PAYMENT--Where to be made when no place of payment stated, 178
See INTERPLEADER.
PHYSICIAN-See EVIDENCE.
PLACE OF TRIAL-Demand for change of, may first be served with
amended answer.....
PLEADING-Defence on merits will not be stricken out of pleadings,
because it also contains what may be considered a demurrer..... 319
Amendment. When complaint in action for partition not
amended at trial so as to allege the invalidity of a will under
which a defendant claims................
Complaint cannot be amended after verdict so that it shall de-
mand judgment against a defendant against whom no judgment
was originally asked..
Complaint. Where, in action for ejectment, what purports to
be description of property sought to be recovered is description
merely of a straight line, demurrer thereto on ground that it does
not state sufficient facts should be sustained.........
- Objection that complaint in action to recover proceeds of notes
alleged to have been converted by defendcnt, does not allege that
defendant received them in a fiduciary capacity when not suffici-
ently taken on trial......
The requirement of section 549 and 550 of the Code of Civil
Procedure that the ground of arrest in all cases except that sub-
stituted for the old writ of ne exeat, should be stated in the com-
plaint changed the nature of certain actions, by requiring the alle-
gation and proof of additional facts, but it did not authorize the
setting forth of conclusions of law...
Where the facts alleged show that money converted was re-
ceived in a fiduciary capacity, it is not necessary to allege in ex-
press terms that it was so received......
In action to have judgment foreclosing mortgage declared void
averments that court never acquired jurisdiction of plaintiffs, and
that judgment is void, are either characterizatious or conclusions,
and not averments of material facts ...
Instance of, which was insufficient because it failed to state
demand for performance of contract.....
326
Instance of complaint in action against railroad company to
compel payment of interest on bonds, in which it was held that a
contract that earnings of the road should apply to the payment of
interest after payment of "all expenses, including necessary re-
pairs," covered the building of its railroad when necessary, and
that, where expenditures for such rebuilding are claimed to be im-
proper, facts showing that they were not necessary repairs should
be alleged......
Allegations in complaint that defendant did certain things
wrongfully insufficient...
Allegations in complaint that the defendants did certain things
improvidently, and that certain work done by defendant was not
necessary for the maintenance and operation of its railway, are
not allegations of fact, and on demurrer should be disregarded.. 326
Demurrer. Allegations in complaint that defendant did
certain things improvidently, and that certain work done by de-
fendant was not necessary for the maintenance and operation of
its railway, state conclusions and not facts, and should be disre-
garded on demurrer....
A pleading defective because it states conclusions instead of
facts is not aided by the provision of § 592 of the Code of Civil
Procedure that a pleading is to be liberally construed........... ...
Where in action for ejectment, what purports to be descrip-
tion of property sought to be recovered is description merely of
a straight line, demurrer thereto on ground that it does not state
sufficient facts should be sustained........
Fact that causes of action stated in complaint are not separately
stated and numbered does not prevent demurrer thereto on
ground that causes of action have been improperly united....... 16
In action for libel, allegation that the publication was true is
new matter and may be demurred to as insufficient in law upon
the face thereof.....
Answer. Amended, supersedes all of defendant's former plead-
- In action for libel, answer alleging truth of parts of the publi-
cation is insufficient unless specifically pleaded as partial defense
or in mitigation of damage....
In action for libel, defense of justification should be as broad
as the charge and of the very charge attempted to be justified.... 343
Verification. A answer in action to recover damages for de-
ceit and false representations, must be verified if complaint is... 338
Section 523 of the Code of Civil Procedure, providing for the
omission of the verification of a pleading where the party would
be privileged from testifying as a witness, is limited by § 529. pro-
viding that a party is not excused from verifying his answer
where he is charged with any fraud affecting the right or prop-
erty of another....
PLEDGE-By pledge of chattel as security for debt its title does not
pass, but remains in pledgor until divested by sale upon notice or
by judicial proceeding, and the rights of the pledgor pass by
assignment made by him for benefit of his creditors...
Right of pledgee to hold possession of pledge not affected by
recovery of judgment on indebtedness secured thereby, nor by
appointment of receiver of pledgor's property in supplementary
proceedings and the extension of the receivership to the pledgee's
judgment.......
Pledgee of stock pledged without consent of owner cannot ap-
ply surplus realized upon sale to repayment of an individual loan
made by him to the pledgor......
PRIVILEGED COMMUNICATION-See EVIDENCE.
PROCEEDINGS SUPPLEMENTARY TO EXECUTION-See SUPPLE-
MENTARY PROCEEDINGS.
REAL ESTATE-See CLOUD UPON TITLE.
REAL PROPERTY-Purchaser of, with notice of equity attached
to it, takes subject thereto....
When purchaser has notice of restrictive covenant...
When purchaser conclusively presumed to have notice of re-
strictive covenant from record...♥ ..........
Inchoate right of dower of lunatic in her husband's real prop-
erty cannot be released......
Purchaser of land from husband of lunatic may properly re-
fuse to accept deed thereof executed by him and the committee
of the lunatic.......
