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30. Plaintiff's complaint alleged, in substance, that upon a final accounting by him as administrator of the estate of W., he presented to the surrogate certain instruments under seal, executed by certain of the next of kin (defendants herein), releasing him from liability for, and assigning to him their distributive shares of said estate; that the solicitor for said next of kin stated before the surrogate his intention to dispute the effect, force and validity of said instruments, and asked the surrogate to disregard them; that said surrogate announced his intention to disregard them, and was about to enter a decree in favor of the parties, whom he had 79

VOL. LVIII

paid and settled with, for a large amount, which would be to plaintiff's great and irreparable injury. It also alleged that Y., a daughter of the intestate, died prior to the accounting, leaving a will, which was left with said surrogate for probate, and probate applied for; but that no proceedings had been taken for that purpose, and the interest of the testator in the estate was unrepresented in the proceedings for settlement. Plaintiff asked that defendants be restrained from entering any decree requiring him to pay any sum to those who executed said instruments, and from entering any decree until the interest of Y. was represented before the surrogate. Upon demurrer to the complaint, held, that it did not state facts sufficient to constitute a cause of action. (Wright agt. Fleming, 76 N. Y., 517.)

31. To make a complaint good under the provision of the Code of Procedure (old Code, sec. 162; new Code, sec. 534), providing that in an action upon an instrument for the payment of money, it shall be sufficient to set forth a copy of the instrument and to allege that a specified sum is due thereon, the instrument so set forth must, upon its face, be a complete, valid and binding obligation. Where it is, upon its face, incomplete and invalid, and facts not stated in it, need to appear to show its validity, such other facts must be alleged. (Broome agt. Taylor, 76 N. Y., 564.)

32. Where a complaint upon a bond shows it to be the obligation of a married woman, it is essential to allege that it was given for some purpose, which would make it binding upon her; it is, prima facie, a nullity, and without such averments the complaint does not state a cause of action. (Id.)

33. The complaint herein alleged

that defendants executed their

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POLICE COMMISSIONER.

1. The mayor's power as to removal of a police commissioner is judicial and his judgment upon the question of removal is subject to review by this court on a certiorari; the accused official as a

right to know what the specific 1. One Huntington, after the recov

charges against him are; such charges if not admitted must be proven, and the defendant should be permitted to cross-examine witnesses and to call witnesses in his own behalf, and in these and other respects to be represented by counsel. (he People ex rel. Nichols agt. Cooper, ante, 358.)

ery of a judgment against him by the defendant, and shortly before the issuing of an execution thereon to the sheriff, executed and delivered to an assignee an assignment for the benefit of creditors, but at the time the execution was received the assignment had not been recorded, nor had the assignee given a bond or taken possession of the property. The sheriff, under the direction of the attorney for the judgment creditor, levied on certain of the property assigned by Huntington, but, in accordance with further directions from the attorney, took no further proceedings. Subsequently the property was sold by the assignee and a portion of the proceeds applied to the payment of defendant's judgment.

In an action by the sheriff to recover poundage on the value of the property so levied on, not exceeding, however, the amount collectable under the execution, held, that he was entitled thereto. (Benedict agt. Wright, 19 Hun, 27.)

2. If the return of the mayor to a writ of certiorari issued out of this court, to review his proceedings in making such removal, shows that in all or any of these particulars the relator in such proceeding was denied his rights, the mayor's proceedings must be reversed, and his decision declared to be null and void. (Id.)

That the relator did not have such a hearing before the mayor, as the twenty-fifth section of the charter entitled him to and, therefore, judgment should be rendered that the proceedings for the removal of the relator be in all respects reversed and set aside, and that the relator be reinstated in the office of police commissioner (See, also, the Matter of Sidney P. Nichols, 57 How., 395; The People ex rel. Nichols agt. Cooper, id., 463; The People ex rel. Cooper, agt. Special Term at hambers, id., 647; and The People ex rel. The Mayor agt. Nichols, ante. 200). (Id.)

3. The return of the mayor to the writ of certiorari, in which is given all the proceedings had before him, on which a certificate of commissioner Nichols' removal from office was transmitted to the governor, is given in full in the opinion, and it is held:

See NEW YORK (CITY OF).

The People ex rel. The Mayor agt.
Nichols, ante, 200.

POUNDAGE.

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(2d). The defendants (except Bristol and Hathaway) also appealed in like manner as did the plaintiff; that is from the entire judgment. On this appeal, too, the decision was, that the judgment should be affirmed, and it necessarily follows that the respondent, on this appeal, was entitled to costs. The court could not deprive the respondents on each separate appeal, of costs, because, they were awarded by law as a matter of absolute right. (Board of Supervisors agt. Bristol, ante, 3.)

PRACTICE.

3.

1. This action was commenced to recover of the defendant, Bristol, defaulting county treasurer, and his sureties, certain amounts of money alleged to have been misappropriated by Bristol. Such moneys belonged to several distinct funds, viz. the county fund, the infant heir fund, the asylum fund and the military fund. Judgment was rendered by the referee for a certain amount of county funds and costs. Both plaintiff and the defendants (except Bristol) appealed. The general term affirmed the judgment. The memorandum or decision was, "judgment affirmed, with costs.' The plaintiff thereupon entered judgment, having previously, on notice, taxed the costs of the appeal at $172.83, and issued execution to collect the original judgment and costs of the appeal:

There could be, regularly, but one judgment, both appeals having been heard together, and the judgment being one of simple affirmance whereby both were determined, that judgment should declare the affirmance, and should, in due form, award costs to the parties entitled to them by law, and against those who were by law bound to pay them. To this end there might be separate clauses in the entry of judgment. (Id.)

