Index.

PAGE

LANDLORD AND TENANT. When plaintiff may elect to sue for the rent due, and make the covenant in the lease his cause of action; or sue for the debt, and make the subsequent occupation his cause of action

523

When lease may be given in evidence to establish the relation of landlord and tenant, and to show the amount of the debt....... 523 Interest is recoverable on rent due, in an action for use and occupation....

LIEN. An attorney has a lien upon a judgment recovered by him for his client, and a right, as against the client, to collect it, and retain the amount of his services, &c...

523

... 136 The payment of taxes upon one of several lots sold on a mortgage foreclosure, out of the surplus moneys, discharges such lot from the lien of the taxes; and the lien cannot be reinstated or recharged, although the payment was made under a mistake of fact.....

424

A tender punctually made on law day (the day the mortgage moneys
are due) operates a discharge of the lien; otherwise, if not made
until after law day, unless the tender is kept good..... ..... 424

MANDAMUS.

DAMUS. When supervisors will be required, by mandamus, to col-
lect a judgment against the overseers of the poor of the town,
from such town.....

Allegations in the return not proved, denied by the relator, not to be taken as true on the trial.....

50

When mandamus the proper remedy, to quiet the title in reference

to a military office, &c.......

125

A mandamus will not lie to review a decision of a board of super-
visors, in auditing or disallowing a claim, where their decision
was a judicial determination.....

Where a specific duty is imposed by statute on public officers or bodies, they may be compelled, where it affects a particular party only, to exercise it by mandamus, although an action for damages may also lie...

204

.... 224

224

When it is proper to grant a mandamus to review the decisions of board of supervisors...

MARRIED WOMEN-Not bound by an executory contract. Their notes are now, as heretofore, void...

.... 17

17

The acts of 1848-9, in reference to, have not changed rules of plead-
ing-must be construed strictly..

Index.

MARRIED WOMEN. No purely legal action can be maintained on the promissory of a married woman...

note

PAGE

333

How they may be proceeded against in equity, to charge their sepa-
rate estates, &c. No personal judgment can be rendered against
a married woman for a debt contracted during her coverture, &c. 333
In an action against husband and wife, to set aside a deed of lands

made to the wife by her father, as fraudulent, &c., the answer
should be verified by the wife, as well as the husband
Private examination of a married woman is necessary only where
it appears she resides in this state
Where, on foreclosure of a mortgage, it does not appear where the
wife resided when she executed the mortgage, her private ex-
amination is unnecessary. The execution is good under laws
of 1848-9...
Where a married woman contracts a debt founded upon her separate
property, with the consent of her husband, the creditor has a
right to sue either or both, at his election..

........

MILITARY OFFICERS. In relation to the title of the office of brigadier general of the 7th brigade, N. Y., under the act of April 17, 1854, and the previous statutes, and the constitution..

395

441

441

501

... 125

MORTGAGE FORECLOSURE. The rights and privileges of a junior incumbrancer to redeem, and to subrogation in place of the original mortgage..

66

A junior mortgagee, whose mortgage is not due, has no right to call for subrogation of the first mortgagee......

66

On a foreclosure of a mortgage executed by the wife, without a private examination, the execution by her is good, where it does not appear she resided in this state. It is good under laws of

1848-9..

.....

A regular foreclosure and sale of mortgaged premises will not be set aside because the newspaper in which the notice of sale was published was not well calculated to give that general information which in such case should be afforded.....

441

444

When a mortgage sale will be set aside for a violation of verbal agreement, or understanding with the owner of the premises sold..

479

Manner of foreclosing by advertisement-affixing and serving no-
tice, upon whom, &c. Where sale to take place in the city of
New-York, &c...
490

MOTIONS-In actions triable out of 1st judicial district, cannot be made in that district.......

35

A motion to vacate an order of arrest must be made before justification of bail

94

Index.

PAGE

MOTIONS. Practice in the superior court in the city of New-York, in granting ex parte orders. When and how motions upon notice, or orders to show cause, can be moved. When and how defaults for not making motions can be moved, &c...... ..... 200 For costs and extra allowance, against executors and administrators, when and how made

... 300

.... 399

On a motion to put in an answer, or amended answer, the defendant
should embody it in his moving papers................
Where judgment is ordered for the plaintiff by reason of the frivo-
lousness of the answer, by a judge at chambers, leave should
not be given to amend the answer, or interpose a new one; the
defendant should be put to his motion at special term for such
leave.......

.... 399

An application for judgment to a judge at chambers, is not a trial of an issue of law. It is a motion, and only $10 costs can be allowed...

399

NEW TRIAL. Terms upon which it will be granted, where it is alleged

insufficient proof can be supplied....

