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Patterson agt. Graves.

The referee, by his report, finds that the defendant used and occupied the land described in the complaint, under Mr. Havens as his landlord, from June 1st, 1848, to August 1st, 1850, and that such use was worth $45 per annum; and that the rent had been assigned to the plaintiff. That the dwelling- house was on the demised premises, and not on the land conveyed by Johnson to the defendant. That there was due from the defendant to the plaintiff, for such use, after deducting all payments and offsets, $33.75—and judgment was ordered for that sum.

It will thus be seen that the referee did, substantially, report upon all the issues found by the pleadings. He formally and technically reported upon them all, except that of payment; and he did upon that issue by necessary implication. If there was due, on account of the rent, $33.75 over all payments, it necessarily follows that it was not all paid.

The Code (§ 272) requires the referee to state in his report the facts found by him, and his conclusions of law. I do not understand that this provision requires him formally to report upon the issues formed by the pleadings. If there are issues on which there is no evidence, I do not think he is required to notice them in his report. He is to report the facts found by him : that is, the facts which the evidence before him proves. He should not report the evidence; that was not intended, and should be avoided. If evidence was introduced before the referee upon some material issue, and he has not by his report found the affirmative thereof as proved, and either party claims that he should have so found from the evidence, I am inclined to think that a case setting forth the evidence would, on appeal, present the question whether the report, in that respect, was against evidence, without the referee's stating in his report negatively that he did not so find. That it is sufficient for him to find affirmatively what facts are proved. The case of Van Steenburgh agt. Hoffman, (6 How. Pr. R. 492,) does not establish a different doctrine.

But that question is not before the court on this appeal, for,

Patterson agt. Graves.

as stated above, all the facts at issue between the parties are substantially passed upon by the referee in his report. · I think that the delay of the defendant in making the motion is a perfect answer to it. The motion was to set aside the report for irregularity. The defect therein complained of would, if it existed, constitute a mere irregularity; and it is unnecessary to cite authorities to show that motions founded on irregularity must be made the first opportunity. But if, as was claimed by the defendant's counsel on the argument, the defect was a substantial one-affected a substantial right—I do not think that is an answer to the delay.

The right to appeal to the general term is a substantial right, yet the Code requires it to be taken within thirty days after notice of judgment or order to be appealed from, or the substantial right is lost. There is no statute, nor standing rule of the court, prescribing the time within which such a motion as this must be made; but the practice of the court and the policy of the law require that it be done promptly.

The referee's report is dated October 1st, 1853, and a copy thereof was served on the defendant's attorney, October 11th, 1853. The affidavit on which the motion was based was not made until May 4th, 1854. Nearly seven months elapsed after the defendant knew, or should have known, of the defect in the report, before any move was made to have it correctedduring which time several special terms intervened, at which the motion might have been made.

The order appealed from should be affirmed, with $10 costs.

Aberhall agt. Roach.

NEW-YORK COMMON PLEAS.

SAMUEL ABERHALL agt. PHILIP Roach.

An adjournment of a cause for ten days, after trial commenced, hy a justice of

the peace, without the defendant's consent, is without authority, and renders the further proceedings void.

General Term, October, 1854.
The facts sufficiently appear from the opinion of the court.

I. T. WILLIAMS, for defendant.
CHAUNCEY SHAFFER, for plaintiff.

By the court-INGRAHAM, F. J. This action was for damages occasioned by negligently driving against the plaintiff's wagon. A question was put to a witness, whether the plaintiff hired another horse? which was admitted under exception. No special damages were claimed in the complaint.

This question should not have been allowed. It was immaterial. It neither tended to show the defendant's negligence, nor the injury to the plaintiff's property.

It is suggested that it is no ground of objection, because it is proven that the plaintiff's horse was useless for a week, and therefore the answer could have no bearing on the mind of the justice in rendering judgment. This is not very clear. He may have increased the damages for this reason, and, if so, it had an improper influence.

The justice, after commencing the trial on the 14th of April, adjourned, by consent, to the 20th, and again to the 28th of April. On that day the plaintiff applied for a further adjournment, on account of the absence of a witness duly subpænaed, which was opposed by the defendant, and the justice adjourned

Aberhall agt. Roach.

the cause to the 11th of May. This adjournment was without authority, and rendered the further proceedings void.

We have heretofore held, that an adjournment by the justice for ten days, without the defendant's consent, was unauthorized. (Redfield agt. Florence, January Gen. Term, 1854.) If such a power cannot be exercised before trial, there can be no possible reason for sustaining it after the trial has commenced. It is against the whole theory of the laws organizing these courts, which contemplate a speedy trial of causes pending therein. If a witness, duly subpænaed, does not appear, an attachment should be issued, and the trial not be commenced until the attachment is returned; after it has been commenced, there is no propriety in such an adjournment. I doubt whether an instance can be found, even in a court of record, where the court has adjourned a cause half tried, to procure the attendance of a witness, without the consent of both the parties. In a justice's court no such power exists.

Judgment reversed.

Hyslop agt. Randall.

SUPERIOR COURT.

Hyslop agt. RandALL.

A cause of action for a mere tort, in no way affecting property, cannot be so

assigned that the assignee can sue in his own name. The defendant, as the complaint alleged, falsely and fraudulently represented to

A., that B. & C. were worthy of credit: A., relying thereon, sold goods to B. & C., on credit, and was damaged thereby, and assigned the cause of action to the plaintiff. On demurrer to the complaint, held, that no action would lie in the plaintiff's name.

Special Term, April, 1855.

This cause came before the court on a demurrer to the complaint. The latter alleged that the defendant, to induce A., a merchant, to sell goods on credit to B. & C., also merchants, falsely and fraudulently represented them to be responsible, worthy of credit, and safe to be trusted; a sale and delivery of goods on credit to B. & C., relying thereon; that B. & C. were not responsible, or worthy of credit, or safe to be trusted; and their failure and inability to pay, whereby A. sustained damage; and a sale and assignment to the plaintiff of the cause of action against the defendant, arising from these false and fraudulent representations.

The defendant demurred to the complaint, and assigned for cause, that it did not state facts sufficient to constitute a cause of action; that the pretended cause of action could not be assigned, so as to give the assignee a right to sue in his own

name.

Wm. C. BARRETT, for plaintiff.
Chas. H. Hunt, for defendant.

BoswORTH, Justice. Section 111 of the Code requires every action to be prosecuted in the name of the real party in interest. But it also declares that such section “ shall not be deemed to VOL. XI.

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