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Held (1st), that, as the plaintiff appealed from the entire judg ment and on this appeal the judgment appealed from was affirmed; not in part but in toto, the respondents were entitled to their costs by law as a matter of right.

2. The memorandum or order of the general term was "judgment affirmed, with costs:

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Held, that this memorandum should have been followed on the record, by a judgment declaring the decision or adjudication sug

gested by it, fully, as regards any, and all rights to which the parties were entitled under it. (Id.)

4. Where, as in this case, a set-off of costs would seem proper, a clause to that end, following explanatory recitals, might be entered, if not without application to the court certainly on application at special term. It was within the just scope and power of the special term to correct and perfect the record as regarded the proper entry of judgment upon the facts disclosed. (Id.)

5. The special term should have recognized the rights of the respondents on each appeal to costs; and should have directed a set-off of the respondents' costs on the appeal taken by the plaintiff in reduction of the amount of the recovery against the former, and limited the recovery and execution against them to the balance only. (Id.)

6.

An entry of judgment is irregular, which awards costs of appeal against a party who has not appealed. He is not chargeable with costs with his associate defendants, who, without him, took the appeal. The costs of the appeals are allowable against the appellants only, as to whom the judgment was affirmed. (Id.)

7.

Where, on action brought to foreclose a mortgage of real estate,

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issues of fact are settled and tried by a jury, and after verdict application is made to the court before whom the trial was had for judg ment on "the pleadings, proofs and answers of the jury to the questions submitted," and the trial judge approved and adopted" the verdict, but made emendations and additions thereto and certified other findings, using in their support the evidence before the jury, to which findings exceptions are filed, it is error in the trial judge to strike from the case the evidence before the jury and the exceptions thereto. (Chapin agt. Thompson, ante, 46.)

8. He should, in settling such a case, present, to be inserted, so much of the evidence as was requisite to show the grounds of alleged error, and so much as related to his additions and emendations to the verdict. (Id.)

9. The trial judge could not properly limit the review by striking from the case the proceedings had before him, on which the appellant predicates error. It does not lie with him, in settling the case, to hold that the grounds of alleged error were untenable, or that they could not be considered by the appellate court. (Id.)

10. Such case being in equity the judge was not absolutely bound by the verdict. He could have disregarded it and have made findings in accordance with his own views of the case. (Id.)

11. Quare, whether, under the last clause of section 1003 of Code of Civil Procedure, a party in an equity case is not bound by the verdict if he fails, before final judgment, to move to set it aside and for a new trial. (Id.)

12. The trial judge in an equity case, where the issues are tried before a jury, should hear the motion for new trial on the case made.

If he shall decide that such motion cannot be made after judgment, his decision can be reviewed on appeal. (Per BOARDMAN, J.) (IT)

13. Order allowing amendments striking out evidence taken on the trial before the jury reversed, and case and exceptions sent back to the trial judge for resettlement. (Id.)

14.

Where a plaintiff had, pending the action, transferred his interest and died, and after his death his assignee, on notice to the defendant alone, moves to be substituted as plaintiff, the motion should be denied for want of notice to the personal representatives of the deceased plaintiff. (McLaughlin agt. The Mayor, ante, 105.)

15. The charter of the city of New York conferred upon the mayor the power to remove the relator "for cause, after opportunity to be heard:"

Held, the power is not an arbitrary one, and can be exercised only upon just and reasonable grounds, and after notice; that the proceeding for removal must be instituted upon specific charges, sufficient in their nature to warrant removal; that such charges, unless admitted, must be proven; that on such proceedings the party has a right to cross-examine the witnesses against him, and to call witnesses in his own behalf, and to be represented by counsel; that these conditions must be complied with before the power of removal is exercised.

Held, further, that such proceedings are judicial and subject to review by certiorari, issuing from the supreme court. The powers of the supreme court to be exercised by the judges in general term, circuit, oyer and terminer or special term are conferred by the Constitution, and cannot be limited either by the legislature or by any power conferred by it upon the court itself. One special term,

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or one judge at special term, can have no more authority or power than another. (The People ex rel. The Mayor agt. Nichols, ante, 200.)

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16. Under section 232 of the Code of Civil Procedure, the justices of a judicial department may appoint the times and places for holding special terms. If, under this power, some terms are designated as special terms for equity cases and enumerated motions," and others as special terms for nonenumerated motions and chambers business," such designation, in so far as it limits the class of proceedings to be had at any special term, is subject to the control of the justice assigned to hold it. By designating a special term as one for non-enumerated motions and chambers business, the power of the judge presiding thereat cannot be limited. Such term would still be a special term, and the justice holding it would have all the powers of any judge holding any special term. (Id.)

17. The power of the general term to grant a writ of prohibition addressed to the special term, is to be exercised in the same manner and to the same effect as when it is issued to inferior courts and magistrates, and the inquiry relates only to the jurisdiction. Error or mistake in practice affords no foundation for the writ, unless it involves doing something contrary to the general law. (Id.)

18. There is no absolute right to a notice of eight days on enumerated motions. A shorter notice may be prescribed by a judge or court, under section 780 of the Code, and Rule 37 of the supreme court. The exercise of this power is subject to review. (Id.)

19. Bringing on for hearing a certiorari upon the return thereto, is like a motion for judgment on the pleadings, on the ground that the answer raises no issue of fact, and

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