..... 140

When motion for new trial is ordered at the circuit to be heard in
the first instance at general term, a direction staying the entry
of judgment upon the decision at the circuit, must be made.... 285
What entry by the clerk deemed a sufficient stay for entering judg-

ment

285

NON-RESIDENT DEBTORS AND CREDITORS. Non-resident creditors have a right to present their claims, and, if allowed, to share in the debtor's property here, under proceedings upon attachment against non-resident debtors.... ..... 344 When a discharge in bankruptcy in England extinguishes the debt of the creditor residing there; so that he is not entitled to share here in proceedings under attachment against such debtor...... 344

NOTICE OF THE PENDENCY OF ACTION—The filing, does not affect subsequent purchasers or incumbrancers until the complaint is filed.......

171

The filing of such a notice before the action has been commenced, by service of process, is a nullity......

171

The court has no power to order a lis pendens to be taken from the
files of the court, which has been properly filed.....
A defendant cannot, after the dissolution of an injunction, have a lis
pendens taken from the files, though its continuance may defeat
a contract of sale for the premises..

215

215

Index.

NUISANCE. The commissioners of emigration taking Castle Garden,
N. Y., as an emigrant depot, not a nuisance.....

When the allowance, by the landlord, of a nuisance, to the tenant,
amounts to an eviction, &c.......

PAGE

58

..... 340

An action to suppress a nuisance should be brought by those injured
by it not by the chamberlain of a city......
Where covenants against nuisances, &c., are inserted in an original
deed of the premises, they bind subsequent grantees to their ob-
servance, without being inserted in subsequent conveyances.... 551

ORDERS. Practice in the superior court of the city of New-York, in

200

granting ex parte orders. When and how motions upon notice,
or orders to show cause, can be moved. When and how de-
faults for not making motions can be moved, &c. ......
An order for the delivery of copies of books and papers to the oppo-
site party, under § 388 of the Code, is in the discretion of the
court or a judge. When such an order should not be granted.. 544

OVERSEERS OF THE POOR-When judgment against, officially, con-
clusive evidence of liability of the town to pay.

When super-

visors will be compelled by mandamus to collect the judgment
of the town, &e......

When overseers of poor become personally liable to pay a judgment
against them officially ...

PARTIES.

ARTIES. A joint demurrer by two or more defendants cannot be sus-
tained on the ground that there are too many defendants...... 17
What is meant by the term, "when a complete determination of the
controversy cannot be had without the presence of other par-
ties" Who are the proper parties to the complete determina-
tion stated, &c......

An improper joinder of parties not a ground of demurrer...
The people of the state is the proper party to bring an action (by the
attorney-general) to annul the charter of a corporation of the

state....

39

134

.... 187
The corporate authority of a city is the proper party to bring an ac-
tion against an incorporated company in the city, to restrain
them from exercising alleged privileges under their charter-not
a number of tax-payers individually...

187

Index.

PAGE

PARTIES. The committee of the person of an habitual drunkard may bring
actions on promissory notes he received as such committee, in
his own name, without describing himself as such committee. 297
Pleadings may be amended, by substituting a party as defendant, at
any stage of the proceedings, to further the ends of justice..... 293
A demurrer which specifies that the complaint does not state facts
sufficient to constitute a cause of action, cannot reach an objec-
tion that there is an improper joinder of parties.....

If the misjoinder of parties were a ground of demurrer, the objection
should be taken in the order prescribed by the Code. If the
order of objection for demurrer on that ground is passed, the ob-
jection is admitted for the purposes of the action ....
The rule that the complaint must show a joint cause of action against
all the defendants, is only applicable at law, and never did apply
in equity.....

A good cause of action stated in the complaint, in an equity suit, as
to one of several defendants, although not as to the others, does
not authorize a joint demurrer by all the defendants. A de-
fendant who is unnecessarily made a party, may, for that reason,
demur

PLACE OF TRIAL-Not changed, by referring a cause to a referee re-
siding in another county, from venue......

When amendment of complaint does not affect motion for a change
of the place of trial for convenience of witnesses, although it de-
stroys the issues on the original complaint and answer........
In an action affecting the title to lands, the court may change the
place of trial as matter of right.......

547

547

547

547

335

79

.... 465

Where one defendant makes default, and it appears that he is assist-
ing the plaintiff against his co-defendant, the latter may move
alone for a change of the place of trial...

PLEADING—Another action pending for the same cause; when suffi-
ciently definite and certain ...

465

... 193

The mingling together in the complaint of different causes of action,
will authorize a construction of the complaint, on motion, most
unfavorably against the party making it......

208

It will be presumed that the summons in an action is drawn before
the complaint, although the latter is served with it............ 208
It is immaterial whether the facts authorizing an arrest are, or are
not stated in the complaint.....

208

When a defence may be hypothetically pleaded, &c..

313

An allegation of a cause of action on a contract for the payment of
money, made by the defendant with a third person, should state
some facts showing how the plaintiff became the owner. Merely
alleging that he is now the sole owner of it is insufficient...... 321