RECEIVER-In action to prevent waste of funds of foreign corpo-
ration, upon proof of necessary facts court has jurisdiction to ap-
point receiver ex parte and although it has not acquired juris-
diction over the person of the defendant....
When judgment creditor liable for costs of action brought
by receiver and in which he was defeated.....
It seems that such costs cannot be paid out of money belong-
ing to judgment debtor.......
Payment of such costs should not be deferred until receiver
has collected assets belonging to the judgment debtor which he
is then pursuing...
RECORD-When defective record of contract restricting use of real
property does not prevent its being noticed to party purchasing
property...
REFEREE-Stipulation that referee fix the amount of his fees is
.... 149
When new trial must be had before referee after reversal of
former judgment....
RESIDENCE-See CORPORATION; Contract.
SECURITY FOR COSTS-May be required as condition of reviving
action in equity against executrix of deceased defendant........ 161
Requiring, in actions by or against executor, is purely discre-
tional with court....
May be required in such case even on appeal......
Court of equity has inherent power to require from plaintiff
even in case not within the words of the statute...
SERVICE-When party coming within state to testify as witness
not exempt from service of summons because he delayed his de-
parture too long.......
Exemption of non-resident coming here to testify as witness
from service of summons applies where the witness is sought to
be served as officer of a foreign corporation.......
What officer of corporation is not managing agent within
meaning of provisions of Code of Civil Procedure providing for
the service of a summons upon a corporation by delivering it to
its managing agent ....
434
Proof of service of summons upon foreign corporation by de-
livering it to its managing agent should show that diligent effort
had been made to serve the president, secretary or treasurer of
the corporation, and that they could not with due diligence be
found within the state.....
In such case mere allegation that person served was a man-
aging agent is insufficient, but the facts showing him to be such
should be set forth......
Defects in, of summons waived by obtaining extensions of
time to plead.....
SPECIAL PROCEEDINGS-See COSTS.
STATUTE-Penal, will not be so construed as to result in infliction
of punishment which may not have been intended. . . ...
In statute making failure to pay costs punishable as a con-
tempt, permissive expressions should not be considered as man-
datory..
See CODE OF CIVIL PROCEDURE.
STENOGRAPHER-See COSTS.
STIPULATION-When made in open court has same force and ef-
fect as if made in writing....
To refer remains operative so far as prescribing mode of trial
is concerned until cause is finally disposed of ......
That referee fix the amount of his own fees is invalid......
SUBMISSION OF CONTROVERSY-Court cannot draw inferences
with respect to fact not stated..
SUBSTITUTION OF ATTORNEYS-See BILL OF PARTICULARS.
SUMMARY PROCEEDINGS-Statute relating to summary proceed-
ings to be strictly construed..............
Petition in, in case of forcible entry and detainer, must set
forth petitioner's title or estate....
Simply alleging that petitioner is entitled to premises is not
sufficient
Jurisdiction not acquired where allegation of interest insuffi-
cient......
Technical objection will defeat....
Enforcement of warrant will be enjoined where petitioner's
interest in premises not sufficiently stated in petition ... .....271n
SUMMONS Jurisdiction is not acquired by city court of New
York by service of summons upon defendant without the state
requiring him to answer within six days..................
SUPPLEMENTARY PROCEEDINGS-When abandoned.
What use of, property not contempt....
Where a debt which cannot be levied on under execution is
paid to the sheriff pursuant to an order in supplementary pro-
ceedings, the lien acquired in the supplementary proceedings
follows said fund into the sheriff's hands, and the moneys should
be applied to the satisfaction of the judgment of the creditor
maintaining said proceedings, notwithstanding there is a prior
execution upon another judgment in the hands of the sheriff.... 235
- Property delivered to sheriff pursuant to order in supplemen-
tary proceeding is to be treated as if levied upon by virtue of an
execution issued by the judgment creditor who instituted the
proceedings....
Is substitute for creditor's bill in equity, and service of order
for examination therein gives creditor lien on assets of debtor... 235
When money deposited in lieu of bail cannot be reached in... 173
SUPREME COURT-See LUNATIC.
SURROGATE'S COURT-Extent of jurisdiction of, to construe will. 55
Jurisdiction of, is limited to case in which it is expressly con-
ferred by statute and to such incidental powers as are required
in the proper exercise of the powers expressly conferred........ 55
Assignee of claim against decedent may petition for its pay-
ment...
Power conferred upon surrogate by statute cannot be limited
by a rule made by himself, and a rule so made has no bearing
whatever upon the validity of an order made by him..... ..... 377
See APPEAL; COMMISSION; GUARDIAN.
TRESPASS-Instance of action to recover damages to plaintiff's
trees in which the evidence did not sufficiently show that de-
fendant had inflicted the injuries....
434
TRIAL-What claims cannot be litigated between defendants..... 253
A judge or jury called upon to determine a fact upon the tes-
timony of witnesses may properly refuse to credit the testimony
of a witness who is a party in interest, although it be wholly un-
contradicted and his credibility is not otherwise impaired....... 398
See PLACE OF TRIAL.
UNDERTAKING-Liability of sureties in, on appeal from justice's
VERIFICATION-See PLEADING.
WAIVER-When irregularity in executing commission waived.... 134
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