought upon a judgment, does not apply: the prohibition is against what is known at common law as an action on the judgment: one in which another judgment is to be obtained only for the recovery of the debt contained in the first judgment. This action is not on the judgment, but on that and other material facts, namely, the ownership, by the defendant, of property held in trust for him, or for his benefit, or of debts due to him, and is not to obtain money against him personally, but the application of that property in satisfaction of the judgment.

If there should be any oppression in resorting to an action when the summary proceedings would be more proper, the court has a remedy in its own power in the disposition of the costs, as, in such actions, costs are in its discretion.

Judgment should be entered for the plaintiff, unless the defendant, within twenty days, put in an answer, and pay the costs on the demurrer.

SUPREME COURT.

SAMUEL L. MITCHELL agt. J. BURROWS HYDE and ANN
MARIA HYDE.

An averment in the complaint that the note was payable to the order of A——— B—, (the defendant,) and subsequently endorsed by him in blank, and transferred to the plaintiff, is a sufficient averment of the plaintiff's ownership or title to the note

New-York Special Term, March, 1855.

TRIAL by the court-mortgage foreclosure case.-The facts will sufficiently appear in the opinion.

Mitchell agt. J. B. Hyde and Ann Maria Hyde.

BURRILL, DAVISON & BURRILL, for plaintiff.
VAN BUREN & ROBINSON, for defendants.

COWLES, Justice. The first question to be disposed of is the objection raised by the defendants, that the complaint contains no sufficient averment that the plaintiff is the owner of the notes mentioned therein.

The complaint alleges that the notes were payable to the order of J. Burrows Hyde, subsequently endorsed by him in blank, and transferred to the plaintiff.

This, I think, is a sufficient averment of the plaintiff's ownership, or title to the notes.

An endorsement in blank makes the note payable to the holder, (James agt. Chalmers, 1 Duer, 52,) and, with the allegation that the notes were transferred to the plaintiff, makes out a sufficient averment that the plaintiff was the owner and holder of the notes in question. (Appleby agt. Elkins, 2 Sand. S. C. R. 672.) Besides, the answer itself is to be deemed an admission that the notes were originally transferred to the plaintiff, but sets up a subsequent parting with them to the Fulton Bank.

The objection, therefore, that the complaint does not show facts sufficient to constitute a cause of action, so far as relates to the plaintiff's title to the notes, is untenable, and the defendant's objection to that effect overruled.

The court find that the notes and bond and mortgage were given, made and executed as set forth in the complaint, and that they all belonged to the plaintiff at the time of the commencement of the action.

That the notes set forth in the complaint are due.

That the amount due, by the notes and bond and mortgage, on the 20th of March, 1855, was $5,151.63.

Upon these facts the plaintiff is entitled to a decree of foreclosure and sale of the premises set forth in the complaintwith costs of action.

The objection raised by defendants that the bank had no right to part with the notes, without a vote of the board of directors, cannot be sustained.

Dale and others agt. Fowler and others.

The Fulton Bank only received payment of a debt, but did not part with property within the meaning of the statute. (1 R. S. 591, § 8.)

Let the usual decree, with costs, be entered, that the premises be sold by the sheriff of the city and county of New-York.

SUPREME COURT.

DALE and others agt. FOWLER and others.

Where some of the creditors agreed in writing, with their debtors, to accept, in full satisfaction, the debtors' notes for forty cents on the dollar, payable in three and six months, and instead of the notes being given or tendered, the debtors made an assignment-held, that the debtors had waived the discount (sixty per cent.) and remitted themselves to their original indebtedness to those creditors.

New-York Special Term, 1855.

S. P. NASH, for plaintiffs.

JOHN NEWLAND, for defendants.

ROOSEVELT, Justice. The composition made by the defendants with their creditors, was in effect, if not in express terms, conditional. The creditors agreed, not to release absolutely and immediately, but to "accept in full satisfaction" the debtor's notes for forty cents on the dollar, payable, one half in three and the other half in six months. They could not accept the notes unless they were tendered. No tender was made, neither during the time the notes were to run, nor at any time. How, then, can the defendants, upon any principle, either of law or equity, claim to be released from sixty per cent. of the debt-a release, the right to which depended on their giving, at least, if not paying, the notes. From some cause, which the subsequent assignment probably explains, they would seem (as

Dale and others agt. Fowler and others.

they had a right to do) to have abandoned the privilege granted to them by the agreement. Certain creditors, whose co-operation was deemed important, may have declined to come in, and have thereby rendered the proposed liberality of the others of no practical advantage. At all events, those who signed did so upon the implied, if not express, condition that the debtors, if they intended to avail themselves of the proffered bounty, were to do so within a reasonable time, by giving their notes, if not immediately, at least before the periods of payment expired. Not having done so, the defendants have waived the discount, and remitted themselves to their original indebted

ness.

As to the assignment subsequently executed, it contained no stipulation for a discharge. On the contrary, it provided for an equal pro rata distribution of the assigned assets, and for the payment, if sufficient, of "all the debts and liabilities in full." It was executed moreover before the notes, if given, would have become due-and is conclusive evidence, therefore, that the debtors had abandoned all idea of continuing their business, or of availing themselves of the plaintiffs' proffered liberality. They divested themselves by the act, of all means of paying the notes, if given.

The eighty dollars accepted under the assignment operated only as so much received on account; and judgment must accordingly be entered for the full balance of the original debt, with interest and costs. (Good agt. Cheeseman, 2 Barn. & Adolphus, 328; Cranley agt. Hilliary, 2 Maule & Sel. 120.)

Rateau agt. Bernard and others.

SUPREME COURT.·

RATEAU agt. BERNARD and others.

An injunction should not be allowed or sustained on an affidavit or verified com. plaint, where the material allegations are made merely on information and belief.

New-York Special Term, Nov., 1854.

MOTION to dissolve injunction made on complaint and answer.

JAMES MORROGH, for plaintiff.

C. BAINBRIDGE SMITH, for defendants.

MORRIS, Justice. The complaint in this case is verified by James Morrogh, Esq., the attorney for the plaintiff, and is entirely upon information and belief.

The plaintiff is a citizen and resident of France. Mr. Morrogh states his information is obtained from letters written to him by the plaintiff, by information from merchants and others in the city of New-York, and from duly legalized certified copies of letters.

Mr. Morrogh does not verify a single material fact upon his own knowledge.

An injunction should not be allowed or sustained on an affidavit or verified complaint, where the material allegations are made merely on information and belief. (1 Code Rep. 114; 3 Prac. R. 327; 5 P. R. 327—and authorities there cited.) The injunction must be dissolved.

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